Myanmar, the death sentence and the rule of law

Myanmar’s government must allow reforms in the judicial system, and the first step is to guarantee its independence.

Prisoners release in Yangon, Myanmar
Progress must be based on an established rule of law, argues Aung San Suu Kyi [EPA]

It was the trial result Phyo Wai Aung’s family must have been dreading. Having been kept in prison for more than two years, reportedly heavily tortured and given an unfair trial at a court on May 8, the judge finally slammed his gavel. Phyo Wai Aung was given the death sentence.

According to the court, Phyo Wai Aung was a “terrorist bomber”, responsible for the explosions during Myanmar’s annual water festival celebrations in 2010.  As revellers splashed water on each other, at the popular X20 stage, three explosions killed ten and injured 168.

One week later, Phyo Wai Aung, a 31-year-old engineer, was arrested and blamed for the incident. Right from the beginning he was denied a fair trial, exposing a severe lack of the rule of law in Myanmar, which could hamper progress if not immediately addressed by MPs.

Straight after the explosion took place, rumours went flying around the country and along its borders. Some spoke of the involvement of one or more of the various ethnic armies that oppose the state military’s oppression of their people.

Regardless of the real story, and even if Phyo Wai Aung was guilty, his arrest, his trial and his detention all show that while reforms may be taking place in Myanmar, the judicial system remains the same as it has been for decades under military rule.

The government, as usual, pointed the finger at nearly every enemy they could think of, but mainly accusing the radical student group, the Victorious Student Warriors. As Phyo Wai Aung had worked as an engineer at the same company as Thura Zaw, a member of the All Burma Student Army Front (ABSDF), the government immediately began accused him of being responsible for the explosions.

A potential reason for the race to find a culprit could be the rumoured targeting of Nay Shwe Thway Aung, the grandson of former regime leader Than Shwe, who is known to circulate among the stages during the water festival. Being the “favourite grandson” of the feared regime leader, the officers in charge of the case would have been feeling overwhelming pressure to find a suspect as soon as possible. Further rumours suggest that infighting between “junta kids” led to the explosion, another reason for the rush to “solve” the case.

Judicial reform?

Regardless of the real story, and even if Phyo Wai Aung was guilty, his arrest, trial and detention all show that, while reforms may be taking place in Myanmar, the judicial system remains the same as it has been for decades under military rule, where anyone can find themselves in the same position as Phyo Wai Aung.

Since his arrest, Phyo Wai Aung has repeatedly denied his involvement in the bombing. Despite having witnesses at his construction company who say he was there the day of the bombing, the court has ignored this evidence, and rejected any calls for the witnesses to be called to court.

According to the Assistance Association for Political Prisoners (AAPP), an NGO in exile which has spent the past ten years documenting countless cases of a similar nature, Phyo Wai Aung was severely tortured until he confessed to the crime.

During his interrogation, Phyo Wai Aung says he was handcuffed and forced to stand for two days, blindfolded and severely beaten. He was forced to kneel, naked, on sharp gravel with his arms raised above his head for long periods of time while his genitals were burnt with a flame by the interrogators.

According to relatives, an officer in charge of his interrogation, police Lt Swe Lin, threatened him, saying: “Even if you die during the interrogation, we will be okay.” After his family finally visited him three weeks later, he was tortured for another six days. Phyo Wai Aung’s health had deteriorated so much, and his torture was so violent, that the prison’s superintendent is reported to have sat in on the interrogation in case he died.

It was after all this abuse, sleep deprivation, psychological damage and physical violence, that Phyo Wai Aung “confessed” to being responsible for the bombing. A confession, when the torture had finished, he quickly rejected and went on to plead innocent to all the charges throughout his trial.

Since Pyo Wai Aung was imprisoned, AAPP reports that he has been denied any medical treatment and external examination. He suffers from Hepatitis B, which could become life threatening if not properly treated. He has not been allowed out of his cell for exercise and has been denied visits from both his family and his lawyer. He has also been denied access to a copy of his file, and police have been listening in on phone conversations with his lawyer.

For many Myanma, Phyo Wai Aung’s unfair trial came as no surprise; the rule of law in the country has long been non-existent. Thousands of prisoners, political or otherwise, have faced similar conditions and draconian laws, which have led to unfair detentions for long periods of time.

“At present, the government can apply the laws to stop any person or group from doing something that they feel threatens them.

One similar bombing case, another which serves to highlight the absence of the rule of law in Myanmar, is that of Than Zaw who was arrested in 1989, charged with bombing a petroleum factory. Like Phyo Wai Aung, he too had an alibi, which the government was not interested in, and he was tortured into giving a confession. Since his arrest, the real culprit, a KNU bomb expert, admitted responsibility for the incident and has spent time in prison, and been released. Despite this, Than Zaw remains behind bars, leaving many to wonder whether the government is more concerned with “saving face” than establishing the rule of law.

Meanwhile, Than Zaw continues to languish in a dark prison cell suffering from health problems and missing the best part of his life, for a crime he seemingly didn’t do.

‘Progress it deserves’

As opposition leader Aung San Suu Kyi told this writer: “You cannot have genuine reforms without judicial reforms, it is no use introducing investment laws if we don’t have a good judicial system to make sure the laws are properly applied. I think without an established rule of law, there can be no real progress.”

At present, the government can apply the laws to stop any person or group from doing something that may threaten their hold on power. Farmers who have become increasingly mobilised against land confiscation have been feeling this the most. Seen to be concerned about the increasingly united front being formed by the farmers, the government has been arresting farmers on the most draconian of laws. U Ko Myint Naing, who led 300 farmers to protest against land grabbing in the Irrawaddy delta, was arrested for not seeking permission from government censors to copy a video tape of the protest.

The worry is, regardless of any new laws, without judicial reform, those in power will continue to oppress any threat to their existence with impunity.

This is, of course, not a good sign for the business vultures lurking around the country. While new investment laws are soon to be introduced, foreign and domestic companies will have little guarantee that their investments will be safe until the judicial system is completely cleansed of its regime-like tendencies.

All should now be calling for certain benchmarks in order to establish a rule of law. A first step would be to completely separate the justice system from the state. At the moment, judges are manipulated by the government. Government officials also need to be subject to the same laws as everyone else. New laws need to be respected and any inconsistencies with old laws need to be addressed to make laws as clear and comprehensive as possible, so that everyone can be treated equally.

Whether or not Phyo Wai Aung is guilty, his case (like countless others), shows that Myanmar is lacking a real rule of law. Like many other prisoners, numerous incidents throughout his trial have breached the Universal Declaration of Human Rights and the International Covenant for Civil and Political rights.

This has been the same for countless civilians, farmers, monks, businessmen – and even a few foreigners – who have ended up in Myanmar’s courts.

In order to show a genuine will to reform the country, and progress to a democratic state, senior government ministers and opposition MPs should be calling for the immediate retrial of Pyo Wai Aung under fair and impartial conditions.
This would set the new standard for any future trial in the country, and could herald a new dawn for Myanmar’s judicial system. 

If attention is not given to the case of Phyo Wai Aung, and thousands of other prisoners who have been given an unfair trial, whether they be alleged murderers or accused environmental activists, Myanmar will never really enjoy the progress it deserves.

William Lloyd George is a freelance correspondent reporting on under reported stories around the globe.

Follow him on Twitter: @W_LloydGeorge

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