BURMA: Court issues landmark ruling on death in police custody; two accused police themselves die under dubious circumstances
In a landmark ruling, a court in Burma has rejected the police version of events that led to the death of a man in their custody, and has opened the door to a charge of murder to be brought against the officers involved.
In its findings of 9 November 2012, a copy of which the Asian Human Rights Commission has obtained, the Mayangone Township Court ruled in the case of the deceased Myo Myint Swe that the death was unlikely to have been natural. Despite attempts by the police of the Bayinnaung Police Station to cover up the torture and murder of Myo Myint Swe, whom they had arrested over the death of a young woman, Judge Daw Aye Mya Theingi found that even though the investigating doctor had been equivocal about whether or not extensive external injuries caused by torture had resulted in the death, on the basis of the testimonies, written records and photographs submitted to the court, it was "difficult to conclude that the death was natural".
The ruling was issued to conclude a post-mortem inquest under section 174 of the Criminal Procedure Code, and therefore criminal charges do not automatically ensue against any persons responsible for Myo Myint Swe's death. However, the inference of the court that the death was unlikely to have been natural logically leads to the conclusion that someone was responsible for the death. And, as the nature of the injuries described in the courtroom testimonies, and recorded on the post-mortem inquiry findings, are such that they could not have been sustained by accident, the conclusion is necessarily that the police killed Myo Myint Swe. Further details of the original case are contained in the urgent appeal that the AHRC issued on the case in September: AHRC-UAC-176-2012.
Here we find ourselves in new territory. With the changing political environment in Burma, the case has the potential to be explosive. Very rarely have police officers been held to account for their crimes, and least of all, those committed on persons in custody. Against the backdrop of demands for accountability and the rule of law in Burma, the ruling of the Mayangone Township Court stands out as a major step into a new era juridically, as well as politically. Already the case has attracted a considerable amount of attention in the local print media, and with the family firmly demanding justice and refusing the attempts of police to silence them through payment or other methods, it is only likely to gain more attention in the coming period.
The case is attracting attention, of course, not only because of the specific circumstances relating to this one victim but because of the prospects that new enquiries might ensue into many other cases of death in custody documented in recent times. These include the case of Nan Woh Phan, on which the AHRC has written previously (AHRC-PRL-046-2012), who in March 2012 fell from the fifth floor of the Bureau of Special Investigation headquarters during interrogation over her Japanese partner's alleged illegal business transactions. After holding press conferences in which he alleged that the BSI had murdered Woh Phan, Namase Motohiko was himself taken into custody where he has since been held without bail. An inquiry disciplined a number of officials for negligence over the death and the matter has been closed. The whole thing smells something rotten, and it is only a matter of time before inquiries into the case must be reopened. In the meantime, the AHRC has called for the release on bail of Mr Namase.
Other cases on which the AHRC wrote previously that more closely resemble that of Myo Myint Swe including those of Aung Hlaing Win, Maung Chan Kun and Maung Ne Zaw.
Aung Hlaing Win ( ) military intelligence in Rangoon abducted in 2005 and tortured to death. They informed his wife about it some days after he was already dead and cremated, by them; however, in a post-mortem inquest they did not deny that they had held him and had interrogated him but that they were not responsible for his death. Nonetheless, a doctor recorded that he had seen external injuries on 24 places on the body, including that he had multiple fractured and broken ribs, and that his body was dehydrated, indicating that he had not been fed or given water in custody. Notwithstanding, the doctor concluded, incredibly, that the death was the result of an enlarged liver, tonsillitis and pneumonia. The court found that his death was "natural".
Maung Chan Kun (AHRC UA-023-2007) policemen in Pantanaw took from his wife's family's house late at night in 2007. The next morning he was lying dead in the hospital with injuries all over his body. Many persons saw Chan Kun's body at the hospital, and photographs and other details were recorded in addition to the official autopsy. The township court concurred with the police and medical record that he had died of malaria, and closed the case.
