Kachin Farmer Still in Jail Despite International Legal Victory

By Seamus Martov 27 February 2014

In a ruling issued last November but only recently made public, the United Nations Working Group on Arbitrary Detention called for the immediate release of Lahpai Gam, a 53-year-old Kachin farmer arrested by the Burmese military in June 2012. At the time he was detained by troops from army Battalion 37, Lahpai Gam was living in a camp for internally displaced persons on the grounds of Myitkyina’s Shwezet Baptist church.

The ruling by the UN working group backed up claims by Lahpai Gam’s international legal team that he was severely mistreated by Burmese authorities. During an interview conducted last August, Lahpai Gam’s wife Lashi Lu told The Irrawaddy that her husband was tortured repeatedly and forced to engage in a sex act with another male prisoner.

“When he fell unconscious or ignored their demands they made it worse,” explained Lashi Lu who has been able to meet her husband a few times since he was arrested.

In their submission to the working group Lahpai Gam’s London-based lawyers Timothy Straker and Sappho Dias alleged that in addition to being forced to engage in sex acts in front of prison authorities, their client was “beaten from head to toe with an iron rod and had a bamboo stick rolled up and down his knees.” He was also forced to stand in a Christ like pose and mocked for being a Christian, his legal team alleged.

In their response to the working group’s enquiries, Burmese government authorities did not dispute the claim put forth by Lahpai Gam’s legal team that his confession had been extracted after he was tortured. The working group declared in its ruling that “such pervasive use of torture to extract evidence nullifies the possibility to fulfill the guarantee of the right to a fair trial.”

The working group’s ruling also noted that his arrest by the military and a subsequent military investigation into Lahpai Gam’s alleged involvement with the Kachin Independence Organization’s (KIO) armed wing resulted in him being “denied his fundamental right to a fair trial.” The military investigation was handled by the Military Affairs Security division, a unit that is infamous in Kachin State for the harsh methods is uses to interrogate detainees.

Burmese government authorities declined to provide to the working group any evidence to back up their claims that Lahpai Gam was a sergeant with the Kachin Independence Army (KIA), a stance that did not sit well with the working group. “The Army in this case is prosecutor and judge, and has arrest, investigative and trial authority, leaving little room for an impartial trial and outcome,” the ruling found.

The working group found Lahpai Gam’s claims that he was tortured to be credible and forwarded his case to the UN Special Rapporteur on torture.

Created by the UN Human Rights Council in 1991, the Working Group’s official mandate is to “investigate cases of deprivation of liberty imposed arbitrarily or otherwise inconsistently with the relevant international standards set forth in the Universal Declaration of Human Rights or in the relevant international legal instruments accepted by the States concerned.”

While the ruling from the Working Group is a major legal victory for Lahpai Gam, whether it will hasten his release remains unclear. The administration of former US President George Bush regularly ignored similar rulings issued by the same working group calling for the release of prisoners from the US military prison in Guantanamo Bay, Cuba, a stance that has continued under the Obama administration.

On Nov. 15, a court in Myitkyina sentenced Lahpai Gam to a two-year jail term for violating Article 17/1 of the Unlawful Associations Act by being a member of the KIA. The conviction was based on a confession Lahpai Gam made to Military Affairs Security agents which he later told the court he was forced to make. In late December, Lahpai Gam and his co-accused, Brang Yung, were sentenced to an additional five years in prison after being convicted under the Explosives Act.

Lahpai Gam’s Myitkyina-based lawyer Mar Hkar told The Irrawaddy that he was very pleased by the UN decision and will continue to fight for his client’s freedom. Mar Hkar said he hopes the UN working group will also examine the case of Brang Yung. Mar Hkar, who also represent Brang Yung, said that like Lahpai Gam he was tortured, abused and convicted under false pretenses. “The authorities still haven’t presented evidence to support their claims about Lahpai Gam and Brang Yung but the courts have ignored this and convicted them anyway,” he said.

Mar Hkar says he will be busy in the next few weeks attending court for Lahpai Gam, who continues to face three ongoing explosive related cases, and Brang Yung who faces the same charges as well as a fourth explosives case.

Both men were arrested at the same time as two other refugees from their camp, Zau Seng Awng and Dayau Tang Gun. Mar Hkar, who also represents the other men, says they were also forced to endure horrific torture. Zau Seng Awng and Dayau Tang Gun were recently released after serving two-year sentences for their “unlawful association” with the KIO, a charge to which Mar Hkar says they were also forced to confess.