After nearly half a century of oppressive regimes, the start of democratic transition there has been an endeavor to change the existing standards of institutions and systems to those compatible with basic democratic principles.
During this process, major friction seems to be found in the legislation made by and developed under the oppressive military regimes and deeply-rooted practices of the bureaucratic system enforcing such legislation. Although prisons are significant institutions of the State security sector, they have not been the interest of the general public and most of the players of the democratic transition. This has led to the exclusion of prisons as a separate institution from democratic transition and the continued ongoing human rights violations inside prisons.
In the prisons throughout Myanmar, the number of the prisoners charged through an undemocratic judicial process has continued despite the move to democratic governance. For comprehensive and prison reform, we need to understand current conditions inside prisons, to inform and shape the process of prison reform.
This report was developed through interviews with key populations including the drug users, vulnerable and marginalized groups of people in normal social life which comprise sex workers, persons with disabilities (PWD) and LGBTI about the conditions they faced in jails as convicted or unconvinced prisoners.
Every country in the world has prisons and they differ only in terms of standards and specific legislation depending on the policy of each State. They stand as a complementary instrument of the rule of law and justice system of a country. However, in some countries, they are used for oppression instead and are places of cruel treatment, where physical and psychological torture routinely takes place, depriving prisoners of their basic human rights, and right to live with dignity.
A prison is considered by a civilized society as a shelter where the offenders of the existing laws, who can affect the freedom and security of other people if they are still in the society at large are held and corrected. It is essential to take into consideration the number of prisoners and general conditions of the prisons in order to judge a nation’s development, education and human rights conditions. Therefore, prisons are as a ruler to assess justice of a nation’s legislation and its human rights conditions.
About the Prisons in Myanmar
“There are altogether 95 prisons, detention centers and labor camps in Myanmar and their maximum capacity is for 71,000 people, but Major General Aung Thu, the deputy minister of Home Affairs said they can hold 74,153 persons provided with 18 square feet for a prisoner. As the total number of prisoners at the closing time on January 1, 2019 was 1,039,58, there were 29805 occupants more than the maximum capacity and reached up to 140%”.
The number of prisoners in the prisons in Myanmar has statistically increased. The increase is common in many countries impacting various problems such as health, daily living and personal hygiene. In the report of Myanmar National Human Rights Commission, it can be seen that in the prisons in Myanmar, such problems affect vulnerable key populations more and result in human rights violations including abuses and discriminations.
In the same report, it’s also identified corrupt practices, lack of healthcare services and heavy workload in labor camps.3 In addition, the practice of appointing convict officers to rule the other prisoners due to the shortage of the prison officers is widely used in the prisons all across Myanmar, yet this can enable not only the prison officers but also the convict officers to physically and sexually abuse the other prisoners. It is also noted that the existing prison law and the jail manual of Myanmar were developed during the British colonial rule and are still in use with a few amendments over all these years.
The Importance of the Prison System Reform
Since the structure and operational procedures of prisons are said to reflect the democratic and human rights standards of a country, a strong focus should be given in this aspect to countries which have been in transition from dictatorship to democracy. The government leading the transition has to implement new mechanisms compatible with a new system for the country’s economy, rule of law, legislation and governance.
There is a common belief that harshly penalizing criminal offenders and imposing death penalty for very serious criminal offences is a right thing to do. Yet, these punishments result in an increase of arrests and penalties, human rights violation, physical and psychological torture, and discriminatory administrative practices in prisons. In addition to not having the ministry of justice and to the continual enforcement of the related laws developed during the colonial period with the deliberate intention to oppress Myanmar people, penalties applied seem to be far from creating opportunities for rehabilitation, but to oppress the prisoners within a legal framework.
Currently, in accordance with existing criminal procedures, courts continue to pronounce sentences almost always with hard labor. The term “labor” is interpreted unfairly in prisons resulting long-term negative physical impacts on the prisoners, and the labor camps are the notorious places filled with human rights violations. These punishments lead to questions about the government’s respect off human rights.
The prison system reform process can help other parallel reforms related to the justice system, criminal laws and the police manual. Moreover, the society will have greater understanding on the prisoners, and as a result, discriminatory practices and stigma will be reduced, have a better social environment and in general, the rule of law and stability of the nation will also be improved.
In developing countries undergoing democratic transition, the most important threat to the country’s development and the fulfillment of human rights is lack of the rule of law.
