BURMA: Confusion begets arbitrariness and abuse, AHRC says

(Hong Kong, December 9, 2010) The excitement and uncertainty generated by the release of Aung San Suu Kyi in November, immediately following thoroughly rigged elections reflects the principle of government through confusion and the un-rule of law that Burma’s military has used to remain in power for half a century, the Asian Human Rights Commission (AHRC) said on Thursday. 

In its annual reports on human rights conditions in Asia released to coincide with International Human Rights Day, December 10, the Hong Kong-based regional rights group says that the government-through-confusion principle “underpins the un-rule of law in Burma to which the Asian Human Rights Commission has pointed, described and analyzed through careful study of hundreds of cases and attendant information over the last few years”. 

“Whereas the rule of law depends upon a minimum degree of certainty by which citizens can organize their lives, the un-rule of law depends upon uncertainty. Whereas rule of law depends upon consistency in how state institutions and their personnel operate, the un-rule of law depends upon arbitrariness,” it writes in the introduction of the 17-page chapter on Burma. 

“Whereas rule of law is intimately connected to the protection of human rights, the un-rule of law is associated with the denial of rights, and with the absence of norms upon which rights can even by nominally established,” it adds. 

In the report, the regional rights group describes the November elections in Burma as farcical not so much because of the specific fraud that was perpetrated on the day of the balloting but because of the lack of minimum preconditions for the holding of elections, including the lack of impartial or credible institutions to resolve disputes arising from the electoral process. 

It refers to a number of cases speaking to the un-rule of law in Burma, including the case of 
Maung Nyo and Ma Thanda Htun, who were tortured and convicted without evidence in a closed court for for having travelled illegally to Thailand so as to obtain support for projects among survivors of the 2008 cyclone, and the case of monk U Gawthita, who was also arrested on returning home from a trip abroad to obtain money for humanitarian activities. 

The AHRC also examines how the deep perversion of all legal and governmental institutions in the country through endemic corruption is intertwined with the persistence of human rights abuses. 

“An attendant feature of systemic corruption is the failure of procedures on which the system is dependent. When the failure reaches the proportions found in Burma, it ceases to be a justice system at all,” the group says, citing a variety of routine procedural violations caused by corrupt practices that engender further abuses and the denial of basic rights to criminal defendants of all types. 

“In the absence of any kind of reliable record keeping, anything else also is possible; confusion reigns, not as a matter of circumstances but as a matter of policy, and with it so too does systemic violence,” the AHRC adds. 

The group illustrates its argument by highlighting a number of cases of police assault and torture among the dozens that it documented in 2010, including a savage attack on a group of men in Pegu caused by a mobile phone with a camera. It also outlines three cases of extreme torture on which it submitted a special dossier to United Nations agencies during 2010: the cases of Nyi Nyi Htun, Than Myint Aung and Phyo Wai Aung, all of whom are imprisoned despite detailed depositions of the grave abuses that they suffered during interrogation. 

It highlights the absence of avenues for effective complaints in Burma, and expresses concern that despite this absence “the international community has played along with the charade that some sort of means do exist to protect human rights in the country, and shamefully, some agencies have even acted as conduits for government propaganda, claiming that, for instance, the police force in Burma is proactive in efforts to address trafficking or child prostitution”. 

The report concludes with an examination of the case of a human rights defender and husband imprisoned on the basis of a complaint by medical doctors, which the AHRC says speaks to the difficulty that the international community has in understanding the character and extent of human rights abuse in Burma, and to the need for more in-depth studies of what is going on in the country upon which to devise better-informed interventions. 

Some extracts from the report follow.

The AHRC has prepared similar reports for other countries throughout Asia, including the Philippines, Indonesia, Thailand, Cambodia, India, Sri Lanka, Bangladesh, Nepal and Korea.

All reports can be downloaded from: http://www.humanrights.asia/resources/hrreport/2010/

The report on Burma is available in PDF format directly from: http://www.humanrights.asia/resources/hrreport/2010/AHRC-SPR-002-2010.pdf

Extracts from the Asian Human Rights Commission 2010 Report 

Elections without norms 

The operating principle of government by confusion was manifest throughout the holding of the November 7 elections and their aftermath: right up to the date of the elections, citizens and participating parties had little–and in some areas no–information on how ballots would be counted, tallied and reported. After the voting was completed and ballots were stuffed with thousands of so-called advance votes to ensure the success of military-backed candidates, there was no information on when and how official results would be made known: these details trickled out through a variety of sources over the coming days. And even with the results becoming known, the manner in which the parliament would be brought to assemble, the date that this would happen and other issues remained obscured, in accordance with the government-by-confusion principle. 

