Antiquated Colonial ‘Loitering’ Charge Lands Hundreds in Jail
By Kyaw Lin Htoon 31 August 2015
RANGOON — In the middle of a hot April night, Arkar and two friends were sleeping in their trishaws on central Rangoon’s Hledan Road when they were suddenly woken up and arrested by police.
The trishaw drivers and two other young men who happened to be on the street were also rounded up and taken to Kamayut Township police station to be questioned in relation to burglaries of two nearby mobile phone shops a week earlier.
Arkar said he and his friends had done nothing wrong and simply slept on Hledan Road to wait for customers. “Local police know that we are tricycle drivers. None of us have the tools to carry out a burglary,” said the wiry 25-year-old, whose worn out shirt and faded longyi indicated a life of hardship on Rangoon’s streets.
Arkar and another 17-year-old man were let go the next day. Neither he, nor the three others, including his friend Mya Oo, were charged for the burglary, but instead accused of “loitering at night,” a century-old criminal charge, and held for 15 days in the notorious Insein Prison.
“Mya Oo’s wife gave birth to a baby just two or three months before. He was jailed for 15 days for no reason, meanwhile his wife went hungry,” Arkar said.
Mya Oo is not alone in having been nabbed off the street and held for a vaguely defined petty crime charge from the British colonial era: Rangoon Police headquarters records seen by Myanmar Now indicate that more than 1,300 people in RangoonDivision were arrested and sentenced last year under the 1899 Rangoon Police Act’s Article 30. Some 400 people were held under the charge during the first five months of 2015.
Police Lt. Thi Thi Myint said, “All of them were sentenced to prison terms.”
The charge sets a maximum three-month prison term for “any person found between sunset and sunrise having his face covered” or “any reputed thief found between sunset and sunrise remaining or loitering in any bazaar, street, road, yard, thoroughfare or other place, who is unable to give a satisfactory account of himself.”
Nationwide, the 1945 Police Act’s Article 35(b) metes out similar punishment for the same antiquated offence.
Another officer at the station, who spoke on condition of anonymity, defended the widespread use of the charge, saying, “These laws are useful to prevent the occurrence of major crimes.”
As Burma emerges from decades of military rule, it has been left with many old laws that grant authorities extensive powers to not only target political activists and suspected ethnic insurgents, as is well known, but also to harass ordinary citizens and enter their homes in order to establish social control and keep tabs on the general population, say rights campaigners.
Despite the country’s much-lauded democratic reforms of recent years, human rights advocates and opposition lawmakers say parliament and President Thein Sein’s nominally civilian government have done little to reform criminal laws that affect the average citizen.
In addition, Burma’s court system lacks independence after decades under direct army control and there has been little judicial reform since.
With a general election scheduled for Nov. 8, opposition parties hope to gain more power and influence and begin dismantling the stifling judicial legacy of junta rule.
Pe Than, a Lower House lawmaker with the Arakan National Party, said parliament would face a massive task in amending and repealing the outdated laws. “The legislature’s work is never done. We need to update these laws at the right moment and more legal experts should be elected to parliament [to expedite the process],” he told Myanmar Now.
Kyi Myint of the Myanmar Lawyers Network said most Burmese laws that remain on the books were drawn up by colonial authorities—a massive 13 volumes in total, many of which have not even been translated into the Burmese language—and had been intended to support British rule in the country.
The 1950s democratically elected government, which was trying to suppress insurgencies across the country, and the post-1962 military regime kept many authoritarian colonial laws, while both also introduced numerous other restrictive laws that remain in effect, he added.
Ko Ni, a constitutional lawyer advising Aung San Suu Kyi’s National League for Democracy, said Thein Sein’s transitional term had seen little in the way of broad legal reform due to a lack of cooperation from the ruling Union Solidarity and Development Party and military MPs. “We need to wait for an opportune time to revoke all these undemocratic laws,” he said.
Elections may be only 10 weeks away but few political parties have pushed for a debate on the question of law reform.
“The absence of debate is not only unfortunate but also dangerous, because without public involvement, international organizations pushing various, competing law reform projects will persuade government executives on the need for this change or that,” said Nick Cheesman, Research Fellow at the Australian National University.
Cheesman, who has written extensively on Burma’s laws and legal systems, said the discussion of colonial-era laws in Burma should include their impact on ordinary citizens accused of criminal behavior, in addition to their use in repressing political dissent.
“How are provisions like the ‘hiding in the dark’ sections used to target particular vulnerable communities, like sexual and religious minorities? How do the penal codes and procedures undermine the basic rights of people accused of crimes like theft or loitering or damage to public property?
“These questions and others like them need to be made much more prominent in political debate,” he told Myanmar Now in an email interview.
Affecting the Poor and Activists
Another law that affects the rights of the wider Burmese public and leaves it vulnerable to the whims of authorities is the 2012 Ward or Village Tract Administration Law. The Thein Sein government created it by amalgamating two 1907 laws that required households to register guests staying overnight and seek prior permission from local authorities.
Fortify Rights, a Thailand-based human rights organization, highlighted in a report in March how Burmese officials use the law to carry out nighttime inspections of communities and sometimes to demand bribes from citizens running afoul of the law.
“The guest registration requirement represents a systematic and nationwide breach of privacy, giving the government access to troves of personal data from communities,” the group said.
Research by Fortify Rights found that “the law is particularly enforced against low-income communities, individuals working with civil societies and political activists.”
Like the guest registration requirement, the antiquated “loitering” charge has also been used by authorities to target political activists.
“Unfortunately, it is too late to repeal or reform these laws before the November elections,” said Matthew Bugher, a lawyer and researcher for Fortify Rights. “Nevertheless, the government can bolster the legitimacy of the polls by halting the use of these laws to target activists and political opponents in the coming months.”
Land rights lawyer PhoePhyu recalled how in 2009, after a long day of visiting local farmers in central Burma’s Magwe Division, he sought a place to stay but was turned away by local guesthouses and had to resort to sleeping rough along the banks of the Irrawaddy River.
As darkness fell, police officers—who had instructed guesthouses not to accept him—suddenly appeared and arrested him for loitering after sunset.
Phoe Phyu was later sentenced to five years in prison on different charges by the then-military regime, but he said the 1945 Police Act had been used to arbitrarily detain him. “As authorities wanted to prohibit me from advocating for farmers who were losing their land they just arrested me without proper grounds,” he told Myanmar Now during an interview at his Rangoon office.
Looking over at his book shelf with a broad selection of Burma’s laws, Phoe Phyu said he had little hope that outdated, restrictive legislation would improve as long as an army-linked elite remained in power.
“Newly amended laws are again favoring government management and administrative sectors, they are tantamount to obstructing and oppressing the civil rights of the people,” he said.
This article was originally published by Myanmar Now.