Legal Aid Network (LAN), an organization that emphasizes the rule of law, severely condemns and objects to the incident, if correct, in which the so-called revolutionaries surrendered to, submitted to and knelt down before the authoritarian leadership led by the Commander-in-Chief Min Aung Hlaing, thereby obviously violating the rule of law. It is reportedly said that Bo Naga, who headed the Burma National Revolutionary Army (BNRA), laid down his weapons to the Military Council (Military Commission). The incident further undermines the rule of law.
It is observed that the context in which the Ministry of Home Affairs and Immigration of the National Unity Government (NUG) attempted to militarily prosecute Bo Naga and some members of BNRA has reached to a stage that opposes the rule of law. As the NUG declares, stands and acts as a legitimate government, the relevant ministry, the Ministry of Home Affairs, should have the authority to take action against armed organizations – especially in the lower region of central Myanmar – for violating the people’s fundamental rights. Nevertheless, the prosecution needs to precisely comply with the existing laws within the framework of the rule of law. It is observed that the current action against the BNRA was not systematically taken in accordance with the existing laws.
LAN respects and acknowledges all revolutionary organizations and resistance forces that are resisting authoritarianism with arms. All of those forces, however, need to abide by the currently existing laws within the framework of the rule of law, irrespective of whether they are under the supervision of the NUG or not. Existing laws such as the Penal Code, the Code of Criminal Procedure, the Evidence Act, the Courts Manual, the Jail Manual, the Anti-Corruption law, the Defense Services Act (1959) must be complied with. It would be best for the NUG to enforce these laws at least in the lower region of central Myanmar. The problem is that the NUG itself has not strictly abided by the existing laws. To illustrate this problem, the following are findings regarding the armed conflict between the BNRA and the NUG.
(1) On February 17, there was a clash between the BNRA and the NUG because the NUG surrounded, blocked, and attacked the BNRA like an enemy by using thousands of People’s Defense Forces (PDF). Any person, including Bo Naga and revolutionary soldiers, has the right to the presumption of innocence. A person accused of being an enemy spy must also have the right to the presumption of innocence until a court decides that he or she is convicted of a crime based on sufficient evidence.
(2) The Ministry of Home Affairs of the NUG issued an explanatory statement on February 18 following the armed conflict, describing the ongoing process of filing the First Information Report (FIR). Thus, it is clear that the Ministry did not file the FIR before the conflict. Mobilizing armed forces to take action against the leaders of the BNRA without legally opening the case in accordance with the Code of Criminal Procedure is absolutely against legal procedure. Whether it is a warrant or summons case, the judge from a competent court must issue a warrant or summons by signing and affixing the court seal. The People’s Police Force must attempt to carry out the arrest by holding those documents. However, such a procedure was not detected in the above case. What is worse is the fact that the NUG openly neglected the rule of law during the arrest of Bo Naga and the persons in charge of the BNRA, by using the PDF, whose duty is not appropriate to assume that of the police. The incident should not have taken place in such a manner.
(3) The NUG, which emerged after the 2021 military coup, has achieved military success during the five-year-long revolution by politically cooperating with ethnic resistance groups to take over cities and military posts and to influence and control some areas within the military regions. Furthermore, it must be acknowledged and valued that it has gained recognition both domestically and internationally. LAN therefore wants the NUG to lead the revolution in terms of politics and legal affairs. This is one side. On the other hand, it can also be observed that even in NUG-controlled areas there is no peace due to human rights violation, negligence of the rule of law, and the absence of justice for the public committed by local authorities appointed by the NUG.
(4) It is the right time for the NUG to implement practical and effective reforms for the emergence of a federal democratic union within the background of the rule of law. In doing so, great emphasis should be placed on the judiciary. As the Federal Supreme Court cannot currently be established, the Interim Judicial Affairs Department under the Ministry of Justice has to assume its responsibilities. Therefore, the NUG needs to promulgate a transitional constitution and establish the Federal Supreme Court as the highest court. If so, the aggrieved will have recourse to the highest court for remedy. The lack of state organs and state institutions is impeding the attainment of trust and recognition from the public and the international community.
(5) The fact that, in the emergent statement released by the Ministry of Home Affairs and Immigration on the night of February 18, the BNRA leader Bo Naga and its members were described collectively instead of being identified by precise individual names as those committing the alleged crimes is also against legal procedure. In addition, attacking by waging war through extraordinary force for the alleged crimes is contrary to the Penal Code or the Defense Services Act (1959). Regarding crimes committed by members of unit-based armed forces, the NUG has no clear legal basis to prosecute. At the very least, it should announce and effectively enforce the Defense Services Act (1959), which was enacted and exercised during the democratic era and remains modern even today. No clear evidence of exercising the Code of Criminal Procedure or the Defense Services Act (1959) was found in the clash with the BNRA. Since the NUG stands as the legitimate government in the world, its functions must be in line with the law. Any illegal act should not be conducted.
(6) In fact, the PDF was formed only on the basis of defense policy and has been supervised by a military code of conduct and regulations since its inception. Individuals or groups of soldiers under the full command of the NUG therefore cannot be properly controlled and punished under law for crimes or misconduct of a criminal or command nature. Consequently, the public or the revolutionary forces cannot obtain protection under the binding provisions of the Defense Services Act (1959). During the revolution, if revolutionary forces respect, abide by, and apply the Defense Services Act (1959) along with other important laws, it can support the rule of law.
(7) On February 17, it was reported that, in relation to BNRA leader Bo Naga, the Township PDF from the Yinmarbin District arrested and interrogated 45-year-old U Ariyavansa from the Dakkhinayon Shwekyin Monastery in Kangyi Village, Pale Township, Sagaing Region. However, Ma War War Khaing, the younger sister of Bo Naga, was taken from her home without any explanation or legal and procedural basis. A detainee, under any circumstances, has the right to know the cause of the charge, the right to be free from arrest based on mere suspicion, the right to communicate with the outside world, the right to obtain healthcare including medical checkups, the right to appropriate food and accommodation during detention, and the right to protection against torture or ill-treatment. Until now, the lack of information about the reason for the arrest and the place of detention constitutes a violation of the detainee’s rights.
If the above-mentioned reforms are not carried out in time, it is worrying that the role of the NUG may fade during the revolution.
Suggestions
- To unconditionally release, as soon as possible, the male and female soldiers, the suspected monk, and the villagers who were illegally arrested. To charge the authorities who arrested and detained them based on mere suspicion without procedural justice under the Penal Code sections (339) and (340), which prohibit wrongful restraint and wrongful confinement. Reasonable compensation should also be paid to the aggrieved persons.
- To attempt to establish an independent, impartial, efficient, and well-resourced judiciary not only in NUG-controlled areas but also in areas influenced by other revolutionary forces and ethnic groups.
- To quickly draft the transitional federal constitution under the leadership of the NUG through negotiations with ethnic states in order to protect the fundamental freedoms and safety for the people, including the revolutionary forces.
Legal Aid Network
