Will Baby ‘Victoria’ Get Justice?

By The Irrawaddy 29 February 2020

Welcome to Dateline Irrawaddy! This week, we’ll discuss what could be called the fighting between the people who want to find out the truth and a handful of people who want to suppress the truth. More than nine months after the sexual assault of a less-than-3-year-old girl [dubbed by the media as] “Victoria”, a case that upset and angered the entire country, the truth still hasn’t been established. Last Thursday, President [U Win Myint] instructed that legal action be taken against government officials who did not fulfill their duties in that case. Before that, the President had urged the relevant organizations to discover the truth. We will discuss why the truth still hasn’t been discovered, whether the President will be able to save Victoria, and whether the rule of law will go from bad to worse in Myanmar. Legal advisor U Khin Maung Myint and steering committee member of the Gender Equality Network Ma Yee Mon Oo join me to discuss this. I’m The Irrawaddy English editor Kyaw Zwa Moe.

The President has given instructions regarding the case and called for the truth to be established. He repeated it last Thursday. He gave the instructions mainly to the Supreme Court of the Union, Home Affairs Ministry and Union Attorney-General’s Office. Firstly, he called for discovering the truth, and taking action against the government officials who did not fulfill their duties. U Khin Maung Myint, how much do you expect will come from this? What has gone wrong in this case?

Khin Maung Myint: The case was badly handled from the start. Once the police receive a complaint from the aggrieved party in a criminal case, they have to conduct an investigation and build the case in order to bring it to the court. Based on the case built by the police, law offices at different levels review it and prosecute it on behalf of the government. So, the government is the plaintiff. The case was bungled and the perpetrator could not be held accountable. Victoria is the aggrieved party. But the prosecutor in fact is the government. Because this is a criminal case. The perpetrator could not be identified in a case in which the government is the prosecutor. We are blaming the police currently. But the Union Attorney-General is assigned according to Section 12 of the Attorney-General of the Union Law to review cases put together by the police if he assumes the cases are weak. He is assigned to review, instruct and supervise in that regard, and explain to the Parliament in unusual cases.

KZM:Over the past nine months, he didn’t do anything in that regard in Parliament.

KMM:Again, according to Section 36 of the law, law offices at different levels are authorized to review the cases they believe are flawed. They have the authority to order re-investigations. Cases should be only brought to court after they are properly built, along with evidence and testimonies. While legal experts, the media and even the ordinary citizens were raising doubts that Ko Aung Gyi is the perpetrator, police brought the case against him. As all had expected, he was discharged due to a lack of evidence. The case has technically been closed, as the Advocate-General of Mandalay Region did not accept the proposal to change the criminal charge. The aggrieved party doesn’t need to open the case again. She has filed a complaint with the police. Police and law offices at different levels are to be blamed for not being able to identify the perpetrator. The aggrieved party doesn’t need to file another complaint. To answer your question about what we can expect, we should measure this based on the extent to which police and law offices at different levels will follow the instruction of the President. So far, we haven’t heard that a new case will be opened and other suspects will be identified. However, we legal experts and people expect that the truth will be established.

KZM:What you said suggests the police and the Union Attorney-General’s Office have failed to perform their duties.

KMM:Since Ko Aung Gyi was discharged, they have told the public nothing. They have not submitted any plan to the President, who gave instructions. So, we can conclude that they have done nothing so far.

KZM:Ko Aung Gyi was released, and we are in a state of confusion about the case. As a person who is working for women’s and children’s affairs, what else would you like to point out?

Yee Mon Oo:I’ve been monitoring the case, the sexual assault against a girl. So, we’ve been watching what actions were being taken. We have seen many suspicious things since the case was reported. It has even made people think that legal officials have something to protect, other than the aggrieved party. We didn’t see any noticeable work done by them for Victoria. What shocked me most was when the Myanmar Police Force revealed the identity of the victim and personal information about her parents. So, I found the procedures of the Myanmar Police Force extremely suspicious. They are protecting one side rather than the aggrieved party. It is understood that the identities of victims of sexual abuse, young or old, should not be revealed. The Myanmar Police Force had no reason not to know that. So, I guess they deliberately revealed it. Again, when I see a lot of confusion, procedural irregularities, and the failure to protect the victim in a case that happened in the center of Naypyitaw, which is the administrative capital, I feel very depressed and concerned. There may be many more cases of sexual abuse in conflict zones like Kachin and Rakhine states. And there are ongoing conflicts. I doubt that justice will be served for victims of sexual assaults and rapes committed by those who are associated with those in power. Two female Kachin teachers were raped and killed five years ago. But no one has been held accountable for this so far. It has been nine months since the Victoria case began. We are still in a state of confusion. And relevant authorities failed to work in a transparent manner. I heard that punitive action will be taken against the police officers who revealed the identity of Victoria. But we were not informed in a transparent manner what action had been taken against them, if any.