But the election process in Burma on 7 November 2010 was farcical not so much because of the manner in which the elections themselves were conducted but because of the absence of a variety of minimum conditions for the holding of elections, which meant that irrespective of the specific procedures adopted for their undertaking, the results could not amount to anything other than what the military regime permitted. These absent minimum conditions included the absence of a judiciary capable of addressing and settling disputes arising from the electoral process; and, the absence of rights to associate or speak freely, or any guarantees for the protection of such rights. 

In some countries, courts without effective authority over matters that are technically within their domain go through the pretence of hearing and deciding on these things at least to impress on the government and public that they are cognizant of their responsibilities, even if they cannot carry them out. They may still have a degree of self respect that requires the keeping up of appearances. But the courts in Burma have lost even these minimal qualities of a judiciary. Therefore, it is no exaggeration to say that Burma is without a judiciary–at least as far as any planned elections are concerned–and that as a consequence the notion of an electoral process as understood elsewhere was in Burma not surprisingly an absurdity. 

Constitutional un-rule of law 

One consequence of the November 7 elections was to usher Burma back into an era of formal constitutionalism. But it is not a constitutionalism that can in any sense of the word be associated with the rule of law. This is because the 2008 Constitution is from a human rights perspective a norm-less constitution. All rights under the type of constitutionalism that the army in Burma aims to practice are qualified with ambiguous language that permits exemptions under circumstances of the state’s choosing. For instance, the right to association, described above as absent from the electoral process in 2010, is in the 2008 Constitution confined to whatever the state allows, rather than a right in any sense of the word as ordinarily understood. Under its section 354, citizens have a “right” to form associations that do not contravene statutory law on national security and public morality: which again can be construed to mean literally anything. 

A key feature of the constitutional un-rule of law is that ostensibly legal institutions work to prohibit rather than protect the enjoyment of human rights. For instance, the police force does not perform its functions as a discrete professional civilian force but as a paramilitary and intelligence agency under command of the armed forces. Policing functions are also shared among other parts of the state apparatus, including with executive councils at all levels that supervise and oversee other agencies, and with other local bodies, including the fire brigade and a government-organized mass group. At the same time, specialized agencies, in particular the Special Branch, operate as proxies for military intelligence, rather than as autonomous investigators of crime. Consequently, the characteristics of policing and prosecutions in Burma include: routine arbitrary arrest and detention; common use of torture and other forms of cruel and inhuman treatment, and frequent deaths in custody; coerced signing of documents that have no basis in law; baseless and duplicated charges; and fabricated cases. 

Endemic corruption 

Successive governments in Burma, including the current administration, have themselves acknowledged the incidence of corruption either directly or indirectly, including in the judiciary. However, because this corruption is intimately linked to the operating principle of government by confusion, it cannot be addressed in any meaningful way. On the contrary, anecdotal evidence points to its persistent increase with the privatization of state-owned enterprises and the increase in market-style economics in Burma. With the emergence of a semi-elected, semi-civilian but undemocratic parliament, this corruption is likely to escalate dramatically, as rampant cronyism and wanton opportunism combine with continued military control of the state in Burma and powerful persons look for every chance they can get to make the largest amount of money through the easiest possible means within the shortest period of time. 

Practically every step in an ordinary criminal case in Burma can be accompanied by payments of one kind or another, which have a profound effect on the already extraordinarily limited avenues that citizens have available to them for redress of wrongs. Payments occur to get a case registered, to get it lodged in court, to get it heard as scheduled, to receive copies of documents, to secure a conviction or acquittal, to get the case accepted on appeal, and so on. 

