Rangoon rent-a-witness

By Awzar Thi
Column: Rule of LordsPublished: September 18, 2008TOOLBAR

Hong Kong, China — Win Maw was always running a risk by sending news from the protests in Rangoon to an overseas radio station last year. But when the police caught up with him in November, they had a problem. He hadn’t actually done anything illegal.
As it is not an offense for someone in Burma to contact a foreign broadcaster, the investigating officer in Win Maw’s case had to stretch the law quite some distance to come up with an alleged crime. In the end, he chose a highly malleable section of the criminal code on upsetting public tranquility, one that has been used against many people in Burma since last year and one that can be stretched very far indeed.


But this decision should have introduced some new problems. The section on public tranquility requires the police to show that the accused either intended to or did in fact upset public tranquility through his behavior. It is not enough for them to merely prove that Win Maw was sending news abroad. They have to demonstrate that he did so with a specific intent or desired result.

In March, the Special Branch officer handling the case, Police Major Ye Nyunt, submitted his complaint to the court. In it, he claimed that Win Maw had upset public tranquility specifically by sending false news overseas that would alarm the public. So it follows that this is what would need to be proven in court, through evidence revealing the contents of what he sent and its conceivable consequences.

Or so it would be if Burma had a sane legal system. That it does not is apparent from what was brought to the court in lieu of the requisite proof.

First, there was the material evidence, or rather, the lack of it. Among the items seized from Win Maw were some legally-published books, some pictures of Daw Aung San Suu Kyi, which are also legal, and a computer hard drive.

The hard drive should have helped the police case, right? After all, if Win Maw was to have committed an offense of the sort with which he was accused, then surely there would be some evidence of it in the contents of the computer drive. But no, the police have not yet submitted the hard drive’s contents to the court, just the drive itself.

Then there were 18 suspicious-sounding “political” texts. What were these? Diabolical tracts urging overthrow of the state? Draft federal constitutions? Again the answer is no. When pressed in court, the police admitted that they were nothing other than English-language learners from the American Center, where the accused had in the past gone to study.

So much for the material evidence. Secondly, there were the prosecution witnesses. Eight were listed, of which six were police. That leaves two witnesses who were ordinary civilians. Who were these people and what was their part in the case against Win Maw?

In fact, they were procedural witnesses, required by law to verify that they had seen the police search Win Maw’s house and seize the items that they recorded.

The purpose of having two persons witness a search is so that if there are inconsistencies or uncertainties in the police account, then they can later be called to testify and verify what was or was not done.

But in the inferior criminal justice system operating in Burma today, this purpose has either been completely misunderstood or has been reduced to a point of mere formality and irrelevance, at least for Police Major Ye Nyunt.

That’s because he has apparently decided to dispense with the difficulty of finding witnesses in the vicinity of a search at the time it is undertaken, which is what the law envisages, and instead just brought his own people along with him.

The two listed as witnesses of the search of Win Maw’s house are, it seems, rent-a-witnesses whose names appear on the lists in cases against other people that the same officer has been responsible for investigating: different cases, different suburbs, different dates and sometimes even different charges, but always the same two witnesses.

The concept of an independent judiciary has long since been erased from Burma’s courts, and with it has gone the hope of any other sort of independence. Even an independent witness, let alone a witness that actually has anything to say, is too much to expect. The police officer bringing the case has also lost all sense of what evidence consists; either that or he has lost all respect for it. In either event, the outcome is the same.

Burma’s justice system was not built upon fine sentiments or noble ideals. It was, from the start, a device for strict control; before 1948, it was used by a foreign regime, now it is being use by an indigenous one. But whereas it has never stood for lofty principles, in the past it at least recommended itself through some minimum procedural safeguards for human security.

It is the stripping of these measures from the system that has caused the greatest harm and made the lives of people all around the country more uncertain than at any other time in modern history. More than in any oppressive law, it is in the easy capacity of a policeman to rent his witnesses that the defeat of the system of justice is most pronounced.

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(Awzar Thi is the pen name of a member of the Asian Human Rights Commission with over 15 years of experience as an advocate of human rights and the rule of law in Thailand and Burma. His Rule of Lords blog can be read at http://ratchasima.net)