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BURMA: Islamic community leader unfairly tried and imprisoned over communal violence

February 1, 2013

ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAMME

Urgent Appeal Case: AHRC-UAC-013-2013

01 February 2013
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BURMA: Islamic community leader unfairly tried and imprisoned over communal violence

ISSUES: Arbitrary arrest and detention; administration of justice; state of emergency
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Dear friends,

The Asian Human Rights Commission (AHRC) has received detailed information concerning the case of a prominent retired medical doctor and Islamic community leader in the west of Burma imprisoned for allegedly sending news abroad about the first wave of violence in his town during mid-2012. Border security personnel detained Dr Tun Aung in June and accused him not only of sending news but failing to notify them of events that would lead to violence, even though he had reportedly put his own life at risk to stop the violence from occurring. A court in November sentenced Dr Tun Aung to 11 years in jail in a patently unfair trial. He is currently imprisoned and suffering from serious health conditions that require specialist treatment but have so far gone unattended.

CASE NARRATIVE:

On 8 June 2012, communal violence flared in Maungdaw, on the border of Bangladesh and Burma. Dr Tun Aung, also known as Nurul Haque, a respected community leader and member of the district Islamic council, had in the days before hand work with other local leaders in trying to negotiate between officials and angered youths in their community, so as to prevent violence. For this he had reportedly incurred the anger of some sectors of his own community because he had attended meetings with the administrative and security authorities on how to deal with tensions. On June 5, less than a week before his arrest, he had addressed Muslims at the main mosque and an Islamic school to convey information about events in accordance with responsibilities assigned to him by the local authorities.

AHRC-UAC-013-2013-01.jpgAfter the violence flared, a local member of parliament called Dr Tun Aung to come and help to try to calm the crowds. At personal risk he came to the site but local police with whom he worked told him to leave the area because he was in danger. He and his family fled for safety at the compound of an international organisation. His family members later continued on to another part of the country, but Dr Tun Aung reportedly himself contacted the authorities to ask for a security detail so he could return to his residence.

Instead of taking him home, security personnel in Maungdaw brought Dr Tun Aung to the headquarters of a special border security force, NaSaKa, on June 11. They confiscated a laptop (which was not his) and two mobile phones and took him into custody. They accused him of sending information abroad about violence in preceding days, of provoking communal violence, and of not having informed them of a mourning procession for ten Muslims killed, despite his having known about it prior to its occurrence. They sent him to the regional army headquarters for further questioning and then on to the prison in another district, where he was held for trial. Throughout this time he was held incommunicado, without access to family—some of whom had also been arrested—and others who could give assistance.

The trial was patently unfair. Dr Tun Aung had no lawyer to defend him and had no witnesses in his defence, since the trial was held too far away and at a time that the state was under emergency regulations, making travel difficult and conditions fearful. Nearly all of the witnesses for the prosecution were security personnel whose evidence consisted almost entirely of oral depositions. No substantive material evidence was brought against the detainee, yet he was convicted of a series of charges and sentenced to 11 years in jail. He is currently detained in prison.

For additional details, please see the sample letter below.

BACKGROUND INFORMATION:

Dr Tun Aung is an elderly man with a history of poor health in recent years. He has undergone surgery for his enlarged pituitary tumor twice (in 1998 and 2005). The condition is chronic, so, he has to have constant medication and a regular check ups that can only be done at a hospital with a well-equipped laboratory and head scanner or magnetic resonant imaging machine. He has also lost his peripheral visions in both eyes due to pressure from the tumor. Due to medication, he has suffered from varicose veins and he underwent surgery to his left thigh and leg in 2011. The same surgery for his right leg was due in December 2012, but because of imprisonment it could not be conducted. He also suffers from other side effects, such as reduced immunity. Given that prison conditions in Myanmar are often extremely bad, and that many persons have died in custody or after release due to illnesses left untreated while in prison, his situation in prison is extremely precarious and calls for urgent intervention on grounds of health alone.

