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BURMA: Another villager appealing jail term for complaint against officials

February 19, 2007

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ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAM

19 February 2007
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UA-054-2007: BURMA: Another villager appealing jail term for complaint against officials

BURMA: Impunity; un-rule of law
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Dear friends,

The Asian Human Rights Commission (AHRC) has received information about a villager who has been jailed for one year in Burma after complaining about the illegal activities of local authorities. Daw Khin Win was sentenced in November to one year in jail after the officials lodged a counter-complaint against her for complaining about various types of corruption. The closing arguments of her appeal to the Yangon Division Court are  20 February 2006. Her case follows many other similar cases of complainants themselves being made into the accused and jailed in Burma.
 
CASE DETAILS:

According to detailed information received from a number of sources, in November 2004 51-year-old Daw Khin Win complained about the village tract authorities of various corrupt activities. She alleged that they had colluded with cattle thieves and taken money from them for each head of cattle stolen and smuggled, had been involved in illegal transactions over transfer and use of land, had inflated the acreage on record under the 2004-05 rainy season paddy crop in order to get additional state supplies of diesel and fertilizer to sell for their own profit, and had had persons dismissed from the village council re-elected to the higher up township council.

After Khin Win sent a letter to the chairman of the Southern Rangoon district council, it set up a special investigation team. However, this group did not question either her or other villagers who supported her, only the village tract officials. It also allegedly forced them to sign blank documents. Then the district council gave an order to the lower authorities to prosecute Khin Win for making false allegations against the authorities, which they did on 27 September 2005. 

Khin Win alleges that during the preliminary investigation of the case she was also threatened by the township judge that she should have no contact about her case with anyone outside or she would give her the maximum two year sentence. However, Khin Win refused to comply. She also successfully applied to have the hearings transferred to another court on October 24 because of the influence of the prosecuting authorities over the local court.

Notwithstanding, only seven of the 12 witnesses for Khin Win appeared at the court, allegedly due to warnings by local authorities that they would not get any agricultural loans, fertilizer or other assistance needed for their farms. Khin Win's lawyers also were not allowed to examine witnesses during the proceedings, and witnesses were prevented on giving testimonies about matters on which Khin Win had complained. The court also concluded that there were no grounds for the complaint about cattle theft because there were no eyewitnesses brought to the court to support this allegation, despite the fact that one had clearly testified that he had seen a transaction.

Khin Win was found guilty of making false accusations by the court and sentenced to one year in jail on 27 December 2006. She was transferred to central Insein Prison. She earlier said in a radio interview that she was prepared to go to jail to defend what was right. Khin Win was also bankrupted by having to spend money on court cases and due to lost time to work on her farm.

Daw Khin Win received support for her complaints from human rights defender Ma Su Su Nwe, the villager who with the backing of the International Labour Organisation made the first successful complaint of forced labour in Burma and was herself subsequently imprisoned after the local authorities counter-sued her (see the homepage on her case set up by the AHRC: www.ahrchk.net/masusunwe). The judge who allegedly threatened Khin Win is the same one who convicted Su Su Nwe. After Su Su Nwe and other members of the opposition political party, National League for Democracy, came to the court to support Khin Win on 13 November 2006 an article appeared in state-run newspapers accusing them of interfering in the case and stating plainly that Khin Win had made baseless allegations against government officials.

Khin Win's appeal against the conviction is being heard in the Supreme Court today, February 19. The court will decide on the case next week.


ADDITIONAL INFORMATION:

Daw Khin Win's case is one among many instances of villagers who have complained against the authorities in Burma themselves being made the target of legal action. In addition to the case of Ma Su Su Nwe, mentioned above, some of the similar cases documented by the AHRC include:

U Tin Kyi was jailed for supposedly insulting authorities about an agricultural project adjacent to his own property (UA-292-2006);

U Tin Nyein was jailed for complaining about the destruction of his crops due to incompetent government officials (UA-155-2006); he was released after eight months' imprisonment, at the start of February 2007 (UP-018-2007);

U Aye Myint was jailed for helping farmers to make a complaint about land usage by the government, and was released only after intense pressure from the International Labour Organisation (ILO) (UP-139-2006; UA-119-2006);

U Aye Min & U Win Nyunt were jailed for complaining about local corruption (UP-054-2006; UA-071-2006); and,

U Thein Zan, Ko Zaw Htay & U Aung Than Htun were prosecuted for helping villagers to complain about the death of a man on a government forced labour project (UP-017-2006; UA-50-2006).

