The ‘Victoria’ Rape Case Exposes Myanmar’s Missing Rule of Law

By The Irrawaddy 12 July 2019

Kyaw Zwa Moe: Welcome to Dateline Irrawaddy! This week, we’ll discuss what is going wrong with the ‘Victoria’ child rape case in Naypyitaw, which has brought public disappointment and has undermined public confidence in the police. How can this be fixed to find out the truth? In fact, the Victoria case highlights how poor the rule of law in Myanmar is. Chairman of the Union Lawyers and Paralegals Association advocate U Kyee Myint and member of the steering committee of Gender Equality Network Ma Yee Mon Oo join me to discuss this. I’m Kyaw Zwa Moe.

The girl was less than three years old at the time of the rape. Speculation is rife. What do you think are the main points that caused outrage and made people take to the streets in Yangon, Mandalay, Pyay, Taunggyi and Sagaing, with a planned protest in Naypyitaw?

Yee Mon Oo: The case happened on May 16. Then, her parents filed a complaint with the police. People became aware of the case when a whistleblower wrote about it on Facebook after police failed to take serious action. As social media influencers called for justice, people became more aware of it. Victoria is not the first child rape case. Many have happened in Myanmar. According to data from the Home Affairs Ministry, there were 897 [child rape] cases reported in 2017, and 1,028 cases in 2018. We don’t know how many have gone unreported. Children are the future of not only their parents, but also the country. They will one day have to lead the country. People can no longer tolerate crimes that cause physical and mental trauma to children. As police were less responsive, this has pushed the people to express their opposition not only on social media, but also on the ground, and people, out of their genuine anger, took to the streets.

KZM: The way the case was handled upset people. People became more outraged after Deputy Police Chief U Aung Naing Thu held a press conference. People say that his statements were not reasonable. What have you found from a legal perspective?

Kyee Myint: After the country’s leaders called for a swift investigation of the case, police started to work hastily after previously being inactive. It appeared that they worked perfunctorily as usual without considering much—the usual way government departments respond when there are pressures from above. The Attorney General’s Office is responsible when it comes to charges filed by the police. The office is responsible to check if those charges filed by the police are appropriate, and correct the charges as necessary. In the case of Victoria, it appeared that the concerned district legal office did not scrutinize it properly. Police and legal officers are like the head and the tail of a coin. They are obliged to check and balance each other. The district legal office failed to do that. There are two points. The chief justice is from the military and so is the attorney general. So, the rule of law is still under the control of military officers in our country. The district legal office failed to do its duty in this case. We can’t put blame on the police alone. The legal office that is assigned to control the police failed to do its duty. In the case of [slain NLD legal advisor] U Ko Ni, police said one thing at the press conference, and witnesses said another at the trial. The police chief said Zeya Phyo gave 100 million kyats to Aung Win Khaing and Aung Win Zaw to assassinate U Ko Ni. But at the trial, it happened that there was no strong evidence to prove that, and Zeya Phyo, who gave the money, was only given five years. Private lawyers had had to assist government prosecutors in U Ko Ni’s case. This time in Victoria’s case, Daw Ywet Nu Aung proposed assisting the government prosecutor, but the proposal was denied. The legal office should review what their duties are. They failed to perform their duties properly, and do not accept when others offer assistance.

KZM: Ma Yee Mon Oo, the government said that the President’s Office and the State Counselor’s Office are closely monitoring the case, and instructed that the truth be revealed. It has been two months since the case took place, and police are slow in their actions. What are your recommendations in response?

YMO: When we say Justice for Victoria, the most important thing is to find out the real perpetrator. Then, it is important to make sure he receives the fitting punishment for what he did. Solving this case alone is not enough. There is a need to review and fix lax security and laws for women and children in Myanmar. According to the accounts of the police and the victim, we can conclude that the rape case happened at the school. So there is a question if there is any policy to ensure safe environments for children at all the schools, including nursery schools, and to what extent those policies are being put into practice on the ground. There is a need for the government to push for adoption and implementation of child safeguarding policies. Again, many people took to the streets in the Victoria case because they saw there is no the rule of law. Naypyitaw is the administrative capital, and school is the place that teaches and takes care of children. The fact that such a thing happened in a school in Naypyitaw highlights how bad the situation will be in rural and ethnic areas, which are out of our reach. I would like to urge the government to push all the stakeholders including the police, courts and lawyers to find the real perpetrator. And I would like to urge the government to adopt and enforce policies at the same time to prevent similar cases from happening in the future.

KZM: The rule of law has come into question. Elected leaders of the country, Daw Aung San Suu Kyi and President U Win Myint, have continuously spoken of the rule of law. But then, many problems remain with the judicial system and law enforcement. For example, police could not arrest many fugitives. In the case of the assassination of U Ko Ni, [the alleged mastermind of the assassination] Aung Win Khine is at large. Currently, U Wirathu of Ma Ba Tha [Association for the Protection of Race and Religion] is on the run. And I also heard that arrest warrants have been issued for those who showed support in the precinct of the court for conspirators of U Ko Ni’s assassination, wearing T-shirts with logos saying “Eat Well.” And we don’t know if any of them have been arrested. Why can’t the Home Affairs Ministry or police arrest them? This is directly related with the rule of law. What is your assessment of it?

KM: I have called continuously for putting the Home Affairs Ministry under the control of the elected government. There has been no overseas training or import of modern technologies for the police.

