On Political Prisoners, Does the Military Hold the Keys?

By San Yamin Aung 18 February 2016

RANGOON — Members of the National League for Democracy (NLD) have indicated that freeing political prisoners will be among the party’s top priorities when they take the reins of government on April 1.

Aung San Suu Kyi herself was a prisoner of conscience for more than a decade under military rule and around 100 former political prisoners are among the party’s MP-elects.

But some observers, including ex-political prisoners, say emptying the country’s jails of prisoners of conscience may be no easy task given the entrenched political position of the military.

Under the country’s 2008 Constitution, the army controls three powerful ministries, including the Ministry of Home Affairs which oversees the police force and the prisons department, among other state apparatus.

“Many friends who themselves are former political prisoners and those with the same attitude are now in the Parliament and may be included in the NLD-led government. But they need to negotiate with the home ministry to release [political prisoners],” said Ye Aung, a former member of the Committee for Scrutinizing the Remaining Political Prisoners and himself an ex-political prisoner.

Aung Myo Kyaw of the Assistance Association for Political Prisoners (AAPP) cited the military-drafted charter enshrining the army’s role in governance as a possible impediment to freeing those detained on politically-motivated charges.

“Suu Kyi herself once said that even one political prisoner is one too many. So we believe when the NLD takes power they will try their best to free all political prisoners. But the president does not have full authority to free political prisoners under the Constitution,” he said.

At least some previous amnesties since 2011, as reported in the Global New Light of Myanmar, were undertaken in accordance with Article 204(a) of the Constitution and Section 401 of the Code of Criminal Procedure, which concerns the suspension or remission of sentences.

Article 204(a) simply states that the president is afforded “the power to grant a pardon.” However, another clause of the 2008 charter suggests that presidential amnesties may require the involvement of a powerful body effectively under military control.

Article 204(b) states that the president has “the power to grant amnesty in accord with the recommendation of the National Defence and Security Council.”

The council is made up of 11 members, including the president, the two vice presidents, both parliamentary speakers, the commander-in-chief and deputy commander of the Burma Armed Forces, the foreign affairs minister and the military-appointed ministers of Home Affairs, Border Affairs and Defense. As one vice president is military appointed, the army commands a majority on the council.

“Section 204(b) of the Constitution is still one challenge for the NLD,” said Aung Myo Kyaw.

Another potential hurdle centers on the definition of a political prisoner. During President Thein Sein’s term, former political prisoners and opposition lawmakers pushed the government to adopt an official definition of a “political prisoner.”

Opposition lawmakers advocated for amendments to Burma’s prison law to include the definition. Proposed amendments to the law last year stalled in the Parliament however, with the home affairs ministry insisting there was no need to include the definition.

According to the proposed definition: “Anyone who is arrested, detained, or imprisoned for political reasons… or wrongfully under criminal and civil charges because of his or her perceived or known active role, perceived or known supporting role, or in association with activities promoting freedom, justice, equality, human rights, and civil and political rights, including ethnic rights, is defined as a political prisoner.”

Aung Myo Kyaw said that while 87 political prisoners are still behind bars and over 400 are facing trial, the removal of people from a government blacklist, including many still in exile, is equally important to address.

“In 2012, over 2,000 names were announced that were removed from the blacklist. But they only knew they were on the list when [they were removed]. And some of those who were removed from the list are yet to get back their citizenship,” he said.

Aung Myo Kyaw said that a lack of clarity for those who still may be blacklisted and on pathways to reinstating citizenship has prevented many activists from returning to their native country.

Bo Kyi, joint secretary of the AAPP, applied to have his citizenship reinstated 18 months ago but is yet to obtain it.

“He has to come to the country with a tourist visa. There are many people like him including many activists,” Aung Myo Kyaw said.

The Home Affairs ministry is one of three ministries involved in the screening process of citizenship applications and thus political activists claim processes may be delayed because of the ministry’s objections.

“We hope there will be improvements under the NLD and that negotiations between the NLD and the military will go well,” Aung Myo Kyaw said. “We will support from the outside and keep pushing on the political prisoner issue.”