Talking about judiciary and the rule of law

Nay Htun Naing
Articles relating to rule of law as published by newspapers.

Written by Nay Htun Naing

Translated by NTH and ST


Talking about judiciary and the rule of law

“I was charged and imprisoned under Section 26 for living in the land I own. I was charged again under Section 27 twenty days later after serving a month in prison,” said Daw Nyo, 82, who was jailed for squatting in the Nay Pyi Taw Council which is under direct administration of the President.

Another imprisoned elderly person was 88-year-old Tin Hlaing. She also served one month in the Yamethin prison under Section 26 and faced Section 27 immediately after her release.

Similarly, 74-year-old farmer Aung Win Ko and 67-year-old Nga Chun were also prosecuted and jailed for one month each under Section 26 early this year.

Who sent them to prison?

They all bear bitterness for their fate.

The words President Thein Sein delivered at the Union Parliament on August 31, 2011 – the day he took the office – flashed through my mind.

He said that the people would rely on the constitution that shaped the executive sector if it could improve the people’s social and socio-economic lives; if the public servants treated the people equally; if the people could live their lives under the protection of the law; and they would rely on the law-enforcing bodies and the responsible individuals.

But after five years of administration, President Thein Sein’s words need some reviews.

Firstly, let’s check out how the government handled the farmers and the land-grab cases within the law.

Getting hurt several times

No one clearly knows who the boss is: the government or the people, after the imprisonments of the elderly people mentioned above.

No less than 10 similar cases happened in the Nay Pyi Taw Council which is directly controlled by the government.

They did not commit any serious crimes, they were just living in their land which they owned for many years and imprisoned for doing so after several court hearings.

“I’ve been living here for 40 years. I won’t demolish my place no matter how they tell me to do so. I’d rather die first,” said Daw Nyo.

Myint Aung, a farmer from Yaypu Village, Taunggyi, made the similar decision.

He lit himself in protest this May at the age of 63. Sixteen farmers including him in that village were accused of squatting by the Nyaungshwe Police Station. Myint Aung protested to death after his farmlands were seized.

He wrote in his will that he was angered for losing his lands due to corruption within the goverment.

Another unforgettable tragedy is that of Khin Win, the most unpleasant event during the Letpadaungtaung copper mine demonstration.

She would not have thought that she would be shot to death in her protest against land seizures.

There is no justice over the death of Khin Win yet.

The protest monks were fire-bombed during the Letpadaungtaung unrest and there is still no justice for them.

Ba Myint, 69, was detained for calling for the justice for Khin Win and given four months of imprisonment and hard labour. Naw Ohn Hla, another activist who protested in front of the Chinese Embassy, was also jailed.

The corruption involved in land grabs throughout the past governments. However the cases handled by using the law are mostly common under the current government.

Some existing injustice was sorted out but the law was used more commonly to suppress.

A total of 56 farmers from Kantbalu Township were jailed for three months to three years. The whole Thameelay Village was labelled squatters’ haven and relocated by force. The crackdowns of the conflicts between the farmers and the authorities by use of law happened in Magway, Bago, Ayeyawady and Mon State and other places. There are many evidences to prove who employed the laws to handle such cases.

Everything happens for a reason

The squatters’ issues and conflicts happened for a reason.

After their lands were seized for a meagre compensation knowingly and – in some cases, unknowingly – their natural settlements were lost.

After suffering from poverty, they returned to their old places and resumed their works and faced prosecution under different charges.

There were over 700 land confiscation cases in 2014 alone and the accused parties in more than a half of them were jailed.

Let me quote President Thein Sein saying that he had decided to help improve the lives of the farmers and workers; that he would update the laws to protect the farmers from time to time.

That speech was the very first one delivered on March 30, 2011.

Does it turn out for real? It only applies to a few people.

Besides, although the law to protect and improve the lives of the farmers was ratified, the concerned people could not have the protection of the law due to the delay of by-laws.

Global Witness’ report “Guns, Cronies and Crops” in March 2015 stated that 5.3 million acres – 35 times as large as Yangon – were under the investors without the courtesy of the original owners till 2013.

A fourth of them has become rubber plantations and made the local residents poorer.

Global Witness added that the ruling Union Solidarity and Development Party (USDP) involved in such cases besides the government, the military, crony tycoons and regional authorities.

In particular, Global Witness said that Myint Hlaing, the minister of agriculture and irrigation, was the main player in land seizures. He is now running for a seat in Lower House under the USDP’s flag representing Dakkina Thiri Township.

Global Witness unveiled the evidences of Myint Hlaing’s involvement in land seizures in north-eastern Shan State together with the Northeast Command, the district authority and private companies.

In September 2014, the commission for investigating the seizures of farms and other lands released a report.

The report described the causes behind seizing lands: the military’s occupation, town and industry planning, to give space for private companies, to make ways for railways, motorways and airports, and state-owned industries and factories.

