Aung Lin Oo and Tomas Max Martin show how the pandemic reveals perennial problems of prison governance but also strengthens rationales for reform.

Global media and international agencies have drawn attention to the particular vulnerability of prisoners during the COVID-19 crisis. Prisoners very often suffer from underlying medical problems that increase their risk of getting infected, which are further aggravated by stigma, sub-standard conditions, serious overcrowding and tendencies to prioritize security over care. Prisons risk becoming incubators of infectious diseases, which put detainees, staff and their families at direct risk and may impact negatively on the society as a whole. Many prison services across the world are currently struggling to respond to these threats, including the Myanmar Prison Department. Prohibition of visits, emergency releases and protective health measures are the most common initiatives.

This brief article takes a critical look at the unfolding history of the COVID-19 response in Myanmar’s prisons. We do this on the basis of ongoing ethnographic research about legacies of detention in Myanmar. Our basic point is two-fold: Firstly, the particular and significant vulnerability of prisoners, staff and relatives in Myanmar prisons during this COVID-19 crisis must be addressed according to national guidelines and international standards. Secondly, the authorities should grab this opportunity to respond transparently and strategically to the COVID-19 challenges based on facts and in dialogue with key stakeholders and partners. In other words, this crisis should not go to waste as it holds potential to identify and to begin to earnestly address key structural challenges in Myanmar prison governance.

It is an opportunity for constructive collaboration with the public, researchers, NGOs, international agencies and other key stakeholders in the surrounding society. COVID-19 seems to have affected Myanmar remarkably late with relatively few officially reported cases to date. In the early days of the pandemic, this raised concern and critique that the government did not communicate seriously about the virus and failed to display a committed preparation of proper countermeasures. In prisons, one of the first responses was to restrict and stop family visits. News media reported on the distribution of ginger tea to prisoners – apparently to boost their immune systems. On 25 April, 2020 the Prison Department announced on its website that 290 wash basins would be put up to improve handwashing for Myanmar’s approximately 100,000 prisoners. UN agencies also supported the Prison Department in preparing for COVID-19 through awareness raising activities and distribution of infection control supplies such as masks and hand sanitizer. In addition, the Prison Department’s official Facebook posts showed workers and firefighters in protective gear spraying prison wards, toilets, and visiting rooms with disinfectant. It also showed prison officers temperature testing their colleagues, prisoners, visitors and police officers coming from court. But the most prominent initiative – though not officially related to the pandemic – has undoubtedly been the New Year’s pardons.

The pardons – old habits and disregard for the ‘input’ problem

A little less than 25,000 prisoners, around a quarter (!) of the prison population in Myanmar, were released on 17^th of April 2020.  Yet, the criteria for these releases have not been publicly announced or explained. This lack of timely and credible information about prison policy is symptomatic. Last year, this lack of clarity caused massive unrest among Myanmar prisoners, who complained that pardons were dished out unfairly and not according to the rule of law. Our own research indicates that prison superintendents may use their power to recommend pardons as a means to reward prisoners who are close to staff.

According to news reports, the Prison Department explained that the pardons were not related to COVID-19, but they did, albeit by chance, coincide with a global wave of emergency releases in places as diverse as Iran, Kenya and the US. International human rights and health agencies strongly recommend release mechanisms as a key measure to protect prisoners against COVID-19 and ease the pressures of forced proximity in overcrowded prisons. Sometimes with a valid focus on prioritizing the most vulnerable, for example, the elderly and the sick. Easing the perennial burden of overcrowding in Myanmar prisons is of course commendable, but in this particular situation the opportunity to implement pardons transparently and with a view to enhance the protection of the most vulnerable prisoners seems to have been lost – again.

Moreover, to repeatedly address pressing penal problems by expelling prisoners en masse reveals and maintains a criminal justice system that puts people in prison who maybe need not be there in the first place. The COVID-19 response is again no exception. Harsh legal action has been taken against people who do not obey regulations during this challenging moment. Migrant workers who do not comply with emergency rules have been thrown in prison, people gathered in religious meetings and activists engaged in labour strikes have been charged. Failure to follow the communicable disease law about staying at home in Yangon can yield up to six months in prison. To control the transmission of disease, the government has introduced two new tough laws on the prevention of communicable diseases and disaster management, which so far led to the prosecution of over 8000 local residents, according to Irrawaddy news on June 19, 2020. The growing number of criminal charges and imprisonment are likely to undermine the short-term benefits of the pardons and put more pressure on the prison system. The archaic sovereign practice of showing mercy with one hand and lashing out with the other is not a sustainable response to such a crisis. The COVID-19 crisis calls for caution and moderation in law enforcement and criminalization that leads to further incarceration.

Restrictions on visits – cutting vital lifelines without alternatives

Many prison services across the world have restricted or reduced family visits to decrease the risk of prisoners and staff being infected – also in Myanmar. Our research on prisoners’ contact with the outside world in Myanmar shows the enormous importance of family visits to prisoners’ welfare and mental and physical health. Families provide their imprisoned relatives with vital foodstuff, medicines and basic amenities. Families typically also provide money that prisoners use in the informal economy to buy and barter for extra food, obtain lighter labour duties, and receive better sleeping places, which are crucial for their survival. The COVID-19 related ban on visits is therefore likely to cause severe scarcity, unless the Prison Department provides compensatory resources or continues to allow families to care for their incarcerated relatives.

