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BURMA: Three men charged for harbouring a monk after 2007 protests

August 20, 2008

ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAM

Urgent Appeal Case: AHRC-UAC-188-2008

20 August 2008
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BURMA: Three men charged for harbouring a monk after 2007 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 that yet another three persons have been charged over the protests of last September 2007 in Burma. The three are charged with harbouring a monk who was involved in leading the protests, but as in other cases like it, the police have come to the court without evidence, without having themselves investigated the case, and openly admitting that they are testifying on the orders of superior officers. 

CASE DETAILS

Kyaw Win Chay, Maung Maung Than Shwe and Aung Hsun Min have been charged with hiding one of the monks at the forefront of last September's protests. The police arrested them at the end of October and charged them on 20 January 2008.

Their case is running in parallel with that of another three men against whom a variety of charges have been made and about whom the AHRC has already issued an appeal (AHRC-UAC-117-2008). As in that case, there was a lengthy gap between when the men were investigated and first detained and when they were charged in court. As in that case also the police have appeared in court, which is being held inside the central prison, to testify on an investigation that they themselves did not make, instead referring to the work of "combined units", meaning military intelligence or other authorities. And again as in that case the police have admitted to having no evidence and not actually being involved in the investigation proper, but having come to the court to testify on orders of superior officers whose names they had not been authorised to reveal to the court. 

Nor could the police present in the court explain what offences the monk whom the three are supposed to have harboured had himself committed, other than having been a part of the rallies in which tens of thousands of monks and people took part, or give evidence of the fact that he had stayed with the accused or that they knew that he was in hiding, since he was by then wearing ordinary civilian clothes to hide his identity and there was no warrant of arrest out against him upon which the accused could be said to know that he was a fugitive.
 
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).

Similarly, it has been following the growing number of arrests and legal actions taken against persons who have launched their own cyclone relief operations since May. See most recently the arrest of human rights defender U Myint Aye and two others: AHRC-UAC-183-2008.

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 charge 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. Kyaw Win Chay, 28, ID No. 11/MaPaTa(Naing)033649, a contractor residing in Narnatdaw Road, Ward 8, Kamaryut Township, Yangon
2. Maung Maung Than Shwe, 24, ID No. 11/PaNhaKa(Naing)047160, a student residing at the same address as Kyaw Win Chay
3. Aung Hsun Min (a.k.a.) Choe Min, 45, 12/ThaHkaKa(Ei)000027, private telephone operator residing at West Myinpainggwin Road, Boe Sein Hman Ward, Bahan, Yangon
Primary officials involved:
1. Police Captain Myo Thant, No. La/127091, Special Branch, Dagon-seitkan Police Station
2. Inspector Hsan Lwin, No. La/93286, Special Branch
Charge and trial: Charged under section 212 of the Penal Code with harbouring an offender, Felony Case No. 356/2008; New Dagon (Southern) Township Court; heard in special court at Insein Prison, Judge Daw Htay Htay (Special Powers), presiding

I am very disappointed to hear of still yet another three men who have been detained and charged without evidence and with many procedural breaches of law after the demonstrations in Myanmar of last September 2007, and am urging that they be released.

According to the information that I have received so far, Kyaw Win Chay, Maung Maung Than Shwe and Aung Hsun Min have all been charged for allegedly illegally harbouring a monk, U Awbartha (name before entering monkhood Thura Aung a.k.a. Win Aung), who was a leader in the demonstrations. However, like other cases since last September this case too is full of breaches of ordinary criminal law and is completely evidence-less.

To begin with, the men were detained at the end of October 2007 but 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.

Then, the case against them has evidently been fabricated by intelligence officials or persons other than the investigating police who have come to the court. A police officer deposing to the court has freely admitted that he did not himself examine the accused and instead had been ordered to testify. He acknowledged that there was no evidence that the monk had actually been harboured by the accused, or that if they had housed him they had known that he was a monk fleeing from the protests, because he was by then wearing civilian clothes to conceal his identity. He did not know what charges had been laid against the monk either, only that there was no warrant out against him at the time that the accused had allegedly harboured him and that he had somehow been involved in the protests along with thousands of others. He said that he had been ordered to come and testify by a superior in the Special Branch but was not at liberty to give the name of that superior to the court. He and other officers have repeatedly said that they were working with "combined units" of officials to make these and other arrests but also have not given any details of the persons or groups in those units to the court.

As in other similar cases that have followed from last September, the police had no material evidence to show the court to prove any of the allegations. Instead they have just pushed detail-free charges into the courts on behalf of other persons and agencies. In light of the patent violations of the procedure law, 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.

With regards to the court process itself I also wish to express my dissatisfaction that this and other cases like it are being heard behind closed doors, in this case within the prison itself, which is in violation of the Judiciary Law 2000, section 2(e), and call for any such trials, irrespective of other factors, to be conducted in open court.

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-188-2008
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.