Burma got a new government in 2010, after decades of military dictatorship. The change, by general election and under a new constitution, converted Burma from a military to a semi-military government. Some things changed, but most have remained the same.
Torture is still part and parcel of the way the military and law enforcement agencies go about their business. And, Burma has still not yet signed the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment (UNCAT). Dr. Aung Moe Nyo, Member of Parliament, representing the National League for Democracy Party, argued in 2013 that as the country is now developing and democratizing, in accordance with international standards, it would be appropriate for it to join the Convention. When he made this argument in Parliament, the Speaker concluded the debate by instructing responsible agencies to take up the matter for implementation of their own accord. Since then, there has been no mention in Parliament of signing and ratifying the Convention, or any indication with respect to progress made by the agencies towards this end.
Meanwhile, custodial torture by the police and torture by the military in ethnic areas, civil war zones, and in military camps, persist with perpetrators enjoying impunity. Poor suspects, rebels, activists, and criminals are most likely to be tortured in Burma.
Over the past decade, the Asian Human Rights Commission (AHRC) has received reports and complaints about the use of torture in police stations, council offices, and military camps around the country, oftentimes resulting in the death of victims. Very few victims or their families attempt to obtain redress; the obstacles to make complaints and get them heard are enormous, and the risks considerable. Therefore Burmese people urgently need ratification of the Convention, and enforcement of its provisions.
There are sections under Burmese Penal Code to prevent torture. However, these sections do not directly mention torture, and no law-enforcement officials are following or respecting the Code and the laws. The accused in criminal cases like murder, rape, selling or using drugs, and robbery are often tortured to confess to the crime, as the police find themselves scrambling to provide information on suspects to higher authorities immediately. Although a confession statement extracted by the police cannot be used in court, the judges ignore the laws and have, in many cases, accepted such confessions as evidence.
The judicial system in Burma is still under the control of the military. It is not a matter of just a hangover. The Judiciary is under the thumb of the Executive, which is peopled by retired military men. Currently, retired Military General Tun Tun Oo is holding the post of Chief Justice. Judges can’t make independent decisions when the cases relate to the military or elite crony companies.
There are several torture cases that AHRC has documented, which have led to some insight into the working of the system. For instance, civil courts have no power to hear cases involving crimes committed by soldiers and military personnel. Most of these cases end up in court martial proceedings, with perpetrators being exonerated. The 2008 Constitution, Section 343, states:
“In the adjudication of Military justice:
a) the Defence Services personnel may be administered in accord with law collectively or singly;
b) the decision of the Commander-in-Chief of the Defence Services is final and conclusive.”
When the detainees are tortured to death in police custody, perpetrators, i.e. the police, are primarily questioned under the police maintenance and discipline law, which can only provide administrative punishment. Similar to the military procedure, ordinary courts either cannot intervene, or cases aren’t referred to ordinary courts even though the cases are criminal cases which need to be hear in court in accord with law. Permission from the President is mandatory to prosecute gazzetted officers; obtaining this permission is a near impossible task; it has never happened to date.
In March this year, a number of students protested to amend the newly enacted National Education law, and they met with a brutal police crackdown and arrests. There was strong criticism by the local and international community about the violent crackdown. However, the President and the police have claimed that the tactics used were picked up from Crowd Management Training provided by the European Union. Many students and their supporters are still in jail where they are not being provided medical assistance for injuries suffered during the crackdown.
Although Burma is ultimately going to become a more democratic country, if there is no criminal justice reform and no independent judiciary it is will be difficult for the nation to arrive at democratic goals. As the country is opening up and developing politically and economically, it is imperative that Burma follows international law. Standing by all victims of torture, the Asian Human Rights Commission calls on the Burmese government to sign and ratify the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment.