See further: AHRC-OL-031-2006;

See also the 2006 AHRC Human Rights Report chapter on Burma, and visit the AHRC Burma homepage: http://burma.ahrchk.net.


SUGGESTED ACTION:

Please write to the Attorney General calling for a review of this case. Please note that for the purpose of the letter, the country should be referred to by its official title of Myanmar, rather than Burma.

Sample letter:

Dear ___________,

MYANMAR: Wrongful conviction of villager Daw Khin Win in Kunchankone Township Court

Name of victim: Daw Khin Win, 51, National ID No. 12/KaMaNa (Naing) 069112, daughter of U Pule, resident of Penweikone village, Nyaungpinthar village tract, Kawhmu Township, Yangon Division
Alleged perpetrators: Nyaungpinthar Village Tract Peace & Development Council officials, headed by chairman U Win Shein
Case details: Felony No. 296/2005 in Kawhmu Township Court, Judge Daw Htay Htay Win (No. Ta/1767) presiding; Felony No. 275/2005 in Kunchankone Township Court, Judge Thein Swe (No. Ta/2125) presiding; Penal Code sn. 211

I am greatly disturbed to hear of yet another case of unjust persecution of a farmer by local authorities in Myanmar.

According to the information I have received, in November 2004 Daw Khin Win complained to the South Yangon District Peace and Development Council about the corrupt activities of the Nyaungpinthar Village Tract Peace & Development Council officials, headed by chairman U Win Shein. She alleged that they had colluded with cattle thieves and taken money from them for each head of cattle stolen and smuggled, had been involved in illegal land transactions and authorised wrongful use of land, had inflated the acreage on record under the 2004-05 rainy season paddy crop in order to get additional state supplies of diesel and fertilizer to sell for their own profit, and had had persons dismissed from the village council re-elected to the Kawhmu Township Peace and Development Council.

The district council reportedly set up a special investigation team; however, it did not question either her or other villagers who supported her, only the officials. It also allegedly forced Daw Khin Win, U Aung Shwe and other villagers to sign blank documents. Finally, the Kawhmu Township Peace and Development Council on 8 September 2005 authorised the Nyaungpinthar Village Tract Peace & Development Council to prosecute Daw Khin Win for making false allegations against the authorities (Ref. No. 62/2-2/KaMa-3), under section 211 of the Penal Code, which U Win Shein did on 27 September 2005. 

Daw Khin Win alleges that during the preliminary investigation of the case she was also threatened by the township judge Daw Htay Htay Win that she should have no contact about her case with anyone outside or she would give her the maximum two year sentence. She successfully applied to have the hearings transferred to another court on October 24 because of the influence of the prosecuting authorities over the local court. Notwithstanding, only seven of her 12 witnesses appeared at the court, allegedly due to warnings by local authorities that they would not get any agricultural loans, fertilizer or other assistance needed for their farms. Khin Win's lawyers also were not allowed to examine witnesses during the proceedings, and witnesses were prevented on giving testimonies about matters on which Khin Win had complained.

The court concluded that there were no grounds for her complaints, despite the fact that one U Aung Shwe clearly testified to a transaction of 10 cattle being smuggled with the knowledge of the local authorities in exchange for 50,000 Kyat (USD 45), and two other witnesses, Ma Khin Nyo and Ma Win Htay, testified to having to pay money to change land title deeds. Daw Khin Win was sentenced to one year in jail on 27 December 2006. She was transferred to central Insein Prison. She earlier said in a radio interview that she was prepared to go to jail to defend what was right. She was also bankrupted by having to spend money on court cases and due to lost time to work on her farm.

Daw Khin Win received support for her complaints from human rights defender Ma Su Su Nwe, the villager who with the backing of the International Labour Organisation made the first successful complaint of forced labour in Burma and was herself subsequently imprisoned after the local authorities counter-sued her. The judge who allegedly threatened Khin Win is the same one who convicted Su Su Nwe. After Su Su Nwe and other members of the opposition political party, National League for Democracy, came to the court to support Khin Win on 13 November 2006 an article appeared in state-run newspapers (for instance, Myanmar Alin, page 13, columns 2-4) accusing them of interfering in the case and stating plainly that Khin Win had made baseless allegations against government officials.

