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NLD Face Major Challenges as Lack of Rule of Law Perpetuates Impunity

By Burma Partnership  •  January 26, 2016

studentsJust months before the end of the President Thein Sein Government, a series of events and issues publicized over the past week demonstrate the pressing need for reforms to establish rule of law in Burma. The arrest of an outspoken critic of the Government on spurious charges, the sentencing of an activist for six months imprisonment for one alleged Facebook post, the continuing search for justice for two brutally raped and murdered schoolteachers, the latest conditional release of some political prisoners to gain plaudits, and the passing of the one year anniversary since the beginning of a cross-country, peaceful march by students for democratic rights in the education system from which many of the participants are still in prison exhibit the how entrenched, weak and arbitrarily applied the rule of law still is in Burma today.

A presidential remission was announced on 22 January, 2016, in which 102 prisoners were released, 52 of whom were political prisoners according to the Assistance Association for Political Prisoners. In the past, such amnesties were timed with high profile events such as the visit of high-level foreign dignitaries, before important international policy decisions on Burma, or the tabling of UN resolutions on Burma, thus drawing praise at a time when the Burma Government is in the international media spotlight. While this release is timed with the end of the Union Peace Conference and the closing few weeks of the current Government’s term in office, there is still no recognition of those 52 as political prisoners, just like previous releases, with the Government continuing to group them with criminal offenders rather than officially recognize their political status. Furthermore, they were released under Article 401/b of the Code of Criminal Procedure, a conditional release under which they can be sent back to prison, any time, for the remainder of their sentence for any slightest infraction of the law. Meanwhile, at least 78 political prisoners remain in jail and 408 are awaiting trial on politically motivated charges. One of whom awaiting trial is U Gambira, otherwise known as Nyi Nyi Lwin, a prominent leader of 2007’s ‘Saffron Revolution’ who has been hounded and repeatedly imprisoned and severely tortured since his release in a previous presidential remission in 2012. This time he has been detained under immigration charges, widely believed to be politically motivated due to his outspoken criticism against the Burma Government.

Others awaiting trial are over 50 student demonstrators who were arrested in March 2015 following a violent police crackdown during their march from Mandalay to Rangoon to protest against the anti-democratic nature of the National Education Law. 20 January, 2016 marked one year since the march began and with the legal and judicial system continually failing them, their fate remains uncertain. One of the 78 political prisoners who have been convicted include Kachin activist Patrick Kum Jaa Lee, sentenced to six months imprisonment for an alleged Facebook post mocking the Burma Army Chief, just hours after the announcement of the release of the 102 prisoners. He joins activist Chaw Sandi Tun who was also sentenced to six months imprisonment in December 2015 for mocking the Burma Army on a single Facebook post.

Lurking behind the case of Patrick Kum Jaa Lee is the Burma Army, which after five years of a touted reform period, have demonstrated that the slightest criticism towards the institution itself or its leaders will not be tolerated. They have also shown the rule of law simply does not apply to them. A reminder of this was the release of the report “Justice Delayed, Justice Denied: Seeking Truth about Sexual Violence and War Crime Cases in Burma,” in which the rape and murder of two ethnic Kachin schoolteachers allegedly by the Burma Army soldiers, is stalling under an ineffective police investigation and military interference in the pursuit of justice.

In Burma, it is the lack of the rule of law combined with the entrenched impunity enjoyed by state authorities, and the Burma Army in particular, that links the various injustices that have come to the fore this past week. In addition, the ability of the authorities to arbitrarily grant and deny the liberty of peaceful activists highlights the intolerance of critical opinions and legitimate dissent as well as the glaring failings of law enforcement and the legal and judicial systems. In these cases, the executive has shown that it has the power to transcend legal and judicial processes and structures to grant amnesties, put people in prison for political gain, or to protect its own interests. Meanwhile, the most serial perpetrator of human rights abuses – the Burma Army – continues to operate above the law, largely enabled by a pliant judicial system and the use of oppressive, draconian laws. Unless these flawed institutions, legal structures and oppressive laws are addressed by the incoming Government, justice will always be denied. Daw Aung San Suu Kyi has spoken repeatedly whilst in opposition of the need for the rule of law in Burma and this must be prioritized when they come into power in April 2016.

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