Performing Order, Making Money, Nick Cheesman

The previous article on the Supreme People's Court in Vietnam gives a top­down snapshot of how judicial corruption works in routine criminal cases. In this book chapter on Myanmar, Nick Cheesman offers a fascinating grassroots, ethnographic account of how police officers, lawyers, and judges engage in overt and subtle monetary transactions in everyday criminal practice.

Every official involved in a criminal case has at least a small amount of control that he can use to get a payment. Control is of different types. In this section, I will discuss just two: one over the physical body of the accused, and another over the material evidence of a crime. The first is a type of control that I looked at in the last chapter with reference to the use of confession and torture, and here will extend to the practices of the marketplace. The second is a type of control over the production of evidence “whenever and however the law as procedural code demands, rather than as a reality preceding” it.

The most effective means to get control over a person in a criminal case is through control over the body: through confinement or the prospect of confinement. Any government office in Myanmar is a place of latent confine­ment, a place for the ordinary person to avoid, a place from which one has to struggle to get free. The longer one stays inside, the harder it becomes to leave. As more officials and agencies get involved, everybody wants something to let you go, and the transactions become more complicated and expensive.

Here is one example of a successful effort to get a person out of custody quickly, which also illustrates how practices of control and coordination, or negotiation, start from the moment the police appear on someone's doorstep.

“I have negotiated it. Inspector Myint Kyi asked for twelve lakhs [1.2 million, around USD1,200]. I negotiated for six. So, you look for six. He will come get it in the evening.” Around 3 p.m., my sister-in-law and I took five lakhs to U Maung Maung's house. Inspector Myint Kyi was sitting in the kitchen. “Will he take five?” my sister-in-law said. U Maung Maung took the money to Myint Kyi in the kitchen. He came back and said, “He won't take five.” “My sister-in-law needs to find another lakh. Set a time for it,” I said. “Give it now,” Myint Kyi said. “We'll go find it,” we said, and departed. We left the five lakhs. We borrowed a lakh from a neighbour, and went back to U Maung Maung's house. We gave the whole amount, exactly six lakhs. When we gave it, Inspector Myint Kyi threatened us that, “Make sure news about this doesn't get out. If it gets out, I'll have you in jail.”

The policeman released the detainee from the lockup that day.

The next day [after arrest] the two of us were sent for inquiry at the Chan- aye-thazan Township Court. They did not say anything about what we had been arrested for, or with what section we were charged. A plump police­man came and negotiated [hnyi-hnaing] with us that, “If you want the case lightened, pay 170,000 Kyat” [at the time, around USD200]. So I begged my friend for help to pay that policeman. My friend on the very same day paid the amount of money to a uniformed policeman at the Chan-aye-thazan Township Court. After paying the money, other police told us that when the judge asked if I was guilty to admit it.

The defendant learned that his payment had bought him a seven-day prison term for a misdemeanour that could otherwise have carried up to three months in jail. The relatively high amount he was prepared to pay might in part have been due to his confusion and fear of what the police would do if he did not cooperate, and in part due to the location - a lucrative, business- oriented city where the premiums are high. Notably, the police did not offer him an opportunity to get out of the case completely, perhaps from concern to balance the needs of the marketplace with the need for fast and easy convic­tions to maintain the semblance of orderliness in processing of criminal cases, as discussed further below.

The threat of control over the body is also a source of power for court staff negotiating prices for case outcomes. In a similar scenario to the one above, a judge and court clerk in Yangon allegedly advised a man accused of running an unlicensed bodyworks that if he paid them and pled guilty to a charge then he would get off with a fine, but if he fought the case and lost he would go to jail. He said he watched court personnel divvy up an initial payment, which bought him two weeks to come up with the remaining money. After the time was up and he could produce only one-fifth of the amount, the clerk gave an extension, whereupon he gave most of the amount requested and begged the judge to accept it since he could not find any more.

Control over the body gives its custodians opportunities to earn money, large amounts and small. Wherever people encounter junior custodians, they have to pay little amounts of money for delivery of food and medicines to detainees, and for opportunities to meet with them. Some families also pay superior officers not to torture or mistreat the detainee. They may also pay the crime-reporting officer to put the case to the top of the list that the police will submit to court, and thereby jump the queue for bail.

Wealthy and influential detainees can have a different custodial experience from everyone else. A lawyer recounted one case to me about the son of an army officer and a friend in northern Shan State who in 2008 faced charges for the attempted rape of a classmate. As the victim was from a well-known family in her locality, she pressed a complaint with the backing of some officials. The police had little choice but to arrest and open cases against the alleged perpetrators. But once in custody, the two young men did not stay in the cells with other detainees. The station commander put them in a room next to his office normally reserved for playing cards and drinking. Both of the accused reportedly had access to whatever food and alcohol they wanted, as well as to visitors.

Research conducted during 2°12 at the main court complexes and town­ship courts in five states revealed patterns in the practices of moneymaking through control over the body. Like the VIP detainees in the abovementioned case, remanded detainees in Loikaw, the capital of Kayah State on the border of Thailand, could avoid being sent to prison by paying from fifty to a hundred thousand Kyat to be kept at a room set aside for the purpose in the police station. The room was not luxurious, but it was better than prison, where remanded detainees feared becoming prey of seasoned inmates.

At many places, police and court officials have a lively trade going for the granting of bail. The Criminal Procedure Code distinguishes between two types of offences, one for which bail should be given automatically and another for which a court order is required under section 497(1). Defendants commonly have to pay for bail in the latter type of case. Complainants can also pay to prevent defendants from going free. During 1996 in a town near Yangon, for instance, a woman whose daughter had eloped with her lover got revenge by paying for the arrest and detention of the young man involved and his four brothers. Foolishly, the judge neglected to shift the charge and denied them bail under a section of the Penal Code for which he should automatically have granted it, giving the detained men strong grounds for complaints against him after they got out.

