When retired Major Win Naing Kyaw stepped off a flight from Bangkok at Yangon airport on July 29, 2009, he was immediately arrested, detained, forced to go without sleep for days, drugged and allegedly tortured. He confessed to charges – the most innocuous of which included violating foreign exchange rules after bringing in US$8,400 – after 42 days behind bars. After 102 days detention, he was charged and a military court sentenced Win Naing Kyaw to death. His real crime: leaking details to exile Myanmar media regarding a 2008 trip to North Korea by Shwe Mann, the junta’s former number three and current speaker of the lower house of parliament. Win Naing Kyaw’s death sentence was later commuted to life. But despite a series of prisoner amnesties and a promise from Myanmar’s President Thein Sein that all political detainees would be freed by the end of last year, he remains behind bars in Bago division north of Yangon. “They haven’t fulfilled their promise,” said Win Naing Kyaw’s wife. “We want action rather than just words.”
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Although Myanmar has freed hundreds of political prisoners over the past two years amid economic and political reforms, 34 remained behind bars this month. And there remains confusion over how to define who is a political prisoner, as well as a risk more such detainees may be convicted as Myanmar looks to draw a line under half a century of grim military rule. A government-appointed committee which has reviewed the status of Win Naing Kyaw has been reluctant to discuss his case and has not always agreed on others, says Bo Kyi, a committee member and joint secretary of the Assistance Association for Political Prisoners (AAPP). Of the 34 political prisoners still behind bars, 12 are from Myanmar’s army including Win Naing Kyaw and 22 more are ethnic rebels convicted of murder and treason. The status of another 20 former Military Intelligence (MI) officers detained after an internal military purge in October 2004 remains undecided amid strong disagreement. Bo Kyi says he considers Win Naing Kyaw to be a political prisoner as he was trying to further openness during the period just before the end of military rule. The 20 former MI officers behind bars were doing the opposite – many were responsible for putting activists behind bars, he adds, and they should therefore not be considered political detainees. “The backgrounds and motive of the former military intelligence are not anything to do with fighting for democracy,” says Bo Kyi. Thein Nyunt, chairman of the New National Democracy Party and a lower house lawmaker, disagrees and has pushed the prisoner review board, including Bo Kyi, to consider former MI as political detainees. When Myanmar released family members of the former dictator Ne Win last year, Bo Gyi says he considered them to be political detainees because they were not part of the main power faction at the time of their arrest. Again, others disagreed including the Former Political Prisoners Society in Yangon (FPPS), says Thet Oo, a member of the Yangon-based organization. Adding to the confusion, a spate of new cases has seen about 70 activists put behind bars awaiting trial for violating a new protest law which states that demonstrators must receive prior approval before staging a political rally. Many cases have involved farmers protesting land grabs. “The peaceful assembly law has an in-built provision, Article 18, that has started to create a new class of political prisoner,” says David Mathieson, senior Myanmar researcher for Human Rights Watch. “It’s neo-authoritarian absurdity for people to be arrested and charged with illegal assembly when they’re staging protests against a flawed assembly law this government drafted.” One of these detainees, Aye Thein, faces the possibility of two years in prison. A former political prisoner, he was only released on December 11 following a presidential pardon and now faces charges of sedition, assaulting a public servant and trespassing after helping homeless people fight a land dispute against Mandalay city authorities. Both the FPPS and AAPP say they are undecided on whether Aye Thein would be a political prisoner again – if convicted – as both groups review new cases. They plan to hold a workshop soon which will consider such cases. Aye Thein’s lawyer, Thein Than Oo, himself a political detainee who has spent three spells behind bars – a combined 20 years– says he does not consider Aye Thein’s case to be political. But he warns that authorities have begun to use non-political charges to target activists. Improvements to the judicial system itself have been significant but there is still a long way to go. “Old habits die hard,” he says. Under the former junta, political prisoners were typically sentenced in just a few minutes at hearings in military courts – some inside facilities, including the notorious colonial-era panopticon Insein Prison – where defense lawyers were non-existent and convictions guaranteed. The only aspect of the process the defendant could control was the length of the sentence. Those who confessed and apologized to the military judge received lighter prison terms. Most saved themselves but some remained defiant. With these types of closed trials in the past, Thein Than Oo says lawyers like himself receive more respect nowadays in Myanmar, but familiar problems remain. “The judiciary is interfered with by the executive and parliament, and the judiciary itself at the district or division level interferes in township court decisions,” he says. “Myanmar’s judiciary is yet to become an independent pillar [of society].” With Myanmar’s reformist government close to honoring its promise of releasing all political prisoners, the key test is now to enact just laws, make sure they are followed and to create peace with all insurgent groups on the periphery of the country so that so-called terrorists do not continue to end up serving lengthy prison terms, say lawyers and rights groups. Although Myanmar agreed a peace framework in 2012 which has reduced fighting in Kayin state in eastern Myanmar, a deal with the Kachin in the north remains elusive. Fighting has continued there, so too the arrest of rebels. The president’s office did not respond to emailed questions on how the government plans to make sure there are no longer political detainees in Myanmar. “There will be no such thing as zero political prisoners in Myanmar if the government fails to abolish or amend repressive laws such as the peaceful assembly and public mischief [laws] and fails to allow political freedom,” says FPPS member Thet Oo.