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UPDATE (Burma): Closed door trial sentenced blogger to over 20 years

November 13, 2008

ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAMME

Urgent Appeal Update: AHRC-UAU-070-2008

13 November 2008

[RE: AHRC-UAC-204-2008: BURMA: Blogger charged without evidence for upsetting tranquility during protests]
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BURMA: Closed door trial sentenced blogger to over 20 years

ISSUES: Rule of law; rights to liberty and security; military government; judicial system; illegal detention; freedom of expression
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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) regrets to inform you that a blogger whom we reported earlier to have been charged without evidence has been sentenced on November 10, 2008 to over 20 years of imprisonment. The judgement was rendered after closed door hearings. It consisted of a combined sentence for the three different charges laid upon him.

UPDATED INFORMATION:

As we have mentioned in our previous appeal AHRC-UAC-204-2008, there were irregularities in the filing of charges against the blogger, Nay Phone Latt.

Following his arrest, his conviction concluded after nearly ten months of a closed door trial at the Insein Prison which is not a regular court. This is the same court where cases of dozens of other activists and protestors, charged in connection the August and September 2007 incident, are being heard.

In handing down the sentence, Judge Daw Soe Nyan, convicted Nay Phone Latt for two years for violation of the article 505 (b) of the Penal Code with upsetting public tranquility; three years and six months for violation of article 32 (b) of the Video Act; and 15 years for violation of article 33 (a) & 38 of the Electronic Act. Judge Daw Soe is the deputy district judge at the Yangon Western District Court.

Since Nay Phone Latt's trial was held behind closed doors, and at the time when the court promulgated it's judgement, the accused's mother, Aye Aye Than, had to wait outside the court to hear the court's ruling on her son. She told the journalists in an interview:

"We were waiting outside during the court proceedings and after the court session we asked the judge about the amount of punishment. The judge and prosecutor informed us regarding the judgment," she said.

Days before Nay Phone Latt was sentenced, his defense counsel, Aung Thein, had also been sentenced for four months in absentia for contempt of court on November 7. For details regarding this case read: AHRC-STM-289-2008. Aung Thein has also been appearing for several other accused charged at the same court.

Thus, Aung Thein's arrest and subsequent detention would effectively hinder the possibility of having Nay Phone Latt's conviction appealed promptly in court.

Another accused also sentenced on the same day was Saw Wei, a poet who wrote a short poem entitled: 'February 14'. He was sentenced for two years' imprisonment for charges of 'inducing crime against public tranquility'. For related article about this case, please read: Poetic injustice.

Saw Wei was arrested in February 2008 after the publication of his poem in the Weekly 'Ah Chit' (love) Journal. In his poem, written in Burmese, he wrote what roughly translates as "Pow-er cra-zy Gene-ral Than Shwe" into the opening syllables to each line of the poem, which has provoked the authorities.

PROFILE OF THE ACCUSED:

Nay Phone Latt, 28 years old, is a known blogger in Burma. In 2007 he set up a small Internet shop at his house in Rangoon. Later in the year, he became involved on the sidelines of the protests against the military government.

He is also a youth member of Burma's main opposition party, the National League for Democracy (NLD). He also operates internet shops in several townships in Rangoon including "The Explorer" in Pabedan Township; and "Heaven" in Thingangyun Township.

Nay Phone Latt's blog had been a source of invaluable information from inside Burma to the outside world at the height of the September 2007 uprising there. He was the first blogger to be charged, arrested and convicted in Burma for his involvement in the protest against the military government through blogging.

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 human rights defenders as well as independence of judges and lawyers, 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: Closed door trial sentenced blogger to over 20 years

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
Status of his case: He was convicted with a combined sentence of 20 years and six months for charges 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 shocked to learn that Nay Phone Latt, a blogger charged without evidence, had been sentenced to 20 years and six months imprisonment after nearly ten months of a closed door trial for the three charges mentioned above.

On November 10, presiding judge Daw Soe Nyan hearing the case convicted him for two years for violation of the article 505 (b) of the Penal Code; three years and six months for violation of article 32 (b) of the Video Act; and 15 years for violation of article 33 (a) & 38 of the Electronic Act respectively.

The charges stemmed from accusations against him that he had defaced the images of national leaders that he wrote regarding the September 2007 protest, that he had cartoons in his email inbox and that he allegedly distributed them through the Internet.

In my previous letter, I have rightly pointed out irregularities in the filing of charges against him, from the time it was investigated by the Special Branch of the police and its filing before the prosecution. The police have clearly not presented any substantial evidence that he had himself been responsible for the distribution of the contents that they found in his email inbox. Merely having those in his email inbox alone should not be sufficient evidence for a conviction.

Also, to sentence him for violation of the Video Act for allegedly copying and distributing a video performance of an entertainment troupe, is also not relevant in his case. Whether or not he had committed the crime as they had alleged, the court's jurisdiction on matters involving violations of domestic laws does not apply and are irrelevant since the incident took place in Singapore.

I am also particularly concern by the manner in which the court proceedings were conducted.

The hearing of his case was done behind closed doors inside the Insein Prison, which is not a regular court. It should have been conducted in an open court as required under the Judiciary Law 2000. It is obvious that the court not only failed to substantiate the allegations to warrant a conviction, but they also lacked transparency in the proceedings of the trial. This has raised serious questions about their impartiality, if there remains any impartiality at all.

The filing of charges for contempt and the subsequent arrest of the accused defense lawyer, Aung Thein, days before the sentence had been passed, had effectively deprived the accused of any possibility of seeking an appeal or review of his conviction. Thus, only after his lawyer is released from prison, would he be able to take legal remedy, if he so decides.

I once again urge you to ensure that the charges against the accused are dropped unconditionally. The obvious irregularities in the filing of charges and the court proceedings should be sufficient enough for the reviewing authority. However, should his sentence be reviewed by a higher court, they could nullify the sentence and see to it that he is released without delay.

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 Update
Document ID :
AHRC-UAU-070-2008
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.