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BURMA: Abuses remain "systemic, entrenched", AHRC warns

December 9, 2011
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(Hong Kong, December 9, 2011) Despite signs of political change and the easing of restrictions on freedom of expression in Burma, rights abuses remain "systemic, deeply entrenched and vast in scale", the Asian Human Rights Commission said today in its annual State of Human Rights in Asia report. 

The 17-page Burma report, entitled "From blinkered to market-oriented despotism" synthesizes and analyses a number of key human rights issues from throughout the year, including civil war, land confiscations, the passing of anti-poor and anti-democratic laws in the new semi-civilian parliament, the absence of a judiciary capable of protecting human rights, and ongoing detention of political prisoners.

"It is obvious that none of the instruments and institutions available for the making of complaint of rights abuses in Burma come remotely close to what under international standards would satisfy the requirements for remedies for human rights violations," the AHRC said.

"Despite the political changes of the year and associated fanfare, the judiciary in Burma remains inert, tied to the executive, and incapable of performing even basic functions for the defence of human rights," it added.

Wong Kai Shing, director of the Hong Kong-based regional rights group, said that it was good that rule-of-law issues in Burma are starting to get attention, but that it would be a long time before judicial institutions could work to protect human rights, even if the political will exists.

"The beginning of a discussion on rule of law in Burma is enormously important, but the amount of work that will have to be put into giving meaning to rule of law there is enormous," Wong said.

"In the meantime, economic and social conditions are changing quickly, and will change even more quickly in the next few years, and our concern is that this change will fast outpace any equivalent change for the better in institutions for the rule of law," he added.

The AHRC in its report highlighted the increasing incidence of land grabbing in Burma by companies linked to the army.

"This is an emerging phenomenon in Burma and one that we have to document and research carefully to understand its characteristics and implications," Wong said.

In the past, land grabbing in Burma was conducted mainly by the armed forces and other state agencies directly, but increasingly in the last few years it has been linked to private economic interests.

"Our concern is that within a few years Burma could go the way of Cambodia, where land grabbing is massive and practically no legal or institutional arrangements exist to do anything about it," he added.

The report also includes details of a number of cases of illegally or unjustly imprisoned people on whose cases the AHRC is working, including those of Htun Oo and 13 other persons charged over a bombing in Pegu during 2010; 22-year-old Kaung Myat Hlaing, sentenced to 10 years in jail for allegedly sending some politically oriented photographs through the Internet; six men in 2010 were accused of having contact with an insurgent group in the east of Burma, one of whom was tortured to death during interrogation; and, the case of U Gambhira, a monk who was at the forefront of the 2007 protest movement.

The report is available online at: http://www.humanrights.asia/resources/hrreport/2011/AHRC-SPR-004-2011.pdf/view.

Some extracts from the report follow.


BURMA: From blinkered to market-oriented despotism?

Since a new quasi-parliamentary government led by former army officers began work in Burma (Myanmar) earlier this year, some observers have argued that the government is showing a commitment to bring about, albeit cautiously, reforms that will result in an overall improvement in human rights conditions.

The question remains, though, as to whether the new government constitutes the beginning of a real shift from the blinkered despotism of its predecessors to a new form of government, or simply to a type of semi-enlightened and market-oriented despotism, the sort of which has been more common in Asia than the type of outright military domination experienced by Burma for most of the last half-century.

From farmlands to factories
While much of the current discussion about economic reform has concerned changes to the banking system, foreign exchange, and investment laws, none of these issues go to the problems of massive poverty afflicting millions of people all across the country, or the ever-growing gap between the wealthy few and the many poor.

One cause for particular concern, and one that the AHRC has followed closely, is the convergence of military, business and administrative interests in new economic projects aimed at displacing ordinary people from land.

Concerns over the future of farmers and rural dwellers in Burma were heightened, rather than diminished, when during the second sitting of the new semi-elected parliament in Burma this year, the government submitted a draft land law. Rather than protecting cultivators’ rights, the bill undercuts them at practically every point, through a variety of provisions aimed at enabling rather than inhibiting land grabbing. It invites takeover of land with government authorization for the purpose of practically any activity, not merely for other forms of cultivation.

