Hong Kong, September 25, 2008) The Asian Legal Resource Centre (ALRC) on Thursday marked the one-year anniversary since the height of the Saffron Revolution against military dictatorship in Burma with the release of a new publication on systemic lawlessness and human rights abuse there.
The 60-page publication, “Saffron Revolution imprisoned, law demented”, tracks 10 specially-selected and carefully-documented cases of persons detained and charged after the 2007 protests, in order to examine and explicate the features of the country’s injustice system.
“What these cases speak to is a deeply rooted un-rule of law in Burma that still has not been properly accounted for in conventional human rights or political discourse,” Basil Fernando, executive director of the Hong Kong-based regional group, said.
“Despite the intense global interest in Burma following the recent uprising, and thereafter, the Cyclone Nargis tragedy, the global movements concerned with the country have not been able to understand and articulate the underlying features of its dictatorship and abuse,” Fernando said.
“This new publication is another small step towards rectifying that gap between our knowledge of what is actually going on in Burma and what is said about it,” he added.
The publication, a special edition of the ALRC’s periodical, article 2, follows a special report in the same journal last December on the events of that year with a backgrounder on what was characterised as the country’s demented legal system.
In addition to the case studies, the new edition contains an analysis on how the legal system in Burma was “driven crazy” since the early 1960s, and an article on the government’s cyclone relief effort, which has been described as the world’s worst response to a natural disaster.
“This publication should be of special interest not only to persons concerned with recent events in Burma but also those concerned with the decline in the rule of law across Asia generally,” the periodical’s editorial board writes in the introduction.
“The story of Burma’s judiciary in the last 50 years, above all, offers a sober lesson for persons in other countries who may be mistaken for thinking that a judicial system once established to some extent cannot be pulled to pieces again within a short time,” it warns.
The new edition is available on the article 2 website in HTML and PDF formats, at www.article2.org. Printed copies can be made available by contacting the ALRC directly via email or post.
Further extracts from the introduction follow.
Introduction: Saffron Revolution imprisoned, law demented
One year after the nationwide monk-led protests that shook Burma in response to a dramatic and sudden increase in fuel price rises on 15 August 2007, which became known around the world as the Saffron Revolution, the cases of hundreds of people and forcibly disrobed nuns and monks who are accused of having had key involvement in the rallies are winding their way through the country’s courts. The cases are, as in the manner of the crackdown itself, characterised by patent illegality and often are little more than an exercise in nonsense, where the courts are being forced to participate in their own debasement and caricature. The trials are being held behind closed doors, with charges brought under one section of law and changed to another, without investigating officers being able to bring any evidence or even say when or where an alleged offence occurred, police witnesses admitting that they know nothing about the cases that they are presenting other than that they have been ordered to come and present them, and judges sitting as spectators to the absurd charade…
In the 1950s, despite extremely pressing conditions, the judiciary in Burma was able to maintain a degree of independence and integrity that surpassed that of most of its neighbours. There were many fraught struggles played out in the courts between and among politicians, powerful people and the courts themselves, but the courts, especially their upper echelon, managed to retain a sufficient level of credibility to sustain their work. Having survived the first very difficult decade after independence they might have been expected to improve and expand their role, experience and responsibilities from that time onwards. However, the military takeover of 1962 put an end to all that. The new regime began a project to systematically dismantle all parts of state that could oppose it, and in particular targetted the courts. The pathetic legal conditions in which protestors from last year find themselves in before the courts of Burma today are a direct result of the project for legal demolition that has been carried out since that time.
The December 2007 special report of article 2 on Burma characterised its legal system as suffering from dementia. This diagnosis of the system in medical terms was not frivolous. It was based on a number of years’ careful study, advocacy and discussions with practitioners, who like medical practitioners are from their experiences able to construct a detailed picture of where ailments exist and the causes of these. From tracing the work of Ne Win, his chief justice and architect of legal collapse, Dr Maung Maung, and their assorted accomplices over the 1960s and 70s the causes of the dementia become apparent. A system that was at one time relatively sane was driven mad by the succession of techniques devised and implemented for executive control first over its head, then its entire body.
