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BURMA: Blogger charged without evidence for upsetting tranquility during protests

September 12, 2008

ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAM

Urgent Appeal Case: AHRC-UAC-204-2008

12 September 2008
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BURMA: Blogger charged without evidence for upsetting tranquility during protests

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 been closely following the case against a blogger in Burma who has been arrested and charged in connection with last year's monk-led protests. The blogger, Nay Phone Latt, has been charged with distributing material to upset the public tranquility, but like in other cases of this sort there is not sufficient evidence against the accused, and he was also interrogated in army custody and sent for trial in a closed court.  

CASE DETAILS:

Nay Phone Latt in 2007 set up a small Internet shop at his house in Rangoon. Later in the year, he was involved on the sidelines of the protests against the military government.

Nay Phone Latt was arrested at the end of January 2008 and accused of having defaced images of national leaders, writing and cartoons in his email inbox and having distributed these in order to upset the public tranquility. According to the police, in December 2007 when he went to Singapore he also met political activists and went to see the "Four Fruits" (Thi Lay Thi) entertainment troupe, whose CDs of performances he copied and passed to others, among other things.

There is as in other cases arising from last year's protests a range of problems with the cases against Nay Phone Latt. To begin with, first the police have not presented any evidence that he had himself been responsible for distributing any of the contents that they found in his email inbox, which he had received from elsewhere, not made himself. He did not post any of them or anything else inflammatory to his blog (http://nayphonelatt.blogspot.com). Secondly, the information given by the police on events in Singapore are irrelevant to the cases that have been lodged against him. Thirdly, the entertainment troupe had up to the time that it went to Singapore had its CDs freely sold in Rangoon. Fourthly, Nay Phone Latt was interrogated and detained at an army camp, a fact acknowledged by the investigating officer in his testimony, which is a flagrant violation of the law on evidence. And finally, fifthly, the case was yet again heard in a closed court inside the Insein Prison, rather than in an open court as should usually be done by law.

Nay Hpone Latt has been charged by the same police officer that has brought the case against Win Maw for having contact with an overseas radio station (AHRC-UAC-200-2008). However, it is not only the investigating officer who is the same. The so-called witnesses of the search conducted in the two cases also are exactly the same people, although the arrests and searches took place weeks apart. The purpose of having two people act as witnesses is so that there is an independent account of police actions in conducting a search. But this police officer is evidently taking his own "witnesses" along with him to multiple searches and arrests to have them fill out the form for him as required by procedure and without any regard to the purpose of having the witnesses there.

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 charges against Nay Phone Latt  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, and Rangoon as Yangon.

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 blogging on September 2007 rallies

Details of accused: Nay Phone Latt, a.k.a. Ne Myo Kyaw, Internet franchise owner, ID No. 12/KaTaTa(Naing)026013, Thuwanna-thanthumar Main Road, Thingangyun Township, Yangon
Investigating officer: Police Major Ye Nyunt, No. LA/58188, Special Branch
Charge and trial: Charged under section 505(b) of the Penal Code with upsetting public tranquility; section 32(b) of the Video Act; sections 33(a) & 38 of the Electronic Transaction Law 5/2004; Felony Case Nos. 69-72/2008 Yangon Western District Court, Judge Daw Soe Nyan, Deputy District Judge, No. Ta/1761 presiding

I am sorry to hear of a man who has been arrested and charged for having blogged on 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, Nay Phone Latt was arrested at the end of January 2008 and accused of having defaced images of national leaders, writing and cartoons in his email inbox and having distributed these through the Internet. According to the police, in December 2007 when he went to Singapore he also met political activists and went to see the "Four Fruits" (Thi Lay Thi) entertainment troupe, whose CDs of performances he copied and passed to others.

From what I have learned, there are a number of very serious defects with the cases against Nay Phone Latt, including but not limited to the following:

First, the Special Branch police have not presented any evidence that he had himself been responsible for distributing any of the contents that they found in his email inbox, which he had received from elsewhere, not made himself. The fact that he distributed such material with intent to upset public tranquility is very important to the case. That he had it in his email box alone is not sufficient.

Secondly, the information given by the police on whatever the accused did or didn't do in Singapore is plainly irrelevant to the charges against him, which all relate to events under the domestic law, and so it should have been omitted from the trial process completely.

Thirdly, the investigating officer admitted during his testimony to the court that Nay Phone Latt had been interrogated and detained at an army camp, which is a flagrant violation of Evidence Act (sections 25-26).

Lastly, the case was yet again heard in a closed court inside the Insein Prison, rather than in an open court as required under the Judiciary Law 2000, for reasons that I am not able to understand as the accused clearly does not comprise a security threat to the state in Myanmar and there is no reason that his case should be heard behind locked doors.

I also note with interest that the two "witnesses" identified as having been present for the search of Police Major Ye Nyunt on the defendant's premises are not independent. They have appeared also in other cases for this police officer against detainees from last year, and their continued use by this officer is obviously a scam and a sham to have his people witness events for the sake of records.

In light of this patent lack of evidence and defects with the prosecution witnesses 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, in particular, that of Police Major Ye Nyunt whose work for Special Branch, which is supposed to carry a long and fine tradition, is nothing more than an utter shambles and a fraud. 

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-204-2008
Countries :
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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.