In 2014, a court-martial stripped former Tatmadaw major Kyaw Swar Win of his rank and sentenced him to two years in prison for supporting an amendment to the country’s 2008 military-drafted constitution.
The amendment targeted article 436, which itself makes amending the constitution virtually impossible without unanimous military support in parliament. It was sponsored by the then-opposition National League for Democracy (NLD) party.
After his release in a July 2015 presidential pardon, Kyaw Swar Win tried running as an NLD candidate but missed the deadline to enter the race. He is trying again this year for a seat in the upper house.
The incumbent NLD is yet to select candidates, but the 43-year-old former military engineer is hopeful. He’s happy to support the party even if he’s not chosen as a candidate, he told Myanmar Now, and he believes the military’s rank-and-file will too.
Myanmar Now interviewed Kyaw Swar Win earlier in June in Pyin Oo Lwin, Mandalay region – the district he hopes to represent.
MN: What was the charge you faced after signing the petition in support of amending article 436 of the constitution?
KSW: Breach of military order, under section 41e of the 1959 Defence Services Act, which stipulates punishment for a soldier that “neglects to obey any general, local or other order.” … It doesn’t specify particular orders, just any orders in general that a soldier is expected to follow. [Kyaw Swar Win’s charge says he disobeyed an order to “safeguard the constitution.”] I was also charged under section 65. In the army, we call that amyinkat podma [arbitrary charge] – they can use it against you when they want to punish you.
According to article 19 of the Constitution, civil servants must not associate with any political parties, and under article 20 the Tatmadaw must protect the Constitution. And for these two reasons, they charged me under section 65.
But they couldn’t give me a sentence under section 65, so they added 41e. In short, when I was arrested, I wasn’t guilty of anything. They looked for possible crimes they could allege I had committed only after they’d arrested me. Regardless of what I’d done, they were determined to do what they wanted.
Military courts sentence defendants to one year in prison if they plead guilty and to two years if they don’t. I pleaded guilty to not protecting the constitution by signing the petition. That’s okay, I accept the charge. And I also agreed that I, as a civil servant, associated with a political party. But I disagree that I neglected to obey a general order, so I didn’t plead guilty to that. I said no to that and chose to take two years.
MN: What do you think of the punishment?
KSW: All soldiers, upon joining the military, take an oath. A member of the armed forces shall abide by the Defence Services Act and all existing laws. The petition to amend article 436 was legal – it was a campaign led by a registered political party conducted with official permission. By signing it I was within my rights as a citizen. I’d just like to ask them: Am I not allowed to hold my own beliefs? Do a citizen’s rights not apply to soldiers? A soldier must have freedom, for justice and for what’s right. They should be able to express what they believe without reprisal.
MN: How was your family affected?
KSW: They felt a lot of pressure, of course … The military interrogated my family, checked every move they made – even entered their homes. For three months they watched us and tracked where we went. They deployed guards to my home and watched who I associated with, who came to visit.
MN: Why the NLD?
KSW: I’ve been in contact with the party since my release. In 2015 I supported the NLD. All I want is a responsible government and an impartial justice system. I’ll work with the NLD to make this happen.
Currently, if a judge renders an unjust judgment – they aren’t held liable. They can appeal to a higher court and avoid punishment. But the average citizen suffers a great deal when an unjust judgement is rendered.
I decided to join the NLD because I want to change a system in which people in power use their resources to serve their own interests.
MN: Now you’re hoping to run as an NLD candidate. What’s your plan if you are selected and, eventually, elected?
KSW: I want to push for fairness and equality within the Tatmadaw. I’ve just been to Madaya [near Mandalay], where I met with a former student of mine. He’s been serving for more than 10 years in the Tatmadaw. His parents told me he wants to resign, and they asked me if this was possible.
When a cadet gets promoted to officer, he has to sign a bond saying he will serve in the Tatmadaw for at least 10 years. But after 10 years, an officer has every legal right to leave. In reality, however, they are denied this right. They’re not allowed to leave. Of course there are some who can because of their resources or connections. But if you don’t have these privileges you can’t go. Not everyone has equal access to this. The law is not enforced among lower-ranking soldiers.
But that’s just one example. I was discriminated against and treated unequally so many times while serving in the Tatmadaw. That’s why I want to build a system within the military where the lower echelon of soldiers are not discriminated against, where they enjoy equal rights.
MN: What about outside of the military?
KSW: We were sent to Russia on scholarship, hoping this would help us build a nuclear power plant in Myanmar. That dream never came true. After the civilian government took power, that plan was deprioritized.
I think it would be very good for the country’s development to have a nuclear power plant. Then we can turn Yangon and Mandalay into industrialized cities. The economy will improve and ethnic communities will migrate to cities to work, reducing armed groups in the borderlands. I believe this would help us build peace.
MN: Which laws would you change if elected?
KSW: It’s difficult to pick one. There are laws and bylaws, but it doesn’t matter how good they are when they can be overruled by a single directive.
Take the Law Protecting the Privacy and Security of Citizens, for example. It’s good but it’s not perfect. There are weak points. Instead of working on this, the attorney general’s office just issued a directive saying civilians can’t sue one another under it.
These directives shouldn’t overrule laws. When government ministries issue these directives – especially the military – they operate above the law, and it shouldn’t be this way.
If someone in power wants to abolish a law they just issue a directive and it’s done. If they want to punish you but there’s no law they can justifiably use, a directive will do the job. So the power of these directives weakens parliament. We all need to come up with legal ways to control this.
MN: How are you viewing the upcoming elections?
KSW: There is only one goal for the 2020 elections. That is to form a government that represents the country. The NLD needs to win more than 67% of the electorate to form a government. If that doesn’t happen, they won’t achieve their goals.
MN: Can you tell us about your experience with the voting process from within the military?
KSW: I only voted [while enlisted] in 2010, so I can’t say much about how it is now. There was advance voting in 2010. I won’t say much more because I don’t want to be jailed again. I’ll just stress that it’s a good thing they’ve moved military polling out of the barracks and into civilian stations.
NLD passes law requiring soldiers to vote at civilian polling stations
MN: Why is that?
KSW: If soldiers can vote outside the barracks, they’re freer to vote for the party they choose. You don’t need a fortune teller to predict that the majority of these votes will go to the NLD. But I want to warn everyone that we need to pay attention to how advance voting … is monitored. These voters need to be properly verified by poll workers. Carelessness by poll workers could make the process go seriously wrong.
MN: Why do you assume most soldiers will vote for the NLD if given a free choice?
KSW: Because they can’t take the pressures anymore. Frankly, very few soldiers are happy. Very few want to stay in the Tatmadaw. A lot of them want to leave. So just because they’re discontented with the military, they’ll vote for the NLD. Not the top brass, but the lower ranks support the NLD. The more they’re discriminated against, the more they will support the NLD.
I know how the soldiers at the bottom suffer because I was one of them. Many of them know things are not right, but they have to follow orders regardless. An order is an order whether it’s right or wrong. Truth and fairness do not matter.
There’s something that Bogyoke [or “General,” nickname of independence hero general Aung San] said. He once told his soldiers that if they think an order is unjust, they should complain to an officer more superior than the one who gave the order. Maybe this was possible during Bogyoke’s times, but not now. No soldier can bypass his or her immediate commander in the Tatmadaw today.