Among the most important parts of the profit-making process in Burma’s legal system is the granting of bail. Like in those cases described above, the methods of using and manipulating bail involve all parties in the system, including the police, prosecutor and judge, who at various stages have different important roles to play. In the beginning, the police are the most important persons for an arrestee. The police will initially lodge–or threaten to lodge–a non-bailable charge against the accused. In some cases an accused may be able to negotiate with the police to switch to a bailable charge. This depends in part on whether or not the police have taken the initiative to lodge the charge, or whether someone has paid them to do it, in which case they may take money only not to maltreat the detainee, but will not take money to alter or drop the charge, depending on the amount paid by the other party. Where a detainee cannot get the police to alter the charge, the matter goes to the prosecutor. The prosecutor, or law officer, is responsible for lodging the charge in court. If the accused is able to negotiate effectively with the prosecutor, through his lawyer, then the prosecutor will agree to lodge a bailable offence in court. 

Whether the decision to lodge a bailable offence is made by the police or by the prosecutor, the judge makes the final decision on whether to finally grant bail or not. At this stage the detainee must again have made arrangements through the lawyer to ensure that bail is granted. In fact, it is in the interests of the judge and of all parties not only that the threat of remand is used to identify detainees with the means to pay their way out of custody, but that those detainees who do have the means are given bail. The reason is that once a price is fixed the detainee will usually make a down payment but then have to raise the rest of the money. This is not easy to do while in custody. Therefore, bail is granted so that the defendant can raise the money. 

An attendant feature of systemic corruption is the failure of procedures on which the system is dependent. When the failure reaches the proportions found in Burma, it ceases to be a justice system at all. Charges are argued even though patently in violation of the law. Judges take up cases involving minors that should be handled by juvenile courts. Sometimes judges are paid to falsify records so that minors appear as adults. Search and seizure forms also are invariably incomplete or wrongly recorded. Under the law, they must be filled out at the place searched and where the items are seized. In fact, police collect items at the site of an incident and bring them back to the police station where they complete the records. They use standard witnesses instead of those at the scene of the search as required by law. And in court, it is a requirement that a witness testimony be read out before he or she sign it; however, very often this requirement is dispensed with and a witness simply told to sign after they have spoken and the written record is ready. This allows both the judge and the clerk to change the contents of the record to suit one party or another. These methods defeat the whole purpose of these records, as there is no longer any accurate picture of what has happened during the police, prosecution or court work. In the absence of any kind of reliable record keeping, anything else also is possible; confusion reigns, not as a matter of circumstances but as a matter of policy, and with it so too does systemic violence. 

Endemic violence & torture 

Anecdotally, the use of assault and torture in Burma is extremely common. Torture is committed in various facilities in Burma, and although it is prevalent in a wide variety of cases, many of the cases where the accused suffer the most grievous forms of torture are cases of political or national security concern. 

The use of torture in criminal inquiries is by no means unique to Burma, and is unfortunately all too common in other countries of Asia and many around the world. However, in Burma the particular problem that complainants face is not only that they have been tortured to confess but also that there are literally no legal and institutional measures to support their complaints or bring action against the alleged torturers. There is no law to prohibit torture or institutions capable of investigating or prosecuting it. On the contrary, the courts and other parts of the legal system encourage the use of torture in cases like this, because they consistently admit evidence and confessions obtained from investigations in which the police have used torture, and because when accused persons retract their confessions and allege torture in court, the judges reject their allegations on the spurious basis that the defendants have no proof. 

The institutional encouragement of torture is manifest in the belief in complete impunity among the police officers and other personnel who commit abuses of the sort described above. In Phyo Wai Aung’s case, an officer named Inspector Swe Lin allegedly told him that, “If you die it’s nothing to us”, while another, Police Major Tin Kun, said that, “Since all the accused have absconded abroad, we’ll interrogate until you can’t take it. We’ll call your family and torture you in front of them.” These expressions are indicative of thinking in a police force in which torture is endemic and the police are predominant, as in Burma, where their power greatly exceeds that of the judiciary. 

The institutional encouragement is also manifest in the complete lack of avenues for complaint or redress in Burma. According to the complaint in the case of Nyi Nyi Htun, after he was transferred into police custody at Aungthapyay camp the officers there in fact recorded his injuries and had a medical examination done before transferring him to prison for trial. In other settings, that an objective record of the injuries sustained to the victim through torture exists would be sufficient grounds to warrant special inquires. The written records and photographs could be scrutinized, the doctor who conducted the medical examination called and other steps taken to ascertain–perhaps under public pressure–what happened. But in Burma the victim can have no such expectations. The second police unit having taken the record seemingly buries it along with everything else, while the victim proceeds to jail, to some kind of trial, and back to jail. The victim may wind up making any number of urgent requests to the highest authorities for action to be taken against the alleged torturers, to no avail. 

