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BURMA: Case against Aung San Suu Kyi exposes 'injustice system'

June 19, 2009

ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAM

Urgent Appeal Case: AHRC-UAC-060-2009



19 June 2009
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BURMA: Case against Aung San Suu Kyi exposes 'injustice system'

ISSUES: Rule of law; military government; judicial system; illegal detention
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HUMAN RIGHTS BLOG
PYITHU HITTAING: BURMESE-LANGUAGE BLOG
http://burma.blog.humanrights.asia  

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Dear friends,

The Asian Human Rights Commission (AHRC) has been closely following the case against Daw Aung San Suu Kyi and three other persons since their arrest in May 2009, which is a clear product of what has been described as Burma's 'injustice system'. In this appeal we give some basic details of the case (already widely covered in the international media) and then concentrate on the patent legal flaws that demonstrate the incapacity of the military regime to even interpret and apply its own laws, no matter how draconian they are.

CASE DETAILS:

As is widely known, Daw Aung San Suu Kyi has been held in continuous detention since May 30th 2003, when a convoy of vehicles in which she was travelling came under the attack of government-organized thugs at Depayin in the north of Burma, resulting in the deaths and injury of an unknown number of persons. For most of the time she has been held in her house under the terms of a 1975 law known as the State Protection Law. According to that law, as amended in 1991, it is possible for the regime to hold her for up to five years. That period expired on November 28th 2008, but the regime has claimed that the law has allowed for her continued house arrest, although clearly it does not. In any event, the regime clearly wants another excuse to keep her in detention during the planned general election of 2010, even though under its 2008 Constitution she is prohibited from participating.

In May 2009, as has been reported around the world, the regime came up with a pretext for Suu Kyi's continued detention, claiming that she violated the terms of her house arrest when an American citizen swam across the lake adjacent to her Rangoon property and entered the premises on May 3 and Suu Kyi, after asking him to leave, permitted him to remain in the house. On May 5 he was spotted and arrested. Thereafter a case was opened against him as well as Suu Kyi and the two women who live with her on May 11. They charged Suu Kyi with violating the State Protection Law and the other three accused, with abetting her. All four face a three-year jail term.

After a series of prompt hearings in May, the district court hearing the case was due to hand down a verdict on June 5; however, it has since been postponed a number of times due to a petition from the defence that three witnesses were prevented from being heard. The hearings are due to be reopened on June 26.

CASE ANALYSIS:

Beyond the problems of witnesses and the question of whether or not Aung San Suu Kyi's detention under the law was even legal at all, there are glaring errors in the case, one of which is an error under the law itself. The others are errors in the handling of the trial.

Of the first and most obvious problem with the case, there is nothing in the law that prohibits someone from coming into a house where a person is being held under its provisions, or to prevent the person held from talking to that person or allowing them to stay in the house. The law only restricts the person from leaving that place, and from using certain materials if specified. It is the responsibility of the officials to manage the movement of people in and out. Furthermore, the specific order issued against Suu Kyi ordered her to not have contact with diplomats or political party members, not to leave her house and not to communicate with the outside by writing or word. There is nothing in any of those terms to prevent her from talking to someone who is inside the house, and it is the responsibility of the security officials, not her, to see that the house be kept secure from intruders.

In other words, the failure in this case is the failure of the security forces to prevent the intruder from coming inside. Once he was inside, there is nothing in the law to punish the occupants of the house. So the charges have no basis; nor did any of the 15 witnesses for the prosecution state that Aung San Suu Kyi did in fact violate the terms of the order against her.

The second major problem with the case is that it is not being heard in the district where the alleged offence occurred, and judges from two different districts are hearing it. This is completely against the law. It is also being heard inside a special courtroom in the central prison, like many other cases in recent years, especially since the monk-led protests of 2007 (see the AHRC campaign page). There are no provisions in law for holding a special hearing of this sort, and it is also against the country's Judiciary Law to do so.

