Burma, Political Psychosis Legal Dementia
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Vol. 6, No. 5-6 October-December 2007 ISSN 1811 7023 special report Burma, political psychosis legal dementia& The meaning of article 2: Implementation of human rights All over the world extensive programmes are now taking place to educate people on human rights. As a result today there exists a vast number of persons and organisations firmly committed to human rights; more than at any other time in the history of humankind. Yet human rights continue to be monstrously violated. It is time for the global human rights movement to examine why it may not yet be achieving real improvement in the global human rights situation. One factor hindering honest examination is the belief that improvement of knowledge about human rights will by itself end human rights violations. This is a myth based on the corresponding belief that education is itself capable of improving things. In reality human rights can only be implemented through a system of justice. If this system is fundamentally flawed, no amount of knowledge—no amount of repetition of human rights concepts—will by itself correct its defects. Rather, these need to be studied and corrected by practical actions. Hence research and intimate knowledge of local issues must become an integral part of human rights education and related work. article 2 aims to do this by drawing attention to article 2 of the International Covenant on Civil and Political Rights, and make it a key concern of all partners in the global human rights community. This integral article deals with provision of adequate remedies for human rights violations by legislative, administrative and judicial means. It reads in part: 3. Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority pro- vided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted. Sadly, article 2 is much neglected. One reason for this is that in the ‘developed world’ the existence of basically functioning judicial systems is taken for granted. Persons from those countries may be unable to grasp what it means to live in a society where ‘institutions of justice’ are in fact instruments to deny justice. And as these persons guide the global human rights movement, vital problems do not receive necessary attention. For people in many countries, international human rights discourse then loses relevance. Other difficulties also arise with article 2. One is the fear to meddle in the ‘internal affairs’ of sovereign countries. Governments are creating more and more many obstacles for those trying to go deep down to learn about the roots of problems. Thus, inadequate knowledge of actual situations may follow. A further and quite recent disturbance is the portrayal of national human rights institutions and their equivalents as surrogate agencies for dealing with article 2 related issues. Some state parties may agree to new national human rights institutions taking on this role because they know that by doing so they may avoid criticisms of a more fundamental nature. Thus after many years of work, the Asian Legal Resource Centre began publishing article 2 to draw attention to this vital provision in international law, and to raise awareness of the need to implement human rights standards and provide effective remedies at the local level in Asia. Relevant submissions by interested persons and organizations are welcome. Contents SPECIAL REPORT: BURMA, POLITICAL PSYCHOSIS & LEGAL DEMENTIA Foreword: Still no cure for political lunacy 2 Basil Fernando, Executive Director, Asian Human Rights Commission & Asian Legal Resource Centre, Hong Kong Introduction: Burma, political psychosis & legal dementia 5 Editorial board, article 2 A non-existent criminal justice system 10 Burma desk, Asian Human Rights Commission, Hong Kong The alms bowl and the duty to defy 19 Asian Human Rights Commission, Hong Kong The right to provoke 58 Awzar Thi, Member, Asian Human Rights Commission, Hong Kong Ten case studies in legal dementia 77 The Hinthada 6: Victims of a criminally insane system 99 Yoma 3, Thailand & Asian Human Rights Commission, Hong Kong “They killed your son, they’ll kill you too” The struggle for justice for Maung Ne Zaw 109 APPENDICES Appendix I: International community is failing the people of Myanmar again 119 Appendix II: Burma—The myth of state stability & a system of injustice 123 article 2 October-December 2007 Vol. 6, No. 5-6 1 Foreword: Still no cure for political lunacy Basil Fernando, Executive Director, Asian Human Rights Commission & Asian Legal Resource Centre, Hong Kong hile scientists and health practitioners have found ways to cure or alleviate many forms of mental Willness, when it comes to political lunacy we have made few advances, and least of all in Asia. As in the case of an otherwise psychologically healthy person who goes through a period of trauma, treatments can be found where a relatively sane political system falls into a temporary crisis. But when a country is burdened with stark raving political lunacy, what sort of remedy is there to be had? Unfortunately, there are many countries in Asia whose political set ups are suffering from chronic mental disorders that have so far proved beyond the ability of anyone seeking to treat them. Without the slightest hesitation it can be said that Burma is one such country. This unfortunate fact has been made all the more obvious by the events of this August and September 2007, when a steep hike in the cost of basic fuels precipitated mass protests the likes of which had not been seen for 20 years. Taken together, the uprising and its aftermath are likely to cause a great deal of confusion among many people who have had the good fortune not to have been born or raised in a country that has succumbed to such political insanity. Some would expect that such a large-scale event would necessarily produce some kind of change, as it would have had it occurred in their own backyard. Others will wrongly assert that it apparently failed to obtain immediate change for want of adequate support or planning among the people of Burma themselves. And then there are some who will hunt around for explanations that fit with their prefabricated notions of the world, neocolonialists and everyone else in it. Rather than try to 2 article 2 October-December 2007 Vol. 6, No. 5-6 understand the event for what it actually was, they will find it much easier to write the whole thing off as something cooked up by some foreigners with a few million dollars to spend. When we talk Such reactions naturally arise among confused persons trying “about the rule of law, to demonstrate some sort of knowledge about complicated things human rights norms that happen contrary to their expectations, in the same way that when people encounter others who may not behave according to and other features of their norms they also seek to come up with easy explanations modern government, that fit with their personal experiences rather than try to put we presume a degree themselves in the others’ shoes. of rational thought However, for those of us who are more interested to really try and behaviour; if we to understand what has happened in Burma in recent months, it are speaking of is necessary to tackle political lunacy and its consequences head- political lunacy, we on. Over forty years of uncompromising military rule there leaves us no alternative. are referring to the absence of conditions Lunacy is, in essence, the absence of rationality. When we under which such a talk about the rule of law, human rights norms and other features of modern government, we presume a degree of rational thought government may be and behaviour. Thus, if we are speaking of political lunacy, we established are referring to the absence of conditions under which such a ” government may be established, let alone built up; that is, it is political lunacy in the broadest sense. How does a political system so completely lose capacity for reason? Naturally, to answer such a question fully is far beyond the scope of this brief foreword, but let’s consider at least one salient factor that may help to explain in part the prevailing lunacy of government in Burma. A prime cause of lasting political insanity is when a temporary fit of madness completely overwhelms other parts of the system that may at other times have fought back and succeeded in containing the illness. Among these, when basic values of fairness and justice are lost, and with them the means by which to assess disputes according to rational and objective standards, it becomes very difficult to control crazed government. This point can be reached very suddenly. Once arrived at, outwardly there may continue to appear to be an organised and reasonably well-behaved society, when in fact it has already been stripped of its defences and capacity to act reasonably. Externally, it may still be a single nation on a map, with a flag and anthem, a ruling group, military and police, schools, hospitals and other features of administration; however, internally it may be in utter turmoil. In recent years, the Asian Human Rights Commission has meticulously studied, documented and reported on criminal cases in various parts of Burma.