MYANMAR/BURMA: Effects of endemic corruption in Myanmar’s courts on rights of citizens

HUMAN RIGHTS COUNCIL
Thirteenth session, Agenda Item 4, Interactive Dialogue with the Special Rapporteur on Myanmar

A written statement submitted by the Asian Legal Resource Centre (ALRC), a non-governmental organisation with general consultative status

MYANMAR/BURMA: Effects of endemic corruption in Myanmar’s courts on rights of citizens

1. For years the Asian Legal Resource Centre (ALRC) has learned of the profound level of corruption in the police and courts of Burma. Practically every step in an ordinary criminal case can be accompanied by payments of one kind or another, which have a profound effect on the already extraordinarily limited avenues that citizens have available to them for redress of wrongs. Payments occur to get a case registered, to get it lodged in court, to get it heard as scheduled, to receive copies of documents, to secure a conviction or acquittal, to get the case accepted on appeal, and so on.
2. The following examples from research conducted by the ALRC show something of the mechanics of corruption in Myanmar and how all parts of the system work to defeat the interests of justice and undermine human rights.
   1. n 2007 a police special drug squad arrested a notorious dealer in possession of a small amount of amphetamines. The immediate concern of the local police was to help get the accused out of custody. They nominated a lawyer for him. This is a common practice in all types of ordinary criminal cases in Myanmar, in which there is also a standard commission of 30 per cent that goes back to the police station chief. After being hired, the lawyer went to meet with the judge and prosecutor handling the case. His main function was to act as a broker. This is why the lawyer in such cases needs to be nominated by the police or another official. Judges will only bargain with a lawyer whom they can trust. In this case, the judge explained to the lawyer that the problem was because of the notoriety of his client, there was local and official interest in the case and the judge could not just let the client off without risking accusations of corruption and loosing face in the local community. So they arranged the case in a way that would get the client off, give the judge credibility and make everyone money. Payments were made both to the judge and the prosecutor. During the hearings, they deliberately botched the case. The judge admitted evidence that cast doubt on the allegations, and the prosecutor asked questions that supported the defence. Some prosecution witnesses were made hostile and their evidence recorded fully in the judgement. The judge convicted the accused, and public interest in the case ceased. But the verdict was flawed. The case was appealed to the district court. Here there were no public hearings and no knowledge of what was going on. The judge in the court of first instance had already contacted the judge in the higher court, and had given money to him. The higher court acquitted the accused.
   2. A government car driver living with his son in modest conditions, a few years from retirement was in 2007 approached by a group of men, who asked to rent his house. The amount they offered was far above the market value. The occupant consulted with local government administrators whom he knew as friends. They advised him that the group apparently wanted the house for gambling, but that there was nothing to worry about and that he should do it. He rented the house and received a year’s payment in advance. After two months a group of special vice squad police arrested the gang. The manager of the gambling operation used his contacts with the police to have the house owner pose as the key accused, securing bail for himself and his men. He told the owner that if he went along with the scheme then he wouldn’t have to repay the year’s rent, and that he would also get him released after a short time. He also threatened him that if he didn’t cooperate then the gang would implicate his son. In the end, the house owner and two junior members of the gang faced court, with the owner in jail and the others on remand. In 2008 the court convicted the owner and freed the other two for lack of evidence. On appeal the elderly man was conditionally released, taking into account time served, but without his knowing the prosecutor appealed to a higher court and the original sentence was re-imposed; the police again arrested him and he is serving the remaining time. The gang has moved elsewhere.
   3. The son of an army officer posted to a regional command in 2008 allegedly attempted to rape a classmate together with a companion. The family of the victim took the unusual step of strongly supporting her complaint against the two accused. The case attracted local interest because of the status of the alleged perpetrator as a family member of the ruling military class. At first the charge against the two was attempted rape. They were held as VIP detainees in a room next to the police station chief’s own office that the police normally use for playing cards and drinking. The army officer’s son received bail on the basis of a supposed health problem that required medical treatment; his companion was held in remand, but in the same room as before. After preliminary hearings and payment of money, the judge ordered that the charge be altered to assault on a woman, which is a much lower offence for which bail is habitually given, and the second accused also was released. Finally both accused were acquitted of that charge on the benefit of the doubt, the judge implying that the victim had misled the two accused and at first consented to sex.
