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BURMA: A man charged for having contact with overseas radio station

September 8, 2008

ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAM

Urgent Appeal Case: AHRC-UAC-200-2008

9 September 2008
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BURMA: A man charged for having contact with overseas radio station

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

The Asian Human Rights Commission (AHRC) has received detailed information on the case of a man who has been arrested and charged in Burma for having had contact with an overseas radio station, even though it is not illegal to do this. The man, Win Maw, was arrested following the nationwide protests in Burma one year ago for sending news abroad and has been charged with upsetting public tranquillity. His arrest and charging is just one among many cases in the continued crackdown on people involved in the rallies.  

CASE DETAILS

Win Maw was arrested on 27 November 2007 and charged by Special Branch police with having upset the public tranquility because during the protests against the increased fuel prices of that August and then the monk-led protests of September he sent news by phone and email and took photographs for the Norway-based Democratic Voice of Burma (DVB) radio, together with an assistant.

Win Maw, who was imprisoned previously for seven years under emergency regulations from 1996 to 2002 for performing as lead guitarist in a rock group, has been accused of sending false news abroad in order to damage the public well-being. The reason that the police have accused him of this offence is that it is not illegal for a person in Burma to have contact with overseas media, so by Win Maw sending the news to DVB he was not doing anything wrong: only if the police accuse him of sending false news with intent to harm the public can they try to make a case out of nothing.

The case opened against Win Maw at the end of March in a closed court, like other cases from the protests of last year, which is against the normal procedure of courts in Burma. Again as in other cases of its type from last year, the police couldn’t present anything to show that Win Maw had been sending the news in order to do what they said he had done.

The police gave a list of "evidence" to the court which includes legally-published books, some photos of democracy leader Daw Aung San Suu Kyi, which also are not illegal, and a computer hard disk. If Win Maw had prepared anything against the law as accused the police should have been able to find it on the hard disk and present it as evidence, but they have not. Also, what they recorded on the evidence list as 18 "political" texts they admitted in the court are actually just English learners from the American Center in Rangoon where Win Maw had gone to study. And, all of the witnesses being brought to the court are police except for two civilians, as required by law at the time of search, who were brought by the police for that purpose and are not independent.

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 three men who harboured a monk (AHRC-UAC-188-2008), Kam Lat Koat and two others (AHRC-UAC-177-2008), 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 on 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 Win Maw 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: Man arrested and charged for having contact with overseas radio

Details of accused:
Win Maw (a.k.a. Maw Kyi), 46, resident of Kyundaw Ward, Sanchaung Township, Yangon
Primary officials involved:
1. Police Major Ye Nyunt, No. La/58188, Special Branch
2. Police Captain Myint Than, No. La/112720, Special Branch
3. Inspector Kyaw Sein Win, Special Branch
4. Inspector Thet Tin, No. La/123903, Special Branch
5. Inspector Khin Myint, No. La/126459, Special Branch (Myawaddy)
6. Inspector Myat Kyaw, No. La/112787, Special Branch
Charge and trial: Charged under section 505(b) of the Penal Code with upsetting public tranquility, Felony Case No. 313/2008; Mingalar-taungnyunt Township Court, Yangon, Judge U Tin Latt (Special Power) presiding

I am sorry to hear of a man who has been arrested and charged for having had contact with an overseas radio station during the unrest in Myanmar of August-September 2007 and am appealing to you for his immediate release.

According to the information that I have received, Win Maw was arrested on 27 November 2007 and charged by Special Branch police with having upset public tranquility because he sent news by phone and email and took photographs for the Norway-based Democratic Voice of Burma (DVB) radio, together with an assistant. 

I am interested to note that it is not an offence to send news to overseas media from Myanmar. Thus there is no category of special crime under which Win Maw could be charged and as a consequence the police have had to concoct the allegation that he was sending "false" news in order to damage the public well-being.

In order to prove this charge the police must show that the news that was sent was false and that it was done with the purpose of causing damage to the public tranquility. But they have presented no evidence of any sort to show this. Rather, the police "evidence" submitted to the court since the trial began on 28 March 2008 consists of odds and ends that they picked up from the house of the accused.

These items include some legally-published books that belonged to Win Maw's father and bear his signature, some photos of Daw Aung San Suu Kyi, which are not illegal, and a computer hard disk. If Win Maw had committed the offence of which he had been accused then it should have been possible for the police to present evidence uncovered from the hard disk, but instead just the hard disk has been submitted as evidence. As if this wasn't enough, what the police recorded on the evidence sheet as 18 "political" texts they admitted in court are actually just English learners from the American Center in Yangon where Win Maw had gone to study. Finally, all of the prosecution witnesses that have been listed for the court are police except for two civilians, as required by law at the time of search, who were brought by the police for that purpose and are not independent.

In light of this patent lack of evidence 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 (AHRC) (ua@ahrchk.org)

Document Type :
Urgent Appeal Case
Document ID :
AHRC-UAC-200-2008
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.