No competent judiciary, no remedies for violations

It is obvious that none of the instruments and institutions available for the making of complaint of rights abuses in Burma come remotely close to what under international standards would satisfy the requirements for remedies for human rights violations. In the absence of an independent judiciary or minimally functioning institutions of the sort that are presumed to exist when these types of questions are discussed at the international level, nothing in the existing arrangements can be described as satisfying the requirements of international standards.

Despite the political changes of the year and associated fanfare, the judiciary in Burma remains inert, tied to the executive, and incapable of performing even basic functions for the defence of human rights. Since the start of the year, structural changes to the judiciary under the 2008 Constitution have not materialized in any meaningful way. On the contrary, the courts continue to be as closed and obscured from public view as before, perhaps even more so.

Consequently, police, soldiers and other state officers or paramilitary groups attached to the state continue to be able to use and abuse their powers with impunity. Very often, they do so in the context of personal disputes, with the knowledge that the victims of abuses have no recourse. Sometimes, they act specifically in response to attempts of people to attract the attention of officials to their problems.

Legal professionals say that the amount of corruption in the system is growing exponentially, as the costs of living rise and more and more judges and lawyers look to whatever opportunities they can to make as much money as they can. In some courts, lawyers estimate that up to 70 per cent of cases are decided in part or whole through the payment of money.
 
Political reconciliation by hostage taking

Over the last few years, prisoner releases in which political detainees have also featured have been a regular event in Burma. Each release is an opportunity for the political leadership to temporarily pay the role of benefactor, and enjoy some praise for whatever largesse it has managed to generate through the freeing from detention of persons who should have never been detained in the first place, persons whose "crimes" constituted acts that in most other countries are taken for granted. It is for this reason that such releases of detainees are indicative not of a system operating according to rational law, but one operating according to feudal principles, in which a regal figure earns the gratitude of his subjects for the merciful exercise of arbitrary power.

Reports of ill treatment of detainees continued throughout the year, and the AHRC made a number of interventions on these, although appeals issued constituted only a fraction of the reported incidents.

Of special concern was the case of U Gambhira, a monk who was at the forefront of the 2007 protest movement, and who is reportedly suffering from serious illness. In October, the AHRC director, Wong Kai Shing, wrote personally to the president of Burma, U Thein Sein, a former general and prime minister of the previous government, calling for urgent humanitarian intervention on behalf of the monk.

Widespread accusations also persist of maltreatment during police interrogation. A senior legal expert alleged in a signed open letter that police drugged his client during interrogation.

Allegations that relate to abuses of human rights committed while under custody again present an opportunity for all concerned agencies and individuals to press for the International Committee of the Red Cross to be allowed to resume its visits to places of detention in Burma. The denial of access to the ICRC is related to the alleged drugging of accused persons, since both relate to an official mentality that nobody has a right to know what really goes on behind the closed doors of police stations and prisons. Where even the principle of an outside agency confidentially monitoring detainees’ conditions in accordance with a globally established mandate is unacceptable, there is no chance of anyone keeping tabs on what officials do to people in their custody. Acceptance of external monitoring of basic conditions is a prerequisite for allegations like these to be addressed in any meaningful way.

Conclusion

Ultimately, the expression, enjoyment and defence of human rights are about participation: not the type of fraudulent, managed participation imagined by military types and technocratic administrators, but the opportunity for genuine participation of the sort that the people of Burma have attempted repeatedly to obtain for themselves, most recently in the nationwide protests of 2007. No such opportunity exists at the present time, and so nor has there been any sign of public participation in the political rejigging of the army-run system during 2011.

The reason for this lack of participation is that people are, after all, not stupid, as the military and commercial elite in Burma has repeatedly made the mistake of thinking. A few soldiers pulling off their trousers and putting on sarongs fools nobody. Indeed, it did not fool anybody last time it was done, in 1974, when a new "civilian" government rather than being greeted with applause or praise was greeted with widespread strikes and public protests. This time around, the presence of Aung San Suu Kyi and some other trusted national figures has allowed the new government to negotiate the political waters a little better, but it has not yet brought public participation, and people's tolerance will only last so long.

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