3. Among the most important parts of the profit-making process in Burma’s legal system is the granting of bail. Like in those cases described above, the methods of using and manipulating bail involve all parties in the system, including the police, prosecutor and judge, who at various stages have different important roles to play.
   1. In the beginning, the police are the most important persons for an arrestee. The police will initially lodge–or threaten to lodge–a non-bailable charge against the accused. In some cases an accused may be able to negotiate with the police to switch to a bailable charge. This depends in part on whether or not the police have taken the initiative to lodge the charge, or whether someone has paid them to do it, in which case they may take money only not to maltreat the detainee, but will not take money to alter or drop the charge, depending on the amount paid by the other party. Where a detainee cannot get the police to alter the charge, the matter goes to the prosecutor. The prosecutor, or law officer, is responsible for lodging the charge in court. If the accused is able to negotiate effectively with the prosecutor, through his lawyer, then the prosecutor will agree to lodge a bailable offence in court.
   2. Whether the decision to lodge a bailable offence is made by the police or by the prosecutor, the decision to finally grant bail or not lies with the judge, and at this stage the detainee must again have made arrangements through the lawyer to ensure that bail is granted. In fact, it is in the interests of the judge and of all parties not only that the threat of remand is used to identify detainees with the means to pay their way out of custody, but that those detainees who do have the means are given bail. The reason is that once a price is fixed the detainee will usually make a down payment but then have to raise the rest of the money. This is not easy to do while in custody. Therefore, bail is granted so that the defendant can raise the rest of the money.
4. One of the ways in which the institutionalisation of corruption can be identified in Myanmar is through the standardization of its practices. For instance, fairly standard amounts are paid for certain services, such as the 30 per cent commission from police-nominated lawyers back to the police, and fixed payments per time per person to deliver food to a detainee. Another feature is the itemization of payments. Thus, it is reportedly common for appeal judges to receive payment per annum for imposition or reduction of a sentence. The appellant in a case before the Supreme Court, the plaintiff, paid a judge the equivalent of USD 10,000 to get his opponent imprisoned for five years, calculated not as a lump sum but at the rate of USD2000/year of imprisonment.
5. An attendant feature of systemic corruption is the failure of procedures on which the system is dependent. When the failure reaches the proportions found in Myanmar, it ceases to be a justice system at all. Virtually every case that the ALRC has studied in recent years at some point speaks to this type of procedural failure. Charges are argued even though patently in violation of the law. Judges take up cases involving minors that should be handled by juvenile courts. Sometimes judges are paid to falsify records so that minors appear as adults. This has been a special problem in the delta region since Cyclone Nargis of 2008, as many survivors lost all their documents and proof of age is difficult. Search and seizure forms also are invariably incomplete or wrongly recorded. Under the law, they must be filled out at the place searched and where the items are seized. In fact, police collect items at the site of an incident and bring them back to the police station where they complete the records. They use standard witnesses instead of those at the scene of the search as required by law. And in court, it is a requirement that a witness testimony be read out before he or she sign it; however, very often this requirement is dispensed with and a witness simply told to sign after they have spoken and the written record is ready. This allows both the judge and the clerk to change the contents of the record to suit one party or another. These methods defeat the whole purpose of these records, as there is no longer any accurate picture of what has happened during the police, prosecution or court work.
6. While the incidence of corruption in the police and courts of some countries in Asia is a subject of close interest and documentation, in Myanmar despite the widespread view that the courts are corrupt, it has obtained little attention. This is due both to the difficulty of reliably documenting its incidence–which is problematic by virtue of the nature of corruption even in relatively open societies–as well as to the low priority that it has been given in research on the country, as against documentation merely of military abuses and attendant corrupt practices. Notwithstanding, the Asian Legal Resource Centre urges that all agencies concerned with the situation of human rights and the justice system in Myanmar, including the Special Rapporteur assigned to the country and the Special Rapporteur on the independence of judges and lawyers, the UN Office on Drugs and Crime, as well as human rights research and advocacy organisations at the international, regional and local levels undertake special detailed research into corruption in the country with which a partial picture can be assembled over time of its extent and characteristics, and their implications for human rights, from which it will be possible to enter into an informed discussion of what needs to be done about it.