Commentary
The dust has yet to settle on the Myanmar junta’s controversial decision to effectively murder four of their pro-democracy opponents, a horrendous act that continues to reverberate around the world.
On 25 July, Myanmar state-run newspapers under the control of the military junta reported that executions had been carried out of four prisoners including two well-known politicians, Jimmy, one of the 88 Generation leaders, Phyo Zayar Thaw, a former National League for Democracy (NLD) MP, and Hla Myo Aung and Aung Thura Zaw.
Such unexpected news shocked the general public.
Throughout successive governments in Myanmar, there have been cases of sentence under the death penalty. However, an execution has not been carried out for more than four decades.
Therefore, the people thought that the same would be true during the tenure of the Military Council. And a few days before the junta executions, both Jimmy and Phyo Zayar Thaw had been allowed to meet their family members.
CAPITAL PUNISHMENT AND MYANMAR
In Myanmar, the death penalty has been in place for a long time. On the other hand, execution has not been conducted for the last 40 years. Consequently, the international community has viewed Myanmar as one of the countries with no exercise of capital punishment.
As for the public, they assume that the death penalty should no longer be exercised nowadays in a country with the main religion being compassionate Buddhism as well in a transition toward democracy.
During the term of the second parliament, the Myanmar National Human Rights Commission had discussions about capital punishment with civil society organizations (CSOs). They also proposed to the President in 2017 that the government should consider official suspension of the death penalty.
However, they were unable to make a decision on this for various reasons.
Myanmar has not abolished capital punishment yet. In courts, some criminals of serious cases have been sentenced to death. However, they have had to serve lifelong or long-term imprisonment due to an amnesty. After hanging a student leader named Salai Tin Maung Oo in 1976, up to nine people faced the same fate. Reportedly, one of them was Captain Ohn Kyaw Myint who had attempted to assassinate General Ne Win in 1977.
According to former prison authorities, there had been no execution at all after the military coup in 1988.
UNDER THE MILITARY COUNCIL
Since the military coup in 2021, there have been more and more cases with unfair trials carrying the sentence of the death penalty. According to the Global Monitor Report 2021 on the Death Penalty by Amnesty International, the military junta in Myanmar transferred the cases of civilians to military courts, causing an increase in death sentences by almost eight times. Assistance Association for Political Prisoners (AAPP), verified that a total of 115 people had been sentenced to death after the military coup up to 27 July 2022 and 41 of them had faced such a verdict in absentia.
After all, it can be said to be the year with the most death sentences throughout Myanmar's history.
Until now, military courts have been proceeding with unlimited verdicts of the death penalty.
Among prisoners with the death penalty, Jimmy, Phyo Zayar Thaw, Hla Myo Aung and Aung Thura Zaw became the first victims of execution after more than 40 years. On 3 June, the military junta hinted at the implementation of their sentence. However, no one thought that it would become real. But at 4:15 a.m. on 23 July, the executions did take place.
According to the Prison Law, dead bodies must be shown to family members for confirmation even if they cannot be given back. At least, photos or videos of dead bodies, photos or videos taken before the cremation and the certificates signed by the Insein Township medical officer and Insein Prison doctor must be shown. In addition, the prison authorities must tell family members which day and what time the execution took place. However, the military junta did not follow any of these procedures.
FAIR OR UNFAIR?
This recent debacle reflects how disorderly the country has become during the tenure of the military junta. The administration needs to follow basic principles along with due process when pursuing legal action. They must also do it following international laws.
According to Article (3) contained in the Universal Declaration of Human Rights (UDHR), everyone has the right to life, liberty and security of person. Even though it is not a law, it is a road map for moral practice. The UDHR is not a legally binding document. But it is the foundation in terms of human rights on a global level. Therefore, each human being on earth must be able to access the rights contained in it.
According to international law, the defendants must get at least legal rights. One of such basic principles is to conduct the trial in public as much as possible. Even if there are exceptions in the case, they must be acceptable to the public.
Against the principles mentioned above, the junta’s death sentences in martial courts and the courts inside prisons are not accessible to the public. Besides this, the findings related to the cases are not made known to the public. As for the accused, they do not get access to adequate legal defence. No one knows if there is fairness and independence, basic guarantees of legal action, during the trial. In other words, the junta’s verdicts are against the basic principles of legal action.
WAR CRIME?
Death sentences or serious punishments in the situation mentioned above can be a crime against humanity or a war crime. According to international laws, crime against humanity means discrimination against individuals and denial of all their rights for political reasons. For those involved in unfair trials, even judges and legal officers can be found guilty in terms of war crimes or crimes against humanity.
For example, after the Second World War, a total of 16 legal officers including officers from the Nazi Judiciary Department, officers from special courts, state prosecutors and judges from the Nazi public courts were brought to the Nuremberg martial court.
They faced charges of war crimes and crimes against humanity after the war for their verdicts made without valid evidence, secret proceedings and death sentences to many people by ignoring the fair judiciary system.
The recent behaviour of the Myanmar junta with how it handled both the trials and the executions of the four detainees raises questions about both the fairness and whether in fact these were war crimes.
Editorial Note: This commentary does not necessarily reflect the views of Mizzima Media
