A lawyer’s diary: How I fought for justice for 7 Myanmarese refugees in the midst of the pandemic

On March 16, Soe Myint, the founder of the Myanmarese media house Mizzima, sent a video with this short message: “This is what happened around 10.30 pm at a place where some of our staff are living in Yangon. They are inhuman.”

I immediately forwarded the video to journalist friends but no one wanted to post it. It was just too explicit and brutal. The video shows a dozen or so soldiers of the Tatmadaw, as the Myanmar military is officially called, barging into what looks like a dormitory and dragging a young man in a lungi.

He is carried out by the soldiers. By the time he is brought to the entrance, he is naked. He is kept spread-eagled on the bare floor, then picked up and carried out. The horror of the moment of the arrest or abduction is captured by someone sitting on a floor above – knowing full well that he or she could face a similar treatment if caught. Yet this person kept recording.

I think it was that video, the brutality of the military and the raw courage of the unknown videographer that pushed me to break my vow of giving up my life as a human rights lawyer.

April 11, 2021

The flight from Goa to Imphal via Kolkata arrived at around 3 pm. We checked into Hotel Imphal. Sebastian, my husband, had asked his sister for her car, a S-Cross (Maruti). We had just flown from one end of the country to the other – but I felt we should go ahead to Moreh, on the Indo-Myanmar border. I had already got a name of a lawyer who could help me in filing. He said he would meet us in Moreh the next day.

The distance between Imphal to Moreh is a little more than 100 km and a section of it forms a part Trilateral Highway connecting India with Myanmar and Thailand. But the road is still being constructed and from Pallel the road starts to climb around the mountain and slowed our pace.

It was already dark by 6 pm, reminding us of the almost two-hour time difference and why students have been demanding that the government recognise two time zones in India. The road was empty. It was dark when we are stopped by the Assam Rifles at their post after Tengnoupal, the headquarters of the new district.

Assam Rifles wanted us to open the dicky of the car. The truth was that we could not open it despite repeated efforts when we set off from Imphal so, not wanting to waste time, we had shoved my wheelchair on the backseat and set off. But the truth seemed to arouse more suspicion then if we had been attempting a deception. Assam Rifles flashed their torches at the dicky and began to turn nasty.

Before things got ugly, I spoke to them in Hindi. Immediately, there was a change in their attitude. He asked us who the men I was travelling with were. He ddid not quite believe it when I said my husband and brother-in-law. We are family.

The soldier then said: “You are from our country [he uses the word “desh”] so I am letting you go.” In the past, I would have given him a lecture on the idea of inclusive India, but for the time being I wanted to get to Moreh.

April 12, 2021

The internet was not working and I had not been able to contact the Mizzima journalists. I began to panic, but apparently their Myanmar phone worked better than their Indian connection. The two journalists, Nang Sian Mung and Than Win Aung (names changed for security reasons), came into our hotel and greeted us with a warm “Hello Aunty and Uncle!”

I began by taking down the details of their escape and hoped to have two affidavits to support my petition.

Mung told his story in broken English. He was a student in 2007, the time of the Saffron Revolution in Myanmar. The national uprising had been triggered by the government’s decision to withdraw the subsidies on fuel sending the price of petrol and diesel sky rocketing.

In the wake of the military crackdown, Mung had escaped to India and joined Mizzima, which was still operating in exile. Mung had got married in India to a fellow Chin and they had two children – all of them were recognised refugees under the mandate of the United Nations High Commission for Refugees. They had returned to Mynamar in 2012 when the country was beginning to make a transition to democracy. There, they had a daughter.

Mung worked as a webmaster as did his niece, 20-year-old woman who had recently joined Mizzima and was starting her career as a journalist.

Just after the military coup, Mizzima decided to go into hiding and the journalists moved into hideouts throughout the country. Some went to the jungles on the borders of Myanmar. Mizzima has continued to broadcast from 6 am to midnight every day.