According to the figures then, the lands that should be handed back to people totalled 302,201.762 acres. The government claimed that it returned 141,154.602 acres.

But whether those lands were returned to their original owners, and whether they remained under law-enforcers and regional authorities is still subject to question.

And the investigations still need to run to know how many of the remaining acres of land were handed back because the lawmakers discussed that the local authorities did not follow the government’s instruction in land issues.

The farmers’ protest and detention without getting the protection of law still exist.

Those who reported the case for their loss ended up in jail eventually. This is the proof of how the government’s judicial sector works.

The corruption cases and actions stand as the second part.

Action or no action against corruption

President Thein Sein said on March 31, 2011, that there should be no corruption to bring forth a clean government; the bribery damages the image of the state and people and so the authorities should keep their institutions away from corruption; and to abstain from favouritism and nepotism.

The anti-corruption law was ratified and the anti-corruption commission was established.

But both of them did not have sharp teeth. Thus the ruling government’s fight against corruption can be said unsuccessful.

There was anti-bribery commission led by Vice-President Dr Sai Mauk Kham before the anti-corruption commission. But it was unproductive too.

Retired General Mya Win led the anti-corruption commission which was founded in February 2014. Although it received 533 complaints in the six-month lifespan, it could solve only three.

According to the information conducted, only more than nine cases were investigated. The people were not informed who were punished by what charges.

We don't know how they took correct action against bribery and corruption. We don't need to look for many cases. We can make a comparison between former religious affairs minister Hsan Sint and former posts and telecommunications minister Thein Tun.

Hsan Sint was sentenced to 10 years in prison for embezzling Ks 10 million. But Thein Tun was only allowed to resign as minister although he was reported to have embezzled billions of kyats. He faced no other action. He is now set to run for election.

Larry Jagan, expert in Myanmar affairs, wrote an online article on the website of Asia Times in 2013. The article said ex-minister and retired brigadier-general Thein Tun was under house arrest for questioning. A bag containing US$ 2 million was found in his house.

Together with him, Thein Zaw—the ruling party's adviser set to run for the upper house from constituency No. 7 in Kachin State—was also interrogated. Moreover, more than 60 senior officers from the ministry were questioned and 20 others were temporarily detained. Larry Jagan said the investigation was led by  Hla Tun, Union minister at the President Office-6, close to Thein Sein.

A news story from the Irrawaddy news agency in 2013 also said former minister Thein Tun, Myanma Post and Telecommunication chief engineer Htay Win and senior officers from private telecom companies were taken to Nay Pyi Taw for questioning. Seven were unconditionally released. But charges against them under section 409 for misappropriating state funds had not been withdrawn. The news said the case was also being handled by the Bureau of Special Investigation under the Home Affairs Ministry and the anti-bribery commission led by Vice President Dr. Sai Mauk Kham.

However, Thein Tun did not face legal action. President Thein Sein said nothing about him except his permission to resign as minister. The ruling Union Solidarity and Development Party (USDP) did not revoke his membership. This is why he will be running for election as a lower house candidate from Myaing Township constituency.   

Hsan Sint was sentenced to 13 years in prison—3 years under section 409 and 10 years (life imprisonment) under section 124 (A)—plus a fine of Ks 100,000.

The two ministers within the cabinet were impeached for corruption but they faced different legal actions. And this is how we can question the judicial system under the current government.

For the third point, I will continue to tell how the rule of law situation handled by related organisations as described by President Thein Sein was within five years.

In his first speech, Thein Sein said: "The organisations responsible for ensuring the rule of law need to act without bias and become an ideal for respecting the law. With the judicial system upright and rule of law bodies living and acting within the framework of law, our country will be able to exercise a full-fledged democracy, enjoying the rule of law."

This is why we need to judge how far the rule of law situation has reached as the president.

To what extent have we enjoyed the rule of law?     

The Lower House committee for the rule of law, peace and stability put forward a report to the parliament in September 2014. The last part of the report highlighted three points.

Firstly, the report stressed the need to form independent bodies to monitor courts. This is a way to make the tainted judicial system upright. It is a must to ensure a correct judicial system because money could make each and every case in court win.

Despite Thein Sein's earlier promise, the rule of law situation had not changed till September 2014 when the committee's report was submitted.

Secondly, the committee reported that regional authorities failed to follow orders and instructions laid down by the government. Thirdly, it pointed out bureaucratic procedures in the administrative sector although the country is in democratic transition.  

We can deduce from the fact that government organisations still follow the bureaucratic procedures and are losing their balance. None of the words Thein Sein said when he took office came into reality. We can measure the extent of the rule of law situation by studying the criminal cases that have happened in the country.

There are more and more criminal offences, according to the official data. I will point to Yangon Region alone as an example. We did not see a reduced number of ten major crimes in the period from 2010 to 2015.   