KZM:We have not yet been told anything about it. That they revealed the victim’s identity was quite provocative. Police Brigadier-General Soe Naing Oo of the CID [Criminal Investigation Department], Police Colonel Min Han and Police Colonel Tha Tun were at the press conference. They revealed the identity of Victoria and the personal information of her parents. Police posted the information about the victim’s parents on their Facebook page. The post was however removed later. Police officers said it just slipped out. How does one respond? Needless to say, people were angry about that.

KMM: Frankly speaking, it is against the Child Rights Law enacted in July 2019. The law prohibits the identification of a minor involved in a legal case, whether it’s before a [regular] court or a juvenile court. And the law also prescribes penalties for violations of this.

KZM:What are the penalties?

KMM: Four months in prison plus a fine. Whether they revealed the identities intentionally or unintentionally, the head of their organization must take action against them, showing responsibility and accountability. Punitive action must be taken against them. Now, [lawyer] U Thein Than Oo and others are taking steps to sue the police officers. My question is, will action be taken only when the aggrieved party files a complaint?

KZM:And finally, the President has to intervene.

KMM:Right. There is a law in place: why haven’t the police chief and the home affairs minister taken action against those who violate that law? Deputy police chief [Police Major General] Aung Naing Thu spoke out against the existing law at a press conference about an important witness, teacher Hnin Nu Lwin, at the presidential residence. According to Section 160 of the Code of Criminal Procedure, police are authorized to require anyone who is believed to have information about a crime to appear as a witness. And Section 161 requires them to answer all the questions other than those that could expose them to a criminal charge or to a penalty or forfeiture. And Section 163 says police shall not prevent any person from making any statement which he may be disposed to make of his own free will. The deputy police chief said that as [Hnin Nu Lwin] is a human witness, she may or may not testify. This has impacted so much on the trial. Teacher Hnin Nu Lwin is an important witness; she was the first to find out Victoria was sexually assaulted, and she was the one who washed Victoria’s private parts. The victim testified that two boys [committed the offense against] her in a hall, and that the teacher had scolded them. Despite this, Hnin Nu Lwin denied at the court having any knowledge about the incident. My question is whether or not the Myanmar Police Force is familiar with the procedures and relevant laws. And at the court, it was discovered with the assistance of technicians that the CCTV records were changed or replaced. But police did not do anything to find out who changed the CCTV records and why, and who ordered that the records be changed.

KZM:Normally, police chiefs have to order an investigation in such cases.

KMM: Yes, they have to and the court has to take action for falsifying evidence under Section 193 of the Penal Code. Falsifying evidence is a crime, but the court did not open a case regarding that. Taking a look at the course of this case, one accident is not unusual, but there are many accidents in this case, and I am suspicious there are deliberate efforts in the case to suppress the truth. From a legal point of view, this suspicion is quite strong.

KZM: Regarding Police Maj-Gen Aung Naing Thu, how do you interpret his action regarding witness Ma Hnin Nu Lwin—did he neglect his duty, or did he attempt a cover-up?

KMM:From what he said that day, I would say he failed to perform his duty and also attempted a cover-up. It is unlikely that he as the deputy police chief has no knowledge about sections 160, 161 and 163 of the Code of Criminal Procedure. [His] work is primarily based on the Code of Criminal Procedure and the police manual. Despite this, he covered up for teacher Hnin Nu Lwin. We need to find out why he said what he did at the press conference. In consequence, at the court, Hnin Nu Lwin did not give a detailed account of what happened. After the case was opened, it was not immediately handled by the CID. Before that, the police and the court to which the complaint was filed investigated the case for nearly a month. We don’t know what they asked and what Hnin Nu Lwin said during that interrogation, and if there is any difference between what she told the police at first, what she told the CID later, and what she said when she testified in court. And police did not compare her accounts according to Section 162 of the Code of Criminal Procedure. This point should be noted.

KZM: People say that there is a cover-up in the case overall. Which points are implausible to women’s affairs organizations and the public? What do you say?

YMO:As we have monitored the case, we have seen many irregularities. I must say, they are trying to hide something, rather than there being shortcomings in the procedures. Let’s take Ko Aung Gyi. It was not that he was officially named as the suspect and revealed to the media from the very beginning. It emerged as a rumor when an alleged police official wrote a post on social media that the school driver was the perpetrator. Only after that did police officially name him as the suspect. So, we assume there is a cover-up. Again, it appears that women and girls are being used to provoke the public. Looking at the root causes of conflicts in Myanmar, you can see that many originate from sexual violence against women and girls and subsequent rumors. It seems that what the officials, especially police, say at press conferences is provocative rather than informative. They revealed the identity of Victoria and posted it online. I am suspicious that they intentionally did it in order to provoke the public. We should take considerable caution. People are quite angry now. They could take to the streets at any time. We are concerned that some organizations might manipulate such protests for their own interests.