Mung escaped from Yangon in a bus with his family and managed to enter India on three motorcycles. But they could not come into India through the usual border crossing and needed guides to bring them to Moreh safely.

They had been in Moreh since March 12.

Than Win Aung, tall and older man had a similar story. But he could not bring his wife and children. He had seen his father die of Covid-19 and that haunted him.

Than Win Aung had joined Mizzima while in Myanmar as a senior camera man and in that capacity had been to India several times. In fact, I had met Than Win Aung when he came to Manipur in 2019, when I helped them organise a music programme. He came again in 2020 when he and the Mizzima team had stayed in my flat in Goa. We had explored Indo-Myanmar connections together and made several episodes to be broadcast on Mizzima.

Than Win Aung did not think twice about getting into the bus from Yangon to Tamu because he had been to India several times before. He had often travelled by road in a car with the Mizzima team when it had visited India, entering Manipur at the Moreh-Tamu border crossing.

It was Sebastian who noticed that Than Win Aung’s visas to India were all gratis. How could India invite these people as honoured guests and suddenly treat them with such utter callousness? Just a year ago, he was treated as honoured guest and now he was being treated as an illegal migrant.

Aung had been staying in the same house as Mung’s family in Moreh on the first floor of a wooden house owned by a Kuki family.

It was already past 11 am and the lawyer from Imphal had not turned up. I was getting anxious. We needed to get to the Oath Commissioner to get the affidavits verified. Just then, a car came up into the hotel porch.

Khalter Khampa introduced himself, he is an Anal Naga from Chandel district. He had brought his laptop and his printer and he quickly got the affidavits ready and he went with the two Myanmarese to the court to find the Oath Commissioner. Sebastian went along.

There was no Oath Commissioner in Moreh. The courts were not functioning. We could possibly go to the Executive Magistrate but the local lawyers warned that the two Myanmar refugees could be arrested for illegally entering India.

If I could not get their affidavits attested and they could not go to Imphal to engage a lawyer, what was the meaning of the right to life and the right to equality under law guaranteed to every person in India, regardless of the fact he or she was a citizen?

They were stuck in Moreh, in a kind of limbo.

April 17, 2021

There had been three days’ holidays so we could not file the petition earlier. A day earlier, the All Manipur Working Journalists Union had issued a statement calling upon the government of India to give a safe passage to the Myanmar journalists to Delhi so they could seek the protection of the United Nations High Commission for Refugees.

I had filed the Petitioner in Person. Khampa and I had a debate whether this was public interest litigation. I was discovering how complex the procedures have become to file even a simple petition. I decided that this is a kind of habeas corpus petition since the people on behalf of whom I was filing were in reality under a kind of detention.

I had appeared before the Manipur High Court before, but not in a court inside the new building. The lift was not working and I could not climb up to the courtrooms on the first floor. I managed to use the lift reserved for the chief justice and arrive in the courtroom well before the start of proceedings. I discovered that there were no toilets on the first floor and this made me more anxious. I am becoming more and more aware of the problems and difficulties faced by people wth disabilities.

The court wanted us to make the Central Government and Ministries of Home, Defence and External Affairs to be parties to the case. But it gave a short time for their replies. The next date of hearing was April 20.

By the time I reached my hotel, Khampa phoned to say that the chief justice had announced that there would be no more physical hearings. We would have the rest of the proceedings via video conferencing. He suggested I could go back to Goa and connect to the court via Zoom.

April 20, 2021

My case was not shown in the first cause list because one of the judicial officers had tested positive for Covid-19 and as a result there was some alarm among the clerks in the room in which my file was. But I had insisted that my matter was urgent and it was finally shown in a supplementary list.

This was my first experience of appearing in a court via video conference. Khampa assured me that his laptop would work. The hotel suggested that we shift to another room that had better connectivity. I was not comfortable with this new technology.

Another lawyer wanted the court to close as a mark of respect to a judicial officer who had died due to Covid-19. My heart sank at the thought that I would be stuck in Imphal for an indefinite time.