Senior positions in the police force are held by those who were transferred from the military. So, they maintain the practices of the military in police work. What they do best is suppress people and political dissidents, and they are weak in protecting people and apprehending criminals. This is because of the 2008 Constitution, and according to the 2008 Constitution, the Home Affairs Ministry is under the direct control of the military chief. They continue to work with a military mindset, and they barely do police work according to international norms. So, in modernizing the police force, the practice of transferring military officers to the police force should no longer be continued. It must be formed with real police and provided with international-standards training. [The inability of police] has become more evident in the Wisdom Hill case. The statements are quite contradictory. [Police] said DNA of two suspect boys have been tested. Then, the mother of the boys said she would accept that if her sons DNA are tested openly. So, it means that their DNA has not been tested.

KZM: So, there are contradictions?

KM: Yes, there are. Their claims are contradictory. Like in U Ko Ni’s case, police said one thing, and witnesses testified another at the trial. So, it is important that the police force is under the control of the elected government and provided with capacity-building training. If those who transfer from the military continue to lead the police force, it will harm the rule of law of our country.

KZM: The 2008 Constitution and the appointment of the Home Affairs minister by the military chief are connected to politics. But aren’t there other factors like corruption and favors out of nepotism. Now, some people ask if the President can’t give clear instructions regarding the Victoria case. People say that if the truth can’t be revealed in the Victoria case, it amounts to the entire people, the judicial system, the government—including the President—being abused.

KM: I believe the president has goodwill and competency.

KZM: He was previously a lawyer.

KM: I have no doubt about him. But, executive, judicial and legislative branches are separate. It led to an argument over the president’s authority, when President U Win Myint intervened in the case of [the fatal beating of Facebook comedian] Aung Yell Htwe. Though he has the authority to intervene, he has to use that authority carefully to prevent misunderstandings. He is however closely monitoring the case. You ask me if there is any chance of other factors like corruption, of course there is. In Aung Yell Htwe’s case, a police officer who built the case took three million kyats [from the suspects]. The case is being re-investigated, but the investigation is based on the case built by the police officer who took the bribe without re-building the case.

KZM: There have been delays in this case as well as the case of weapon seizures from Phyo Ko Ko Tint San. This shows the legal system is not effective.

KM: The chief justice and the attorney general, who are most responsible for the rule of law, are from the military. So, they are not competent. It is not strange that the quality of rule of law is low when incompetent persons make management. And they can’t be dismissed due to the 2008 Constitution. The attorney general however is appointed by Daw Aung San Suu Kyi. U Ko Ni, while he was alive, lamented that he didn’t understand why Daw Aung San Suu Kyi appointed former military officers when she could have appointed other civilians as attorney general. The rule of law can be possible only when those in leadership positions have competence and goodwill. Others have little authority and they have overall authority. Unless and until what should be amended in the 2008 Constitution is amended, it is unlikely we’ll achieve the rule of law.

KZM: Ma Yee Mon Oo, taking a look at rape figures, there were 1,405 rape cases in 2017, and over 800 of them were children rape cases, accounting for more than 50 percent. In 2018, there were 1,584 rape cases and 1,028 of them were committed against children, accounting for 64 percent. So far in 2019, child rape cases accounted for 67 percent of all the rape cases. Recently, the MOI (Ministry of Information) published a discussion with police officers. They made an interesting point in the discussion, they said that parents should not dress their children in indecent clothing. In the thinking of our society, [wearing revealing clothes] is perceived as an important factor [in rape cases]. Other countries like India have the same thinking. Regarding this, what are your recommendations for the government and parliament?

YMO: I was shocked when I saw the message recently given by the MOI on its website regarding the sexual abuse of children. It highlights dressing, and how parents should educate their children to avoid sexual abuse. We found that there is weakness in educating [the boys] since their tender age about how disgusting and unacceptable it [molesting] is in society. Most of the education is focused on mothers telling their daughters how to avoid sexual abuse, but not on mothers telling their sons what they should avoid to become good men. There is no giving of that message and education in our country. To fix the situation, while the government must enact clear laws and policies, there is also a need to change the thinking of the entire society.

KZM: This calls for collaborative efforts. The entire people believe the investigation is going wrong, and they have no trust in the investigation process. How can this be fixed?

KM: The court will hear the plaintiff soon. It is useless blaming the police or others at this point. The case has been brought to trial. The lawyer representing [suspect] Aung Gyi must be good and thorough. And volunteer lawyers like Daw Ywet Nu Aung should be allowed to assist the government prosecutor. If the court finds the case is not valid, it can absolve [the defendant] at any stage of trial. Then, this case can be re-built and a new case can be opened at the court. This is the best thing that can be done according to legal proceedings.

KZM: Ma Yee Mon Oo made a good point that long-term plans are needed. Daw Aung San Suu Kyi has repeatedly talked about the importance of the rule of law. Saya U Kyee Myint, you said the 2008 Constitution is to a certain extent an obstacle to the rule of law. What are your recommendations for creating an immediate impact on improving the rule of law?

KM: The [police] investigation is very bad. They can just simply carry out an identity parade and the perpetrator can be identified in no time. There is a procedure for this. It is that simple, and failure to do so arouses the suspicion that police do not want the real perpetrator disclosed. They failed to do it according to procedure. It happened because the police force became very bad in the 30 years under the military regime, since 1988. They were not that bad under the control of [late dictator] U Ne Win, and during the time of the Anti-Fascist People’s Freedom League government. Everything went bad during the time while the country was under direct military rule. Police, judges, law, lawyers and people all went corrupt. Others may not be any longer corrupt. But police are under the direct control of the military chief. To reform the police force, this must be changed.