The Asian Human Rights Commission has followed closely reports since March of the death in custody of a young woman, Nan Woh Phan, in Rangoon, Burma, followed in May by the arrest and detention of her partner for alleged illegal business activity. The commission is concerned that whereas by now the family of the victim should have expected some progress towards identifying and prosecuting those persons responsible for her death, and other actions taken to address the systemic causes of her death, instead officials in Burma seem more concerned to pursue cases against her partner in a manner that raises many questions about their actual intentions and interests.
Of the many questions hanging over the case, the one that precedes all others is what happened to Nan Woh Phan? What is known is that on 24 March 2012, the Bureau of Special Investigation–an elite semi-autonomous agency under the home affairs ministry–had held her for questioning at its offices in Kyauktada, Rangoon, concerning the alleged illegal land and real estate speculation of her partner, a Japanese national, who had conducted transactions with her name on title deeds. Around 5pm on that day, while in BSI custody, the 19 year old fell from the fifth floor of the premises and died.
On March 28, Nan Woh Phan’s partner, Namase Motohiko, and lawyer Daw Ei Ei Aung conducted a press conference in Rangoon in which they explained that the BSI had taken Nan Woh Phan away on March 21 and had had her under continuous interrogation until the date of her death. According to Namase, the BSI had allowed the teenager only two hours sleep per day in custody and had exhausted and psychologically traumatized the young woman as part of their interrogation techniques. The lawyer said that her client had been terrified, had stopped eating and could not even drink water without vomiting. Ei Ei Aung was present when Nan Woh Phan died but said that she could not see whether she fell by accident or jumped deliberately from the building.
Who was responsible for her death? Whatever the specific circumstances of Nan Woh Phan’s fall, BSI personnel had a duty of care, as her custodians, and they failed in this duty. But redress for this failure will require more than the taking of administrative action against those officers responsible, since from the reports of this case, strong grounds for criminal action against the responsible personnel also exist. Article 1 of the United Nations Convention against Torture, “torture” includes any act “by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession… or intimidating or coercing him or a third person… when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official”. Under this definition, the BSI tortured Nan Woh Phan, and that torture led to her death.
Although Burma has not yet joined the Convention against Torture, the prohibition of torture is a jus cogens norm that does not apply only to parties to this law but is an established principle of international law everywhere. Burma also does not yet have in place any law to prohibit or punish the act of torture; however, the perpetrators of torture in this case can and should be charged with offences under the Penal Code commensurate with the crime of torturing a young woman, resulting in her death.
Unfortunately, since March, reports point to a number of worrying developments in handling of the case, suggesting that the concern of the authorities is less with holding those responsible for Nan Woh Phan’s death to account and more with pursuing her partner, who has been outspoken in accusing the BSI of wrongdoing. Although a special investigatory tribunal had supposedly been established to investigate the case, news of its progress has not been forthcoming. On the other hand, the investigations against Namase have continued, and in May, the BSI also arrested and detained him on remand, under section 5(h) of the Emergency Provisions Act, 1950, over alleged tax evasion. On May 17, officer U Than Aye of the BSI opened a case against Namase (Hlaingthayar Police Station, No. La(Pa)521/012).
The Emergency Provisions Act was passed at a time of intense difficulty in Burma as the country struggled to rebuild economically and become politically stable after the Second World War. The specific section used in this case reads that anyone guilty of causing the public to “lose trust in the State’s economy… or partly in the country or to hamper operational or economic success carried out by the government in order to implement the restoration of law and order successfully” can be imprisoned for up to seven years. Clearly, the section was framed for very different circumstances than those of Burma today, and those pertinent to this case.
The bringing of the charge against Namase, and the holding of him in custody since May, raises more serious questions about what has been going on since the death of Nan Woh Phan. One obvious question is, why charge him with this out-of-date and regressive law? Many other laws exist under which he could be charged if in fact he has committed crimes related specifically to business activities. The Emergency Provisions Act, on the other hand, is a law that typically authorities have used in politically motivated cases. It is a law that ought to be repealed by the legislature if the government of Burma is serious about shifting the country’s legal system from its authoritarian past to a different kind of future. That the officials in this case have decided to use its catch-all provisions against Namase suggest that they lack the evidence needed to charge him with relevant offences or are using the law for other ulterior purposes: specifically, as a short cut to intimidate and silence him over the death of Nan Woh Phan.
That the BSI has brought this case against Namase after the death of his partner also raises the question as to why it is still charged with authority for the investigation of his alleged crimes. The bureau is compromised as a result of what happened to Nan Woh Phan. It should not be the agency left with the authority to continue with this investigation, because its officials now have an interest in using their coercive powers to protect themselves against allegations of wrongdoing. Therefore, any further investigation of the Japanese national ought to be transferred to the police.
Lastly, the case raises serious questions about the rights of people in Burma to make complaints about the wrongdoing of officials, and to do so publicly in order to advocate for action against perpetrators in positions of authority. Although in recent times a variety of new avenues have opened up for complainants, and the government of Burma now as a matter of policy welcomes complaints against officials, this case demonstrates how the mentality across officialdom itself remains one that the right to complain, and to do so publicly, does not in fact exist, and that to complain is to be impertinent. In this case, not only do we find the partner of the deceased detained under circumstances that suggest his detention is at least in part retribution for his issuance of public complaints, but furthermore, when her family tried to meet with the deputy president to lodge a complaint with him–a Shan ethnic national, like they–security personnel also reportedly detained and questioned them.
The mentality that people do not have any inherent right to complain, and that those people who do complain deserve retribution, is a consequence of half a century of authoritarian rule. It is not a mentality that will be easily addressed, nor easily removed from the Burma’s legal system. But it is a mentality that can be challenged and pushed back on a case-by-case basis and it is for this reason, as well as for a variety of other systemic reasons associated with those features of the death of Nan Woh Phan set out above, that this case is of special and widespread interest. How Nan Woh Phan’s death is handled will provide revealing answers to a remaining underlying question, behind all those questions particular to the case set out above, of whether or not policing, prosecutorial and judicial agencies in Burma will prove responsive to the political changes in the country.
