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BURMA: A man charged without evidence for sending news abroad

October 7, 2008

ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAM

Urgent Appeal Case: AHRC-UAC-223-2008

8 October 2008
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BURMA: A man charged without evidence for sending news abroad

ISSUES: Rule of law; rights to liberty and security; military government; judicial system; illegal detention; freedom of expression; torture
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NEW PUBLICATION
SAFFRON REVOLUTION IMPRISONED, LAW DEMENTED
www.article2.org

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Dear friends,

The Asian Human Rights Commission (AHRC) has been closely following and documenting the detentions and trials in Burma following last September's mass protests. In this appeal we bring you the case of Zaw Min, who was accused of having sent news abroad, although no independent witnesses or evidence have been brought to the trial against him. The non-legality and abuse in his case follows the same pattern as others of its type on which appeals have already been issued.

CASE DETAILS

Zaw Min, also known as Paung Paung, 39, was detained at the end of November 2007 and has been charged with upsetting public tranquility for having sent "false news" abroad about the protests and conditions for detainees afterwards.

The case was not brought to the court until 26 March 2008 before which time Zaw Min was held illegally, apparently in the custody of military intelligence where he is believed to have been tortured.

The list of prosecution witnesses in his case consists only of five Special Branch officers, including the officer bringing the case. As in other similar and related cases (including that of Win Maw: AHRC-UAC-200-2008) the police have brought no evidence to match the elements of the charge against the accused, and in fact no evidence at all. They allege that they had arrested Zaw Min in possession of a memory stick with photographs on it but they could not produce the memory stick in court. Nor could they produce documents in court to show that he had produced any false news.

The absence of evidence can be partly explained by the fact that as in other cases of its sort, the police were not actually the ones to have made the arrest of the accused. Rather, it was the military intelligence that took and interrogated Zaw Min and then gave the case to the police with instructions on how to prosecute it, even though this is against the law. 

The police officer handling the case also presented a confession to the court obtained from Zaw Min while he was in custody, probably through the use of torture, and read it to the court in order to "refresh his memory" which violates the Evidence Act not only as such confessions are not allowed but also because material brought to refresh the memory of a witness must be that which the witness wrote him or herself.

Zaw Min was previously imprisoned from 1991 to January 2007 on charges of involvement in student politics.

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 blogger Nay Phone Latt (AHRC-UAC-204-2008), 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 reports "Burma, political psychosis and legal dementia" and "Saffron Revolution imprisoned, law demented" issued by the AHRC’s sister organisation, as well as the 2007 AHRC Human Rights Report chapter on Burma.
 
SUGGESTED ACTION:

Please write to the persons listed below to call for the charge against Zaw Min 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:
Zaw Min (a.k.a. Paung Paung), 39, resident of Payakone Village, Thanlyin Township, Yangon Division
Primary officials involved:
1. Police Major Ye Nyunt, No. La/58188, Special Branch
2. Inspector Thet Naing, No. La/114384, Operations, Special Branch
3. Police Captain Kyaw Soe, No. La/59054, Special Branch
4. Inspector Myint Aye, No. La/127086, Internal Affairs, Special Branch
5. Inspector Kyaw Than, No. La/128907, Special Branch
Charge and trial: Charged under section 505(b) of the Penal Code with upsetting public tranquility, Felony Case No. 112/2008 Sanchaung Township Court, Judge Daw Than Htay (Special Power), Assistant Township Judge, No. Ta/2043 presiding

I am writing to you concerning the patently illegal arrest and unfair trial of a man accused of having sent "false" news abroad during 2007 and I am appealing to you for his immediate release.

According to the information that I have received, Zaw Min was arrested around the end of November and has been charged with upsetting public tranquility for having sent "false news" abroad about the rallies in Myanmar during September and conditions for detainees afterwards. However, his case was not brought to the court until 26 March 2008 before which time Zaw Min was held illegally. 

Unfortunately, this is only the first of many breaches of law in his case to which I feel obliged to draw your attention, specifically, numerous breaches of the Evidence Act:

1. No material evidence of any kind: The police allege that they had arrested Zaw Min in possession of a memory stick with photographs on it but they could not produce the said memory stick in court. Nor could they produce documents in court to show that he had produced any false news as claimed.

2. No independent witnesses or eyewitnesses: The five prosecution witnesses listed are all Special Branch police officers. There are no independent witnesses at all. None of the five police officers have been able to give direct oral evidence of the offence as required under the act (section 60), because they themselves did not conduct the investigation but instead are apparently acting under orders from Military Affairs Services personnel.

3. Unlawful confession: The police also presented a confession to the court obtained from Zaw Min that was obtained while he was in custody, believed to have been extracted through the use of torture, and read it to the court in order to “refresh his memory” which violates the act not only as such confessions are not allowed but also because material brought to refresh the memory of a witness must be that which the witness wrote him or herself (sections 26, 159).

4. Irrelevant facts submitted to court: The police testified that the accused had previously been convicted and that he has a bad character even though this was not relevant to the case and again a violation of the act (section 59). 

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 (ua@ahrchk.org)

Document Type :
Urgent Appeal Case
Document ID :
AHRC-UAC-223-2008
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.