What Matters No. 12
(The original Burmese version was published on the Facebook page of ISP-Myanmar on March 25, 2021.)
After the February coup, the newly formed State Administration Council (SAC) amended laws at will, just as the previous regimes, to repress political activism and people’s demands. The SAC’s arbitrary amendments include the suspension of laws protecting civil rights and changing definition of criminal acts and their penalties. The amendments were followed by violent crackdowns on peaceful demonstrations and mass arrests that have continued since the coup until present. The arbitrary arrests were accompanied by numerous violations of human rights and abuses of human dignity by SAC’s security forces. Videos shot by the people clearly document these atorcities. Although the SAC has released some of the detainees, nearly 3,000 people face criminal charges. Many arrests were without adequate reason. At present, the SAC has not disclosed the whereabouts of some remaining detainees. Thus, for those unjustly arrested and those who have become victims of human rights and human dignity violations, legal struggles are critical matters.
∎ Key findings in brief
Legal struggle means the right to a fair chance to present a defense at a court hearing before the court’s ruling and to utilize this right as one battle front of the anti-military dictatorship movement. To define the legal struggle in relation to the principles, norms and values of the rule of law, access to justice is a human right (Francioni 2007). Various efforts for access to justice, a fair public hearing is one form of struggle for freedom and democracy. This is not possible under a system of oppression. Under a summary judgement hearing of a military tribunal, the right to claim justice before the court and a fair trial is impossible. However, whether it is fair or unfair, the question of whether one should pursue a legal struggle under oppression is important. There are widely held beliefs that the current military coup in Myanmar is illegal. Therefore, the popular belief is that people do not need to recognize the military government that came to power by a coup and that people do not need to acknowledge the decisions or orders of courts operating under the military junta. Because of these sentiments, opinion like any initiatives through the legal system under a military regime appears unnessary. Human rights researchers suggest that fighting a legal battle is important, because it could support the gathering and dissemination of information about human rights violations. Moreover, this form of struggle could later provide support to the victims of human rights abuses. Besides, it is also important
to hold human right violators accountable for their actions as a means to end impunity for perpetrators. In addition, legal challenges also help prevent arbitrary acts by those in power. Lastly, because all the activities involving legal struggles are peaceful actions, scholars and practitioners point out that it is an important form of struggle for the anti-military dictatorship mass movement.
∎ Why does it matter?
The international community, including the United Nations, recognizes that fundamental human rights apply universally to all human beings. Moreover, it is widely believed that not only ethnic minorities but also the human rights defenders must be protected. The protection of these people can be carried out by law enforcement personnel as well as ordinary citizens. Instead of perceiving the broader mass movement against militarism as the only form of struggle for freedom and democracy, those unjustly arrested as well as the community as a whole – including the family members left behind, colleagues, and others – must perceive legal struggle as a form of struggle that can be used in the step by step fight to end military dictatorship.
It is also important to note that – regardless of whether or not the oppressor allows for struggle through the legal system – people should claim access to justice as their birthright. Hence, it is important to study legal struggles not only for the objectives of researching it from the perspectives of human rights, rule of law and transitional justice but also as a form of struggle in the current mass movement against the military dictatorship.
∎ Is it relevant for Myanmar?
In the aftermath of the military coup, the SAC prepared to crackdown on political activism. The council suspended civil rights laws, added excessive punishments to the existing criminal laws and changed the sentencing rules. After that, the security forces launched violent crackdowns on the anti-coup demonstrators and engaged in the mass arrests of the protesters, thereby violating the rules and regulations for state security forces. Furthermore, massive human rights abuses and human dignity violations have occurred across the country. By now, nearly 3,000 people have been arrested, prosecuted, and sentenced to imprisonment. Thus, for these very reasons, discussion about legal struggles are important and relevant for Myanmar people.
During the rule of the caretaker government in 1958-60, the government imposed excessive punishment on politicians, particularly Communist party members and its sympathizers, by handing out life sentences and sent the detainees to Coco Island, a deserted island with no food, shelter and no means to reach to the mainland. Some politicians were arrested and prosecuted after the 1962 military coup, but the number of cases were not as many as in 1958-60. It was not until after the failed 1963 peace talks that the number of arrested and persecuted political dissents exponentially increased. In 1969, the Revolutionary Council built a prison on Coco Island and sent another 223 political prisoners there.
∎ Further Readings
Francioni, F. 2007. Access to Justice as a Human Right. Oxford University Press. Oxford.
United Nations Office of High Commissioner. n.d. About Human Rights Defender. UNOHC website. Retrieved March 23, 2021. From https://www.ohchr.org/en/issues/srhrdefenders/pages/defender.aspx