Going rates for people who want to pay to get out on bail fluctuate from place to place. In Loikaw during 2°12 lawyers advised that typically two to three hundred thousand Kyat would do it, with two-thirds of this amount for the judge and a third for the public prosecutor. The bench clerk, who can change the sequence of cases posted for hearing and speed up or delay processing of paperwork, would receive ten to twenty thousand Kyat; the police, thirty to fifty thousand.

In Mudon, a town in Mon State further to the south, the bail rates for offences like causing hurt by dangerous weapons under section 326 of the Penal Code or assault on a woman �?with intent to outrage her modesty' under section 354 were about 5° percent more than in Loikaw, although the subsidiary fees of the police and court clerk were roughly the same. The prices in Sittwe, capital of Rakhine State, on the western seaboard, were at least as much as in Mudon; however, lawyers indicated that in cases where an accused was patently innocent or unable to pay, judges and public prosecutors would sometimes settle for less than the standard amount. In Hpa-an, the capital of Karen State, the prices were lower: a minimum of a hundred

34¹ thousand Kyat for the judge, and around eighty thousand Kyat for the pros­ecutor, with five to ten thousand Kyat paid to the court clerks and prosecutor's clerk.

Cases are managed and coordinated in similar ways across much of the country, but differ regionally. At a township in Chin State, on the border of India, professionals in 2012 reported that most cases were sorted out through payments in the police station, with relatively few matters going to court. The amounts that the police demanded were also modest - around fifty thousand Kyat to close a vehicle accident case, a bit more if the vehicles involved were unregistered; roughly the same for cattle smuggling; and, twenty to thirty thousand Kyat for minor assault. Professionals attributed the low amounts and tendency of police to keep matters out of court to local customs and fraternal feelings among members of ethnic minority groups there; however, the fact that the region is relatively poor and the money economy still relatively small may be contributing factors.

In certain types of cases where material evidence is unusually important, the control and coordination dynamics differ somewhat from other cases. Narcotics cases may involve chemical analysis of seized drugs or, in the case of users, urine. Under section 15 of the 1993 Narcotic Drugs and Psychotropic Substances Law, a drug user who fails to register voluntarily for rehabilitation can go to jail for three to five years. Police officers collect urine from accused users and send it for chemical analysis. A lab tests the urine and sends a result to the court where the case is posted. Depending on the positive or negative finding, the judge convicts or acquits the accused. In effect, a finding of guilt or innocence in these cases is made at the lab. The judge has limited discretion to decide on the sentence. So in cases lodged against alleged drug users, unlike many others where confession is the best evidence, control over the outcome of the case is contingent on control over the material evidence.

Professionals working on narcotics cases in the late 2000s said that the chemical analysis labs interpreted government policy on deterrence to mean that the default result for urine analysis should be positive. Labs offered negative results in exchange for payment. The 2009-10 starting figure in Kyat for a negative result was around one hundred thousand per urine sample, and a million per sample in the case of seized drugs: at roughly a hundred U.S. dollars and a thousand U.S. dollars respectively, small change for those accused who can afford to pay, including people actually trading in drugs. They are not affordable amounts for anyone with no money, contacts, and knowhow, like an alleged user brought to one station in the north during 2007. A court sentenced him to five years' imprisonment for a positive test result somehow taken from a sample of dirty water that he had provided the police from the toilet bowl at the station, where he was unable to urinate due to an infection.

Chemical analysis plays a part in other types of cases, such as murder, grievous hurt, and rape cases. Lab results are relevant, but trial outcomes do not hinge on them. Judges can also call for expert witnesses, as provided in sections 45 to 49 of the Evidence Act, such as in cases where persons are accused of trafficking items other than narcotics. Some parties pay expert witnesses to provide false evidence, such as to testify that tiger bones found in baggage on a train and apparently being taken to be sold for medicines were bones of another animal; and jade being smuggled illegally was some other, non-valuable, stone. The police also can switch real evidence for fake evi­dence, either with the complicity of the expert witness or without her know­ledge. Township courts generally lack secure arrangements for keeping evidence during trial. Material evidence may be held at the bailiffs quarters on the court premises or at the police station. At either location, police officers and court staff have ample opportunities to damage, misplace, or sell stored items.

When bringing charges of possession, trafficking, and cultivation of narcot­ics, chemical labs' findings are also relevant, but unlike in users' cases, courts can admit and interpret a range of evidence to reach a verdict. For instance, if a group of people stand accused, a judge can arrange to acquit the ringleaders or real dealers and convict the minor offenders or substitutes. However, in cases where dealers have been caught red-handed with large quantities of narcotics and equipment for its manufacture, like one case in the capital of Shan State in 1994, this method might not be enough to insulate the judge from criticism.

One professional who handles narcotics cases in 2010 said prices vary for acquittal under different offences in the Narcotic Drugs and Psychotropic Substances Law. Many factors affect outcomes, including the severity of the crime, the number of persons involved in the case, and the police units investigating. For example, a township or district judge in the north of the country might be paid anywhere from one to three million for acquittal in cases where the defendant is charged with possession of prohibited materials or implements under section 16(b) of the law, which carries a sentence of five to ten years in jail. In 2009-10 prices, for a charge of possession with intent to sell under section 19(a), which carries a minimum sentence of ten years, an acquittal can cost up to twenty million in payments to judges alone. Thus, narcotics cases contain many meeting points between the semblance of orderliness required of courts and their moneymaking imperative. One does not simply give way to the other. The two intersect and complement one another, communicate with one another, and reinforce each other through­out the business of criminal justice.

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