The sorts of wanton abuses of both persons and law described in the ten case studies that are at the heart of this edition of article 2, which have been selected from a large number of such cases that the Asian Legal Resource Centre has documented since last year, then, are not new. They are not issues that suddenly arose with the military takeover in 1988. On the contrary, they are the consequence of a deliberate programme for the perverting of law that was begun around a quarter of a century before that time, and has simply been further embedded under the current regime. In fact, this regime has done nothing unique at all so far as the un-rule of law in Burma is concerned. It has merely carried on and further deepened the work of its predecessor, perhaps only with a greater ruthlessness, and certainly with disinterest in the sorts of ideological cover attempted by its predecessor.
It is clear that the extent of damage to Burma’s legal and administrative system is enormous and the need for work to rebuild and restore what has been lost will also be vast and lasting, irrespective of whatever else happens. Fortunately, there are still many causes for hope. Apart from those defendants and litigants that continue to make demands on the system, and are able to recall something of what it was before it was reduced to an administrative arm of despots, there are many fine lawyers and human rights defenders familiar with the workings of the courts in Burma who continue to fight for a tradition of legality in conditions where it is all but absent and where to do the sort of work that a lawyer in an established jurisdiction would take for granted is a big personal risk. Among them are ordinary criminal lawyers who also volunteer their services quietly for indigent clients who are the victims of abuse by powerful or influential people. Others handle nothing but human rights cases, their other clients having deserted them, and as a consequence daily face official harassment and scrutiny. It is to all of these lawyers and their clients alike to whom this edition of article 2 is dedicated.
The historical outline and case studies taken together, this publication should be of special interest not only to persons concerned with recent events in Burma but also those concerned with the decline in the rule of law across Asia generally. At the moment the continent is stuck between different types of equally irrelevant rule of law debates. There is one type of debate that goes on among intellectuals in countries where the rule of law is relatively well established and the institutions of the state and personal liberties reasonably well protected that is critical of the rule-of-law tradition for the very reason that it can afford to be. Most of these interlocutors take for granted the working of laws and courts and presume things about the management of societies that place the starting point for their debates already so far away from what happens in a court in Burma or the Philippines that what follows from there is plainly irrelevant. On the other side there is an uncritical discourse on the rule of law that has spread out like a thin and uniform wash globally. In this one, a uniform version of the rule of law is unquestioningly promoted through international agencies and a few relative success stories are held up as models for everyone else. This developmental rule of law agenda enthusiastically cheers on any evidence that things are moving along its predetermined path, while leaving the anomalies for strategic analysts to sort out, so that Burma ends up somehow more like North Korea, rather than neighbouring Thailand or Bangladesh.
Away from both of those types of the rule of law, this publication has had as its abiding concern with its study in terms of its intimate relationship to human rights in Asia, and with special reference to the availability of the means for redress for wrongs committed as established in article 2 of the International Covenant on Civil and Political Rights. It has had as its concern not the expanding of a type of the rule of law that satisfies diplomats and simpleminded groups, again mostly based in west, that use meaningless statistics and various numerations to assign countries in the region (and elsewhere) ranks as if drawing up a football league table rather than dealing with highly complicated and context-specific problems and issues, but rather the felt experiences of people living in countries in the region and what these tell us about the state of affairs in their countries. It is for this reason that whereas many groups and researchers that have studied mostly elite affairs and abstract notions of the rule of law and human rights have posited an improvement in conditions in Asia during recent years, the Asian Legal Resource Centre has reported on their overall decline…
The story of Burma’s judiciary in the last 50 years, above all, offers a sober lesson for persons in other countries who may be mistaken for thinking that a judicial system once established to some extent cannot be pulled to pieces again within a short time. In Burma this was done systematically and in a number of phases, the first blows to the system so soft as to be almost unnoticeable. Even once the military regime took power, it was careful not to take on the judiciary as a whole, but go at it a piece at a time relying on its agents to pull it down from within, so by the time that the true scale of the operation revealed itself, it was already too late.
