BURMA: Lawyer who returned believing situation changed jailed 

An Open Letter from the Asian Human Rights Commission to the President of Myanmar/Burma

U Thein Sein
President’s Office
Office No.18

Dear President

We regret to learn that a lawyer who returned to Myanmar from exile abroad at your behest has been imprisoned on the unjust charges from which he fled in the first place. We urge that the conviction imposed on him be quashed and that he be released from prison immediately.

As you may be aware, Saw Kyaw Kyaw Min fled Myanmar in 2008 after charges were brought against him over the conduct of his clients in court. Saw Kyaw Kyaw Min had been representing a number of persons accused over the monk-led protests of 2007, who turned their backs on the court in protest at the unfair trial process. When the judge instructed the defendants’ lawyers to tell their clients to turn around, the lawyers said that it was the defendants’ decision to turn around and they were present only as legal counsel, not to tell the defendants what to do. The next day, the judge, U Aung Than Myint, brought charges against the two lawyers for intentionally insulting a public servant sitting in a judicial proceeding under section 228/512 of the Penal Code. Both were convicted: Saw Kyaw Kyaw Min in absentia, while Nyi Nyi Htwe served six months in jail.

Believing that since the political reform process got under way in earnest, and heeding your call for expatriate Burmese to return home and help remake their country in a time of political transition, Saw Kyaw Kyaw Min made the brave decision not to seek political asylum abroad — which he could have obtained without difficulty, in light of his case — but instead to go back to Myanmar. Unfortunately, contrary to his expectations, Judge U Aung Than Myint brought a case against him in March 2012 (Criminal Case No. 43/2012, Yangon Northern District Court, Judge Aung Thein presiding), and according to information currently available, at the end of August the court sentenced Saw Kyaw Kyaw Min to six months in prison. Saw Kyaw Kyaw Min is currently preparing to appeal against the verdict.

The conviction of Saw Kyaw Kyaw Min sends a very bad signal, in two respects. First, it signals to Myanmar citizens living abroad who are interested to come back like Saw Kyaw Kyaw Min and remake the country that they have no guarantees that if they do return, no pending criminal cases will be brought against them, or new ones initiated. Second, it signals to everyone in the country, as well as abroad, that the courts, police and many other key institutions in Myanmar continue to operate to the present day in much the same way that they had done prior to the beginning of the political changes initiated in recent times. The stasis in the judiciary and much of the bureaucracy has been the subject of repeated comments in the country and among people abroad concerned with conditions in Myanmar; however, it is made all the more apparent through case outcomes of this sort, where someone who fled the country because of a politically motivated case is still being subjected to persecution after returning in the belief that the political circumstances had changed.

Accordingly, I call upon you to secure the release of Saw Kyaw Kyaw Min from custody at the earliest possible time, and for all convictions against him to be erased. Furthermore, I urge you to undertake a commitment to all other persons living abroad who are planning to come back that they will not be subject to prosecution or be required to serve sentences in cases that are manifestly politically motivated. Only if people can obtain meaningful reassurances that they will not be made the targets of punitive sanctions on return will they be interested to do so.

Yours sincerely,

Wong Kai Shing
Executive Director
Asian Legal Resource Centre, Hong Kong

Copies to:
Chief Justice, Naypyitaw
Director General, Office of the Attorney General, Naypyitaw
Chairperson, Legislative and Judicial Affairs Committee, Pyithu Hluttaw, Naypyitaw
Chairperson, Myanmar National Human Rights Commission, Yangon
United Nations Special Rapporteur on human rights in Myanmar, Geneva
United Nations Special Rapporteur on the independence of judges & lawyers, Geneva
Office of the High Commissioner for Human Rights, Regional Office, Bangkok

Document Type : Open Letter
Document ID : AHRC-OLT-015-2012
Countries : Burma (Myanmar),