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BURMA: Man imprisoned for complaining about electricity supply

October 8, 2009

ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAMME

Urgent Appeal Case: AHRC-UAC-133-2009

9 October 2009
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BURMA: Man imprisoned for complaining about electricity supply

ISSUES: Rule of law; judicial system; illegal detention
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Dear friends,

The Asian Human Rights Commission (AHRC) has obtained details of another case in Burma speaking to the country's "injustice system" and how it affects the rights of all citizens in different ways. In this case a man who repeatedly called the government electricity supplier to complain has been jailed under a restraining order, even though by law this order should be used only for a serious habitual offender. He is also on trial for obstructing a public official. The maximum sentence under that charge is three months; he has already been detained for more than two months.

CASE DETAILS:

In the early morning of 2 August 2009, 46-year-old U Khin Maung Kyi called the electricity supplies department in the area of Rangoon where he lives to complain about a surge in electricity at his house. When he called, he argued with the duty officer and then asked to speak to his superior, but the officer said that he wasn't available. He also refused to give his name. Then Khin Maung Kyi threatened to make a complaint at the headquarters.

As the electricity supplies department already had a criminal complaint in the local court against Khin Maung Kyi for allegedly obstructing the work of their staff, on August 3 its township director sent a letter to the police to ask for further action against him, and the next day also sent a letter to the court. After that, on August 5, local officials decided to take further legal action against Khin Maung Kyi. They gave the reason as his telephoning the electricity supplier, but also made other general complaints against him, such as that he had encouraged people to vote No for the new constitution that was passed in 2008, and had taken photographs of flooding after heavy rain. On the same day the township council sent a letter to the police to get an order for a security bond, which means that Khin Maung Kyi would have to appear in court and have two people lodge an amount of money as a guarantee of his good behaviour. The council said that he had meddled in administrative affairs and had supposedly contacted an overseas radio station, but when the matter came into court couldn't give any evidence of this or even any information about which station or the date or on what matter Khin Maung Kyi had contacted.

On August 11 the bond case was opened against Khin Maung Kyi and two weeks later Judge Win Swe issued the order for a one-year bond, but because of the pending criminal case, Khin Maung Kyi was sent to prison. He has been there for two months so far, even though the charge of obstruction has a maximum sentence of three months.

The case of obstructing a public servant is frivolous, but the bond order that has put Khin Maung Kyi in jail is completely ridiculous, because the law is very clear that the purpose of this order is for restraint of known habitual criminals on whom information has been received that they are likely to commit another offence. The judge is supposed to examine the case closely before giving the order, to make sure that such information really exists and that the person is a danger to the society. It is not a law that is designed for officials to jail people who have annoyed them.

Further details on the facts of the case are provided in the sample letter below, as usual.

ADDITIONAL INFORMATION:

The AHRC has been documenting numerous cases speaking to what it has described as Burma's "injustice system". Last week it issued an appeal on the case of underage girls who were jailed after the police allegedly presented false evidence about their ages to court and the judge failed to inquire after contrary evidence was given: AHRC-UAC-131-2009. Other recent cases include: AHRC-UAC-125-2009, AHRC-UAU-024-2009, AHRC-UAC-110-2009, AHRC-UAC-107-2009 and AHRC-UAU-018-2009. More cases can be accessed by going to the appeals homepage and typing "Burma" or "Myanmar" into the search box: http://www.ahrchk.net/ua/. 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 2008 AHRC Human Rights Report chapter on Burma.

SUGGESTED ACTION:

Please write to the persons listed below to call for the immediate release of U Khin Maung Kyi. Please note that for the purposes of the letter Burma is referred to by its official name, Myanmar, and Rangoon, Yangon.

