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BURMA: Two men and a woman are illegally jailed for allegedly getting money from abroad

October 19, 2009

ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAMME

Urgent Appeal Case: AHRC-UAC-137-2009

20 October 2009
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BURMA: Two men and a woman are illegally jailed for allegedly getting money from abroad

ISSUES: Judicial system; illegal detention; freedom of association; torture
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Dear friends,

While the government of Burma was releasing a few wrongly detained persons from its jails in September, authorities were arresting and prosecuting more. In this appeal the Asian Human Rights Commission (AHRC) brings you the details of the case against three persons who have been illegally detained for allegedly receiving money from a group based abroad, and who were being tried without evidence, even as the prisoner release was going on.

CASE DETAILS:

In September the government in Burma released thousands of people from the prisons, including a number of persons for whom the AHRC had previously issued appeals (UAU-025-2009, UAU-023-2009). But at the same time other cases were going on in the courts, including a case against Sein Hlaing, Shwegyoe and Myint Myint Soe under the Unlawful Associations Act.

The Special Branch police arrested the three detainees back in March on the grounds that they had received money from someone at a group based in Thailand – someone who has been prosecuted in absentia. However the police didn't have any firm material evidence against the accused. Instead they held them in custody for almost six months and allegedly tortured them to extract so-called evidence, which they presented to the court.

Even then, all that police presented was that about USD15,000 had supposedly been transferred to the detainees from abroad – not for political activities but for social welfare. This includes assisting the families of people who had been imprisoned and transferred to jails in remote parts of the country, so that the families could visit and take them food and medicines, which are essential for long-term survival in the jails of Burma.

When the case finally came to court in September, the lawyers for the defendants pointed out that their clients had been kept in custody illegally. Police could give no explanation. The investigating officer refused to even say where he had interrogated them, on the grounds that it is 'secret' information. Neither could he explain why it had taken more than five months to lodge a case in the court, even though, as he acknowledged, the accused should have been brought before a judge within 24 hours, then kept on remand.

The police could not, or refused to answer other basic questions about the case, such as the date that it had been opened or who the officer was who gave the order to start the investigation. They could not give any details about the person in Thailand who had sent the money, even though these facts are very important to the trial because he is the one who allegedly belongs to the unlawful group on which the case hinges.

The case is continuing. Full details are provided in the sample letter below, as usual.

BACKGROUND INFORMATION:

The AHRC has been documenting numerous cases that speak to what it has described as Burma's 'injustice system'. Recent cases include that of a man jailed for complaining about the electricity supply (UAC-133-2009), of underage girls jailed after the police allegedly presented false evidence about their ages to court and the judge failed to inquire after contrary evidence was given (UAC-131-2009) and other cases including: UAC-125-2009, UAU-024-2009, UAC-110-2009, UAC-107-2009UAU-018-2009.

Many 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 Sein Hlaing and his two co-accused, and for the case against them to be dropped. Please note that for the purposes of the letter Burma is referred to by its official name, Myanmar, and Rangoon, Yangon.

The AHRC is writing separate letters to the UN Special Rapporteurs on Myanmar, on torture, and on the independence of judges and lawyers, as well as the UN Working Group on Arbitrary Detention and the regional human rights office for Southeast Asia, calling for their interventions into this case.

SAMPLE LETTER:

Dear ___________,

MYANMAR: Two men & a woman illegally detained for allegedly contacting group abroad

Details of accused:
1. Sein Hlaing, 53, male; trader; National ID No. 12/SaKhaNa(Naing)019964; residing at Kyaiklat Road, Linlundaung Ward, Sanchaung Township, Yangon.
2. Mya Soe (a.k.a. Shwegyoe), 49, male; fish merchant; National ID No. 12/ALaNa(Naing)021270; residing at Insein Road, Ward 9, Hlaing Township.
3. Myint Myint San (a.k.a. Ma Choe), 49, female; member, National League for Democracy (NLD) social aid group; National ID No. 8/PaKhaKa(Naing)012212; residing at Ngapu Road, Sawyanbaing Ward, Ahlone Township.
4. E Bhar (a.k.a. San Hlaing), 40, male; formerly residing at 39 Street, Kyauktada Township, Yangon; exiled in Thailand and tried in absentia.

