Amendment of Myanmar’s Defence Services Act Perpetuates Travesties of Justice
This new amendment effectively provides a blackmailing tool that senior officers can use against junior officers and rank-and-file soldiers, in order to pressure them to remain quiet and loyal to their seniors.
In light of the Myanmar military bringing different cases to court-martials, including that of murdered ethnic Karen woman, Naw Mu Naw, it is clear that military justice, court-martials and other showcases that are used to demonstrate accountability do not bring any justice for the victims, their families, and their communities. Furthermore, a recent legislative amendment to the 1959 Defence Services Act, touted as a step forward for ending impunity, is actually a subtle attempt to stall any further moves towards accountability.
An amendment to Article 125 of the 1959 Defence Services Act, submitted by the Myanmar military and quickly passed through both the Upper and Lower Houses of Parliament, is being presented as a tool to address impunity of the Myanmar military by law. Thus, for offences deemed ‘unforgivable crimes’ committed by Myanmar military soldiers, this amendment will alter the statute of limitations which, in the current form of the law, states that proceedings have to commence within three years of the crime taking place. The amendment proposed will change this by stipulating that the three-year statute of limitation begins from either: a) the date on which the offence took place, b) the earliest time when the offence is known as identified by the authorities in power, or c) the earliest time when the person who committed the offence is known as identified by the authorities in power. This amendment is being lauded as a step forward in terms of addressing impunity domestically, as the previous, stricter, three-year statute of limitations meant that after three years, a soldier who let’s say, committed “an unforgivable crime”, would not be subject to accountability. However, this new amendment does not address the foremost obstacle towards accountability – the ultimate power of the Myanmar military to adjudicate abuses it commits itself. Furthermore, such a law can serve to provide obfuscations in the pursuit of justice in international accountability proceedings on Myanmar.
Three points need to be made. Firstly, as law expert, U Aung Htoo points out, this new amendment effectively provides a blackmailing tool that senior officers can use against junior officers and rank-and-file soldiers, in order to pressure them to remain quiet and loyal to their seniors. If a senior officer can decide when an offence becomes known, or when the person who committed an offence becomes known, they can raise this issue any time during that soldier’s service, whether three years, ten years or 25 years after the act. This threat hanging over the head of junior officers and rank-and-file soldiers serves to discourage them from engaging in any whistleblowing acts or speaking out, as the “authorities in power” can ‘find out’ an offence from twenty years ago and charge them. Secondly, by Parliament agreeing to amend this law, there is an extra layer of civilian approval granting the military leaders to remain above the law and enjoy institutionalized impunity. Thus, charges of lack of civilian oversight can be rebuffed by the military who can state, quite correctly, that this is an amendment overseen by a mostly elected parliament. Thirdly, this then makes international accountability processes more difficult, as the military can say that the court-martials process was approved by the elected Parliament, while the elected government can claim to the international community that accountability has been addressed domestically. This will further discourage any potential defectors, whistleblowers, and others who may be inclined to testify to the unforgivable acts of violence they were part of or ordered to act on, as they know they are the ones to face charges through the military justice system.
Furthermore, and perhaps most importantly, the fundamental fact of the current court-martials system is that the Commander-in-Chief is the ultimate arbiter of any military court proceedings, and this is enshrined in the 2008 Constitution. The 1959 Defence Services Act in its original form, actually stipulated that it was the Judge-Advocate General, a non-military figure, and his non-military staff, who would oversee court-martials. However, the 2008 Constitution replaced this stipulation, and it has since been firmly under military control. This recent amendment does not change this core problem.
How this impunity affects people on the ground can be seen in the recent case of Naw Mu Naw, the ethnic Karen villager who was robbed and murdered by two Myanmar military soldiers in her village on 16 July 2020. After vowing to take action against the perpetrators, the Myanmar military announced on 2 August that the two soldiers had been tried by a court-martial and given “maximum punishment.” As the Karen Peace Support Network states, “There are strong doubts whether the trial was fairly conducted, given the military’s earlier claims that the soldiers killed Mu Naw “accidentally.” The total lack of transparency and justice for the families and community is typical of such cases, and adds to the list of massacres, extrajudicial killings, sexual violence, and torture, committed by the Myanmar military in all corners of the country, in which military justice is just a charade of accountability that protects the military as an institution, and in particular, the senior leaders who give the orders.
This state of affairs, in which a total lack of accountability, and an enshrined, institutional, and protected-by-law impunity prevails, will not change unless the military is brought under total civilian oversight. Otherwise, the proverbial fox still guards the henhouse, the fox just has greater control over its pack. Thus, there will be more cases of the most egregious human rights violations committed by the Myanmar military, protected by its own flawed justice system, in which the military leadership and its senior generals are fully protected. The occasional junior officer or rank-and-file soldier may get a slap on the wrist, but not much more, and the public will barely know about it. If the Myanmar military and the government is genuinely interested in holding perpetrators to account for their crimes, the least they can do is to cooperate with international accountability mechanisms such as the Independent Investigative Mechanism for Myanmar and allow them access to the country. This amendment is a testament to the mindset of those at the very top who rule the country and their attempts to stop anyone from speaking out about the grave human rights violations that the Myanmar military have committed. It is a travesty of justice and must not be enacted by the President’s Office.
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[1] One year following the 1988 pro-democracy uprising, the former military junta changed the country’s name from Burma to Myanmar overnight. Progressive Voice uses the term ‘Myanmar’ in acknowledgement that most people of the country use this term. However, the deception of inclusiveness and the historical process of coercion by the former State Peace and Development Council military regime into usage of ‘Myanmar’ rather than ‘Burma’ without the consent of the people is recognized and not forgotten. Thus, under certain circumstances, ‘Burma’ is used.
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Progressive Voice is a participatory, rights-based policy research and advocacy organization that was born out of Burma Partnership. Burma Partnership officially ended its work on October 10, 2016 transitioning to a rights-based policy research and advocacy organization called Progressive Voice. For further information, please see our press release “Burma Partnership Celebrates Continuing Regional Solidarity for Burma and Embraces the Work Ahead for Progressive Voice.”
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