Almost a year has passed since the day Burma’s military regime suddenly upped fuel prices without telling anyone, triggering off a series of small protests that led to some bigger ones, and finally, the really big ones that for a few days in September captured the world’s headlines.
No one is any the wiser about the reasons for the price hike, or at least, why it was sprung upon the unsuspected public that particular August morning. Among the theories, a few people caught up in political intrigues have claimed that it was a plan to flush out and grab re-emerging dissidents prior to the referendum on a new Constitution, which was held amid the cyclone ruins in May.
Whether they planned it or not, the authorities did net a large number of opponents in the days, weeks and months after the rallies. Most were kept in illegal custody for further days, weeks and months. Some are still missing, but the cases of many others are now seeping into the courts, and what they reveal is just how far officialdom in Burma has strayed from any notions of legality in dealing with dissent.
Take the case of three men, Kyaw Soe, Kwalpi and Tin Htoo Aung, detained at the end of October. The three were taken to the torture chambers at the central prison, where they were left in the hands of military intelligence officers until the middle of January. Only then were they handed over to the police, whereupon their case was registered in court.
The men were charged with a number of crimes for supposedly having had contact with illegal groups outside the country and having distributed anti-government pamphlets at the time of the protests.
So far there is nothing striking about any of this. Sadly, illegal imprisonment, torture and heavy criminal charges are typical to the cases from last September. What is more interesting is that despite all that, the police had nothing to show for it when they brought the case into the court. Nor did they care.
Speaking at the hearings in March, the Special Branch officer in charge of the case admitted that he could not say on exactly what day, or even what month, the alleged crimes had been committed.
Another, this time from the Criminal Investigation Division, said that his unit had looked into the case together with other agencies, but when asked to give details said that he wasn’t authorized. He could not give the exact date that he had interrogated one of the defendants. He had not sought to get approval to bring the material evidence in support of the case to the courtroom. And so on.
Then the defense lawyer turned to the matter of a confession that was said to have been obtained from an accused while in custody, which the policeman had read out during trial.
The witness, he noted in questioning, had been in the service for over 25 years. He was a seasoned officer, an inspector. He knew that a confession to a police officer is not admissible to the court. So why did he read it anyway?
“My testimony is a duty assigned to me from above,” the inspector frankly replied.
There’s the nub. These police officers, middle ranked, from specialized units, were the dummies sent to do the dirty work of others. Not only did they not have anything to offer, they didn’t bother to hide it. Whereas in Thailand or Bangladesh the police would at least do some work to fabricate a case for the sake of the court, in Burma even that much is unnecessary.
In this lies the difference between a damaged criminal justice system and a defeated one. While in Bangladesh or Thailand the courts need a small performance to convict an accused, in Burma the responsibility to fabricate ultimately lies with the judge herself. Her judgment too is a duty assigned from above.
It was not always so. Through the 1950s Burma’s courts were vibrant and assertive. But in 1962 the top justices were replaced with military appointees whose role was to bring down the system from within. Over the years, their readings about what the courts could and could not do became progressively narrower, their adherence to law progressively weaker.
A decade later judges were replaced by tribunals of unqualified “people’s justices,” and things went from bad to worse. When the new junta stepped in two decades ago it reverted back to an earlier default model of professional judges and private lawyers, knowing full well that by then the judiciary had been gutted. What remained was little more than an empty vessel that could be filled with any old rubbish.
Hence the case lodged against Kyaw Soe and the other two, and the disregard with which the police treated the court in which they are being tried, and the criminal case that is supposed to have been built against them. The law books may overflow with standards of evidence, about facts, relevance and the burden of proof, but what are these frauds when compared to the duty from above? That duty beats them all, and it will beat Kyaw Soe and his friends too.