Key officials involved:
1. Police Captain Myat Kyi, Serial No. La/59470; prosecuting officer in the case.
2. Inspector Kyaw Soe, Serial No. La/128592; Investigations Division, Special Branch (SB), Aungthapyay Interrogation Facility, 8 Mile, Mayangone Township.
3. Inspector Thet Tin, Serial No. La/123903; Internal Affairs Department, SB.
4. Deputy Inspector Aung Naing Oo, Serial No. La/139281.
5. Deputy Inspector Thet Win Thu, Serial No. La/159187; Investigations Division, SB.
6. Deputy Inspector Win Aung, Serial No. La/128485, SB.
7. U Khin Aung, Chairman, Linlundaung Ward Peace & Development Council (PDC) Sanchaung.
8. Yan Naing Win, Member, Ward 9 PDC, Hlaing.

Charges & trial:
Unlawful Associations Act 1908, section 17(1), Felony No. 432/2009; Sanchaung Township Court; Judge Tin Swe Win (Special Power) presiding.

I am very disappointed to hear that even while the Government of Myanmar was authorizing the release of thousands of prisoners--including many arbitrarily or unlawfully detained persons--in September 2009, the courts were trying even more persons for alleged crimes of association, including three persons who supposedly had contact with a fourth abroad, who has been prosecuted in absentia.

According to the information that I have received, Sein Hlaing is accused of receiving money from E Bhar, who is allegedly a member of the National League for Democracy-Liberated Area (NLD-LA). The money allegedly came via Shwegyoe from 12 October 2008 to 2 March 2009 and totaled 15 million Kyat (USD 15,000), some of which Sein Hlaing and Shwegyoe used for their own expenses and the remainder of which was transferred to the NLD social aid group. In November Myint San obtained 1.7 million Kyat (USD 1700) of that money and distributed it to families of detainees whom the authorities had transferred to remote prisons, to help them with their expenses for visits and other affairs.

From these basic facts of the case alone there is no obvious offence, as any money received was being used for social welfare and not for political or 'terrorist' activities as the police alleged. Furthermore I have learned that there are a number of glaring violations of the law in this case, and abuses of the detainees' fundamental human rights. In particular,

1. Illegal detention: The first three accused were arrested on 6 March 2009. They were transferred to Insein Central Prison on 13 May 2009. The case against them opened on 26 August 2009. The charge was finally lodged only on 10 September 2009. At no time in the period from 6 March to 26 August was there a judicial order to allow for their detention, in violation of section 61, Criminal Procedure Code (CrPC). The accused allege that from 13 March to 12 May the police held them illegally at the Aungthapyay Interrogation Facility in Mayangone Township. When asked about this in court Inspector Kyaw Soe first refused to reveal where interrogations had been held on the ground that it is a secret, and then said that he didn't know where the accused were held. Nor could the police explain why it had taken more than five months to lodge a case in the court, even though Inspector Kyaw Soe himself acknowledged in the trial that the accused should have been brought before a judge within 24 hours and that the ordinary limit of remand for this case would be one week, whereupon extensions should be brought. He also could not give basic facts to the court about dates on which important steps in the criminal process had occurred, such as the lodging of the First Information Report to initiate the process.

2. Torture: The detained accused testified in court that during their six months in detention they were tortured; however the allegations went unanswered by the police. Inspector Kyaw Soe also refused to say who had authorized the operation against the accused that led to their alleged torture.

3. Unproven facts: The police submitted evidence from the interrogations of the accused as proof of the alleged crime, even though under section 27 of the Evidence Act, such information does not constitute proof. They also could not produce any evidence to show that E Bhar is actually a member of the NLD-LA as they allege, a claim upon which the entire case against the three detainees rests. According to Inspector Kyaw Soe, this fact 'emerged' during interrogations. However, he could not give any details of the so-called fact, such as where or on what date E Bhar had become a member, or concerning his responsibilities in the organisation. Nor could he give any material evidence on the alleged connections with the other accused.

Given the obvious flaws and patent violations in this case I ask that the concerned persons intervene to see that it is dropped immediately. This included the Attorney General, in accordance with his power under section 4(b) of the Attorney General Law 2001, 'withdrawing, if necessary, any charge, any accused or the whole criminal case filed at Court'. I also ask that the Ministry for Home Affairs and Myanmar Police Force conduct inquiries in this case to determine why the concerned personnel of Special Branch violated provisions of the Criminal Procedure Code and if it is found that they have also in fact committed torture as alleged, that criminal charges be brought against them. In this respect, I note that Myanmar does not have a law to prohibit torture and has not joined the UN Convention against Torture and I urge that it does so.

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

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Thank you.

Urgent Appeals Programme
Asian Human Rights Commission (AHRC) (ua@ahrchk.org) and
Document Type :
Urgent Appeal Case
Document ID :
AHRC-UAC-137-2009
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.