BURMA: Court appeal against lawyer jailed for helping farmers contact ILO headed for Supreme Court
April 7, 2006
URGENT ACTION URGENT ACTION URGENT ACTION URGENT ACTION URGENT ACTION
ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAM
7 April 2006
UA-119-2006: BURMA: Court appeal against lawyer jailed for helping farmers contact ILO headed for Supreme Court
BURMA: Extortion; impunity; illegal detention; un-rule of law; attacks on human rights defenders
Since last year, the Asian Human Rights Commission (AHRC) has closely followed the case of U Aye Myint, a lawyer who was arrested at the end of August 2005 and imprisoned at the end of October for helping a group of farmers to lodge a complaint with the International Labour Organisation (ILO) over loss of pastureland. The AHRC has recently obtained detailed documentation, including court records, of the case. Two appeals against the conviction have been thrown out by the lower courts. The case is now headed for the Supreme Court, and must be lodged there by May 7 at the latest. The AHRC is gravely concerned that as in other cases of this sort it will be summarily thrown out by the court.
On 5 June 2005, local officials in Daik-U township, Pegu Division (north of Rangoon Division), arranged a meeting with around 100 farmers in Phaungdawthi Village Tract. The secretary of the local council, U Aye Ngwe, informed the farmers that they would be allocated 132 acres out of 452 acres of designated pastureland for their cattle to graze upon. The remainder of the land would be divided up among the army, army supply corps, a government-established mass mobilisation body (the Union Solidarity and Development Association) and the township army veterans' association.
The farmers were unhappy as this was officially designated pastureland and they felt that the amount of land left for their cattle would be insufficient. They sought the assistance of lawyer U Aye Myint to lodge a complaint. The following day, June 6, Aye Myint assisted in writing a letter of complaint to the representative of the International Labour Organisation (ILO) in Rangoon, which was signed by 15 farmers. A group of the farmers later met the ILO representative, together with two local officials who were supportive of their complaint.
The township authorities reacted by arresting Aye Myint on the night of August 27. According to his son's testimony in court, police and government officers arrived at the family residence at about 11:30pm on the pretext of checking for illegal visitors. (In Burma all visitors staying overnight away from their own house must be registered.) After that they said they had come to arrest Aye Myint, and took him away to detention at the Daik-U Township Police Station.
On October 10, the preliminary hearings against Aye Myint began in the Daik-U Township Court, on a charge of having distributed false information, under an antiquated emergency regulation.
The court refused two applications for bail.
The prosecution reportedly organised the local officials and farmers to testify against Aye Myint. They were instructed to say that they had been satisfied with the arrangement for the land, but he had stirred up trouble and provoked them to write the letter.
However, in the court most of the witnesses for the prosecution turned hostile. Only the complainant, a local police officer, very strongly asserted that Aye Myint had acted wrongly. Unusually, the other local officials refused to say that he had done anything wrong. The farmers who were called insisted before the court that they were not happy and had acted on their own, only asking Aye Myint for assistance to draft and submit the complaint. According to persons following the case, the prosecution had planned for around 30 witnesses. However, after one witness after the next turned their testimony in favour of the defence, the prosecution closed its case after only 14.
Nonetheless, on October 24 Judge U Mya Han officially charged Aye Myint under section 5(e) of the 1950 Emergency Provisions Act. On October 31, without further hearings, he was sentenced to seven years' hard labour. The judgment was written by the judge to exclude testimony given in the court that would undermine the conviction, although it still contains sufficient information to reveal that only the testimony of one of the prosecution witnesses--the police officer complainant--strongly supported a conviction.
LEGAL PROBLEMS WITH THE JUDGMENT
Like many other court judgments in Burma, the decision against U Aye Myint is seriously flawed not just in terms of international law but also under domestic provisions. In particular:
1. The key witnesses, farmers U Kanya and U Kyaing, who led the group to make its complaint of June 6 and meet with the ILO, maintained their stories that they, and not Aye Myint, had planned and submitted the letter. They have also insisted, at great personal risk, that their complaint is genuine. Therefore, there are no grounds to say that Aye Myint is guilty of spreading false information, as he was neither responsible for the letter, and nor has the information been shown to be false.