There were 251 cases in 2010, 453 in 2011, 356 in 2012, 343 in 2013, 397 in 2014 and 305 in 2015 (up to September). Those cases happened in Yangon alone. A total of 186 murder cases, the most of all, happened in 2014. Yangon saw 774 murders in five years from 2011 to 2015.

Mugging is also on the increase. Yangon saw 22 muggings in 2010. But the number rose to 48 in 2014 and 47 in 2015 (up to September).

There would be many more if the whole country is considered. The number of the 10 major crimes that happened across the country is not known. The figures available up to 2012 were posted on the website of the Home Affairs Ministry. In 2008, 1484 cases happened and the number reached 2318 in 2012.

It is undeniable that increased criminal cases have resulted from the recklessness of concerned authorities to release prisoners under presidential amnesties without thorough assessment. They themselves will know if those releases were intentional or not.

Criminals who were released together with a handful of political prisoners have daringly come to harm the life security of the people and even kill policemen.

According to the figures available, at least 12 presidential pardons have been granted over the past five years.

The government freed 14,758 prisoners on May 16, 2011; 6,359 on October 11, 2011; 6,656 on January 2, 2012; 13,274 on January 2, 2014; 3,073 on October 7, 2014; and 6,966 on July 30, 2015. And these are substantial numbers of prisoners released.

What kinds of people were released is called into question. Among the latest released were just 13 political prisoners. They also included 155 Chinese citizens who were released just days after they were sentenced to life imprisonment for illegal mass logging in Kachin State. Some Chinese were put in jail for drug smuggling in addition to illegal logging.

It was also leant that those who were jailed for involvement in religious conflicts that broke out in western Bago Region and Rakhine State were freed. Among others were intelligence officers who received long jail sentences for corruption and embezzlement. It is questionable why they were released only when the election gets near.

However, imprisoned journalists and political activists such as those from the Unity Journal, Htin Lin Oo, Nay Myo Zin and Naw Ohn Hla as well as activist Htin Kyaw who received a 13-year jail sentence were not on the list of those released under presidential amnesties. Movie actor Ye Taik who was sentenced to six years in prison for possessing a tical of marijuana has not been released either.

Particularly, we took pity on the students who were not on the list. They were arrested for involvement in Letpadan protests against the national education law. Other jailed activists working for the cause of workers and farmers were not freed either.

What we can say for sure is that in every presidential pardon, more criminals than political prisoners were released.

Increased criminal offences as a result of prisoners' releases have posed a threat to public security. Two well-known cases in which police were killed happened in Yangon.

In one case, a police corporal, while in hot pursuit of the suspects who mugged a couple at knifepoint and raped the woman in Insein Township, were killed by those suspects in public. The case happened in July this year.

In another case, a hardened criminal, Tin Myint, killed two policemen. He murdered them while attempting to escape arrest for committing further crimes though he was released under a presidential pardon. It happened in September this year.

There is concern for public safety because police still fail to arrest almost all of over 10,000 criminals on the run following the series of presidential amnesties.     

Previously there were also some criminal cases in which police failed to arrest the culprits. Many such cases happened in Yangon. They include the murder of a mother and her daughter in Mingaladon Township in November 2013, the murder of a 70-year-old woman in Mingala Taungnyunt Township in January 2015, the murder of a medical doctor in Thakayta Township in December 2014, and the murder of two elderly people in Tamway Township in June 2015. In the robberies and muggings that occurred in Tamway and Insein townships, none of the culprits have been arrested.

There is another growing concern that any suspects could not have been exposed for an important case in which an arsenal in the military tank unit in Hmawby Township was broken into and arms and ammunitions were taken away in January, 2014.      

Who did they take action by force?   

While those posing danger to public security are being released, more people working in the public interest are being sued and imprisoned. We can prove this point when making a comparison for the past two years.

According to the figures released by the Assistance Association for Political Prisoners, there were 60 political prisoners in May 2014 while 85 activists were facing prosecution. In January 2015, there were 159 political prisoners and 213 activists were on trial.

The figures were on the increase when the Letpadan student protest was crushed. There were 173 people imprisoned and 316 on trial in March 2015, and 169 imprisoned and 446 on trial in June.

In September this year, there were only 95 political prisoners after some were released under presidential pardons and some had finished their jail terms. But the number of those facing trial jumped to 466. Among them are political activists, students, farmers and workers.

The government seems to have been watching any political movements for five years. They also tend to be taking actions by using the judicial power and law enforcement organisations as a tool.

Anyhow, the judicial and rule of law sectors have not improved within five years as President Thein Sein has promised.

Meanwhile, the USDP announced the 2015 election declaration saying that Thein Sein would be nominated as president again if it wins the election. But the declaration did not detail judicial and rule of law affairs.

It only says "They will continue to try to ensure a fair and independent judicial system based on legal proceedings in public, rights of defence and appeal in line with the law, except some restrictions according to the law."

This is not enough, and it is the fact all the people need to be aware of. We can assume that President  Thein Sein has not been able to improve the judicial system and rule of law situation in his term as he had promised.