It is also interesting to note that the American citizen accused of trespassing on the property had also entered the land around the house on November 30 of 2008 and was detained by the authorities, but no action was taken against him or anyone else then. It raises the question as to how an offence could not be committed the first time but could the second time, as well as to the nature of the charges: although he was not invited onto the property and was both times asked to leave when he came into the grounds, he was on neither occasions charged with trespassing. Instead only the second time were the charges framed to blame the occupant of the house rather than the intruder, or for that matter the security forces who were supposed to be preventing persons from entering illegally.

ADDITIONAL INFORMATION:

The State Protection Law (which in full is the Law to Safeguard the State Against the Dangers of Those Desiring to Cause Subversive Acts: No. 3/1975) was prepared and introduced via the one-party state of General Ne Win. It preceded the current military regime as a blanket law to imprison political opponents. It is used rarely and in cases of prominent political dissidents like Aung San Suu Kyi, since the current regime generally prefers to manufacture criminal cases against its opponents under ordinary laws.

Under the law's section 7 'The Cabinet is authorised to pass an order, as may be necessary, restricting any fundamental right of any person suspected of having committed or believed to be about to commit, any act which endangers the sovereignty and security of the state or public peace and tranquility.' For this reason, in the current case the policeman bringing the charges cited the fundamental rights of Aung San Suu Kyi under the 1974 Constitution as having been restricted. However that constitution ceased to have effect in 1988, when all the bodies established under it were dissolved.

Under the law as amended in 1991, it is possible for the authorities with approval of the cabinet to hold a person for no more than 5 years. After an initial period of 180 days' detention, the period of 5 years in Aung San Suu Kyi's case began on November 28, 2003 and expired at the end of 2008. However the regime has falsely claimed that it can continue to hold her under the law until the end of 2009, when even under the incredibly broad terms of the law, it is clear that there is no provision for a further year of house arrest.

BACKGROUND INFORMATION:

The AHRC has been documenting numerous cases dealing with what it has described as Burma's 'injustice system' and Urgent Appeals on many of these can be accessed by going to the appeals page and entering 'Burma' into the search box: http://www.ahrchk.net/ua/search.php  Two special reports have also been issued in the article 2 periodical, 'Saffron Revolution imprisoned, law denied' (vol. 7, no. 3, September 2008) and 'Burma, political psychosis and legal dementia' (vol. 6, no. 5-6, December 2007).

There are also a number of related sites, including the AHRC Burmese-language blog, Pyithu Hittaing, and the most recent campaign page on lawyers imprisoned for attempting to defend their clients: http://campaigns.ahrchk.net/burma-lawyers

See also the 2008 AHRC Human Rights Report chapter on Burma.

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SUGGESTED ACTION:

The iconic status of Aung San Suu Kyi globally means that her prosecution has attracted a great deal of international attention and drawn actions from many organisations and individuals. Please find out what is going on in your locality and get involved. However, please take the time to read other AHRC appeals on Burma and learn about the many other victims of that country's injustice system, and then use any actions on this case to also draw attention to the wider systemic problems that affect the lives of the thousands of persons brought before the courts in Burma daily, irrespective of the charges against them.

Please write to the secretary general of the United Nations and human rights commissioner pointing to the flaws in the case against Aung San Suu Kyi and the other three persons and calling for international action. Please also send the letter to the head of the Association of Southeast Asian Nations, of which Burma is a member, and also consider sending copies to government officials in your country. 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 as Yangon.

Please be informed that the AHRC is writing a separate letter to the UN Special Rapporteurs on Myanmar, independence of judges and lawyers, and human rights defenders, as well as the UN Working Group on arbitrary detention and the regional human rights office for Southeast Asia, calling for interventions into this case.

