In the year since Myanmar’s military illegally took full control of Myanmar, judicial independence and the legal defense of human rights have collapsed in Myanmar, the International Commission of Jurists (ICJ) said today.
The ICJ called for an immediate end to the state of emergency and a return to civilian rule so that an independent judiciary capable of protecting the human rights of people in the country can be restored and protected.
“The Myanmar military is acting with absolute impunity inside the country as it escalates its brutal campaign to crush opposition against its illegal takeover and continues to perpetrate war crimes in its decades-long military conflict with several of the country’s ethnic groups,” said Sam Zarifi, ICJ’s Secretary General.
“It is essential for the international community must do more to try to stop Myanmar spiraling towards greater bloodshed. The UN Security Council must refer the case of Myanmar to the International Criminal Court for investigation of the allegations of genocide and other crimes under international law and impose a global arms embargo on Myanmar’s security forces, including a prohibition on security assistance and the sale of dual-use technology,” Zarifi said.
“Myanmar’s neighbors in ASEAN and China can and should use their influence with the Myanmar military to demand a return to civilian rule and greater protection for human rights.”
Based on the ICJ’s close monitoring of the situation from inside and outside Myanmar, it is now clear that there is no credible legal recourse available to thousands of people in Myanmar who have been subject to arbitrary detention, enforced disappearance, torture and ill-treatment, unlawful killings, and forceful displacement. The judiciary is overwhelmingly subservient to the military and has lost even the modest gains it had made in independence and effectiveness over the last decade.
Among the major problems with the country’s legal system currently are:
- comprehensive suspension of habeas corpus and other legal protections of human rights;
- misuse of military tribunals, including to try civilians, frequently resulting in the imposition of the death penalty or lengthy prison sentences with hard labor;
- illegal arrest and detention of more than 11,000 people on vague or illegitimate charges related to their exercise of their right to freely express themselves;
- subverting ordinary judicial processes for suspects, including children;
- widespread use of torture and other ill-treatment to obtain “confessions” and punish political detainees;
The military authorities have moved courts into prison facilities to make it impossible for the public and media to attend hearings. Sham trials are conducted without due process and fair trial rights, resulting in improper convictions and sentences for thousands of people, including the State Counselor Aung San Suu Kyi and the President Win Myint . Detainees are condemned under absurd charges using secret evidence that is not contestable before the courts.
Many detainees complain of torture and ill-treatment in military interrogation centers. However, detainees are subjected to threats and lawyers are reprimanded for attempting to report allegations of such abuse to the court. Without scrutiny, interrogation centers have been turned into torture chambers.
“The Tatmadaw is trying to take the country back to the dark days of absolute rule by fiat, but the experience of the past decade has inspired people in Myanmar to demand their rights, with brave lawyers challenging the military and defending human rights as much as they can,” Zarifi said.
Since the coup d’etat, military officials have openly intimidated and harassed lawyers representing people detained as a result of their real or purported opposition to the military government. Lawyers are often threatened in front of judges and are actually arrested in courtrooms for asking witnesses questions about torture and ill-treatment their clients have experienced or for requesting fair trials.
Recent amendments to the Bar Council Act also aim to control the legal profession by eliminating the provision of lawyers electing their representatives but allowing the military to appoint lawyers of their choosing.
The year-long state of emergency was extended on 31 January for another six months, which effectively means the provision of total impunity to military for their conduct.
Since the military usurped power illegally through on 1 February 2021 a number of measures have been put in place leading to the collapse of the rule of law and an independent judiciary in Myanmar. Myanmar is party to a number of human rights treaties Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Rights of the Child (CRC) and the Convention on the Right of Persons with Disabilities (CRPD). Myanmar must respect, protect and fulfill the rights outlined in these treaties. Myanmar must also uphold its international obligations under customary international law.
SUSPENSION OF HABEAS CORPUS
One of the first steps after the coup d’etat was the “suspension” of many human rights of people in Myanmar, including the right to petition for a writ of habeas corpus to challenge unlawful detention. The suspension of this right has facilitated many illegal arrests and made it impossible to challenge the legality of detention in court. More than 11,000 people have been victims of arbitrary arrest and detention. Ordinary procedures and protections of arrest and detention, while never fully observed, have now been entirely disregarded, rendering all these instances of arrest and detention illegal.
Contrary to international law, the Constitution of Myanmar, which was adopted with the Army’s approval in 2008, allows the suspension of a writ of habeas corpus, due process of law (article 381) during a declared state of emergency. The Constitution also improperly allows for restriction or revocation of some rights including fundamental rights (article 414) during the state of emergency. Article 432 effectively provides for impunity for the junta for their conduct during the state of emergency, stating that “…no legal action shall be taken on such legitimate measures.’’
These and a number of other provisions in the Constitution violate the rule of law and international human rights standards. However, these provisions can only be asserted by the lawful authority in the country, and Myanmar’s de facto military government seized power in an unlawful coup d’etat. In addition, the manner and means of the declaration of state of emergency do not comply even with the flawed constitution of Myanmar. For example, article 417 of the Constitution allows for the President to declare a state of emergency if there is an emergency situation that “may disintegrate the Union or disintegrate national solidarity or that may cause the loss of sovereignty” due to violent insurgency.
Only then does Article 418 provide for the President to hand over all power to the Commander-in-Chief of the Army. Contrary to this provision, the state of emergency was declared on the flimsy and unconstitutional grounds of “irregularities in election.” The declaration was not declared by the President, as required, but by the Vice-President after the military had detained President Win Myint.
