Urgent need for a truly independent
fact-finding commission in Depayin.
By B.K Sen , Mizzima News (www.mizzima.com)
February 13, 2004
When presenting his report on recent developments in Burma
to the 57th General Assembly of the UN, Special Envoy Mr.
Pinchero said he “had observed, during my last visit
from 3 to 8 November 2003, significant setbacks in the country's
human rights situation since my last mission in March 2003”.
He said interviews with victims and eyewitnesses, as well
as discussions with Daw Aung San Suu Kyi and with authorities
had provided prima facie evidence that the incident in Depayin
in May 2003 could not have happened without connivance by
State agents. What happened at Depayin had deep political
implications and constituted regression in the area of human
rights. Effective measures to bring the perpetrators to justice
were still lacking. He called for the immediate and unconditional
release of all those who were detained or who had remained
under house arrest since May, as well as compensation for
surviving victims and the families of those who died. He urged
a thorough investigation, in accordance with international
standards, including public announcement of the results and
accountability of those responsible.
Depayin and the peace process
In order to protect human rights and ensure political reconciliation
it is necessary to uncover all the facts on the Depayin episode.
Valid concerns about any inquiry into Depayin rest on whether
any panel would be impartial and what impact, if any, the
findings may have on the military regime’s proposed
‘Road Map’ to democracy. Furthermore, there are
issues surrounding the alleged involvement of the intelligence
services in Depayin and the sensitive matter of whether the
perpetrators of the Depayin incident are to be named. What
has been undisputed is the evidence recorded by the Ad-hoc
commission that the victims were all unarmed while the attackers
were all armed with deadly weapons. The attack led to the
fatal wounding of at least four NLD supporters while there
were no known deaths among the assailants.
Even George Bush and Tony Blair, both of whom have opposed
calls for an inquiry into possible intelligence failures in
their own countries, have announced that they support an independent
inquiry into the Depayin attack. The junta will be well advised
to agree to such an inquiry. They should take the opportunity
and come clean with what they know. This will have a significant
impact on the process of the road map, a process that has
its entire credibility at stake due to the Depayin episode.
The key to the entire peace process is credibility.
The main point is not to find and punish the offenders but
to ensure that such incidents are not repeated. If the perpetrators
are let off, it gives them the green light to perpetrate such
actions again knowing that they will be free to literally
get away with murder. The entire road map process will be
jeopardised, as a peaceful environment is absolutely necessary
for any successful talks to take place.
INDEPENDENT INQUIRY
The inquiry will look at the accuracy of the intelligence
about the Depayin episode and the discrepancies in information
from military intelligence and from other sources. The junta
can then improve their intelligence system for the future.
While the military regime generally appears to have good intelligence
when it comes to political matters, it is failing in the area
of criminal activity.
The junta has paid a huge price for its involvement in countless
human rights violations such as the illegal detention of political
prisoners and innocent activists. The regime has managed to
create a position of isolation both from the people it claims
to serve and from the international community. International
demands for an investigation into the Depayin episode have
hit the UN, Burma's friends and even friends of junta. While
ASEAN nations have traditionally been strong international
supporters of the Burmese junta, at a recent heads-of-state
ASEAN gathering they called unanimously for release of Daw
Aung San Suu Kyi. It is common knowledge that her release
will uncover suppressed facts surrounding the incident because
she undoubtably was the main target of the attack.
There is an equally important issue. The junta's attempt
to change the subject, dismiss its critics, and otherwise
avoid responsibility should be seen as an affront to the democratic
principles of all governments and the international community
at large. The junta may or may not have been involved in the
incident and therefore guilty of crime. But the people of
Burma and its allies demand that the junta defend its decision
not to have a public inquiry. Alternatively it can come out
and state its position. Refusal to take responsibility for
its manifold failings is different from a denial in facing
the truth relating to such serious matter of national political
significance.
No doubt any commission of inquiry creates its own dangers.
It will have to examine the working of the intelligence agencies,
how the administration handled the evidence they gathered.
It could demand access to secret intelligence briefings. The
commission's mandate has to be wide ranging, examining not
only Depayin, but also the whole range of junta initiated
stand offs that have taken place since Daw Suu Kyi started
her peaceful trips to contact people and open NLD branches.
This will bring out whether there was systematic attempt by
the regime to marginalise her. While the MI was undoubtably
monitoring her rallies and harassing her supporters, Daw Su
Kyi continued to draw large crowds. This unnerved the junta,
and it is possible that this led to the decision to enact
the diabolical episode at Depayin.
It is crucial that the panel should be composed of persons
not close to the junta and not unilaterally selected by it.
Finding the right balance on the panel will not be an easy
task. But just as the junta has initiated talks with many
in the opposition, there is no reason why they could not be
consulted on this issue also. The commission needs the perspective
of policy makers who depend on intelligence The members of
the commission will be required to declare whether they have
any past association with junta or any of its agencies, and
all of their business interests.
The funding of the commission can come from humanitarian
international sources. Since there is no parliament in Burma,
any commission appointed by the junta will have no credibility.
Even in the US the controversy is sharp on Mr. Bush's appointment
of a commission to look into the use of intelligence leading
up to the Iraq War. A demand for a congressionally created
panel is becoming stronger. The central point is that, just
like in Burma, the people and the victims have a right to
expect a complete and honest assessment of what happened.
Claims made at the Military Junta's Press conference (May
31, 2004):
1. Allegation of incitement and arrest by members of NLD
including U Tin Oo and Daw Aung San Suu Kyi.
2. Allegation that about 5000 were present to demonstrate
against Daw Aung San Suu Kyi. Clashes then broke out spontaneously
between supporters of Suu Kyi and opponents of Suu Kyi.
