Nov 11, 2009 (DVB), The shadowy trial of 34 Burmese freedom fighters, betrayed and accused of being 'gun runners' by the Indian army, is about to resume in Kolkata, India.
The 34 men, 10 of which are Karen National Union (KNU) and 24 from the National Union Party of Arakan (NUPA) in western Burma, are facing charges of smuggling arms to Indian insurgents. Behind the fa√ßade of a high-profile trial, however, lies a sinister patchwork of betrayal, cross-governmental collusion and murder.
And at the centre stands an Indian intelligence officer, Colonel Grewal, who had been in contact with the embattled democracy activists from Burma. The story begins in 1998 when he apparently lured them to the Indian Andaman islands in the Bay of Bengal, promising them a safe haven. On arrival at the agreed rendezvous point, Landfall Island, the Indian security forces ambushed them, and the 34 men were immediately detained without a fight. Six of their leaders were taken, blindfolded and summarily executed; what police in India call an 'encounter killing'.
Their story and the actions of India's security forces would most likely have been swept under the carpet, had not renowned human rights defender and lawyer, Ms Nandita Haksar, stumbled upon the issue, initially believing it to be a simple case of mistaken identity.
Strikingly, as the investigation has progressed, all relevant bodies of the Indian security forces have confounded defence lawyers by failing to even cooperate with the Indian government's own Central Bureau of Investigation (CBI). Trial lawyer Akshay Sharma, who is part of the team defending the 34, said: "This is a case that basically highlights the blocking techniques of the Indian defence establishment [which] is not even cooperating with its premiere investigating agency".
Indeed some three months after the incident a CBI officer speaking under condition of anonymity was quoted in the Indian press as saying: "The defense authorities are deliberately adopting dilatory tactics". Because of this it took six years for a charge sheet to be produced, and according to Haksar, "they didn't even name Grewal in the charge sheet. It was only through cross-examination that the picture is becoming a bit clearer".
Whilst the Indian military trumpeted their success in seizing a major haul of supposedly smuggled arms directly after the initial incident, the alleged seizure took a long time to reach the CBI. According to Haksar, now chief defense lawyer on the case, "There is no evidence to link [these arms] to our clients. Serial numbers were not given, and procedure requires that they write down the [serial] number of the arms". Furthermore, she said, "why were [the arms] not given to the CBI?".
Even the boats that the freedom fighters arrived on have disappeared. The military, when pushed to produce them as evidence, claimed that they had "floated away in the tsunami". While these actions seem to form somewhat of a watershed moment in Indo-Burma relations, what is more worrying for Indian security is that it perhaps shows the collusion between a senior intelligence officer and a foreign power, the Burmese military junta.
Moreover, Haksar said that it was the first case she had known of where "there is an open trial against any member of any of India's intelligence agencies, and military intelligence is a sacred cow anywhere".
David Thackrabaw, vice president of the KNU, said: "we learnt that it was the [Indian] intelligence that was working with the [Burmese] military regime; they were taking money from them". He cites a previous example in which Burmese ethnic Chin opposition members were apparently lured to Indian territory by the same Colonel Grewal before being handed over to the Burmese military, after which they are believed to have been executed.
Indian intelligence analyst Malloy Dhar also suggests that Colonel Grewal, who was apparently born and raised in Burma, acted in a similar capacity for the Burmese government between 1996 and 1997. According to Haksar, "He basically told [the Chin] that they would be safer if they were in Mizoram [a state in North East India]. He took these guys and he deported them, some were executed and some of them are in jail [in Burma]." She added that she believed Grewal is "definitely" working for the Burmese.
Perhaps as a result, there is a gaping hole in the trial of the 34: Colonel Grewal, the main protagonist, is missing. Not only has he failed to turn up for any part of the trial, but he seems to have left India altogether. "Straight after this incident he was discharged and he has since been in Burma," said Haksar, adding that there were rumours he had been working as an informer in Rangoon.
So, has the Indian military been double-crossed as well by this 'Rogue Agent'? In the months following the initial incident, it was reported that then-Indian home secretary, B P Sight, went on record as saying that the operation had been based on a tip-off from the Burmese junta.
The subsequent decade has however seen a warming of relations between the two neighbours. As the race against China for economic and strategic domination of Burma has intensified, so have India's principled objections to the Burmese junta evaporated.
Even if the shady Colonel Grewal had been a double agent it seems that the Indian government has displayed a reluctance to seek justice for the 34. Has the Indian government put the hallowed rupee and regional domination ahead of the principles enshrined in its constitution?
For the 34, who are imprisoned far from home and far from the struggle that their people endure daily, they face a dilemma. Whilst they vie for justice in the Indian courts, the prospect of conviction is a pallid fate when compared with that of deportation back to a government that holds them as a sworn enemy; a fate that would surely make Indian jail appear more like a holiday camp. Indeed, Siddarth Agarwal, who is also working on the case, confirmed: "We already have an order from the National Human Rights Commission of India not to deport them to Burma".
So there exists the possibility that India is pursuing a case against foreign nationals on the basis of intelligence and incentive of the Burmese military regime. Yet under its own law, and even international law, it cannot deport people to Burma because of the dire human rights situation there. This strange state of affairs draws serious questions about the lack of cohesion between domestic and foreign policy in India. Life for the defence team has also been 'challenging'. "We are facing all kinds of problems. Intelligence agencies are all over us and the defence witnesses. We have given a list of witnesses [to the court] and we find that all the Burmese resistance people here in Delhi are being pursued and agents are going there and finding out who is coming and going."
What is more, the 34 were initially incarcerated in Port Blair, capital of the Andaman Islands, where the case had been proceeding. However, Haksar pleaded to have it moved because, as she explained, "At that particular point in 2004 when I moved the case, [fellow lawyer] Vasantha had been murdered and I was being followed to an extent where it was becoming really uncomfortable even for a person like me who is used to it."
The lawyer, T Vasantha, was initially working with Haksar on the case but died in mysterious circumstances; it is a tangent that gets almost lost in the length and bizarre complexity of the case. The trial was successfully moved to Kolkata and the Burmese defendants were housed in the city's Presidency Jail. Before the move, however, two of the defendants, Ran Ngain and Aye Wa, were believed to have escaped in tourist boats from Port Blair. Indian authorities did return with the supposed boats, but without the two men. Given the circumstances of the case, their fate is open to conjecture.
With the trial underway in Kolkata it seems the openness of the affair has concerned the powers that be in Delhi and elsewhere. "It was not only a question of treatment; the problem was that they wanted to create a situation so that they could justify having the trial inside the jail, rather than in the open, to block out the media," says Haksar. "Some intelligence agencies were trying to start a riot inside the jail" directed at the 34. And so it was that on 18 December 2007, "300 convicts attacked them". A charge was brought against one of the detainees for instigating the riot, but Haksar is swift to add that all charges were dropped.
So as Burma searches for democracy there is an unsettling irony that those fighting for accountable governance have been betrayed by democracy's largest proponent, India. Fittingly, however, they will stand to resume their fight today, on Burma's National Day, when the country remembers those who fought to overthrow the tyranny of colonialism.
For Burmese politics it is a savage tale in which a neighbour has betrayed the heirs of those being remembered today, while for India it is a shameful realisation that justice is all too evasive, and in stark contrast to its founding principles. "Where freedom is menaced or justice threatened or where aggression takes place, we cannot be and shall not be neutral," said the first prime minister of India, Jawaharlal Nehru. But this is an episode which brings into blinding light an amorality that grates at all that India stands for.