Dr Tun Aung ran for parliament in the 1990 election the results of which a military government refused to recognize as a mandate to govern, obtaining over 41 per cent of the vote in the Maungdaw electorate. He is a graduate of Mandalay University with a degree in medicine, and a well-known and longstanding respected member of his community who over the years has participated in many projects aimed at the improvement of conditions for local people. Among these, he has helped to arrange for the repatriation of released prisoners from Bangladesh to Burma, and vice versa; and, helped police in a number of serious criminal cases in the locality.

ADDITIONAL INFORMATION:

The charges brought against Dr Tun Aung are all typical of, and consistent with, the bringing of charges in Myanmar in politically motivated cases under successive military dictatorships, aimed at depriving persons of their basic rights. Over the years, the AHRC documented many such cases, which can be found on its country homepage: http://www.humanrights.asia/countries/burma.

Whereas many persons had hoped that with the changes in political conditions in recent times such cases would become a thing of the past, the current case demonstrates that the practices associated with repressive government from earlier periods are very much habituated in institutional behaviour in Burma, and it would be naïve to think that they will be quickly or readily driven out of the criminal justice system.

SUGGESTED ACTION:
Please write a letter to the following government authorities to urge that Dr Tun Aung be released from prison and be ensured specialist medical treatment without delay. Please note that for the purpose of the letter Burma is referred to by its official name, Myanmar.

Please also be informed that the AHRC is writing separate letters to the UN Special Rapporteurs on human rights in Myanmar, on the independence of judges and lawyers, on the right to health, on freedom of opinion and expression; and, the Working Group on Arbitrary Detention, and regional office in Bangkok, calling for their interventions into this matter.

SAMPLE LETTER:

Dear ___________,

MYANMAR: Arbitrary detention and unfair trial of elderly Islamic community leader

Names of detainee: Dr Tun Aung, a.k.a. Nurul Haque, 64, chairman, Maungdaw District Islamic Affairs Council, retired medical doctor, resident of Myomataung Ward, Maungdaw Town, Rakhine State, Myanmar

Names of personnel involved:
1. Captain Win Myo Htet, Military Affairs Security (military intelligence), Western Command
2. Inspector Aung Naing, Station Commander, Kyiganbyin Police Station (complainant)
3. Police Captain Aung Saw, Maungdaw Township Anti-Human Trafficking Unit
4. Sergeant Kyi Han, Military Affairs Security, Maungdaw Detachment
5. Sergeant Kyaw Oo, Platoon Commander, Military Affairs Security, Western Command
5. Sergeant Saw Khin, army personnel attached to Maungdaw District Police Office
6. Sergeant Than Aye, Military Affairs Security, Platoon 2, Western Command
7. Police Constable Soe Win, Maungdaw Police Station
8. Deputy Immigration Officer Myint Maung
9. Deputy Immigration Officer U Ne Nwei Win

Date of arrest: 11 June 2012
Place of arrest: Border Migration Investigation and Supervision Department (commonly known the acronym NaSaKa) Headquarters, subsequently Western Command HQ (regional army HQ)
Charges: Penal Code sections 153A/505(b)/148; Foreign Exchange Regulation Act, section 24(1); Myanmar Wireless Telegraphy Act, section 6(1) (as amended 1993), 1950 Emergency Provisions Act 5(j)
Court cases: Sittway District Court, Judge Aye Thein presiding, Criminal Regular Case Nos. 45-47/2012, 58/2012, all decided on 21 November 2012, sentenced accused to a total of 11 years in jail

I am writing to express my concern over the arbitrary arrest, unfair trial and subsequent imprisonment of Dr Tun Aung, an Islamic community leader and longtime resident of Maungdaw, on the border with Bangladesh, whom the authorities in Myanmar have accused of sending material over the internet concerning the violence in Rakhine State in June 2012, and having incited the violence and failed to stop it from occurring. I call for a review of this case with a view to releasing the detainee at the earliest possible opportunity.