The chief justice dealt with all the requests with calm and conducted the court proceedings as normally as possible. He refused to stop the court proceedings.

My case was called out. I could see the judges and the other lawyers. The Manipur government and Central government pleaded for more time. Suddenly, the visuals disappeared.

I sent a text message to a lawyer acquaintance who conveyed the message to the court. The chief justice assured me that he could hear me. The laptop was not working and the mobile that Khampa had put near my ear was crackling.

I managed to make a case for bringing the journalists from Moreh to Imphal. At least then they would be safe and perhaps I could hand over the case to another lawyer and return to Goa before there was a lockdown.

The court granted my interim prayer: the District Commissioner was directed to make arrangements for the seven Myanmar citizens, four adults and three children to be escorted to Imphal. I was allowed to accompany them.

On the insistence of the Central government counsel, the Deputy Commissioner was told to produce the seven before the Emigration Officer at Moreh and take their biometric details.

We left for Moreh that evening.

April 21, 2021

There was utter confusion about procedures to be followed. I requested the Deputy Commissioner that the Myanmar refugees be allowed to travel in our cars instead of being put in a police van like prisoners. I thought it would be traumatic for the kids to be shoved into a police van.

The police escort arrived. The Myanmar refugees fit into our two vehicles but their baggage did not. The police said there is some rule that did not allow them to carry the baggage. I requested them to check the baggage and then put it into their Gypsy. Finally, they acquiesced.

We all drove to the Office of the Senior Emigration Officer at the border. The officer confessed that he did not have any equipment to take the biometric details. All he had was a stamp pad for taking finger prints.

Meanwhile, the police had taken down the luggage and the Customs people said that since they had done that, they would have to check it. But they take their time. I phoned the Superintendent of Police who said that Emigration and Customs is a Central government subject and so we would have to contact the Deputy Commissioner.

The Emigration and Customs people have never dealt with refugees: they deal with foreigners with travel documents. They tried to treat the refugees like criminals and I had to intervene again and remind them that they are dealing with refugees – but India does not have a law for refugees, so it took several hours before we could set off for Imphal.

The police officer escorting us told me there was a bandh in Manipur so we were being given commandos to escort us. From whom are we being protected? Perhaps the Assam Rifles who have instructions by the Central government to treat the Myanmar refugees as illegal migrants. The Ministry of Home (NE Division) No 19/2/2020-NE:II dated March 10, 2021. clearly instructs the North East States to “ sensitize all law enforcement and intelligence agencies for taking prompt steps in identifying the illegal migrants and initiate the deportation process expeditiously and without delay”.

Khampa’s car broke down. There was no garage in Tengnoupal. The police said they had no way of towing his car but they organised a van.

We arrived in Imphal at 8 pm. It felt like midnight.

April 25, 2021

I had been feeling unwell but none of Sebastian’s doctor relatives want to visit in case I had caught the Covid-19 infection. Finally a doctor did come and we both knew it was just anxiety and panic as the cases of Covid-19 were rising. Wehad to shift to another hotel because Hotel Imphal was being sanitised and being turned into a quarantine centre.

The Registrar Judicial had made provision for me to use a room on the ground floor for video conferencing. Bd by the time the case came up, I was ready to go on.

But we had booked our tickets back to Goa for April 28. I would hand the case over to a local lawyer.

April 26, 2021

The Manipur government had not filed a reply but said the matter was being considered at the highest level so more time should be given. The Central government counsel had nothing to say.

The court asked why I was insisting on sending the Myanmar refugees to Delhi when the Capital was reeling with corona virus cases and a collapse of the health sector. They also wanted to know if the United Nations High Commission for Refugees was functioning at all in such circumstances and why they could not interview the refugees while they were in Imphal.

I am also wondering whether I was sending the Myanmar refugees to hell. But they had been insistent.

The next date for hearing is April 29. We cancelled our flight.

