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BURMA: Three more persons charged without evidence over September protests

August 6, 2008

ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAM

Urgent Appeal Case: AHRC-UAC-177-2008

8 August 2008
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BURMA: Three more persons charged without evidence over September protests

ISSUES: Rule of law; rights to liberty and security; police; military government; judicial system; illegal detention; freedom of expression
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Dear friends,

The Asian Human Rights Commission (AHRC) regrets to inform you of another three cases against three persons who were illegally detained after the protests in Burma last September against the rapid increases in fuel and commodity costs there. The three have been charged with a number of offences for supposedly distributing anti-government literature and being involved in illegal associations. But, the police have not produced any evidence to the court and could not even say on what days the alleged crimes were committed. In fact the investigations have all been done through military intelligence, and they have sent police to the court to present the case on their behalf, which is also a violation of the law.

CASE DETAILS:

Kam Lat Hkoat, Kat Hkant Kwal and Tin Htoo Aung were all arrested at the end of October 2007 and accused of offences in connection to the mass nationwide protests of September against the military regime. However, they were not kept in police custody and brought to a court as required by law. They were kept in illegal detention, allegedly tortured, and illegally investigated by military officials before being handed over to the police in order to have the case processed and put through the courts. 

Only on 20 January 2008, cases against the three men were lodged in court. They have been accused of distributing illegal information at the time of the protests, and of illegally exiting and re-entering the country, and of having contact with illegal groups.

But when the case was brought against the three men, it was revealed that the police officers presenting the case in court have no evidence at all against the accused. They read statements that were supposedly their confessions; however, this is inadmissible evidence. When one of the police officers, admitting that he knew that the evidence was inadmissible, was asked why he had presented it in court he said it was because he had been ordered to do this by his superiors.

The police also could not answer any questions about the evidence, or even say on what dates the supposed offences had been committed. Some questions they refused to answer on grounds of national security. Nor did they have any material evidence to show the court, such as the supposed illegal materials that the accused had distributed.

ADDITIONAL INFORMATION:

The AHRC has been documenting cases of illegal arrest, detention and prosecution since the nationwide protests in Burma last September and has in recent months also issued a number of other recent cases of young women imprisoned under similar circumstances and on similar charges, including the cases of Ko Htin Kyaw (AHRC-UAC-146-2008), U Ohn Than (AHRC-UAC-131-2008), Honey Oo and Aung Min Naing (AHRC-UAC-083-2008), Ko Thiha (AHRC-UAC-052-2008) and Khin Sanda Win (AHRC-UAC-022-2008).

For links and other material on the protests in Burma of August and September 2007 see: http://campaigns.ahrchk.net/burmaprotests/

See also the comprehensive report on Burma: "Burma, political psychosis and legal dementia" issued by the AHRC’s sister organisation and the 2007 AHRC Human Rights Report chapter on Burma.
 
SUGGESTED ACTION:
Please write to the persons listed below to call for the case against the three men to be dropped. Please note that for the purpose of the letter, the country should be referred to by its official title of Myanmar, rather than Burma.

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 Special Representative on human rights defenders, 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: No evidence to support case against three men accused of illegal activities at time of protests

Details of accused:
1. Kam Lat Hkoat a.k.a. Kyaw Soe, 34, a merchant, ID No. 5/KaLaHta(Naing)111244, residing in Yuzana Road, Ward 94, Dagon-seitkan Township, Yangon
2. Kat Hkant Kwal a.k.a. Kwalpi, 28, ID No. 5/KaLaHta(Naing)128196, residing in Lanmadaw Road, Kale Town, Sagaing Division
3. Tin Htoo Aung, 27, ID No. 11/RaBhaNa(Naing)053471, student, residing in Oatgyinbudayone Road, Ward 15, Hlaing Township, Yangon
Primary officials involved:
1. Captain Myo Min Latt, Military Affairs Security
2. Police Captain Myo Thant, No. La/127091, Special Branch, Dagon-seitkan Police Station
3. Inspector Hla Htun, No. La/124578, Special Branch
4. Inspector Htun Thein, No. La/112687, Criminal Investigation Department
5. Police Lt-Colonel Maung Maung Oo, No. La/59041, Special Branch
6. Sub-Inspector Myo Maung, No. La/139200, Special Branch
7. Inspector Myint Aye, No. La/127086, Special Branch
8. Warrant Officer Aung Ko Ko, No. La/145985, Special Branch
9. Inspector Htun Soe Thein, No. La/139240, Special Branch
10. Inspector Win Myint, Special Branch
11. Inspector Thet Tin, No. La/123903, Special Branch
12. Inspector Khin Myint, No. La/126459, Special Branch
Charge and trial: Charged under sections 17/20 of the Printers and Publishers Act 1962, Felony Case No. 353/2008; section 13(1), Immigration Law (Emergency Provisions, Temporary) 1947, Felony Case No. 354/2008; section 17(1), Illegal Associations Act 1908, Felony Case No. 355/2008; all cases in South Dagon Township Court; arrested on 29 October 2007, charge lodged on 20 January 2008; Judge Daw Htay Htay (Special Powers), presiding

I am very disappointed to hear of yet another three cases that have been concocted against persons who were illegally arrested and detained after the demonstrations in Myanmar of September 2007, and am urging that the three accused be released.

According to the information that I have received, Kam Lat Hkoat, Kat Hkant Kwal and Tin Htoo Aung were all arrested on 29 October 2007 and accused of a variety of offences in relation to the events of September, including that they printed and distributed anti-government materials at that time, and that in 2006 they had travelled to Thailand illegally and there met with members of organisations banned in Myanmar.

However, like other cases from last September and October, the three men were not taken to a police station and then brought before a magistrate as required by law (Criminal Procedure Code, CrPC, section 61). Instead they were held incommunicado and the charges framed and presented against them in court only on 20 January 2008. Thus they were kept in illegal detention in the interrogation cells within the central Insein Prison for 82 days, during which time it is alleged that they were tortured. It is also revealed that the case was in the hands of the army intelligence unit Military Affairs Security throughout this time and it was only turned over to the police for them to put the case into the court.

Unfortunately, this is only the beginning of illegality and wrongdoing in this case. When the case was brought into the court, it was found that the police officers presenting it have no evidence at all against the accused. They could not name what dates the supposed offences were supposed to have been committed. Other questions they refused to answer on grounds of national security or because they were not authorised.

The police had no material evidence to show the court to prove any of the allegations. Instead they just read confessions supposedly obtained from the accused. It is a violation of the law for a confession obtained in this way to be given in the court (Evidence Act, sections 25-26). When the defence lawyer for the three accused asked the police officer reading the confessions if he knew this, he said yes, but that he was following orders.

These are just some of the most glaring violations of law in this case. In light of the patent violations of the law on evidence, the lack of evidence presented to the court, and the police officers’ incapacity to answer even the most basic questions about the nature of the alleged offences, I urge that the court close the case and release the accused immediately. In the event that the court itself fails to do so I urge the Supreme Court of Myanmar to give directions to this effect in accordance with its powers as established by the new Constitution of Myanmar 2008.

I likewise call for the Attorney General to review the case and instruct the concerned law office to withdraw the case from the court as per section 4(b) of the Attorney General Law 2001, and for the Minister of Home Affairs and Director General of Police also to look into the matter both with a view to seeing the case withdrawn and also in order to review the work of their subordinates.

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 and not least of all, access to those persons and forcibly disrobed monks and nuns who have been held in violation of criminal procedure and without charge or trial since the events of last September.

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 (ua@ahrchk.org)

Document Type :
Urgent Appeal Case
Document ID :
AHRC-UAC-177-2008
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.