The lack of legal or judicial avenues for complaint and inquiry into allegations of torture is acknowledged by the fact that complainants in Burma can do no more than submit complaints to the national leadership to request that action be taken against perpetrators. Where these complaints go, who reads them and whether or not any action is ever in fact taken nobody knows. This process of complaint making is feudalistic, in that it resembles the making of plaints to an ancient absolute monarch with discretion to decide whose complaints are acted upon and whose are simply ignored. It is the exact opposite of what the contemporary human rights movement represents and aspires to and indeed, in this respect emblematic of the state of human rights in Burma as a whole. 

Despite these feudalistic conditions, the international community has played along with the charade that some sort of means do exist to protect human rights in the country, and shamefully, some agencies have even acted as conduits for government propaganda, claiming that, for instance, the police force in Burma is proactive in efforts to address trafficking or child prostitution. Whether in making such absurd statements these agencies are victims of the confusion that the regime has sought to engender, whether they are cynical and willing participants in its charade or whether they have perhaps bought into their own propaganda is largely beside the point: the fact remains that through them not only is a dramatically false impression of what is actually going on inside the country being propagated, but the chances for more effective international intervention in the situation of human rights in Burma are being greatly diminished. 

Human rights defenders and the limitations of the global human rights movement 

No matter the amount of pressure, the systemic obstacles to effective intervention into human rights cases in Burma remain, and will remain for the time being, irrespective of superficial political changes following the November 2010 elections. Among these obstacles, the single most pronounced is the absence of an independent judiciary, as discussed above. In the absence of an independent judiciary, it is then pointless to make statements calling for a trial to be fair or for an independent inquiry into some violation of rights, because no institutions exist for these things to happen. The sad fact is that in the 21st century, conditions for victims of rights abuse in Burma are little different than they were three or four hundred years ago. The availability of computers and email notwithstanding, profound inequality between rulers and ruled underpins all relations and transactions between state and society. This same notion of inequality, and all its anti-human rights and anti-democratic implications, has been woven into the fabric of the 2008 Constitution and the measures being introduced for a proxy semi-civilian parliament. 

On top of that sad fact is the added fact that the global human rights movement has been unable to do anything much about it. Burma is an example, together with Sri Lanka, Cambodia, and some other countries in the Asian region, of how a country that is a relatively small player in global affairs is able to make it difficult, even nigh impossible, for the global human rights community to contribute to meaningful change of any sort in its domestic conditions. This fact is now increasingly recognized by people in Myanmar themselves, who up to 2007 had still held strong hopes that a combination of domestic activism and international intervention could bring about change, but who saw with the failed nationwide monk-led uprising of that year and during the massive cyclone that hit them in the next that the United Nations and its apparatus was unable to have any discernible lasting influence on their lives or the future direction of their country. 

Where does that leave the global human rights movement? What further role can United Nations human rights agencies play? There are no easy answers to these questions, but clearly there is also a tremendous amount of room for more in-depth studies of developments in Burma over time, approaching the notion of state control there in terms of the basic principle of government by confusion, rather than in terms of generic normative frames–like abstracted concepts of the rule of law and human rights as found in western academic debate–that are completely unrelated to the true situation in the country, and where there are practically no points on which such concepts can be anchored, at least not without extensive study and careful consideration of the real conditions. Failure to undertake such studies and approach the situation there in terms of what is actually going on rather than what ought to be will only result in more commentators and analysts expressing perplexity from afar at events and behaviour that do not correspond with their birds’ eye views of government and statecraft. Undertaking such studies and starting with the lessons learned through work on the country–including that government by confusion is deliberate, not coincidental, and therefore for people to be perplexed is precisely the point–may not lead to any easily identified and obtained answers of the sort that think tanks and international agencies need for lists of recommendations, but may lead to a better understanding of what is going on in Burma and why, through which some starting points for further work can be found, and without which any work on human rights and the rule of law will be pointless.

Document Type : Press Release
Document ID : AHRC-PRL-035-2010
Countries : Burma (Myanmar),