According to the information that I have received, security personnel in Maungdaw brought Dr Tun Aung to the headquarters of a special border security force, commonly known as NaSaKa, on 11 June 2012, where they confiscated a laptop (which was not his) and two mobile phones. They took him into custody. They accused him of posting material on Internet about violence in preceding days, of provoking communal violence, and of not having informed them of a mourning procession for ten Muslims killed, despite his having known about it prior to its occurrence. They sent him to the regional army headquarters for further questioning and then on to the prison in another district. Meanwhile, they searched his house and claimed to have uncovered various items—such as a walkie-talkie, an out-of-date SIM card from Bangladesh and a few notes of foreign currency—with which to bring criminal cases against him.

Contrary to the contents of these allegations, according to other sources, Dr Tun Aung throughout this time did his best to prevent violence from occurring and in fact had reportedly incurred the anger of some sectors of his own community because as a member of the district Islamic council he had cooperated with the authorities in order to keep the situation peaceful, and had attended meetings with the administrative and security authorities on how to deal with tensions in the region. On June 5, less than a week before his arrest, Dr Tun Aung had addressed Muslims at the main mosque and an Islamic school in Maungdaw to convey information about events in accordance with responsibilities assigned to him by the local authorities. He had been in further meetings with officials over the subsequent days and was involved in the organising of peace committees at the very time that on June 8 serious violence broke out in Maungdaw town.

After the violence flared, a local member of parliament called Dr Tun Aung to come and help to try to calm the crowds. At personal risk he came to the site but left the area when he was feeling unwell. He and his family fled for safety at the compound of an international organisation. His family members later continued on to another part of the country, but Dr Tun Aung reportedly himself contacted the authorities to ask for a security detail so he could return to his residence, whereupon he was taken into custody.

The authorities later sent Dr Tun Aung to Sittway for trial, even though the transfer of the case was not done in accordance with law. Partly because of that transfer, he was unable to obtain a lawyer or call witnesses in his defence. Although he tried to call witnesses, because of the security situation and imposition of a state of emergency with curfews across the state, none of those called were willing to come. Nonetheless, the judge falsely inferred the failure of anyone to attend under these extraordinary conditions as that they did not want to attend because their testimony would conflict with that of the defendant. Aside from witnesses to searches, all of the witnesses for the prosecution were police, military or immigration personnel. No substantive material evidence was brought against the detainee. What material evidence was brought came from seized items that were either not his own—such as the laptop—or was so trivial as to constitute a criminal offence only in the most ludicrous of circumstances—such as the handfuls of foreign currency found in his house used to frame a foreign exchange charge. Yet he was convicted without regard to the facts of the case and, it can be safely concluded, under instructions from non-judicial agencies.

Currently, I am deeply concerned for Dr Tun Aung because he is an elderly man with a history of poor health in recent years. He has undergone surgery for his enlarged pituitary tumor twice (in 1998 and 2005). The condition is chronic, so, he has to have constant medication and a regular check ups that can only be done at a hospital with a well-equipped laboratory and head scanner or magnetic resonant imaging machine. He has also lost his peripheral visions in both eyes due to pressure from the tumor. Due to medication, he has suffered from varicose veins and he underwent surgery to his left thigh and leg in 2011. The same surgery for his right leg was due in December 2012, but because of imprisonment it could not be conducted. He also suffers from other side effects, such as reduced immunity. Given that prison conditions in Myanmar are often extremely bad, and that many persons have died in custody or after release due to illnesses left untreated while in prison, that an elderly man in this poor state of health would be given a 11-year sentence is a cause for special concern. Indeed, I am informed that since the time of his arrest to the present, he has not had any specialist treatment.

In view of the above facts, I call for this case to be reviewed and for Dr Tun Aung to be released from prison at the earliest possible opportunity. I also call for the authorities to assess his medical condition immediately, and to provide him with the necessary specialist care at a facility outside of prison to ensure that his health does not worsen as a consequence of his detention. Here I take the opportunity to recall the case of Phyo Wai Aung, the young man falsely accused over a 2010 bombing, who died in January 2013 only a few months after his release from custody, specifically as a result of the maltreatment and lack of specialist attention he suffered while detained. I urge the authorities in Myanmar not to allow the same to happen in this case.