April 28, 2021

I had no contact with the United Nations High Commission for Refugees. The last was when I did the case for some 36 Arakan and Karen prisoners some 15 years ago. I found a contact number on the UNHCR website and someone picked up the phone. She suggested that I write a formal letter through the official email and ask whether they were registering refugees from Myanmar and whether they could possibly interview them while they were in Imphal.

I was truly surprised when I receiveda reply from the UNHCR stating they are indeed registering the refugees from Myanmar but they could only interview them once they arrived in Delhi.

I was able to file the email with the help of Khampa. He had been going back and forth from the hospital where his mother was admitted with serious kidney problem and our hotel room to make copies for filing in court.

April 29, 2021

We had the final hearing.

My arguments were that the men, women and children coming to India from Myanmar are escaping the brutalities of a military regime which was killing their own people and they were refugees, not migrants.

Refugees had a right to life and liberty and the only way they could assert it it was by going to the UNHCR and seeking their protection since India did not have a refugee law.

The only fact that the courts should look into was whether the refugees were in any way a threat to the security of India. In this case, they were clearly not. The journalists belonged to a media house that had actively promoted Indo-Myanmar friendship. In fact Prasar Bharati had even signed a content sharing agreement with Mizzima in August 2018.

My only prayer was that the seven be given safe passage to Delhi to seek the protection of the UNHCR. I cited the cases I had done in 1988-’90 in which such an order had been given by the Gauhati High Court, as it was then. The cases had set a precedence in refugee law and from then dozens of High Courts and even the Supreme Court had recognised the category of foreigners called refugees, their right not to be deported and their right to seek the protection of the UNHCR.

The Central government counsel read from the notification stating that the Myanmar refugees are in fact all illegal migrants and the law of the land required them to be tried, jailed or deported.

The Manipur government supports the Central government.

The judgement was reserved. This means the judges could take any number of days to give their judgement.

April 30, 2021

Imphal was declared a containment zone. The court was closed for the next seven days. But after we filed an urgent application for a Division Bench to be constituted to pronounce the judgement, we decide to cancel our tickets for Goa for the second time.

May 3, 2021

The Manipur High Court was closed but a special Division Bench is constituted only for the purposes of reading out the judgement. Under the rules, judgements must be pronounced in open court.

We all assembled in the virtual court.

The Chief Justice of the Manipur High Court, Justice Sanjay Kumar read out the operative part of the judgement. He allowed the seven refugees from Myanmar to go to Delhi and stated that neither the Central Government nor the state government “shall facilitate their travel to New Delhi and not cause any obstruction”.

May 5, 2021

The seven refugees and all of us arrived at the Imphal airport. Once again, we had to argue our way through various procedures because the seven did not have identity cards, only the judgement.

Finally they were through security.

Sebastian and I decided to go via Delhi and so we all met that evening in my home there. It is a simple dinner but it is a celebration of sorts amidst the pandemic and the threat of national lockdown.

The next day, I helped the refugees to make contact with the UNHCR.

By this time, Goa had the highest rate of Covid-10 cases and I wanted to stay on in Delhi. But our friends in Goa phoned and their calls of friendship made me want to go back home to Goa.

Air India landed at half past midnight. Our friend Ulka was there with her blue car to pick us up. She had insisted on picking us up despite the fact we had been travelling through lockdowns and containment zones.

It is the warmth of friendship from Goa to Manipur and back that had sustained Sebastian and me through this case that was possibly the most difficult one I have had to do – both the facts of the case and circumstances in which it was being taken up.

There was no sense of triumph. Twenty men and women who had taken part in the 8.8.88 movement were still in Moreh, along with some 60 activists of the Civil Disobedience Movement. There are hundreds or perhaps even thousands of refugees coming in on our borders.

It is going to be a long walk to freedom not only for the refugees fleeing the military regime, but for us in India desperately trying to safeguard our vanishing democratic traditions, refugee protection being one of them.

Nandita Haksar is a human rights lawyer and author, most recently, of The Flavours of Nationalism