2. The court has in effect punished Aye Myint for having had contact with the ILO. However, the Supreme Court has held that as Burma is a member state of the UN and the ILO it cannot be illegal for its citizens to have contact with these agencies.
3. In 1989 the government issued an order that the Emergency Provisions Act could only be used with the approval of the Ministry of Home Affairs. However, in this case no permission has been given and the court has therefore convicted Aye Myint illegally.
Other cases in Burma that the AHRC has reported on recently where the judgment has failed to comply with domestic law include the Aunglan forced labour case (UA-050-2006), which has many similarities to this case.
On 2 January 2006, Judge Daw Khin Win Myint of the Pegu District Court threw out an appeal against the conviction.
On March 7, Assistant Divisional Judge Daw Khin Saw Nyunt of the Pegu Division Court again threw out the appeal.
Interestingly, while serving as a district court judge in 2003, Khin Saw Nyunt convicted Aye Myint, among others, of treason and sentenced him to death for giving information to the ILO. The Supreme Court later commuted the sentence and he was released from jail at the start of 2005 together with a large number of other prisoners.
The appeal is now proceeding to the Supreme Court. However, in similar cases that court too has simply thrown out the matter without giving it due consideration. See for instance the case of Ma Su Su Nwe (UP-017-2006, see also AHRC-PL-006-2006, AS-015-2006), which is also related to the ILO, and jailed tuition teacher U Aung Pe (AHRC-PL-012-2006).
Meanwhile, Aye Myint is reported to be in poor health and suffering from anaemia in prison.
The International Labour Organisation's representative in Burma has necessarily been involved in the case from the start. In November 2005 the representative reported that he had raised the case with the Minister of Labour but the minister had indicated that "just because certain individuals had had some contact with the ILO in the past did not mean that they were above the law" (GB.294/6/2, fn. 11).
In his March 2006 report, the representative said that after again expressing serious concerns about this and other cases to the Minister of Labour he received a reply from the deputy minister that the convictions had nothing to do with the ILO (GB.295/7, para. 12).
The ILO is now at the stage of reviewing whether or not to continue its operations in Burma due to the continued prosecution of complainants and non-cooperation of the authorities.
Cases of extortion of lands and money from farmers in Burma are particularly common. In remote regions, where there is little physical security and no civilian administration or system of land titles, confiscation of land by the military is frequently reported. There is no recourse for farmers in those areas that have lost their land.
However, as this and other cases show, even farmers in central parts of the country have few if any avenues for complaint, as in all cases in Burma involving government authorities. See for instance the recent jailing of two persons in Bogalay Township after complaining about extortion of money from farmers there (UA-071-2006).
As Burma is still operating under a socialist system of landholding, technically farmers are leaseholders, not owners, of the land they cultivate. The state is the sole owner of land. Government authorities use various pretexts to exercise authority illegally and confiscate farmers' land. For a detailed description of these issues, see the 1999 Voice of the Hungry Nation report of the People's Tribunal on Food Scarcity and Militarisation in Burma.
Please write to the Chief Justice of the Supreme Court of Burma calling for the court to open this appeal for consideration, rather than dismiss it summarily as in the lower courts and in other cases. 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 Pegu Division as Bago Division.
Dear U Aung Toe
MYANMAR: Imminent application to appeal in case of U Aye Myint (Daik-U Township Court Serious Criminal Case No. 960; 1950 Emergency Provisions Act section 5[e])
Details of applicant: U Aye Myint, son of U Ohn Maung, Supreme Court lawyer, currently detained in Bago Prison
Details of complainant: Police Deputy Superintendent Win Thwin Oo, Daik-U Township Police Station
Case in first instance: Serious Criminal Case No. 960, Daik-U Township Court, Judge U Mya Han presiding, 31 October 2005, section 5(e) of the 1950 Emergency Provisions Act
I am writing to you to express my serious concern regarding judicial process in the case of U Aye Myint, who was convicted by the Daik-U Township Court on 31 October 2005 under section 5(e) of the 1950 Emergency Provisions Act of having disseminated false information, and sentenced to seven years in prison.
