Guest Column

No Justice for Slain Myanmar Lawyer Ko Ni

By Bertil Lintner 29 January 2018

This story originally ran in Asia Times in June 2017.

Four months since Ko Ni, one of Myanmar’s most prominent and talented lawyers, was assassinated in broad daylight outside Yangon’s airport and local authorities are not any closer to solving the case. The gunman, Kyi Lin, was apprehended only because furious taxi drivers parked outside the airport chased and apprehended him.

An antique smuggler from Mandalay, Kyi Lin had obviously been hired to kill on the fateful day of January 29. But the person who has been named as the possible mastermind of the plot, a former army officer known as Aung Win Khaing, vanished without a trace in the capital Naypyitaw after the killing — quite a feat given the military-built city’s vast, almost empty streets and scattered building complexes.

The ineptitude of the investigation has been matched only by misleading reports in the Western media. Nearly all major Western publications, including the Economist, the Financial Times, the New York Times and the Washington Post, dwelled on Ko Ni’s religion, Islam, as a probable motive.

The Economist called Ko Ni a “prominent defender of religious minorities,” while the Financial Times described him as “one of Myanmar’s most prominent Muslim voices.” The BBC even linked their account of the killing to its previous reports on the persecution of minority Muslim Rohingyas in western Rakhine State.

As an old friend and colleague, I was distraught to read those reports. I recalled John F. Kennedy, a Catholic of Irish descent, who famously said before he was elected president of the United States in 1960 that “I am not the Catholic candidate for president. I am the Democratic Party candidate for president who also happens to be a Catholic.”

Likewise, Ko Ni was first and foremost a constitutional and human rights lawyer who also happened to be a Muslim. In our many wide-ranging discussions, he never mixed his personal faith with his wider role as a legal defender of the human rights of all Myanmar’s citizens, regardless of their race or religion.

Portrayals of Ko Ni as a “Muslim activist” have only played into the hands of those who would want people to believe his assassination was part of the Buddhist-Muslim communal violence that has wracked the country in recent years. Those misreadings of the situation have given the apparent military culprits an alibi for their widely suspected role in his killing.

Ko Ni was a partner in the investigative journalism program I have led in Myanmar for the past two and a half years. He spoke at the workshops about legal matters affecting the media, providing sage advice to young, aspiring journalists on how to protect themselves against threats in the country’s new, less-censored semi-democratic context.

“The 2008 constitution guarantees press freedom and freedom of speech,” he would often say during his presentations, “But…” Then he would enumerate the long list of those exceptions — defamation, libel, trespassing, unlawful association, exposing official secrets — and proceed to explain how reporters could best protect themselves against such legal threats.

As a long-time friend, we also shared numerous discussions in private on a wide range of topics, including the country’s delicate political situation with the military still lying in the wings. In those many talks, I don’t ever recall him touching on any subject relating to religion, other than the broad notion that there should be religious freedom in a democratic nation.

So then why was Ko Ni assassinated? People familiar with his work knew that he was drafting a new, more democratic constitution to replace the current charter, which was adopted after a fraudulent referendum in 2008 and bestows ultimate political power on the military, not elected bodies.

The current charter gives the military a 25 percent appointed block in parliament and control over the government’s three most powerful ministries, namely defense, home and border affairs. Ko Ni’s main concern was the General Administration Department, a body under the Ministry of Home Affairs that staffs all local governments, from the state and region levels down to districts and townships.

While the ministers who were appointed after the 2015 election won by Aung San Suu Kyi’s National League for Democracy (NLD) serve as nominal heads of their respective government departments, the bureaucracy underneath is still populated by military-appointed officials who dutifully served the previous rights-abusing, authoritarian regime.

Before the landmark 2015 election, the previous quasi-civilian, military-controlled government even appointed the permanent secretaries who run the ministries, likely as an administrative buffer against if and when a truly democratically elected government rose to power.

Ko Ni wanted to change all that to firmly consolidate democratic rule, but he also knew that amending the 2008 constitution would be nearly impossible under the current political configuration. Because any amendment of the charter requires agreement of more than 75 percent of all MPs, the military maintains de facto veto power through its 25 percent appointed bloc.

But Ko Ni was a master at finding loopholes in the military’s constitution, a skill that may have cost him his life. When Suu Kyi and the NLD won a landslide at the 2015 election, she was prevented from assuming the presidency because her two sons are not Myanmar citizens – a clause the military imposed specifically to keep her from becoming national leader.

But Ko Ni devised a legal solution to the problem: an entirely new, overarching government position was created — State Counselor —that allowed Suu Kyi to become de facto head of state. She is now widely viewed as the country’s undisputed leader, even though scholar and Suu Kyi loyalist Htin Kyaw officially holds the presidency.

In the same vein, Ko Ni told me in one of our discussions that there was no point in trying to amend the 2008 constitution, but that none of its military-promoting clauses said that parliament couldn’t abolish the charter outright with a majority vote that opened the way for the adoption of a new, more democratic charter.

Many people knew that Ko Ni was drafting just such a new constitution at the time of his murder, a point that was raised at a press conference organized by the police in Yangon on February 26, a month after his killing. At the event, a local reporter bravely asked whether Ko Ni’s assassination had anything to do with his work on a new charter.

The police chief, Major General Zaw Win, gave a typically evasive answer, saying only that his officials were investigating various possible motives for his murder. While police allegedly continue their search and the military mastermind suspect is supposedly missing, one thing is clear: Ko Ni was killed in cold blood not because he was a Muslim, but because he was a democrat.

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