The Asian Human Rights Commission welcomes Order No. 51/2013 of 30 December 2013 by the president of Burma (Myanmar), issuing a general amnesty for all persons imprisoned or facing trial or investigation for certain categories of political offences. The categories include persons accused or convicted of offences under the colonial-era Unlawful Associations Act, for charges of treason, sedition or disturbing the public tranquillity under the Penal Code (sections 122, 124A and 505[b]), the 2011 Peaceful Assembly and Procession Law, and the 1950 Emergency Provisions Act. According to latest reports, eligible prisoners are today being released from jails around the country.
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The order has been issued in order to fulfil the president’s commitment given previously that all political prisoners would be released by the end of 2013, both by ensuring the release from prison of people detained under political offences, and halting actions against people currently facing such charges. Insofar as it does this it has a general expediency; however, the amnesty fails to take into account the fact that now, as in the past, Burma’s prisons contain people detained for political reasons who have been charged with non-political offences.
Among those persons not released today is Dr Tun Aung, on whom the AHRC in 2013 issued an urgent appeal (AHRC-UAC-013-2013). The AHRC has confirmed that he is not among those persons released, presumably because the offences for which he is being detained include not only those political charges mentioned in the presidential order but a range of alleged crimes under antiquated communications and foreign exchange regulations laws, among others. Indeed, even now he is facing further charges under a national population registration law because, perversely, government officials incorrectly recorded his details on official documents—clerical errors for which Tun Aung is himself instead being blamed.
Other persons unlikely to be released, if the criteria for the freeing of detainees are followed, include Ma Khaing, a reporter for the Eleven Media group in Shan State whom, according to that media outlet, was on December 17 sentenced to three months’ imprisonment for investigating and documenting judicial corruption. In her case none of the charges brought are of an ostensibly political nature, even though in fact they were allegedly brought for broadly political reasons. The media outlet has expressed concern that although a number of journalists have been charged with offences related to their work since the current government took office, she is the first to go to jail.
Thus, the failure of the president with this order to fulfil his commitment to release all political detainees by the end of 2013 is the first and immediate concern of the AHRC.
The second, longer-term concern relates to the persistent use of executive amnesties to free detainees. The release of persons from prison who should not have been detained in the first place is under any circumstances a welcome event. However, the repeated use of this method is no way to build the rule of law. On the contrary, it has potentially corrosive effects on rule-of-law institutions, by failing to put pressure on the courts and other agencies to take responsibility for their own failures, and prevent these types of cases in the first place. Indeed, none of the persons amnestied have actually been exonerated, and none are in a position to make claims for compensation or take other actions for wrongful detention. All that has happened is that the president with a wave of the hand has let them out.
Continuous executive hand waving might get some people out of jail who should not be there, but it is no solution to the problems that Burma has with systemic arbitrary and illegal detention. On the contrary, it potentially undermines the search for lasting solutions by functioning as an easy way out from the search for alternatives. It also undermines any claims on the part of the government of Burma to be working towards a judiciary with credibility and independence, since it reinforces the overwhelming power of the president to make decisions at his discretion as to who stays locked up and who gets out.
The current president is making choices on the release of detainees that for the most part are amenable to the public and are appreciated by democratic political parties and human rights groups in Burma, and abroad. But it does not take any stretch of the imagination to envisage a situation in which the current president or, perhaps more likely, another incumbent in a few years time might make amnesty decisions that will be offensive to many people—amnesties to protect human rights abusers, rather than to free human rights defenders. Indeed, Burma has lessons in its past that speak to this possibility, and today we need look only as far as its neighbour, Thailand, to see the extent of political conflict caused by a blanket amnesty not only for human rights defenders but also for human rights abusers.
Therefore, the Asian Human Rights Commission while welcoming this particular amnesty urges that the authorities in Burma work strategically towards more lasting rule-of-law oriented solutions to arbitrary detention, in particular, through urgently needed reform of courts so that unjustly imprisoned people can have their sentences overturned and seek compensation for wrongful imprisonment. Only through actions of this sort will the judicial system obtain rather than further lose credibility and independence through the release of unjustly detained prisoners.
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