Episode #194: Presumed Guilty (Bonus Shorts)
“The military is trying or determining cases about civilians in a very closed court that's not open for scrutiny, and the defendants are unable to… even have a lawyer who can represent them, so a lot of it is arbitrary,” says Manny Maung of Human Rights Watch. “They're tried in prisons in these makeshift courts called special courts, and there's very few lawyers who are able to go inside these prisons and act in their defense. So basically, everything in Myanmar is now determined by the judge's decision.”
Maung explains that since independence, Myanmar’s justice system has incorporated the penal code devised under British colonial rule, which means there have never been juried trials. So while a certain unfairness has always been built into the system, things are worse now than they’ve ever been. “Since the coup, the military has made a lot of changes to the laws, and they've bypassed parliamentary processes and ignored their own Constitution.” She notes that questions of legality are now determined almost solely by the whims of the military leader, Min Aung Hlaing, that rule of law has all but collapsed, and that the institutions which were set up to lead the country to democracy have been entirely dismantled. Maung adds that even those “very heroic lawyers” who are trying to challenge the junta’s disregard for civil liberties are now themselves “being harassed, detained, tortured, and killed, just like everybody else.”
At times, the reality unfolding in the country would read like a dark, Kafkaesque satire, were it not deciding matters of life and death. Maung explains that if lawyers so much as attempt to defend their clients—on the off-chance they’re actually given access to them before a trial—they may be held in contempt of court simply for daring to defend someone the state has already accused. At other times, merely agreeing to represent a client casts suspicion on the lawyer that they somehow must be guilty of the same charge— and given that the regime is applying extreme charges like terrorism and treason against pro-democracy activists, this is no small matter. “Having guns pointed at you as you go through your work every day, it's been extremely taxing on them,” she says, describing the stress that Burmese lawyers are now under.
Another problem relates to the judges. Following the 1962 coup, the military appointed justices that would serve as their mouthpiece, and much work was done during the 2010 transition period to instill greater independence in the courts. But the recent coup has reversed all that progress, and a court’s decisions once again routinely go the way of the generals.
Although several Yangon townships are still under martial law, Maung explains that this has virtually no bearing on the many arbitrary arrests that continue to send yet more unfortunate youth behind bars. Records indicate that over 24,000 people in total have been detained. Moreover, there is an air of mystery surrounding both the arrests as well as the sporadic prisoner releases. “The military likes to make a show of [these prisoner amnesties] every few months. There are people who have been released from prisons in those amnesties who tell me they have no idea why they were released! And they have no idea why they would have been even put there in the first place.” Maung suspects that in addition trying to manipulate human rights organizations and Western diplomats through these public clemencies, military leaders are also driven by making good merit on Buddhist holidays… as well as the fact that there is no room left in many of these prisons, and they simply can’t arrest more people without releasing some first.
In order to claim legitimacy, Min Aung Hlaing has renewed the State of Emergency clause in the Constitution four consecutive times, each for nine months —this in spite of the fact that the Constitution allows for only two successive renewals without a general election to validate any additional ones. “It's really interesting to note that they are very adamant to use the portrayal or the imaging of using legal parameters to justify what they do.” Maung says. “It goes to show that they do think of themselves seriously, they want to be taken seriously. Trying to even pretend that there's a veneer of something legal to their actions is indicative of how desperate they are to be seen as credible in the eyes of the international community.”
These continued measures also serve to provide the military with more time to crush dissent, while setting the groundwork for elections they would like to hold eventually in order to truly legitimatize their rule. And while it may seem to strain credulity that any rational person or government could possibly view this military regime as legitimate, Maung notes that while many Western countries have all but dismissed their proposed elections as nothing more than a sham, some neighboring countries, including Japan and India, have unfortunately signaled a willingness to support them.
Moving onto sanctions, Maung sees that the recent ones imposed by the United States have been effective. By limiting Myanmar banks from transferring US dollars, Singapore, especially, has been forced to freeze several accounts that are suspected to belong to senior military leaders or their cronies. Yet, more needs to be done; stricter measures should be imposed on Myanmar Oil and Gas Enterprise (MOGE), as well as preventing the military from acquiring supplies, particularly weapons. Still, enforcement of any proposed sanctions is another issue entirely, as recent podcast episodes on jet fuel and teak wood have indicated that the junta (along with shady actors looking to make a profit) are more than adept at finding clever ways around them. “Really, at the end of the day, it's making it as difficult as possible for the exchange of monies and revenues, and escalating that risk for financial partners who are doing business with Myanmar,” Maung explains. “It's really an exercise to isolate the Myanmar military and the business partners as much as possible.” Towards that end, she is frustrated that the United Nations hasn’t even attempted to enforce a Global Arms Embargo, that the junta hasn’t been referred to the International Criminals Court, and that there is still no real action being taken against MOGE.
And then there are the Rohingya. Their suffering has only worsened since the coup, and Maung characterizes their future as looking “pretty bleak.” Little has been done to help them find a way towards citizenship, while they continue to live in “apartheid conditions.” Even after the official designation that the military launched a genocide against them from 2016, for Maung, “it's clear that they're trapped. There hasn't been any justice done for their plight, so we failed them. And it's even worse for Rohingya because they are stateless.” The only bright spot that Maung sees is that more than ever before, many Bamar youth now realize the unjust suffering that their military has imposed upon this persecuted ethnic minority. “I think that is a good starting point for healing and accessing justice, but also making sure that it's a much more inclusive society.”
At the end of the day, it will take multi-pronged approach to find a solution that will effectively limit the military’s capacity to continue harming its own citizens. “There's no one magic solution that's going to solve this,” Maung says. “It's about making sure that the military cannot keep on succeeding in its ability to keep Myanmar people oppressed and prevent them from gaining what they want, which is the democracy. That's all people in Myanmar have ever asked for! And that has been consistently denied to them by subsequent military leadership.”
Maung is also concerned that the democracy movement in Myanmar has become neglected by much of the world; they need desperately international support to reach the dream of a post-junta country. “People have forgotten about Myanmar. People had forgotten about this place in Southeast Asia that everyone just assumed would be a draconian military dictatorship forevermore,” she says. “Myanmar will have a lot of problems, you have a generation now that is very used to extreme violence, let alone the trauma and the types of violence that they've been exposed to. But there's also some hope in starting from the beginning, perhaps if we can actually move towards somewhere that doesn't have the military as part of that underlying fabric of society, then I think we can get to a better place.”
And for Maung, this hope is the most important thing to hold onto, no matter how terrible the situation becomes. “I can’t do my job if I’m completely pessimistic all the time! And I won't lie, it gets really dark some days. But I know that there are people still in Myanmar who are continuing to fight for something that they believe in, which is to just be able to enjoy their freedoms. And I think we all have the responsibility to at least share some of that, and ensure that we're doing what we can so that they can get there.”