The recent re-sentencing of three prominent Rohingya community leaders in Arakan State and the ongoing detention of two others points to the uneven application of the rule of law in the restive region, their lawyer claims.
The trio – Ba Tha, Kyaw Myint, and Kyaw Myint's son, Hla Myint – were sentenced by Sittwe's Appellate Court to eight years in prison on 27 February for their alleged role in inciting violence against government officials, and remanded into custody on 8 March.
Their sentencing stems from an incident that occurred in April 2013, when a delegation visited the Rohingya village of Thet Kay Pyin near the state capital of Sittwe to forcibly register its inhabitants as "Bengalis." Another Rohingya community leader, Kyaw Khin, was sentenced in absentia to five years in prison on the same day and is currently in hiding, according to a statement issued by Thailand-based watchdog Fortify Rights.
The officials' arrival at Thet Kay Pyin, on 26 April 2013, prompted a group of some 200 villagers to demonstrate against the registration process, spearheaded by Burma's Ministry of Immigration and Population as part of a contentious "citizenship verification" process that was paused in February 2015.
The Burmese government does not recognise the Rohingya as one of the country's 135 "national races", and most Rohingya reject classification as "Bengali", a term they consider pejorative that implies origins in neighbouring Bangladesh. The trio were sentenced to one and a half years in prison in May 2013, but were released as part of a presidential amnesty in October 2014.
At Thet Kay Pyin, the villagers defiantly chanted, "Rohingya! Rohingya! Rohingya!" in protest, and the demonstration turned violent. Although the circumstances under which violence broke out remain disputed, government officials allegedly sustained injuries after coming under attack by incensed villagers.
Two other individuals charged by the authorities in May 2013 – Suleyman Begum and Muhammad Hashim –remain in prison after being sentenced to three and a half years on charges relating to robbery, intimidation and disturbing civil servants. On 27 February, five additional years were added to their sentences.
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According to Hla Myo Myint, a Rangoon-based lawyer representing the Thet Kay Pyin prisoners, the re-sentencing of the three community leaders was prompted by allegations that they abetted the rioters by compelling them to reject registration as Bengali, a charge the trio deny.
"There's no rule of law. It's all bias of race in conflicts," Hla Myo Myint told DVB. He claims that the evidence presented by the prosecution was accepted blindly by the court, and relied heavily on the testimony of one policeman, which he classified as "tainted."
The eight-year sentence was passed down after the defendants were found guilty of violating three sections of Burma's Penal Code: 147, 333, and 395, for rioting, causing "grievous injury" to a public servant, and "dacoity," or banditry, respectively.
Burma's penal code is a piece of colonial-era legislation that was penned back in 1861. Its outdated statutes give the authorities sweeping, arbitrary prosecutory powers, offering the accused few avenues for recourse or a meaningful appeals process. Across Burma's justice system, 90 percent of charges end in conviction, and free legal counsel is not a legally enshrined right.
Hla Myo Myint feels that his clients were arbitrarily singled out due to their prominence in the community. He claims that the authorities have no way of knowing who was responsible for starting the conflict, leading them to slap his clients with trumped-up charges in an attempt to stifle further dissent.
Three years of the sentence justified under Section 395 for "dacoity", for example – a term that originally referred to roving bands of thieves in colonial India – was passed down because the mobile phone of an immigration official went missing during the riot, he claims.
Bias by the ethnic Arakanese [Rakhine Buddhist] judges overseeing the cases – who many feel are likely to be prejudiced against Rohingya plaintiffs – has made a mockery of justice, he feels. "The real problem is the evidence in the case, the justification for punishment. They don't have any evidence," he said. "But Thein Aung, the appellate court judge, is Arakanese, and he is sensitive towards the Rohingya. He can change the primary order, and give punishment."
The government has demanded that stateless Rohingyas currently possessing "white cards" that provide them with temporary identification turn them in at the end of the month, a factor that has contributed to heightened tensions across the state. Despite their non-citizen status, voting rights – facilitated by the possession of "white cards" – have been among the few privileges afforded to Rohingyas by Naypyidaw in recent years, albeit out of self-interest as their votes offset popular support for Arakanese nationalist parties in the 2010 polls.
Hla Myo Myint – an ethnic-Burman Buddhist with close ties to the opposition National League for Democracy – has forged a career taking on contentious cases. He has represented farmers embroiled in land disputes in the Irrawaddy Delta and leading monks in the 2007 "Saffron Revolution" uprising against military rule. In 2009, he represented Aung San Suu Kyi after an American citizen, John Yettaw, swam to her lakeside residence, prompting the authorities to extend her house arrest for an additional eighteen months.
It is exceedingly rare for lawyers in Burma to advocate on behalf of Rohingya clients, owing to their pariah status both in and out of the corridors of power.
But Hla Myo Myint feels that to deny anybody counsel on the grounds of ethnicity would amount to a dereliction of duty. "I'm an advocate, and because I follow the ethic of an advocate, I will take every case. I have no choice. Ethically, I am obligated," he said.
He intends to bring the Thet Kay Pyin prisoners' case to Burma's supreme court in Naypyidaw, but it remains to be seen if the case will be re-opened. As far as he is concerned, however, there's no reason why it shouldn't be. "I have good legal grounds for revision," he said.
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