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BURMA: Court sentences ailing Phyo Wai Aung to death after patently unjust trial

May 10, 2012

ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAMME

Urgent Appeal Update: AHRC-UAU-015-2012

10 May 2012

[AHRC-UAU-010-2012: BURMA: Appeal for retrial or release of accused and dismissal of judge in Phyo Wai Aung case]
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BURMA: Court sentences ailing Phyo Wai Aung to death after patently unjust trial

ISSUES: Independence of judges & lawyers, right to fair trial, fabrication of charges, torture
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CAMPAIGN PAGE: FREE PHYO WAI AUNG
http://www.humanrights.asia/countries/burma/phyo-wai-aung

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Dear friends,

The Asian Human Rights Commission (AHRC) regrets to inform you that a judge in a closed courtroom at the central prison in Burma on May 8 sentenced Phyo Wai Aung, the accused in a bombing case arising from April 2010 to death after a patently unjust trial. As the judge was evidently following orders from other parts of government, please join with us to call for interventions first to have the death sentence quashed and second to secure the release of the accused.

CASE UPDATE:

In previous appeals and statements the AHRC already expressed concerns over the case of Phyo Wai Aung, who was arrested on 22 April 2010, a week after the explosions at the annual water festival, and whom the police chief in a press conference declared a terrorist. Full details of the case are available on the campaign website (above).

On 6 May 12 in anticipation of the verdict being issued on May 8, the AHRC issued a statement (AHRC-STM-098-2012) in which it outlined 10 respects in which the case against Phyo Wai Aung was flawed and illegal. These were that the defendant was illegally arrested, illegally detained and tortured to confess; that his confession was taken illegally; that he was tried in closed court; and that the police submitted--and the court accepted--fabricated, contradictory and inadmissible evidence; that the police failed to submit important evidence; and, that the defendant was denied his right to make a full defence.

Despite the manifold abuses of the defendant in this case, on May 8 the court sentenced the accused in four cases to a multitude of penalties, ranging from the death sentence to a number of lengthy jail terms. The court arrived at its verdicts based upon the confession of the accused, which was extracted by torture, and by ignoring the extensive and detailed arguments and evidence of the defence pointing to the errors in the case and the torture of the defendant. From observation of cases of this sort over many years, we conclude that the court was acting under orders from some other agency and was working backwards from the convictions and maximum penalties imposed to establish some scanty grounds for them.

Meanwhile, the brother of the defendant on April 26 made a special appeal to various authorities for urgent medical treatment for Phyo Wai Aung. In his appeal he wrote that his brother is suffering from liver disease, tuberculosis and Hepatitis-B and has not received adequate treatment in prison. He has pointed out that although since the time that his brother was sent to the central prison in May 2010 he had asked for him to have access to a specialist, the prison authorities had refused him this access and he had only been able to get treatment from the medical officer in prison. Since March 2012 due to the liver ailment he has suffered severe pain and has had to lie down most of the time.

The men's father died due to liver disease and complications, and the family is very much worried that if left untreated the illness could soon become life threatening. Therefore, while Phyo Wai Aung remains in custody and the matters of the case remain pending, he is in urgent need of adequate medical treatment, including by specialists using equipment at facilities located outside the prison.

Further details of the case are provided in the sample letter, below.

SUGGESTED ACTION:

Please write to the persons listed below to call for the release of Phyo Wai Aung, and for urgent medical treatment. 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, Yangon.

Please be informed that the AHRC is sending letters on this case to the UN Special Rapporteurs on Myanmar, on the independence of judges and lawyers, and on torture; the UN Working Group on Arbitrary Detention and the regional human rights office for Southeast Asia, calling for further interventions.

SAMPLE LETTER:

Dear ___________,

MYANMAR: Call for intervention to release Phyo Wai Aung and for specialist medical attention

Details of accused: Ko Phyo Wai Aung, a.k.a. Mohammad Sharvan, electrical engineer/ contractor, resident of Ward 2, Pazundaung Township, Yangon, Myanmar

Sentences: All sentences delivered at the Insein Central Prison; Yangon Western District Court, District Judge U Aung Thein

1. Criminal Case No. 102/2010, Penal Code, sections 302(1)(b)/326/324/114, abetting murder and the causing of hurt: death sentence for abetting murder, 13 years in prison for abetting the causing of hurt and grievous hurt

2. Criminal Case No. 103/2010, Explosive Substances Act 1908, section 3: life sentence

3. Criminal Case No. 104/2010, Unlawful Associations Act 1908, section 17(1): 3 years in prison

4. Criminal Case No. 105/2010, Immigration (Emergency Provisions) Act 1947, section 13(1): 3 years in prison

I greatly regret to learn that a man who was tortured and against whom a fabricated case was brought over an April 2010 bombing has been sentenced to death by a judge sitting at a court inside the central prison in Yangon on 8 May 2012, and I call for intervention from the relevant parties in Myanmar to secure his release. I am also alarmed by reports of his deteriorating medical condition and urge that he be given specialist treatment without delay.