Family visits are also crucial for prisoners’ emotional well-being. It is a clear recommendation from all international agencies that the protective restrictions on visits should be minimal and that alternative measures for keeping the vital contact to the outside world should be ensured. The Norwegian prison service is, for instance, buying I-Pads for prisoners. This might not be realistic in Myanmar, but the general ban on telephone contact should be reconsidered and lifted in this situation. Prison services, especially those in states undergoing democratic transitions, are often extremely over-focused on keeping the prison gates closed due to security concerns, that typically are out of date and proportion. Again, the Prison Department could – in collaboration with concerned and capable outsiders – take this opportunity to innovate. The COVID-19 crisis not only demands restriction of face-to-face visits, but also provides a strong rationale to allow prisoners in Myanmar emergency access to digital or telephone communication with their relatives – access that could be supported, piloted and, potentially, lasting.

Health – laying bare deep structural problems

Inmates in all countries are typically among the least prioritized citizens in terms of access to health care, and prison health is often burdened by lack of resources, low status and limited attention. The prison population is likely more vulnerable than the general population and prisoners and staff may face very high COVID-19 transmission rates, if authorities fail to pay attention. In international media and guidance documents, prison experts warn that the pandemic can turn into a death sentence for prisoners, who are caught up in prison systems that do not take mitigation and protection very seriously. Prison health, therefore, should not be neglected by state authorities, but match strategically and financially the general health response in this crisis.

So far, state authorities in Myanmar, however, do not seem to be paying adequate attention to this pressing problem. When the two first COVID-19 patients were detected, the government urgently instigated stay-at-home restrictions, social distancing and prohibition of public events and social activities. Such measures are not easily followed in prisons. Myanmar prisons and labor camps are characterized by notorious overcrowding and substandard health care. The Myanmar National Human Rights Commission reported that prisoners experienced inadequate health facilities and insufficient access to health supplies. U Aung Naing Pe, the head of Myingyan prison, also told Frontier Media on March 28, 2020 that “the prison has only one doctor, who will decide whether a patient has symptoms similar to Covid-19”. Some prisons in remote areas do not even have health staff, resulting in prisoners living in abysmal health conditions. Former female prisoners also complain about unavailability of health professionals, insufficient care of reproductive health and HIV/AIDs sufferers, and inadequate responses to health emergencies. This list of health problems corresponds to the findings of our own ongoing research on gender and imprisonment in Myanmar.

These challenges include preventive health such as monitoring, medical check-ups and health education, which may be particularly important in the face of this virus. The Myanmar Prison Department announced on Facebook on March 23, 2020 that prisons have been provided with personal care items and other health supplies and that inmates have been educated about the virus in cooperation with the National Health Department. Yet, released prisoners argue that the authorities have not provided adequate health awareness and that prison staff know too little about the prevention and control of communicable disease. “When I was in the prison, they did nothing at all”, Min Htin Ko Gyi, a prominent filmmaker and human rights activist told Irrawaddy News on February 26, 2020. “My family members brought me masks (via prison officials) when I was in the prison, but I didn’t get them (…). I asked the new prison warden what he would do to prevent the virus in the prison. He said nothing to me”.

The Prison Department may be striving to react to the pressing health challenges here and now, but in order to prevent and control COVID-19 and protect health rights in prisons, the government needs to pay attention to the grave and complex threats to prisoners’ health, beyond immediate, piecemeal and ad hoc responses. Protective interventions must be targeted to local needs and capacities and implemented in compliance with international standards with a long-term perspective. In this way, the COVID-19 crisis offers a rationale for a comprehensive prison health reform that begins to tackle issues of staffing, prevention, equal access, availability of services, and adequate information.

Crisis as risks – and an opportunity

The COVID-19 crisis poses tremendous health risks, economic risks and political risks. The political risks are particularly worrying in a country with an authoritarian legacy like Myanmar. The damaging ‘war-on-approach’ to deal with society’s problems – the war on terror and the war on drugs – unfortunately also latches on to ‘the war on corona’ and plays power even more firmly into the hands of authoritarian actors and short-term tactical rationales of controlling the immediate threat. The COVID-19 crisis creates an excuse for tightening security and rolling back freedoms. Yet, a crisis like this also offers a strong rationale to address underlying problems, strategically and innovatively and in ways that need not be costly.

Prison reform in Myanmar is slow. In the face of the current crisis, it is even more necessary and pressing to speed up the pace of positive change. To do this, it will be pertinent to enhance transparency and share more facts and information, letting go of security obsessions, engaging in constructive dialogues between authorities and civil society and working hard to develop trust with concerned stakeholders instead of suspicion. In this way, the COVID-19 crisis might not just be a risk to prison life in Myanmar, but an opportunity to do long-term good through mitigating short-term harm.

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Aung Lin Oo holds an LL.B from Dagon University (2013), and a Diploma in International law (2015) and in Business law from Yangon University (2016). He has been working as a research assistant and lawyer in Justice for All Law Firm on a research project analysing the legacy of detention in Myanmar, supported by the DIGNITY – Danish Institute Against Torture.

Tomas Max Martin is a trained anthropologist with a PhD in Development Studies (2013) specialized in prison sociology and the anthropology of the state with a focus on the localization of human rights and reform processes and the appropriation of new technologies and penal architectures. Martin is currently a senior researcher at DIGNITY – Danish Institute Against Torture working on the research project Legacies of Detention in Myanmar. This project is supported by the Danish Ministry of Foreign Affairs.

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