KZM:Your organization engages with lawmakers and government officials. Has your organization discussed or provided recommendations to them regarding the Victoria case?

YMO:Yes, we have. When we met with MPs, we mainly discussed the Law on Prevention of Violence Against Women. Under this law, we will see improved prospects for taking action against offenders. The case of Victoria highlights the fact that a law on prevention of violence against women is urgently needed. Violence against women including Victoria and women who were burned to death proves that [passage of] the draft law on prevention of violence against women recently published is desperately needed. We are pushing for it.

KZM:Saya, earlier I mentioned some of the irregularities in the case. For example, some lawyers were intimidated and some lawyers were even charged.

KMM:Yes, some lawyers were charged.

KZM:Were you intimidated during your handling of the case? Did you encounter any other irregularities?

KMM:I was never intimidated personally. I was closely watching the case from the beginning and I said what I needed to. There were irregularities. Normally, victims file criminal cases as plaintiffs. As the plaintiffs are not well versed in the law, they hire lawyers to represent them in courts. In the case of Victoria, advocate Daw Ywet Nu Aung represented Victoria and her family as the plaintiff lawyer. In criminal cases in which the state acts as the prosecutor, different legal offices at different levels represent victims as prosecutors. In the case of Victoria, a district level legal officer [a prosecutor] represented the victim in accordance with the provision of the Union Attorney-General Law. However, plaintiffs’ lawyers are required to cooperate with the state prosecutors. If a plaintiff’s lawyer asks to questioning suspects in court, it is necessary for state prosecutors to allow the plaintiff lawyer to question suspects. What was unusual at the beginning of the case was that the state prosecutors said they would not accept the cooperation of Daw Ywet Nu Aung and a dispute broke out. The prosecutors and the plaintiff lawyer were divided. The prosecutors who represent Victoria on behalf of the state did not accept the cooperation of plaintiff lawyer Daw Ywet Nu Aung. It was an irregularity.

KZM:To put it simply, state prosecutors, who are under the Office of the Union Attorney-General and on behalf of the state, did not accept the cooperation. Then, are they, as the president said, guilty of failing to perform their duties?

KMM:Definitely. When we represent someone at the court as lawyers, we may be either on the side of the plaintiffs or the defendants. When we represent plaintiffs, we have to do so under the supervision of state prosecutors. However, we have the right to submit and ask questions under their supervision. In this case, Daw Ywet Nu Aung had to face difficulties. State prosecutors did not have as much access to information about the case as Daw Ywet Nu Aung, who was closer to the victim’s family. By refusing the cooperation of the plaintiff lawyer, the prosecutors could not ask the necessary questions. I have seen this.

KZM:State prosecutors said they could not cooperate with the plaintiff lawyer officially. This was also reported by the media. Now, have they changed their attitude? Can they cooperate with the plaintiff lawyer?

KMM:This has not changed. The state prosecutors and the plaintiff lawyer have not had a chance to cooperate. It is unusual. What concerns us is that if state prosecutors mandated under the Union Attorney-General Law refuse to cooperate with plaintiff lawyers, there will be more challenges for the plaintiff lawyers, and for justice.

KZM:We are highlighting the case to point out that the judicial system of the country is biased. The law is biased. The President himself frequently says that. The law is biased. In this case, the President was offended. Ma Yee Mon, whom would you like to appeal to for justice in the case?

YMO:If the truth cannot be revealed in this notorious case, in which a young girl was raped in the capital Naypyitaw, there will be more violent crimes against women across the entire country later. If the people lose trust in the Myanmar Police Force, they will resort to any available means to respond to crimes against them instead of solving crimes according to the law. The situation will get worse and crime will be rampant. It is necessary for the President, the State Counselor and relevant ministries to understand and respond to the situation. If the rule of law is to be restored in Myanmar, the government must urgently seek justice in Victoria’s case. I would like to urge the President, the State Counselor, the Ministry of Home Affairs and the Office of the Union Attorney-General to seek justice in the case with sincerity. The case poses an important challenge to the rule of law not only for Victoria but also for the entire country. The rule of law in our country will be jeopardized. It is an urgent task and I urge the authorities to carry it out immediately.

KZM: Saya, it has been nine months since the trial started. You said a competent police superintendent could investigate the case within one month. How long will it take to find justice in this case?

