The wedding video of a Burmese general’s daughter has proved a surprise hit. Footage of Thandar Shwe’s glittering marriage ceremony (right) has since last July been watched around the country on black market CDs, and globally on You Tube and news broadcasts. It has shocked viewers unaccustomed to seeing firsthand the sheer extravagance enjoyed by an otherwise inaccessible elite. In some versions, it has been cut to incorporate scenes of abject poverty in and around Rangoon’s streets, in contrast to those of diamonds and champagne behind its walls.
One person who had copies was Ko Than Htun. Acting on a tip-off, in March a team of police raided his house and charged him with possessing videos that had not been approved by the board of censors. He was initially released on bail but later rearrested. Shortly thereafter police claiming to have information from Than Htun arrived at the house of Ko Tin Htay, who lives in the same township. Entering without a search warrant, they found nothing. They called him to the station on a pretext and arrested him there. The following day the local ruling council met and decided that both men should be charged with intent to cause public alarm.
In court, the police produced a statement taken from Ko Tin Htay and used it against him as evidence, which is illegal. Absurdly, they also produced a photograph of Aung San, Burma’s independence hero and father of democracy party leader Aung San Suu Kyi, to demonstrate that Tin Htay is politically active: a point anyhow irrelevant to the charges against the accused. Nonetheless, both Than Htun and Tin Htay were found guilty and sentenced respectively to over four years and two years in prison with hard labor. They have since been transferred away from their hometown and reportedly denied access to their families.
Two features of the case point to how years of dictatorship have thoroughly corrupted criminal law and procedure in Burma.
First, whereas rights groups and political activists describe the military government in terms of its tailor-made security laws and other specialized tools for oppression, ordinary criminal law already contains everything the authorities need to arrest and prosecute almost anyone for anything. The country’s penal code is virtually the same as it was at independence in 1947. It consists of provisions devised by the British colonial regime to suppress dissent. These — including section 505 on “statements conducing to public mischief,” under which Than Htun and Tin Htay were prosecuted — continue to be used today.
For instance, U Tin Nyein in 2006 complained about damage to his crops caused by government officers; he was convicted under this same section, as well as for breach of the peace (s. 504). Similarly, when Daw Khin Win complained about corruption she was imprisoned for making a false charge (s. 211). U Tin Kyi was jailed for criminal intimidation after he allegedly swore and exposed his anus at persons clearing land for a government-backed agricultural project next to his property (s. 506). Three men who helped lodge a complaint over the death of someone on a road construction site were accused of giving “false information with intent to cause a public servant to use his lawful power to the injury of another person” (s. 182). The list goes on. For all practical purposes, Burma’s penal code has itself been reduced to a state security law.
Secondly, Burma’s police, prosecutors and judges are unable or unwilling to follow even the most basic requirements of criminal procedure. Over the decades, functions have merged: the police are headed by an army officer; other agencies assigned security duties are also under military control. Prosecutors and judges are mere extensions of the executive: the attorney general and Supreme Court bench are appointees of the ruling council. The very notion of checks and balances has been obliterated. Criminal procedure and law at all levels and in all parts of the judicial system are ignored and undermined: whether at timeof search and arrest, decision to prosecute, and presentation of evidence, or on matters of trial procedure, competency of courts, and passing of judgments.
The implication of Tin Htay’s case and thousands of others like it is not merely that Burma’s criminal justice system is rotten. Rather, it is that Burma has no justice system at all. The existence of a justice system, in the true sense, cannot be inferred from the existence of a person wearing a uniform with the powers of arrest or a building called a court. A justice system derives from the extent to which that person in uniform acts with integrity and in accordance with a higher set of standards, and the building stands with authority, independently from others. It derives from the confidence invested in the system by the public, and confidence of the judiciary in itself.
There are important lessons in this for persons working to effect change in Burma. One is that simple descriptive reports have little merit. Nobody of any credibility seriously denies that there is widespread and flagrant abuse of human rights there. But the mountains of reports about that abuse have contributed little to our understanding of the country’s real problems. International experts, including the U.N. Special Rapporteur on human rights in Myanmar, have a special obligation to develop cogent arguments on the links between institutional defects and rights violations, and what must be done to address these.
Critiques of the country’s legal system that privilege political detainees and emphasize draconian security laws also miss the point. The answers to questions about Burma’s human rights problems are not to be found with them. Rather, they are to be found in the stories of ordinary victims of dysfunctional criminal process and the commonplace operation of a penal code that already grants extensive powers to abusive government officials. They are to be found in the stories of illicit wedding videos and complaining farmers; in the systemic injustice described felt daily by millions.
“To use the trappings of judicial form where the essential conditions for a judicial decision are absent,” Friedrich Hayek has written, “Can have no effect but to destroy the respect for them…” Well may we say how true this is of Burma today; it remains for us to understand what it really means, and what must be done about it.