To support this appeal please click here:

SAMPLE LETTER:

Dear ___________,

MYANMAR: Patent flaws in case against Daw Aung San Suu Kyi and three others

Accused persons:
1. Daw Aung San Suu Kyi, 64, leader of the National League for Democracy, ID No. CE/073966, resident of 54/56 University Avenue, Golden Valley Ward 1, Bahan Township, Yangon, Myanmar
2. Daw Khin Khin Win, 66, retired schoolteacher, ID No. PDL/104262, resident as above
3. Ma Win Ma Ma, 41, National ID No. Ya/PaMaNa(Naing)100312, resident as above
4. John William Yettaw, 53, clinical psychologist, US Passport No. 439767722, of Falcon, Missouri, USA

Primary officials involved:
1. Police Lieutenant Colonel Zaw Min Aung, Serial No. La/58284, Special Branch (SB), Yangon, plaintiff
2. Police Lieutentant Colonel Maung Maung Khin, Serial No. La/57758, Criminal Investigation Division, Insein
3. Police Captain Khin Maung Thaung Win, Serial No. La/75014, Myanmar Passports Issuance Division, SB
4. Inspector Hpone Khaw Khaing, Serial No. La/59510, External Affairs Department, SB
5. Inspector Thein Zaw, Serial No. La/128613, Lower Myanmar Unit, SB
6. Inspector Than Naing, Serial No. La/131963, Police Battalion 7, Myanmar Police Force
7. Police Captain Maung Maung Myint, Serial No. La/112711, Investigation Division, SB
8. Police Captain Tin Zaw Htun, Serial No. La/128471, Township Police Commander, Bahan
9. Police Captain Sa Kyaw Win, Serial No. La/112569, External Affairs Department, SB
10. Police Major Aung Htun Kyaw, Serial No. La/1699, External Affairs Department, SB
11. Police Captain Than Soe, Serial No. La/112859, Prosecution Department, SB
12. U Myat Thwin, Department Head, Department of Immigration and National Registration, Kyauktada Township
13. U Aung Mon Lat, Chairman, Township Peace and Development Council, Bahan
14. U Thar Sein, Chairman, No. 4 Ward, Mayangone
15. U Khin Nyunt, Chairman, Kyaikkasan Ward, Bahan
16. U Zaw Tin, Chairman, Ngahtatgyi West Ward, Bahan
17. U Myo Thein, Chairman, No. 1 Ward, Kyauktada

Charges and trial: In Yangon Northern District Court, Judges U Thaung Nyunt (Northern District Judge) and U Nyi Nyi Soe (Western District Judge) presiding; Criminal Case No. 47/2009, charged under section 22 of the Law to Safeguard the State Against the Dangers of Those Desiring to Cause Subversive Acts (No. 3/1975; known as the State Protection Law) (Defendant No. 1) with violating an order set down under that law, and section 22 read with section 109 of the Penal Code, abetment (Defendant Nos. 2-4), punishable with three years' imprisonment

Like people all around the world, I have followed with grave concern the case brought against political party leader Daw Aung San Suu Kyi and three other persons this May 2009 by the authorities in Myanmar, on the ground that she violated the terms of her house arrest under the State Protection Law, 1975.

In fact, it is clear that the charges are motivated by a wish to keep the accused in custody throughout the planned 2010 general election, which will be neither free nor fair. What is also clear from the information that has been brought to my notice, is that the charges have no basis in law whatsoever.

Briefly, according to the police, an American citizen swam to the house where Aung San Suu Kyi has been confined since 2003 and on May 3 she permitted him to enter, fed him and talked with him until May 5, in violation of the restriction order against her under the State Protection Law.
On May 11 they opened a case against her under the law and against the American and the two women living with her under the Penal Code, for abetment. All four face a three-year jail term.

After a series of prompt hearings in May, the Northern District Court was due to hand down a verdict on June 5; however, it has since been postponed a number of times due to a petition from the defence that three witnesses were prevented from being heard in violation of the Criminal Procedure Code (CrPC), section 256. The hearings are due to be reopened on June 26, 2009.

Beyond the problems of witnesses and the question of whether or not Aung San Suu Kyi's detention under the law was even legal at all, given that it was framed against fundamental rights under the 1974 Constitution of the Socialist Republic of the Union of Burma, which has not been in effect since 1988, and given that the maximum period of detention under the law expired on November 28 2008, there are a number of glaring substantive and procedural errors in the case that even the most rudimentary examination of the facts reveals:

1. Under section 11 of the State Protection Law, the restrictions of a person include:
(a) Designation of the territory to which the movements of the person against whom action is taken can be restricted;
(b) Designation of the place where the person against whom action is taken shall reside;
(c) Denial, as may be necessary, of travel;
(d) Denial of possession or use of specific materials.