Maung Ne Zaw (AHRC UA-222-2006) Special Anti-drug Squad police in Kachin State, near the China border in 2006 beat to within in inch of his life and he subsequently died in custody having received no medical attention; his mother fled to Thailand after constant harassment and threats due to her attempts to obtain justice. A court in this case ruled that his death was due to malaria, HIV and pneumonia.
These cases are just a few of those deaths in custody that the AHRC has documented over the last decade that now in a sense ride on the case of Myo Myint Swe. For if the family of this victim of torture and killing can succeed in bringing charges against the police responsible, they will give renewed hope to the relatives of countless other victims, including those just mentioned, of the last few decades in Burma.
So far there are few signs that this will be the outcome. Prior to the court reaching its verdict, on October 19 an internal police inquiry reportedly already issued sanctions against 11 police officers involved in the incident. Two senior officers received reprimands, while the others received disciplinary punishment ranging from suspension of promotion to demotion and dismissal. The AHRC is aware that police in Burma commonly receive disciplinary punishments of this sort and escape any form of criminal prosecution for torture, killing and other gross abuses of human rights committed in custody.
Therefore, the Asian Human Rights Commission joins with the family of the deceased and his lawyers to call for the laying of charges against the police officers allegedly involved, and for the initiating of a wide-ranging special inquiry against those who have attempted to cover up this killing in the manner of all those described above. It encourages the local media especially to continue to follow and report on the case closely, since the efforts of journalists to raise questions and report on the case have clearly given it impetus.
The AHRC is also alarmed to learn that the officer dismissed from duty, Police Corporal Win Zaw, reportedly died in the Rangoon General Hospital just three days before the inquiry handed down its findings, while another officer among the 11, Inspector Ngwe Soe, reportedly died in the Sittwe Hospital on November 12. At this juncture, the AHRC lacks information on the deaths to confirm the circumstances; however, that two officers involved in the same case would die within a short time of one another is strikingly unlikely to have been coincidence, and suggests that in order to get to the bottom of the killing of Myo Myint Swe in custody the police may have resorted to the same types of methods that led to his death in interrogating their own.
Additionally, the AHRC takes this opportunity to note that it was police torture that evidently resulted in Myo Myint Swe's death, including various forms of assault and the technique of running a truncheon or roller along the shins of the victim until the skin literally peels away; and which may have resulted in the deaths of the two officers accused of involvement in the crime. Currently, Burma has no law to criminalize the use of such torture. With this case, members of parliament should take up the question of torture in earnest, and push for their country first to sign the UN Convention against Torture, and then to introduce and implement a domestic law to prohibit the practice of torture, which has scarred too many people, and with them the whole of Burmese society, for far too long.
Lastly, the AHRC calls on international human rights groups and others concerned about conditions in Burma to pay more attention to this case, and others like it, and to do more to raise debate about the steps needed to effect real institutional changes to accompany efforts to bring about a new political reality in the country. It is all very well for international agencies to offer technical training programmes and spend money on projects to build police capacity or structural rearrangements for good governance and the rule of law, but all of this will amount to very little if the police are able to carry on arbitrarily detaining, torturing and killing people in their custody, lying and colluding with others after the fact, and cajoling or threatening the relatives of victims into silence.
Furthermore, talk of democratisation itself will quickly develop a hollow ring for ordinary people in Burma if they continue to suffer at the hands of state agents the same as in earlier times, leading to a loss of confidence in the prospects for political change that could prove to be profoundly damaging.
The case of Myo Myint Swe is exceptional not for what happened to him, but for the fact alone that a court has cast grave doubt on the version of events that the police have tried to feed it. How many other Myo Myint Swes are there whose cases have never come to light, whose deaths occurred shrouded in darkness and mystery, and who had nobody to fight for them when the fight was needed? These are the types of questions that those persons concerned with human rights and the rule of law ought to be asking themselves today, and acting upon.