According to the information that I have received, the case against Phyo Wai Aung was flawed and illegal. The defendant was illegally arrested, illegally detained and tortured to confess; his confession was taken illegally; he was tried in closed court; and the police submitted--and the court accepted--fabricated, contradictory and inadmissible evidence; the police failed to submit important evidence; and, the defendant was denied his right to make a full defence.

Despite these manifold abuses of the defendant's rights, the court has reached these rather incredible verdicts via the expedient of reliance upon the confession of the accused, which was extracted by torture. Indeed, I understand that the main basis for the sentences was that some prosecution witness statements and some material evidence corroborated parts of the confession. Naturally, as the police had tutored the accused on what to say, having tortured him for six days consecutively, the contents of the forced and fabricated confession would correspond with whatever other elements of the case the police had prearranged. Therefore, the court's reasoning on this count is entirely spurious and circular.

Aside from the above, I am led to understand that the court had no other basis for the convictions. I also note that it could arrive at the convictions only by ignoring the extensive and detailed arguments and evidence of the defence pointing to the errors in the case and the torture of the defendant. I can only conclude that the court ignored the arguments of the defence because it was duty-bound to reach a guilty verdict and that to raise those arguments in issuing the verdict would have presented the court with needless difficulties.

Accordingly, I urge that the necessary persons intervene to secure the release of this defendant through means other than those afforded by the judiciary, and that his sentences are overturned.

I also want to take this opportunity to draw attention to a letter by the brother of the defendant submitted to the prison authorities on 26 April 2012 concerning the family's grave concerns for the health of Phyo Wai Aung, who is suffering from liver disease, pulmonary tuberculosis and Hepatitis-B, for which he has not received adequate treatment in prison. Phyo Wai Aung's brother has pointed out that although since the time that his brother was sent to the central prison in May 2010 he had asked for him to have access to a specialist, the prison authorities had refused him this access and he had only been able to get treatment from the medical officer in prison. Since March 2012 due to the liver ailment he has suffered severe pain and has had to lie down most of the time.

The men's father died due to liver disease and complications, and the family is very much worried that if left untreated the illness could soon become life threatening. Therefore, while Phyo Wai Aung remains in custody and the matters of the case remain pending, he is in urgent need of adequate medical treatment, including by specialists using equipment at facilities located outside the prison. I urge the relevant authorities to ensure that he obtains the necessary treatment, and in this regard I note section 22(2) of the United Nations Standard Minimum Rules for the Treatment of Prisoners, that, "Sick prisoners who require specialist treatment shall be transferred to specialized institutions or to civil hospitals." According to the information I have received, medical personnel have been explicitly instructed that they are prohibited from transferring him out of the prison for treatment. If true, such an order would constitute an explicit breach of this rule. I therefore urge the relevant officials to order inquiries to establish if in fact such an order has been given, and if so to overturn it, so as to ensure that the detainee receives the medical treatment that he requires.

In closing, I note that although the government of Myanmar is obtaining much congratulations and support for the efforts that it is making to bring about substantial political change in its country, so long as cases of this sort persist in passing through the courts the people of Myanmar could not be described as free from oppression or authoritarianism, since the threat that hangs over any person is that he or she could suffer the same types of abuses and injustices as those experienced by Phyo Wai Aung. I therefore urge the government to demonstrate its stated commitment to the rule of law by concentrating on meaningful and lasting changes to the legal, policing and judicial systems, such that cases of this sort will not occur in the future.

Yours sincerely,

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PLEASE SEND YOUR LETTERS TO:

1. U Thein Sein
President of Myanmar
President Office
Office No.18
Naypyitaw
MYANMAR

2. U Tun Tun Oo
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

3. U Hla Min
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

4. Dr. Tun Shin
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. U Kyaw Kyaw Htun
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

6.Thura U Aung Ko
Chairman
Pyithu Hluttaw Judicial and Legislative Committee
Pythu Hluttaw Office
Naypyitaw
MYANMAR.

7.U Aung Nyein
Chairman
Pyithu Hluttaw Judicial and Legislative Committee
Committee for Public Complaints and Appeals
Amyotha Hluttaw Office
Naypyitaw
MYANMAR

8. U Win Mra
Chairman
Myanmar National Human Rights Commission
27 Pyay Road
Hlaing Township
Yangon
MYANMAR
Tel: +95-1-659668
Fax: +95-1-659668

Thank you.

Urgent Appeals Programme
Asian Human Rights Commission (AHRC) (ua@ahrc.asia)

Document Type :
Urgent Appeal Update
Document ID :
AHRC-UAU-015-2012
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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.