Kachin Political Prisoner Overlooked in NLD’s Early Amnesties

By Seamus Martov 1 June 2016

Burma’s newly installed National League for Democracy (NLD) government has pardoned and released more than 200 political prisoners and detainees facing politically motivated charges since it took power in April, including jailed student activists and journalists. The amnesties have been welcomed by rights groups, but despite the change in government, freedom remains elusive for Lahpai Gam, a 55-year-old refugee farmer from war-torn Kachin State. Lahpai Gam’s arrest by the military in 2012 and subsequent trial and conviction for committing crimes against the state is, according to his supporters, a major miscarriage of justice.

In a decision released in November 2013, the UN Working Group on Arbitrary Detention found that Lahpai Gam’s original trial was conducted under circumstances that were highly unfair and ruled that his continued detention was illegal under international law. The committee found Lahpai Gam’s claims—that during his interrogation by army personnel he was severely tortured and subject to a series of horrific abuses that included being forced to commit sex acts on his co-accused—to be credible. The UN group concluded that “such pervasive use of torture to extract evidence nullifies the possibility to fulfill the guarantee of the right to a fair trial.”

The UN Working Group concluded that the way in which military investigators from the Military Affairs Security (MAS or Sayapa in Burmese) handled Lahpai Gam’s case also violated his human rights. “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 decision stated,

During the UN process, Burmese government authorities did not contest the claim put forward by Lahpai Gam’s London-based international legal team that his confession had been obtained by torture. “The Government in its response does not dispute that the evidential basis of the case against Mr. Gam was built on information extracted from him, which he surrendered as a result of torture.”

In a ruling issued last November, Burma’s Supreme Court overturned the conviction of Lahpai’s Gam’s co-accused, Brang Yung, but upheld the 21-year sentence for Lahpai Gam, who, like his fellow refugee farmer, had been convicted on explosive charges and being a member of an illegal organization, the Kachin Independence Organization (KIO). Lahpai Gam’s friends and family maintain those charges are completely untrue.

Both men had been living in a refugee camp on the outskirts of Myitkyina and were arrested in June 2012 by soldiers from Burma Army Battalion No. 37, while working as cattle hands near Tar Law Gyi, south of the Kachin State capital. Citing their initial confessions, prosecutors had accused the pair of being high-level operatives from the KIO who had been plotting to use explosives against military targets in Kachin State, an allegation that Lahpai Gam’s wife Lashi Lu strongly denies. “He confessed because they nearly killed him,” she told The Irrawaddy during an interview in July last year.

Lashi Lu has been able to have brief visits with her husband over the course of his imprisonment.

The decision by the Supreme Court, which largely consists of former military officials, to issue a split ruling came as a surprise to many following the case, as both men had originally been convicted for supposedly conspiring with each other. During an interview conducted late last year, Lashi Lu explained that both men were together in the Myitkyina prison when they received news of the court’s decision. Brang Yung, who is the younger of the two men, read out and translated a summary of the court’s decision to Lahpai Gam, who cannot read Burmese well. The decision to uphold his conviction left Lahpai Gam devastated, says Lashi Lu, who is struggling to make ends meet for herself and her children at their IDP camp on the outskirts of Myitkyina.

Following a two-month delay that was ostensibly due to a clerical error, Brang Yung was released in late December of last year. In a phone interview conducted shortly after his release, he confirmed to The Irrawaddy that both he and Lahpai Gam had endured brutal beatings at the hands of the interrogators from MAS, a branch of the military notorious for its treatment of detainees. “They asked whether we have wives,” he told The Irrawaddy. “Then they took off our clothes and longyis and forced us to have sex with each other. Our hands and legs were cuffed. We could not do anything.”

Lahpai Gam’s lawyer Mar Hkar remains optimistic that his client will eventually be freed. At the beginning of the year, the Myitkyina-based lawyer with the help of colleagues in Rangoon filed another appeal with the Supreme Court seeking to overturn Lahpai Gam’s conviction at the state court. Some five months after the appeal was accepted, the Supreme Court has yet to schedule a date for a hearing.

If Lahpai Gam’s final appeal is unsuccessful, a presidential pardon will be his only hope for an early release from his lengthy 21-year sentence. Although most of the scores of individuals pardoned by the NLD government earlier this year were not convicted on charges related to armed insurgency or being part of an illegal organization, there is already a precedent for presidential pardons in these types of cases.

Another one of Mar Hkar’s clients, Lahtoi Brang Shawng, was released in July 2013 by a decree from then President Thein Sein after he had exhausted all of his legal appeals. Brang Shawng, who the government had originally alleged was also a high-level KIO operative, had been convicted under similar circumstances to Lahpai Gam: a guilty verdict that relied heavily on a confession obtained by MAS that Brang Shawng later said he was forced to make following grueling torture sessions.

It remains to be seen if the NLD government, which is nominally led by President Htin Kyaw with State Counselor Aung San Suu Kyi calling the shots, will choose to act on the UN Working Group’s conclusion that Lahpai Gam should be released immediately. During the lengthy period that the Nobel Prize winner spent under house arrest, the Working Group issued six separate opinions that found that her detention violated international law, decisions that were cited by her supporters worldwide during the lengthy campaign to free Suu Kyi.

The Burma Campaign UK, which aided the London-based lawyers Timothy Straker and Sappho Dias with Lahpai Gam and Brang Yung’s submissions to the UN Working Group, has followed their cases closely and continues to advocate for Lahpai Gam’s release. The advocacy group’s director, Mark Farmaner, wants the NLD government to move quickly to free Lahpai Gam.

“After so much talk from Aung San Suu Kyi about the rule of law, it is astonishing that the NLD-led government has kept Lahpai Gam in jail despite the UN ruling that his detention breaks international law, and demanding his release. The NLD demonstrated in April that it can move fast to release political prisoners when it wants to. There is no excuse for detaining Lahpai Gam for a single further day,” said Farmaner.