Due to the poor standards inside prisons, prisoners are badly affected by the prisons’ administrative practices, so much so that for some the prisons act as training grounds for criminal activities. Only when the prisons can be transformed into a true correctional center for the prisoners where they can improve themselves psychologically as well as intellectually and be given proper opportunities to rehabilitate into society will crime rates will be lowered.
The prison system reform is initially so costly that it is not appealing to any government. However, the prison system reform and making appropriate changes of the related laws and procedures will minimize the use of tax-payers’ money for the prisons in the long run.
According to U Min Tun Soe from the prison department, under the current budget allocation, the prisons had to spend the daily meal allowance of 600 kyat ($ 0.43) for each prisoner until December 2016 and it has been increased up to 975 kyat ($ 0.73) since January 2018.4 These statistics show the government has to spend 89.7 million kyat ($ 67160) per day (for the meals of the prisoners) in all the prisons. If the prison population can be dropped by 26000 and kept still at maximum capacity, the government can reduce the expense of 25,350,000 kyat ($ 18,988) per day and 9.25 billion kyat ($ 6,930,620) in one year and can save 28% of the current expenses. The budget saved by reducing the prison population can be used to improve the living conditions of the prisoners and the prison staff and to make the prisons to be better workplaces. By doing so, human rights situations can be improved, and corruption can be eliminated at the same time.5 Since it can also be supportive of the rule of law and development of the country, the prison system reform is a must in Myanmar.
The Role of Key Population
Definition of Key Population
Key population is defined as very vulnerable groups of HIV positive and potentially HIV infected people who are easily influenced by the legal system or by the behaviors of the society. From now on, the term “Key Population(s)” will be described as KP for short.
According to the World Health Organization (WHO), KP includes LGBTI, prisoners, people who use drugs, sex workers and transgender. KP mentioned in this report refers to the homosexuals, drug users, sex workers and transgender in the prisons all across Myanmar.
The Status of KP
The higher infection rates of HIV/AIDS disease among KP becomes a big health burden in many countries around the world. According to UNAIDS, 40 to 50% of HIV infected people are KP and those who have relationships with them6 and they are generally discriminated. Discrimination and gender-based violence are negative consequences of political oppression and social and religious segregation. This situation pushes HIV positive KP further away from getting proper treatment and also weakens the preventative measures for those who are not infected. One of the Sustainable Development Goals (SDGs) to build a world of zero HIV/AIDS will never be possible without any specific prevention or treatment plan for KP. In order to address the situation, the USAID has done research, policy development, preventative measures and physical and psychological treatment programs throughout the world in a close co-operation and co-ordination with regional and national governments.
Myanmar has also taken special measures and worked together with other ASEAN countries to get to Zero HIV/AIDS. On 20 April 2018, Myanmar hosted ASEAN Cities Getting to Zero, Regional Consultation Meeting at the Royal Hinthar Hotel in Mawlamyine, Mon State. At the meeting, H.E. Dr. Myint Htwe, Minister for Health and Sports (MoHS) of the Republic of the Union of Myanmar said the objectives of ASEAN cities getting to zero(G2Z) project were zero new HIV infections, zero discrimination on HIV positive population and zero AIDS related deaths. The minister continued that the regional governments have worked together, and accelerated prevention and treatment plans efficiently and effectively in ASEAN cities since 2011. Besides, in June 2019 at the Melia Hotel in Yangon, the MoHS held a forum and presented the key findings of the assessment on HIV infection, prevention and national HIV/AIDS eradication project.
In the prisons all across Myanmar, about 50% of the total occupants are the prisoners charged with consequences related to drug use. Moreover, there are many LGBT and sex workers facing various forms of discrimination in the society. They are further discriminated in jail, and the Myanmar National Human Rights Commission (MNHRC) highlighted in the reports on MNHRC’s prison visits that proper healthcare services for HIV positive KP in the prisons are totally inadequate. It is now clear that special healthcare services for HIV positive KP and special measures of prevention for zero new infections should be in place in the prisons.
Myanmar has developed and implemented the National Strategic Plan for HIV/AIDS (2021-2025) and Action Plan to Getting to Zero New Infections in 2030,11 but there are no special measures for highly vulnerable KP, nor the HIV/AIDS population upon release from the prisons. After release, HIV positive KP will go back into the society and they can be the carriers of the disease and worsen the situation. Therefore, it is critical to change the prison and justice systems with a serious consideration for the conditions of HIV positive KP in the prisons.