KMM:Actually, we have been dissatisfied with this case since the beginning. It is a case a seasoned police superintendent could investigate within one month. There is no reason for complications in the case. Why did the Criminal Investigation Department handle the case without sound reasons? Why did evidence disappear? Why did the path of the case get farther away from the truth? Why was Ko Aung Gyi accused of the crime without sound evidence? Once Ko Aung Gyi was accused of the crime, we lost many things. First of all, Ko Aung Gyi was detained after being wrongly accused. On the other hand, the real culprits had the chance to escape. Moreover, during the nine months of the trial, opportunities emerged to destroy evidence. This is very bad. It is in the nature of crime that the faster the investigation starts, the better it is for justice; the slower the investigation, the harder it is to reveal the truth. It seems to me that charging Ko Aung Gyi without sound evidence was a fabrication [intended] to obstruct justice. And then Ko Aung Gyi was acquitted because there was no sound evidence against him. Is that the end of the case? The Myanmar Police Force know better than most that rape is becoming rampant in Myanmar. The number of rapes has increased since 2016-2017. It has reached the red-alert level. Looking at the details, 66 to 70 percent of rapes involve juveniles and the disabled. This is very dangerous. How did a notorious case in which the entire country demanded justice end that way—with the charging of Ko Aung Gyi without sound evidence?

KZM: As you said, it is very damaging for the family of Victoria and the people calling for justice. Although you said the faster, the better, it has been nine month since the trial started. Is the prospect for justice slipping away for Victoria and her family?

KMM: It is in the nature of the law and of crime, that there is no crime that cannot be exposed, though it may be difficult. However, it is necessary for law enforcement to exert appropriate efforts and to have the sincere intention to expose the truth. You asked us to whom we would appeal to seek justice. I would like to point out accountability, rather than appeal to anyone. It is the responsibility of the Police Force and the Office of the Union Attorney-General to protect the public from danger. They are required to charge criminals on behalf of the government. It is the responsibility of the charging bodies to expose criminals. The judicial system is biased in two ways. If a person who does not commit a crime is wrongly sentenced, the system is biased. What is more dangerous is that a person who has committed a crime cannot be punished effectively in court. It is very dangerous for the entire society. If we get nowhere in this case, more and more rapes targeting juveniles and the disabled will be committed.

KZM: The president has ordered three organizations including the Union Supreme Court, the Police Force under the Ministry of Home Affairs and the Union Attorney-General’s Office to seek justice in the case. He has given four instructions including seeking justice, ensuring accountability, upholding the law and reporting the real situation of the rule of law. However, we have not seen any progress in any of them.

KMM:It’s entirely unsatisfactory. For example, when a victim recognizes the offenders in a crime, the suspects must be shown to the victim in accordance with the rules and regulations. As far as we know, DNA from eight people was tested in this case. The victim said two brothers committed the crime. When the suspects were shown to the victim, why did they show Ko Aung Gyi alone, and other people who had similar body sizes to him, leaving out other suspects whose DNA was tested? The victim said two brothers committed the crime. Why were the two juvenile suspects not included among the suspects shown to the victim? It can be said that this not only breached the rules and regulations but also obstructed justice.

KZM:Are the Ministry of Home Affairs and the Office of the Union Attorney General mainly responsible for conduct DNA tests on the eight suspects?

KMM:First of all, the police officer who supervised the showing of the suspects to the victim was responsible. If he fails to do so, his superior officers will have to supervise him. Even if his superiors fail to do so, the Office of the Union Attorney-General is responsible for saying that other suspects must be shown to the victim, and to investigate the case again. The Office of the Union Attorney-General was required to ask why Ko Aung Gyi alone was shown to the victim without other suspects. There were many causes for dissatisfaction. Although it seemed to be coincidence, there were a lot of causes for sorrow. For example, Ko Aung Gyi was acquitted in the case. According to Crime Management Practice, two children referred to by the Media as “Ko Ko” and “Nyi Nyi” had to be questioned at the next hearing, as the court failed to make a decision. The two children never appeared in court. Victoria said the suspects were Ko Ko and Nyi Nyi and she correctly pointed them out in photographs. The case was closed without questioning the two juvenile suspects. Although each individual [fault] in the process could be seen as a normal weaknesses, looking at the case as a whole, including the [loss] of CCTV records, raises the question why an ordinary case like this involved so many irregularities. It is necessary for us to expose whether the case is simple or not.

KZM:As you said, the judiciary is biased. I don’t know whether it is upside down. There is no reason not to reveal the truth in the case. I hope that it is possible to seek justice, although it has been nine months since the investigation started. Otherwise, it is very worrisome for our country as both of you said. The government and the President are offended. Thanks for your contributions.

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