The specific order against Aung San Suu Kyi confined her to her house, denied her from having contact with diplomats or political party members, and denied her the right to communicate with the outside by writing or word. There is nothing in section 11 or in the order against her to prohibit her from talking to someone who is already inside the house. In fact, it is the responsibility of the security forces to ensure that intruders do not enter the premises and the charges against Aung San Suu Kyi and the others for abetment are punishing them for the failure of the authorities to perform their tasks as required under the orders of the state. In short, there is no case to answer. Nor did any of the 15 witnesses brought for the prosecution state that she has in fact violated the terms of the order given against her under the law.

2. Under section 177 of the CrPC an offence is to be tried by a court in the jurisdiction where it was committed. In this case, that was Bahan Township, which is part of the Yangon Western District. However, the case is being heard at a court under the Northern District. Furthermore, it is being heard by two judges of two different districts, one of the Western District Court and one of the Northern District Court. Under section 12(2) of the CrPC the jurisdiction of a district judge extends to throughout his or her district. It cannot extend to another district. There is no legal basis for the mixing of judges like this. Also, the case is being held in a special court inside the Insein Central Prison, like many other cases in recent years, and there is no provision in law for the setting up and holding of such 'special courts'. They violate section 2(a) of the 2000 Judiciary Law, which requires the 'dispensing (of) justice in open court unless otherwise prohibited by law'. For these reasons among others, the trial is completely invalid and illegal.

It is also interesting to note that the American citizen accused of trespassing onto the property had on 30 November 2008 also entered the land around the house and was detained by the authorities, but that no action was taken against him or anyone else then, raising questions as to how an offence could not be committed the first time but could the second time, as well as to the nature of the charges: although he was not invited onto the property and was both times asked to leave when he came into the grounds, he was on neither occasion charged with trespassing. Instead, only on the second time were the charges framed to blame the occupant of the house rather than the intruder, or for that matter, the security forces who were supposed to be preventing persons from entering illegally.

As the trial is obviously being motivated by purely political considerations, there is no point in the making of appeals directly to the judicial and administrative officers purportedly authorised to act upon it. At the same time, it is also apparent that where matters concerning Daw Aung San Suu Kyi are concerned, strong international intervention is needed to have any effect on the military leadership in Myanmar. Therefore I am appealing directly to the concerned United Nations agencies, to the Association of Southeast Asian Nations, which to its shame has continued to go along with the demands and interests of the government of Myanmar, and to other parts of the global community for concerted action, not only in this case but also to end the abuse of human rights under the guise of law through an injustice system of the first order.

Finally, I take this opportunity to call for the International Committee of the Red Cross to again be given access to places of detention throughout Myanmar in accordance with the terms of its established worldwide mandate.

Yours sincerely

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PLEASE SEND YOUR LETTERS TO:

1. Mr. Ban Ki-Moon
Secretary General
Office of the Spokesman for the Secretary General
United Nations
S-378 New York
NY 10017
USA
Fax: +1 212 963 7055 or 2155 (ATTN: SECRETARY GENERAL)
Email: ecu@un.org

2. Navi Pillay
High Commissioner
Office of the UN High Commissioner for Human Rights (OHCHR)
Palais Wilson
52 rue des Pâquis
CH-1201 Geneva
SWITZERLAND
Fax: +41 22 917 9012/0213
Email: civilsocietyunit@ohchr.org

3. Surin Pitsuwan
Secretary General
ASEAN Secretariat
70A, Jalan Sisingamangaraja
Jakarta 12110
INDONESIA
Fax: +62 21 7398234/ 7243504
Email: termsak@aseansec.org or lina@aseansec.org

Thank you.

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

Document Type :
Urgent Appeal Case
Document ID :
AHRC-UAC-060-2009
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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.