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

SAMPLE LETTER:

Dear ___________,

MYANMAR: Man imprisoned for making complaints about electricity supply

Details of accused: U Khin Maung Kyi, 45, resident of Panchangyaung Road, Ward 13, Hlaing Township, Yangon, Myanmar
Key officials involved:
1. Inspector Htun Htun Win, Serial No. La/137417, Station Chief, Hlaing Police Station (prosecuting officer in criminal case)
2. Deputy Inspector Nyunt Win, Serial No. La/153871, Hlaing Police Station
3. Chairman, Hlaing Township Peace and Development Council (complainant)
4. U Myint Aung, 44, Deputy Director, Hlaing Township Office
5. U Kyaw Sein, 37, Township Administration Head, Yangon Municipal Electric Power Corporation, Hlaing Township (complainant in bond case)
6. U Naing Oo, 45, Member, Ward 13 Peace and Development Council, Hlaing, and six local administrative officials
Charges & trial: Obstructing a public servant, section 186, Penal Code, Felony No. 705/2009, Hlaing Township Court, Assistant Township Judge Win Swe presiding; section 5(1)(f)(g), Restriction & Bond Act 1961, Criminal Miscellaneous Case No. 143, order for one-year bond given on 25 August 2009

I am appalled to learn that a man has been jailed in Myanmar for making complaints about electricity supply and urge that he be released immediately.

According to the information that I have received, on the mornings of 2 and 3 August 2009, U Khin Maung Kyi called the electricity supplies department in Hlaing, Yangon to complain about electricity supply to his house. When he called, he argued with the duty officer and then asked to speak to his superior, but the officer said that he wasn't available. The officer refused to give his name. Then Khin Maung Kyi threatened to make a complaint with the department headquarters in Naypyitaw.

On August 3 the township electricity supplies department sent a complaint to the police and on August 4 to the township court, for the reason that the department already had a criminal complaint of obstructing a public servant pending against Khin Maung Kyi. On August 5, seven officials under the Ward 13 Peace and Development Council attended a meeting headed by U Naing Oo at which they decided to take seek the bond order against Khin Maung Kyi for disturbing public order. On August 5 and 7 the Hlaing Township Peace and Development Council sent letters to the township police to instruct action against Khin Maung Kyi for frequently calling to complain about electricity supply, for similarly calling to the township office, for "meddling" in local administrative affairs, for allegedly distributing "unwanted" news, and for allegedly contacting to an overseas radio station. On August 11 the case was opened against Khin Maung Kyi and on August 25 Judge Win Swe issued the order for a one-year bond of 50,000 Kyat (USD 50) from two guarantors, but because the criminal case is pending Khin Maung Kyi was held in prison instead of being allowed out on the bond.

Both of these laws have obviously been flagrantly misused to persecute a man whose only "crime" was to irritate some government personnel. The law on bonds is intended for restraint of known habitual criminals on whom information has been received that they are likely to commit another offence, not ordinary citizens who make complaints. It is also the obligation of the judge in giving an order to fully examine the case and be satisfied that there are grounds for issuing the bond. The Court Manual states clearly that, "No person should be called upon to give security except upon credible, clear and substantial information... that the person informed against is leading an habitually dishonest life and, in the sense, is dangerous to society" (Chapter 16, section 376). It is ludicrous to think that Judge Win Swe in this case had inquired properly and found reason for giving the order.

Secondly, there are no genuine allegations against the accused of relevance to the charge of obstructing a public servant simply because he is a frustrated consumer of a bad electricity supply. The claim that he contacted to an overseas radio station, when put to the court, was found not only to be without evidence but the officials could not say what station, what day; what time or on what topic he had contacted. Not only is its application in this case absurd, but also the penalty carries a maximum sentence of three months. Khin Maung Kyi has already been detained for two months and the trial in this case is not completed.

For these reasons I ask that first, the bond order be immediately lifted; and second, that the accused be granted bail while a review of the charge of obstructing a public servant is undertaken so that that case also be dropped.

I also ask that the government officials involved in bringing this frivolous complaint against an ordinary citizen be investigated. I am aware that the government of Myanmar encourages the making of complaints to offices in Naypyitaw, but it is clear from this case that if local officials are left free to bring false criminal cases against people who do complain or threaten to complain then senior officials are not likely to learn about their causes for complaint. If senior government officials are serious about the policy of allowing complaints then they must act against officials who are found to have been working to prevent people like Khin Maung Kyi from taking their grievances to a higher level.

Finally, I take this opportunity to remind the Government of Myanmar of the need to allow the International Committee of the Red Cross access to places of detention, in accordance with its globally recognized mandate, without any further delay.

Yours sincerely,

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PLEASE SEND YOUR LETTERS TO:

1. 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

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

3. 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

4. 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

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: +951 549 663 / 549 208

Thank you.

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

Document Type :
Urgent Appeal Case
Document ID :
AHRC-UAC-133-2009
Countries :
Issues :
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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.