Last week the Asian Human Rights Commission (AHRC) issued an urgent appeal on the case of a man in Burma who has been imprisoned as a consequence of making repeated complaints about electricity supply and other poor services in his neighbourhood of Rangoon. The complainant, U Khin Maung Kyi, 45, in August had called the township electricity supply office over problems with the service to his house. He had argued with the staff on the phone. Thereafter, officials brought a security bond order against him. But because there is already a criminal case pending, he was imprisoned instead of being released on the bond. (The full details of the case are in the appeal: AHRC-UAC-133-2009.)
The case deserves our attention not because it is particularly bad–in comparison to many other cases in Burma it is not–but because it is indicative of how in a perverted system of law and government administration any law can be used for any purpose, including to jail a man whose so-called crime was merely to have been an annoyance to government personnel.
The law under which Khin Maung Kyi has been jailed is the 1961 Restriction and Bond Act. Under that act, if the authorities have credible information that a person or persons are likely to commit a criminal offence, they can apply for a good behaviour bond to be placed on the person or persons. The types of offences for which the act is envisaged are listed under its section 3. They include housebreaking, theft, robbery, procurement, criminal intimidation, destroying railway lines or bridges, arms offences, endangering law and order, or abetment of such crimes.
The list is rather long and some of the offences, including the last–under which Khin Maung Kyi was accused–are ambiguous. In any event, it is clear that the making of repeated telephone calls to a government office does not constitute grounds for the issuance of an order. That this is the case is all the more obvious when considering the contents of the Courts Manual. The manual makes strenuously clear to judges that rumours of possible offences are not satisfactory grounds for issuing these orders. Judges have a special obligation to check that the facts are credible. It states in section 376(1) of chapter XVI that:
“No person should be called upon to give security except under credible, clear and substantial information. Although a police report is credible information, Magistrates must not take action too readily upon such reports…”
The manual and later the 1961 act were both introduced at a time that the courts in Burma were still functioning according to legal principles rather than the policy-directives of a military regime. Therefore they do not consider explicitly a case like that made against a man who merely had the affrontery to complain about his electricity supply. They also both presume that a judge will act more or less according to the concept of a judge that once existed: that of a judicial officer rather than an executive officer in judicial garb. The absurdity of the current case speaks to the vast gap that now exists between the notion of a judge in Burma of the past and the one of the present.
A further disturbing feature of the case is that the form on which the order for the bond made against Khin Maung Kyi was prepared had been filled out beforehand. Only the sections for his name, the date and the signature of the judge were filled out on the day of the order. This suggests two things: that this court is giving out these orders frequently enough that its officials find it expedient to fill out the necessary documentation in batches; and, that the actual circumstances of each order do not matter. Anyone looking at the bond orders for this court would find that the grounds for the orders are the same. There is no way to identify the specific grounds for the orders and therefore there is no need for “credible, clear and substantial” information on which to obtain them. Any official wanting to restrict or deny someone his or her liberty can front up at the court and have an order issued as a formality.
In this manner, the court is not only endorsing police and executive officials’ decisions to restrict the already limited freedoms of citizens in Burma; it is actively encouraging them to continue to make baseless requests of the same type. This has effects for the system as a whole. It reassures the police that they need not be serious and diligent in any of their work. They can front up to trial without evidence and get convictions. They can cajole and buy their way through anything.
Although the problems in U Khin Maung Kyi’s case are indicative of features of the legal system in Burma that will not be addressed until the country experiences considerable political change, the Supreme Court could issue detailed guidelines about the use of the 1961 Restriction and Bond Act so as to prevent these types of glaring abuses. The guidelines should stipulate the types of circumstances under which such orders can and cannot be issued and reinforce the responsibility of the judge to conduct a genuine enquiry when he or she receives a request for an order of this sort. These guidelines would not of course solve any of the deeper systemic problems that underlie the present case, but could at least serve to prevent the needless imprisonment of a few more people like Khin Maung Kyi, and in the process may help to ameliorate the worst effects of the abuse of security bonds on other parts of Burma’s already profoundly damaged legal system.