Despite the changes in political conditions in Myanmar that have been widely welcomed in all quarters, it is manifest to me from this case that the police, security forces and judiciary continue to function not in a manner conducive to democratisation but in a manner consistent with practices of prior years under military dictatorships. But even more disturbing in this case is the likelihood that local authorities obtained orders from high up in the administrative system to prosecute and imprison Dr Tun Aung because they were embarrassed by reports about the violence in the country's west at a time that they wanted to cultivate a better image abroad, and did not want any facts to get out that would spoil the propaganda image of government agencies doing their best to keep everything under control. In this respect too the handling of the case is consistent with earlier periods, and sends an ominous signal to people in Myanmar thinking that conditions may have changed to enable the type of free speech that they did not enjoy in the past.

In this regard I wish in particular to draw attention to the charges brought against the accused. All of them are antiquated provisions of laws used throughout periods of successive military government in Myanmar to suppress basic rights to speech, assembly and participate in public life of precisely the sort that the government of Myanmar now asserts that it is encouraging. Some of them, such as the Foreign Exchange Regulation Act, are so utterly outdated as to be preposterous, were it not for the consequences of persons against whom they are used. I therefore take this opportunity also to urge the government of Myanmar to thoroughly review these pieces of legislation with a view to revoking or amending them as necessary to bring them into line with the democratic values that it now claims to espouse.

Yours sincerely,

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PLEASE SEND YOUR LETTERS TO:

1. U Thein Sein
President of Myanmar
President Office
Office No.18
Naypyitaw
MYANMAR

2. U Hla Min
Minister for Home Affairs
Ministry of Home Affairs
Office No. 10
Naypyitaw
MYANMAR
Tel: +95 67 412 079/ 549 393/ 549 663
Fax: +95 67 412 439

3. U Tun Tun Oo
Chief Justice
Office of the Supreme Court
Office No. 24
Naypyitaw
MYANMAR
Tel: + 95 67 404 080/ 071/ 078/ 067 or + 95 1 372 145
Fax: + 95 67 404 059

4. Dr. Tun Shin
Attorney General
Office of the Attorney General
Office No. 25
Naypyitaw
MYANMAR
Tel: +95 67 404 088/ 090/ 092/ 094/ 097
Fax: +95 67 404 146/ 106

5. U Kyaw Kyaw Htun
Director General
Myanmar Police Force
Ministry of Home Affairs
Office No. 10
Naypyitaw
MYANMAR
Tel: +95 67 412 079/ 549 393/ 549 663
Fax: +951 549 663 / 549 208

6. Thura U Aung Ko
Chairman
Pyithu Hluttaw Judicial and Legislative Committee
Office of the Pyithu Hluttaw
Naypyitaw
MYANMAR

7. U Aung Nyein
Chairman
Committee for Public Complaints and Appeals
Office of the Pyithu Hluttaw
Naypyitaw
MYANMAR

8. Daw Aung San Suu Kyi
Chairwoman
Pyithu Hluttaw Rule of Law and Tranquility Committee
Office of the Pyithu Hluttaw
Naypyitaw
MYANMAR

9. U Win Mra
Chairman
Myanmar National Human Rights Commission
27 Pyay Road
Hlaing Township
Yangon
MYANMAR
Tel: +95-1-659 668
Fax: +95-1-659 668

10. Ko Ko Hlaing
Chief Political Advisor
Office of the President
Naypyitaw
MYANMAR
Tel-+95-1-532 501 ext-605 / 654 668
Fax-+95-1-532 500, 654 668


Thank you.

