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COMMENTARY

In Burma, a Tale of Two Lawsuits

Even if the government becomes more representative, popular demands for justice will continue to be blocked by a judiciary that serves entrenched military interests.


On Sunday, all eyes will be on Burma’s historic elections. We share the widespread hope that our country will take a decisive step away from decades of tyranny. But even if the government becomes more representative, popular demands for justice will continue to be blocked by a legal branch that serves entrenched military interests.

Respect for the rule of law is at the tip of every politician’s tongue. The reality, however, is that ever since General Ne Win seized power in 1962 and dismantled Burma’s independent legal system, law has served as another weapon to enforce political repression and economic corruption.

As we know from bitter experience, that remains true today. Despite the new political space that has opened up, those who dare cross the military’s unspoken red lines cannot escape the long arm of the law.

Few international observers understand the extent to which the transition process is being stage-managed by hardliners. So far it has unfolded exactly according to the junta’s “roadmap to disciplined democracy”—the brainchild of Snr-Gen Than Shwe and intelligence chief Khin Nyunt. Their phased seven-step plan aimed to end the country’s international isolation by establishing limited multi-party government ringed by the armor of military coercion. Law was deployed to safeguard military dominance of the new political system, and preserve corrupt monopolies over oil, gas, jade, minerals, and other sources of national wealth.

The roadmap’s impregnable citadel might appear to be the new capital in Naypyidaw, sitting on an isolated plain equally distant from the unruly masses in Rangoon and Mandalay, surrounded by garrisons of soldiers and the majestic villas of former junta leaders. But the real fortress is the new Constitution.

The Constitution is a straitjacket, not a transitional document. It guarantees the military a permanent leading political role in the state. It provides amnesty not only for past crimes, but also ongoing crimes, establishing the military as a law unto itself. The commander-in-chief selects the ministers of defense, border affairs, and home affairs, thereby consolidating military, police, and security forces under one centralized chain of command. He also appoints active-duty officers to 25 percent of seats in both houses of parliament, guaranteeing that the Constitution can never be amended without military consent.

In practice, this means that soldiers can murder and rape civilians with impunity, military companies that seize land are untouchable, and activists who stand too strongly for human rights face inevitable prosecution and conviction.

Our cases show clearly how law is still used to protect wrongdoers and deny justice.

Tikha Nyana: In November 2012, I joined hundreds of monks peacefully protesting against land grabs at Letpadaung, the country’s largest copper mine, a joint venture between Burmese and Chinese military companies. We were promised by President Thein Sein’s chief peace adviser that violence would not be used against us. But on Nov. 29, we were assaulted by riot police under direct orders from Gen. Ko Ko, the Minister of Home Affairs. They fired dozens of military-grade white phosphorus munitions directly into our camps. Our bodies were set on fire. The pain was intolerable. I suffered third degree chemical burns on 40% of my body. Over 100 monks and villagers were hospitalized; many ended up permanently disfigured.

We waited two years in vain for a remedy before joining with Justice Trust, a New York-based human rights group, to sue Gen. Ko Ko. But our case has been blocked at every level. The local police chief refused to register our evidence. Court notaries and clerks would not authorize our affidavits and legal papers. The Special Branch police visited our monasteries and intimidated more than 30 monks into dropping the case, until I was the only plaintiff left.

Aung Nay Paing:  Seven months ago, I participated in student protests to reform the National Education Law. Since the time of Aung San, our nation’s founding father, students have been at the forefront of social movements. We reached a written agreement with the government to march peacefully to Rangoon, but the police blocked our way. On March. 10, we were attacked and severely beaten by uniformed and plainclothes police, in plain view of journalists. While I avoided arrest, 127 people were detained in violation of their rights to free speech and assembly; 70 have been charged with various crimes and face up to ten years in prison.

The trial is a farce, and the judge is openly biased. When our lawyer, Khin Khin Kyaw, filed a motion to counter-sue General Ko Ko and police officials for authorizing excessive force, the judge dismissed our petition without consideration, and instead charged her with the crime of disrupting the court.

This is the actual state of rule of law in Burma—heroes are attacked and jailed for advocating peaceful reform, while criminals are left free to attack again.

Like all Burmese people, we welcome the upcoming elections as a golden opportunity to change our country for the better. But we know that electing a new government will not free the law from entrenched military control.

In the short term, the international community can help by applying universal jurisdiction to hold notorious human rights abusers like Gen. Ko Ko accountable when they travel outside of Burma. Over the long term, our friends abroad should work simultaneously on the supply and demand sides of the justice equation—pushing the military and government to reform the Constitution, free political prisoners, and allow independent legal institutions, while also supporting local lawyers and affected communities to rebuild the rule of law from the ground up.

Tikha Nyana is a Buddhist monk and democracy campaigner who was severely injured during the November 2012 attack on Letpadaung protesters. Aung Nay Paing is a spokesperson for the All Burma Federation of Student Unions, who at present is the only leadership member of the organization who has not been detained by authorities.