Burma/Myanmar: Amnesty does not free all political detainees

AHRC-STM-001-2014
January 1, 2014

A Statement
by the Asian Human Rights Commission

The Asian
Human Rights Commission welcomes Order No. 51/2013 of 30
December 2013 by the president of Burma (Myanmar), issuing a
general amnesty for all persons imprisoned or facing trial
or investigation for certain categories of political
offences. The categories include persons accused or
convicted of offences under the colonial-era Unlawful
Associations Act, for charges of treason, sedition or
disturbing the public tranquillity under the Penal Code
(sections 122, 124A and 505), the 2011 Peaceful Assembly and
Procession Law, and the 1950 Emergency Provisions Act.
According to latest reports, eligible prisoners are today
being released from jails around the country.

The order
has been issued in order to fulfil the president's
commitment given previously that all political prisoners
would be released by the end of 2013, both by ensuring the
release from prison of people detained under political
offences, and halting actions against people currently
facing such charges. Insofar as it does this it has a
general expediency; however, the amnesty fails to take into
account the fact that now, as in the past, Burma's prisons
contain people detained for political reasons who have been
charged with non-political offences.

Among those persons
not released today is Dr Tun Aung, on whom the AHRC in 2013
issued an urgent appeal (AHRC-UAC-013-2013). The AHRC has
confirmed that he is not among those persons released,
presumably because the offences for which he is being
detained include not only those political charges mentioned
in the presidential order but a range of alleged crimes
under antiquated communications and foreign exchange
regulations laws, among others. Indeed, even now he is
facing further charges under a national population
registration law because, perversely, government officials
incorrectly recorded his details on official
documents—clerical errors for which Tun Aung is himself
instead being blamed.

Other persons unlikely to be
released, if the criteria for the freeing of detainees are
followed, include Ma Khaing, a reporter for the Eleven Media
group in Shan State whom, according to that media outlet,
was on December 17 sentenced to three months' imprisonment
for investigating and documenting judicial corruption. In
her case none of the charges brought are of an ostensibly
political nature, even though in fact they were allegedly
brought for broadly political reasons. The media outlet has
expressed concern that although a number of journalists have
been charged with offences related to their work since the
current government took office, she is the first to go to
jail.

Thus, the failure of the president with this order
to fulfil his commitment to release all political detainees
by the end of 2013 is the first and immediate concern of the
AHRC.

The second, longer-term concern relates to the
persistent use of executive amnesties to free detainees. The
release of persons from prison who should not have been
detained in the first place is under any circumstances a
welcome event. However, the repeated use of this method is
no way to build the rule of law. On the contrary, it has
potentially corrosive effects on rule-of-law institutions,
by failing to put pressure on the courts and other agencies
to take responsibility for their own failures, and prevent
these types of cases in the first place. Indeed, none of the
persons amnestied have actually been exonerated, and none
are in a position to make claims for compensation or take
other actions for wrongful detention. All that has happened
is that the president with a wave of the hand has let them
out.

Continuous executive hand waving might get some
people out of jail who should not be there, but it is no
solution to the problems that Burma has with systemic
arbitrary and illegal detention. On the contrary, it
potentially undermines the search for lasting solutions by
functioning as an easy way out from the search for
alternatives. It also undermines any claims on the part of
the government of Burma to be working towards a judiciary
with credibility and independence, since it reinforces the
overwhelming power of the president to make decisions at his
discretion as to who stays locked up and who gets out.

The
current president is making choices on the release of
detainees that for the most part are amenable to the public
and are appreciated by democratic political parties and
human rights groups in Burma, and abroad. But it does not
take any stretch of the imagination to envisage a situation
in which the current president or, perhaps more likely,
another incumbent in a few years time might make amnesty
decisions that will be offensive to many people—amnesties
to protect human rights abusers, rather than to free human
rights defenders. Indeed, Burma has lessons in its past that
speak to this possibility, and today we need look only as
far as its neighbour, Thailand, to see the extent of
political conflict caused by a blanket amnesty not only for
human rights defenders but also for human rights
abusers.

Therefore, the Asian Human Rights Commission
while welcoming this particular amnesty urges that the
authorities in Burma work strategically towards more lasting
rule-of-law oriented solutions to arbitrary detention, in
particular, through urgently needed reform of courts so that
unjustly imprisoned people can have their sentences
overturned and seek compensation for wrongful imprisonment.
Only through actions of this sort will the judicial system
obtain rather than further lose credibility and independence
through the release of unjustly detained
prisoners.

ENDS

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