3. Four died, fifteen injured, eight vehicles and nine motorcycles
were destroyed.
4. Injured were admitted to hospital
Analysis of these Claims:
Prima-facie these allegations are serious matters for investigation
and legal actions. The burden of proof is on the junta, the
allegers. The alleged have a right of defence. Necessarily
this should be done in an open forum that has been legally
and credibly created.
The allegation of incitement and arrest by the NLD is incredible
as Aung San Suu Kyi’s group of one thousand faced protesters
numbering five thousand. The second question is in what form
did the five thousand demonstrate? Did they have any weapon,
and what did they shout? The scene of the incident is Kyi,
a very small village of five hundred people. The question
therefore is how this five thousand assembled in such a small
village prior to the arrival by Daw Aung San Suu Kyi and her
party. The indication is that the gathering of the pro-junta
protesters and their subsequent attack were pre-planned. The
attackers were well armed with iron pipes and bars, bamboo
rods, wooden clubs and other sharp weapons. Before the arrival
of Daw Aung San Suu Kyi the local authority had already warned
the villagers not to attend the Daw Aung San Suu Kyi meeting.
In other words, they knew in advance that there was going
to be a confrontation.
While Suu Kyi’s car had managed to escape from the
bloody incident that took place at Kyi village, she and her
supporters were then attacked while on their way to Depayin
town.
The police and soldiers arrested the wounded victims and
put them in prison. And immediately there were four deaths
among the severely wounded. Exhibits were seized and kept
by Military Intelligence (MI).
Daw Aung San Suu Kyi, U Tin Oo and other leaders were subsequently
arrested.
Why and where was Daw Suu Kyi arrested? How many victim of
the incident were there? Why are U Tin Oo and other NLD leaders
kept in prison? If they are being held under the State protection
law, the State should act against the charges of incitement
and violence. They all should have been put up for a trial
under the penal code.
Other questions that arise are whether there was an opening
of a FIR; if so, in which police station did this take place
and who was the investigating officer? Did he take statements
from villagers / witnesses / victims / Daw Aung San Suu Kyi
/ U Tin Oo and other NLD leaders? Eight months have passed
and what has happened to the investigation? No case has been
made in any court against any of the accused persons. This
is contrary to what was stated in the press statement that
an inquest could be had. No benefit of doubt can be given
to the junta as it has admitted to four deaths. They are clear
cases of death due to murder. Even assuming that there has
been no case of conspiracy, it is incumbent on the authorities
to hold an inquest or an inquiry and to open a FIR.
The entire conduct by the authorities could be part of the
evidence to be used in any trial. Conduct is an important
element in interpretation of law of crime when there is sufficient
and circumstantial evidence. In this case it would be worth
investigating.
The Depayin ad hoc commission formed in exile has come out
with a preliminary report, based on the statements of six
eyewitnesses, interviews and other public documents. It has
come to a conclusion that the Depayin attack was a premeditated
plan to eliminate Daw Aung San Suu Kyi and the NLD leaders.
Whether their findings are taken seriously or not, their investigation
must be taken as secondary evidence at least. The ad hoc commission
has asked that an official investigating commission be established
and recognised internationally. It is up to the junta to have
an independent commission look into the matter and to put
itself in the dock. Studies and assessment reveal evidence
of culpability by the MI and State agents.
Under Act No. 4/1950 Inquiry Committees Act clause 2, read
with article 37 0f 1850, Public Servants Inquires Act, an
Inquiry Commission can be formed for special purposes. Depayin
is a special case and it comes within the purview of this
act. The junta has not taken any action. Even though a commission
may well have found in its favour as it could have contained
appointed military ‘yes men’. The reason for not
taking action was obviously that it could have opened a Pandora's
Box. Such a public inquiry would have provided the NLD leaders
a platform to appear and to speak the truth. This would have
been a big shake up to the regime’s long undisturbed
rule of being in power. The judiciary in Burma has no jurisdiction
in such cases. It is mute. Even if it could act, any decision
would require prior consent by the military authority, and
if this was not in its favour, it would never be forthcoming.
Such a judicial member that was brave enough to find against
the military would undoubtably land in jail as a political
prisoner. What is already known is that the witnesses to the
attack are being hunted by security forces and are either
in hiding or have fled out of the country.
International investigation
All efforts to mount an independent investigation under domestic
laws have failed. Even in the case of the death of Princess
Diana a Coroner inquiry was held in Paris, the place of her
death. The events that took place at Depayin were startlingly
vicious according to accounts by eyewitnesses made to diplomats
and the foreign press. When the continued detention of the
victims is taken into account and when the key witnesses are
pieced together, a transparent case of crime emerges. The
only credible way out for the junta is to create a truly independent
commission of inquiry consisting of members who are above
board. The international media must be able to observe the
proceedings if it is to be an open inquiry. Let the truth
assert itself.
Already time has run out. If appropriate action is not initiated
promptly, the only option left is to create an international
fact-finding mission on the events surrounding the Depayin
attack by all international forums/agencies and regional groupings
in order to generate pressure on the junta. The International
Commission on Intervention and State Sovereignty must also
be approached for appropriate action and put the heat on the
junta leadership.
The yearning for the truth is not contrived but is a genuine
trait of humankind. Rhetoric by Foreign Minister U Win about
the road map to democracy and progress and talks being on
the line will not deceive people. If the road map has to be
salvaged and given credibility, the junta must:
1) set up an inquiry commission on the Depayin events immediately,
and
2) release Daw Aung San Suu Kyi and those arrested in connection
to the attack.
Only then, and not before, can the seven steps of the road
map be allowed to move on.
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