I note with concern that most such complaints made against state officials in Myanmar are unsuccessful, not for want of evidence but because of the lack of independent avenues for effective complaint, investigation and prosecution. This is despite the fact that under Part III of the Citizen's Rights Protection Law 1975 (Parliamentary Act No. 2/1975), citizens are entitled to lodge complaints where they believe that their rights have been infringed.

I am aware that Daw Khin Win's appeal against the conviction is being heard in the Yangon Division Court and will be decided upon in February 2007. In the event that conviction is upheld, I urge that the two concerned township law offices file for review of the case in accordance with section 9(l) of the Attorney General Law 2001, and ensure that this unjustly convicted and jailed farmer is freed from imprisonment at the earliest possible date.

I also urge you to take the same steps for all other complainants wrongfully jailed for asserting their legal rights, including farmer U Tin Kyi (Kyaung Gone Township Court Criminal Case No. 705/2006) and villagers U Aye Min and U Win Nyunt (Bogalay Township Court, Criminal Case No. 1334/2005). Only when steps are taken to protect the rights of citizens as complainants will it be possible for the state to be able to address the endemic corruption and lawlessness that is known globally to prevail in Myanmar.

Yours sincerely

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PLEASE SEND YOUR LETTERS TO:

U Aye Maung
Attorney General
Office of the Attorney General
Naypyitaw
MYANMAR
Tel: +95 67 404 090/ 092/ 094/ 097
Fax: +95 67 404 146/ 106

PLEASE SEND COPIES TO:

1. Lt-Gen. Soe Win
Prime Minister
c/o Ministry of Defence
Naypyitaw
MYANMAR
Tel: + 95 1 372 681
Fax: + 95 1 652 624

2. Maj-Gen. Maung Oo
Minister for Home Affairs
Ministry of Home Affairs
Naypyitaw
MYANMAR
Tel: +95 67 412 040/ 069/ 072
Fax: +95 67 412 016/ 439

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. Mr. Patrick Vial
Head of Delegation
ICRC
No. 2 (C) - 5 Dr. Ba Han Lane
Kaba Aye Pagoda Road, 8th Mile
Mayangone Township
Yangon
MYANMAR
Tel.: +951 662 613 / 664 524
Fax: +951 650 117
E-mail: yangon.yan@icrc.org

5. Professor Paulo Sergio Pinheiro
Special Rapporteur on Myanmar
Attn: Mr. Laurent Meillan
c/o OHCHR-UNOG
1211 Geneva 10
SWITZERLAND
Tel: + 41 22 9179 281
Fax: + 41 22 9179 018 (ATTN: SPECIAL RAPPORTEUR MYANMAR)
E-mail: lmeillan@ohchr.org

6. Mr. Shariq Bin Raza
Representative
UN Office on Drugs and Crime
11A Malikha Road
Ward 7, Mayangone Township
Yangon
MYANMAR
Tel: +951 666 903/ 660 556/ 660 538/ 660 398/ 664 539
Fax: +951 651 334
E-mail: fo.myanmar@unodc.org, shariq.raza@unodc.org, camila.vega@unodc.org

7. Mr. Leandro Despouy
Special Rapporteur on the independence of judges and lawyers
Att: Sonia Cronin
Room: 3-060
OHCHR-UNOG
1211 Geneva 10
SWITZERLAND
Tel: +41 22 917 9160
Fax: +41 22 917 9006 (ATTN: SPECIAL RAPPORTEUR INDEPENDENCE JUDGES & LAWYERS)

8. Ms Leila Zerrougui
Chairperson
Working Group on arbitrary detention
OHCHR-UNOG
1211 Geneva 10
SWITZERLAND
Fax: +41 22 917 9006 (ATTENTION: WORKING GROUP ARBITRARY DETENTION)

9. Ms. Hina Jilani
Special Representative of the Secretary General for human rights defenders
Attn: Melinda Ching Simon
Room 1-040
OHCHR-UNOG
1211 Geneva 10
SWITZERLAND
Tel: +41 22 917 93 88
Fax: +41 22 917 9006 (ATTN: SPECIAL REPRESENTATIVE HUMAN RIGHTS DEFENDERS)

Thank you.

Urgent Appeals Programme
Asian Human Rights Commission (ahrchk@ahrchk.org)



Document Type :
Urgent Appeal Case
Document ID :
UA-054-2007
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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.