In a letter dated 10 April 2015, the Myanmar National Human Rights Commission—an innovation of the current period of political change in Myanmar, or Burma—wrote to the Asian Human Rights Commission concerning the death in police custody of Ma Than Than Aye, and alleged torture of her and her husband Ko Nan Win (AHRC-UAC-128-2014). According to the letter, the home affairs ministry, which is responsible for the police force, had already taken action against six personnel in the case of Than Than Aye, reprimanding the commanding officer, demoting four by two years, and imprisoning one policeman for one year. In the case of Nan Win, seven officers were demoted by two years and one dismissed from duty.
In a second letter dated 8 May 2015, concerning the alleged torture of Thet Paing Tun (AHRC-UAC-142-2014), the home affairs ministry told the MNHRC that an investigation had found that the two policemen who arrested the young man had been drinking, and had assaulted him on the street and at the village administrative office. As punishment, each had been demoted, and the station commander had a year added to his service before being entitled to pension.
A number of issues emerge from these letters of special concern to the AHRC. They relate to the institutions involved: the police force, the courts, and the national human rights commission.
First, and most obviously, these methods of disciplinary punishment by the police force are designed and implemented so as to encourage impunity for egregious violations of people’s rights. Rather than have the cases investigated and tried through the ordinary criminal process, the home affairs ministry is using the cover of internal disciplinary methods to deny victims and their relatives the justice that they seek. In each one of the cases, the investigations, adjudication and punishment were handed out under the Myanmar Police Force Maintenance of Discipline Law, 1995, which is not a criminal law but one designed to investigate, try and punish infractions of police procedure, via entirely internal processes that exclude any of the affected parties, their lawyers or other interested persons, much like the process of investigation and court martial of soldiers for military offences.
Secondly, the police force having carried out disciplinary action under this law, the courts then wash their hands of these matters. In the case of Than Than Aye and Ko Nan Win, the MNHRC advises that according to the Supreme Court “action had already been taken… under the Myanmar Police Force Maintenance of Discipline Law” and therefore no further action need be taken. For his part, Thet Paing Tun submitted a complaint to the township court where the incident occurred but because the police “reported to the court that disciplinary action had been taken… the township court dismissed the case”. In other words, internal investigation and adjudication of policemen by other policemen at a closed hearing in these cases, and others like them, functions as a substitute for open hearings under the criminal law in a civilian court.
Thirdly, the MNHRC itself takes no position on any of the information that it is communicating. In none of its statements, either in the contents of letters sent or in public statements on cases where information is received from another agency—such as in the recent extrajudicial killing case of Ko Par Gyi, for which the army has already concluded its men are not responsible (AHRC-STM-075-2015)—does it indicate what position it takes on the information received from those other agencies. Does it believe them or not? Does it intend to do anything more or not? Does it care or not? We get no information to answer any of these questions. In fact, the impression we get is that these questions have not entered the minds of the commissioners responsible for sending these letters. They are merely receiving letters from one place, and sending them on to another, in the manner of a post office. And although this situation constitutes a small step forward for communication on human rights abuses in Myanmar, it hardly constitutes a step forward for the defence of human rights, which is, after all, the purported reason for the MNHRC’s existence.
These concerns lead to a couple of pretty obvious observations from the Asian Human Rights Commission for consideration of the authorities in Myanmar, and those groups and individuals concerned with the exercise of impunity and persistent abuse of human rights there.
One is that the MPF Maintenance of Discipline Law ought not be used to foreclose the possibility of trial for ordinary criminal offences, as presently appears to be the case. Nothing in the law prohibits the possibility of criminal trial in ordinary court. On the contrary, the police discipline law quite clearly allows for the possibility that a person subject to the law be charged with criminal offences under the ordinary law. That both the police and civilian courts are treating punishment for disciplinary infractions as a substitute for criminal prosecution is a matter of current practice, not of law. Should a complainant like Thet Paing Tun bring a case to court where the matter has already proceeded through the police internal provisions, the judge should not refuse to hear the matter on that basis alone. A criminal case remains to be answered in his case, and in the case of Than Than Aye and Nan Win, and others like it.
The other is that for the Myanmar National Human Rights Commission to have any credibility, it needs to do more than spend its time passing letters from one place to the next, and in effect, acting as a mouthpiece for perpetrators of abuses. It needs to take an active stance in relation to cases like the two described here, and rather than chorusing the view of the institutions responsible for abuses that “no further action need be taken” look to the standards of international human rights to which it is beholden, and represent those standards in its dealings with citizens and institutions in its own country especially, as well as those abroad. The post office already exists. The people of Burma don’t need another one. They do, however, need and want an national human rights institution that lives up to the high ideals to which its title refers, through active assertions of human rights and strenuous efforts to defend them, through support for—and advocacy on behalf of—victims of abuses and their families; people like Than Than Aye, Ko Nan Win and Thet Paing Tun.