However, using the pretext of the state of emergency and “legitimate measures”, several laws have been amended after the coup to deny individual human rights protection. The ICJ has previously highlighted how the enactment of new laws and the amendment of existing laws enable the military to commit gross violations of human rights with impunity. Some of these violations are systematic and widespread attacks on a civilian population, such that they likely meet the threshold of crime against humanity. They must be investigated and prosecuted accordingly.
COURTS INSIDE PRISON
The State Administration Council (SAC) has established courts inside prisons to try those arrested after the coup, thereby preventing observers from attending trials.
There is only one township judge per township court established inside prisons. These judges are required to handle a number of cases significantly exceeding the capacity of one judge. For example, the judge presiding over the court in the Bago township court has to hear at least 100 cases per day. Similarly, the judge in a township court in Insein prison has to hear the cases of hundreds of detainees per day. These grossly over-full dockets and understaffed courts mean detainees are not given the opportunity to exercise any of the ordinary fair trial rights, including the right to test evidence.
MILITARY COURTS TRYING CIVILIANS
Military courts are also established to try civilians. After the coup, the SAC declared martial law in 11 townships across Yangon and Mandalay. In these townships, regional military officials have been given all executive and judicial powers and civilians are tried by military tribunals for any of 23 violations of the Penal Code. This is a gross violation of the rule of law principle of separation of powers and that civilians should only be tried in ordinary and not military courts. Some of the alleged offences for which people are tried are “disrupting or hindering government employees and services,” “spreading false news” about the government, and “exciting disaffection towards the government.” If found guilty, those convicted may face unreasonably harsh sentences such as the death penalty or prison sentences including hard labor.
Over 300 cases have been reported where the military tribunal has sentenced civilian detainees. The tribunal consists of three members of the military. Lawyers are not allowed to represent anyone in military tribunal. Apart from occasional reports published by the military owned media naming people who have received death sentences or lengthy prison sentences with hard labor, no other possibilities exist in accessing information about those sentenced by military courts.
International law prohibits civilians from being tried in military courts, as affirmed by a number of international declaratory standards and the jurisprudence of international courts and bodies.
Principle 29 of the UN’s Updated Set of Principles for the protection and promotion of human rights through action to combat impunity states: “The jurisdiction of military tribunals must be restricted solely to specifically military offences committed by military personnel.
THREAT, INTIMIDATION, ARBITRARY ARREST, DENTION OF LAWYERS
The military does allow lawyers to file the power of attorney and represent their client. In some instances, video is taken by the security forces of lawyers in the courtroom without the lawyers’ permission. These videos are sometimes broadcast in national media, seemingly to suggest that the military allows lawyers in court and adheres to fair trial practices.
Some proactive lawyers have continued to test the courts, visiting courts in prison. However, these lawyers are frequently subjected to threats, harassment, intimidation, arrests and detention. Lawyers representing political detainees are targeted the most. In the Insein prison courts, lawyers representing detainees are scrutinized by both the police and military. Copies of their IDs are taken. They are photographed by police. Prison authorities also reveal to lawyers that the records of them defending political prisoners have been noted and reported to the Military Council.
More than 18 lawyers have been arrested—including directly from courtrooms—for their defense of political detainees, while many have fled to escape arrest. Most of these lawyers are arrested under Penal Code Article 505 A, the law which was amended after the coup providing authorities with wider power to arrest and detain people, on vague and overbroad grounds. Many of these lawyers were arrested without a warrant. The police in Pathein township court stated that during this time of military rule there is no need for a search warrant to enter people’s houses and arrest them.
TORTURE AND ILL-TREATMENT OF DETAINEES
The prohibition of torture and other ill-treatment is absolute in international law. The prohibition is codified in the Myanmar Penal Code and section Myanmar Penal Code 330, 331 prohibit torture during interrogations. However, many detainees have spent days in so-called “interrogation centers.” These are military-based camps where detainees are severely tortured and, sometimes, killed.
According to credible information received by the ICJ, some detainees allegedly witnessed the killing of other detainees. Several detainees have complained of beating with sticks and wire ropes, electrocution, mock execution, and burying alive. Women detainees have also complained of sexual abuse.
Other detainees have complained of lack of proper medical treatment for those sustaining injuries from torture. Additionally, many detainees complain of a lack of sufficient food in detention including prison and living conditions being unbearable. Multiple detainees have complained of severe overcrowding in detention cells, with as many as 120 detainees in a room designed for holding 30 people.
VIOLATIONS OF CHILDREN’S RIGHTS
Under the CRC and also the law in Myanmar, child detainees, meaning people below the age of 18, must be segregated from the adult population. However, the ICJ understands that minors are currently held in the same areas as adult detainees, which contradicts the notion of special treatment enshrined in Myanmar’s Child Rights Law (2019).
Credible information also suggests that child detainees have also been intimidated and subject to torture or other ill-treatment, including sexual abuse. Children have credibly described arrest and detention for allegedly participating in anti-government protests, and being released after signing coerced “confessions” after suffering lack of food and water, mock burials, being forced into stress positions for prolonged periods of time, being burnt by lit cigarettes, and regular beatings and even sexual violence.
Instead of ensuring the rights of juveniles, judges have encouraged children to admit to crimes. For example, in some cases, judges have tried to persuade children to “confess” their guilt in the first stage stating that this would lead to the decision of the Court to send them to a correctional facility rather than remaining in pre-trial detention facilities.NewsPress releases