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BURMA: Young woman jailed for life without getting lawyer and in violation of many procedures

March 13, 2008

ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAM

Urgent Appeal Case: AHRC-UAC-048-2008

13 March 2008
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BURMA: Young woman jailed for life without getting lawyer and in violation of many procedures

ISSUES: Rule of law; rights to liberty and security; police; military government; judicial system; illegal detention; prison conditions
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article 2 Special Report
BURMA, POLITICAL PSYCHOSIS & LEGAL DEMENTIA
www.article2.org 

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Dear friends,

The Asian Human Rights Commission (AHRC) is gravely concerned about the case of a young woman who was arrested coming into Burma from neighbouring Thailand and charged with illegal immigration, joining in illegal associations and sedition. The laying of charges and the passing of sentences against Ma Thanda were all in violation of ordinary criminal procedure, including that she was tried in a special court inside a prison and was not able to have a lawyer represent her.

CASE DETAILS:

On 23 April 2007, Ma Thanda was arrested as she was coming back into Burma from Thailand, where she had gone to meet her husband, who is a political activist. She was charged with sedition (for carrying anti-government publications), involvement in an illegal organisation (because of meeting her husband) and also with violating the immigration law.

In fact, the charge of sedition (the most serious of the three) can only be laid if first approved by the home affairs ministry. However, the police did not obtain proper approval before laying the charge. Furthermore, lawyers question whether or not the current government of Burma has the authority to lay sedition charges at all, as the criminal code requires that they be done by "a government established by law for the Union" whereas the current regime has operated without a constitution since 1988.

Thanda was taken back to Rangoon and tried in the special court inside the central jail, even though the offence occurred on the border of Thailand and she should have been tried at an open court of that locality. She was not able to hire a lawyer or call witnesses in her defence. After only one day of hearings in October, the judge handed down three separate but almost identical sentences and added the penalties under each together so that she was given a total of 28 years in jail (one life sentence plus eight years).

ADDITIONAL INFORMATION:

This is yet another case that speaks to the "legal dementia" that exists in Burma whereby neither the police nor courts appear capable of following even their domestic laws and procedures, to say nothing of international standards, which the AHRC's sister organisation has described in a recent comprehensive report on Burma: "Burma, political psychosis and legal dementia".

The same bundle of charges, replete with similar procedural violations, was laid against six persons arrested for talking about labour rights on May Day 2007: see UA-248-2007. Most of the persons detained since the protests of last September also have been treated with similar disregard to ordinary process of law; see for instance: AHRC-UAC-024-2008; AHRC-UAC-022-2008.

For further general information on Burma see also the 2007 AHRC Human Rights Report chapter on Burma, and visit the AHRC Burma homepage: http://burma.ahrchk.net.
 
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SUGGESTED ACTION:

Please write to the persons listed below to call for a review of the trial of Ma Thanda in light of the breaches of law and procedure in her case. Please note that for the purpose of the letter, the country should be referred to by its official title of Myanmar, rather than Burma, and Rangoon, Yangon. 

Please be informed that the AHRC is writing a separate letter to the UN Special Rapporteurs on Myanmar and independence of judges and lawyers, as well as the UN Working Group on arbitrary detention and the UN Regional Human Rights Office for South East Asia, calling for intervention in this case.

SAMPLE LETTER:

Dear ___________,

MYANMAR: Woman convicted to life imprisonment in violation of criminal procedure

Details of victim: Ma Thanda, married with three children, daughter of U Khin Nyo, resident of Einme Township, Ayeyarwaddy Division
Place and date of arrest: Thingannyinaung Checkpoint, Myawaddy, Karen State; 23 April 2007
Charges and trial: Sedition, Penal Code section 124A; participating in an illegal organisation, Unlawful Association Act, 1908, sn. 17(1); illegal movement across border, Burma Immigration (Emergency Provisions) Act, 1947, sn. 13(1); charged by Deputy Superintendent Myint Aung, Special Branch; tried in Yangon Western District Court, Criminal Case Nos. 93, 94 & 95, convicted to 5 years, 3 years and life imprisonment (20 years) respectively by Judge Myint Soe (Deputy District Magistrate No. 6) on 25 October 2007

I am writing to express my concern at the case of Ma Thanda, who has been imprisoned for 28 years on charges of sedition, illegal immigration and participating in an illegal organisation after she went to visit her husband in Thailand during April 2007.

According to the information that I have received, Ma Thanda was arrested on 23 April 2007 in Myawaddy, and sent from there back to Yangon where she was tried in a special court. However, I am informed of a number of serious violations of criminal procedure that I believe are cause for it to be reviewed:

1. The charge of sedition could only be laid with written approval of the Ministry of Home Affairs (section 196 of the Criminal Procedure Code [CrPC]) but none was obtained.

2. The court in Yangon did not have jurisdiction as there was no order to transfer it there from the area where the offences allegedly occurred (CrPC sections 177, 178).

3. Ma Thanda was not able to hire a lawyer as is her right (section 340, CrPC).

4. Ma Thanda was not able to call witnesses as her case was tried in a closed court, in violation of the Judiciary Law of 2000 (section 2[e]) and the CrPC (section 352). 

The court also compounded the penalties for the three offences rather than allowing them to be served consecutively.

In view of the above irregularities, I urge you to review this case in accordance with your powers under the Attorney General Law 2001 (sections 4[b] and 9[h]), in particular given that Ma Thanda was not tried in an open court and was not given access to a lawyer, in violation of her basic rights (Attorney General Law, section 3[i]).

I also take this opportunity to call more generally for attention to be paid to adhering to basic criminal procedure in Myanmar. Where police officers and courts are responsible for repeated and flagrant violations of the basic provisions of law in handling cases such as this, it makes a mockery of the entire legal process and all but eliminates the possibility of any kind of fair judicial inquiries or legal redress for victims of abuses. If even the domestic law cannot be properly enforced, then there can be few if any expectations that Myanmar can ever comply with international standards.

Yours sincerely

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PLEASE SEND YOUR LETTERS TO:

1. U Aye Maung
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

2. U Aung Toe
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

3. Maj-Gen. Maung Oo
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

4. Lt-Gen. Thein Sein
Prime Minister
c/o Ministry of Defence
Naypyitaw
MYANMAR
Tel: + 95 1 372 681
Fax: + 95 1 652 624

5. Brig-Gen. Khin Yi
Director General
Myanmar Police Force
Ministry of Home Affairs
Office No. 10
Naypyitaw
MYANMAR
Tel: +95 67 412 079/ 549 393/ 549 663
Fax: +95 67 412 439

6. Mr. Patrick Vial
Head of Delegation
ICRC
No. 2 (C) - 5 Dr. Ba Han Lane
Kaba Aye Pagoda Road, 8th Mile
Mayangone Township
Yangon
MYANMAR
Tel.: +951 662 613 / 664 524
Fax: +951 650 117
E-mail: yangon.yan@icrc.org

7. Mr. Shariq Bin Raza
Representative
UN Office on Drugs and Crime
11A Malikha Road
Ward 7, Mayangone Township
Yangon
MYANMAR
Tel: +951 666 903/ 660 556/ 660 538/ 660 398/ 664 539
Fax: +951 651 334
E-mail: fo.myanmar@unodc.org, shariq.raza@unodc.org or camila.vega@unodc.org 

Thank you.

Urgent Appeals Programme
Asian Human Rights Commission (ua@ahrchk.org)

Document Type :
Urgent Appeal Case
Document ID :
AHRC-UAC-048-2008
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.