Urgent Appeals Programme
Asian Human Rights Commission (ua@ahrc.asia)

Document Type :
Urgent Appeal Case
Document ID :
AHRC-UAC-013-2013
Countries :
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Extended Introduction: Urgent Appeals, theory and practice

A need for dialogue

Many people across Asia are frustrated by the widespread lack of respect for human rights in their countries.  Some may be unhappy about the limitations on the freedom of expression or restrictions on privacy, while some are affected by police brutality and military killings.  Many others are frustrated with the absence of rights on labour issues, the environment, gender and the like. 

Yet the expression of this frustration tends to stay firmly in the private sphere.  People complain among friends and family and within their social circles, but often on a low profile basis. This kind of public discourse is not usually an effective measure of the situation in a country because it is so hard to monitor. 

Though the media may cover the issues in a broad manner they rarely broadcast the private fears and anxieties of the average person.  And along with censorship – a common blight in Asia – there is also often a conscious attempt in the media to reflect a positive or at least sober mood at home, where expressions of domestic malcontent are discouraged as unfashionably unpatriotic. Talking about issues like torture is rarely encouraged in the public realm.

There may also be unwritten, possibly unconscious social taboos that stop the public reflection of private grievances.  Where authoritarian control is tight, sophisticated strategies are put into play by equally sophisticated media practices to keep complaints out of the public space, sometimes very subtly.  In other places an inner consensus is influenced by the privileged section of a society, which can control social expression of those less fortunate.  Moral and ethical qualms can also be an obstacle.

In this way, causes for complaint go unaddressed, un-discussed and unresolved and oppression in its many forms, self perpetuates.  For any action to arise out of private frustration, people need ways to get these issues into the public sphere.

Changing society

In the past bridging this gap was a formidable task; it relied on channels of public expression that required money and were therefore controlled by investors.  Printing presses were expensive, which blocked the gate to expression to anyone without money.  Except in times of revolution the media in Asia has tended to serve the well-off and sideline or misrepresent the poor.

Still, thanks to the IT revolution it is now possible to communicate with large audiences at little cost.  In this situation there is a real avenue for taking issues from private to public, regardless of the class or caste of the individual.

Practical action

The AHRC Urgent Appeals system was created to give a voice to those affected by human rights violations, and by doing so, to create a network of support and open avenues for action.  If X’s freedom of expression is denied, if Y is tortured by someone in power or if Z finds his or her labour rights abused, the incident can be swiftly and effectively broadcast and dealt with. The resulting solidarity can lead to action, resolution and change. And as more people understand their rights and follow suit, as the human rights consciousness grows, change happens faster. The Internet has become one of the human rights community’s most powerful tools.   

At the core of the Urgent Appeals Program is the recording of human rights violations at a grass roots level with objectivity, sympathy and competence. Our information is firstly gathered on the ground, close to the victim of the violation, and is then broadcast by a team of advocates, who can apply decades of experience in the field and a working knowledge of the international human rights arena. The flow of information – due to domestic restrictions – often goes from the source and out to the international community via our program, which then builds a pressure for action that steadily makes its way back to the source through his or her own government.   However these cases in bulk create a narrative – and this is most important aspect of our program. As noted by Sri Lankan human rights lawyer and director of the Asian Human Rights Commission, Basil Fernando:

"The urgent appeal introduces narrative as the driving force for social change. This idea was well expressed in the film Amistad, regarding the issue of slavery. The old man in the film, former president and lawyer, states that to resolve this historical problem it is very essential to know the narrative of the people. It was on this basis that a court case is conducted later. The AHRC establishes the narrative of human rights violations through the urgent appeals. If the narrative is right, the organisation will be doing all right."

Patterns start to emerge as violations are documented across the continent, allowing us to take a more authoritative, systemic response, and to pinpoint the systems within each country that are breaking down. This way we are able to discover and explain why and how violations take place, and how they can most effectively be addressed. On this path, larger audiences have opened up to us and become involved: international NGOs and think tanks, national human rights commissions and United Nations bodies.  The program and its coordinators have become a well-used tool for the international media and for human rights education programs. All this helps pave the way for radical reforms to improve, protect and to promote human rights in the region.