The case has been summarily dismissed, apparently without justification, by the Bago District Court (2 January 2006, Judge Daw Khin Win Myint presiding), and the Bago Divisional Court (2 March 2006, Assistant Divisional Judge Daw Khin Saw Nyunt presiding). I am informed that the lawyers representing U Aye Myint are preparing to lodge an appeal in the Supreme Court.
I have received detailed information on this case that makes me doubt that U Aye Myint has been given a fair trial, and I urge you to act correctly and independently, in accordance with the best and established principles of the judiciary, to ensure that yet another travesty of justice does not ensue.
The following aspects of the case are of special concern to me:
1. Two key witnesses, farmers U Kanya and U Kyaing (prosecution witnesses nos 6 & 7), have maintained that they, and not U Aye Myint, initiated a letter of complaint dated 6 June 2005 to the International Labour Organisation (ILO) regarding insufficient allocation of pastureland (132.56 out of an existing 452.59 acres) for their cattle at a meeting called by the Daik-U Township Peace and Development Council in Phaungdawthi village on June 5 chaired by the township secretary, U Aye Ngwe. They have also insisted that their complaint is genuine. Therefore, there are no grounds to say that Aye Myint is guilty of spreading false information, as he was neither responsible for the information, and nor has the information been shown to be false. Furthermore, a reading of the original judgment shows that contrary to the conclusion of Judge U Mya Han, the witness testimonies as a whole do not support grounds for conviction.
2. The court has in effect punished Aye Myint for having had contact with the ILO. However, the Supreme Court has earlier held that as Myanmar is a member state of the United Nations and the ILO, it cannot be illegal for its citizens to have contact with these agencies (Supreme Court judgments in Special Appeal Nos 22, 23 of 2004: Zaw Myo Htet (a.k.a.) Zaw Zaw & 3 ors vs. Union of Myanmar; Naing Yeitkha (a.k.a.) Ne Win & 8 ors vs. Union of Myanmar, 14 October 2004).
3. In 1989 the government issued an order that the Emergency Provisions Act could only be exercised with the approval of the Ministry of Home Affairs (State Law and Order Restoration Council, Document No. 021/1 1/NaWaTa, 11 May 1989). However, in this case no permission has apparently been given. The case has been lodged through the local authorities, with a police officer as complainant. Therefore, the case appears to be procedurally incorrect and the conviction illegal.
While respecting the integrity of the court, I wish to express my fears that the case may also not get a proper hearing by the Supreme Court, in view of precedent.
As you are well aware, the highest court in any country stands as the final bulwark against injustice and in defence of fundamental principles of law, however they be interpreted. It is the last resort, when all other avenues are exhausted, that a person may have within a jurisdiction to obtain redress for wrongs committed against them.
I therefore feel strongly that it is of great importance that the Supreme Court of Myanmar give due consideration to all applications for appeals that are brought to its attention, as an applicant has no other avenue left at his disposal in the event that the court declines to hear his case, apart from the Special Appellate Bench.
In view of the fact that the Supreme Court has in recent times summarily dismissed other legitimate applications for appeal, I urge you as Chief Justice to take responsibility to ensure that this does not happen needlessly, or without due consideration to all aspects of a given case. With regards to the application of U Aye Myint especially, I call upon you to have regard to weigh up the merits of the applicant's petition carefully, and not dismiss it lightly. I also earnestly request that you grant bail to the convicted party while the matter is pending before your court.
As you will be aware, there is a growing amount of national and international attention on this and other cases that are coming to the Supreme Court which speak to the situation of human rights in Myanmar. Everyone following these cases is looking towards the court to defend natural justice, to right wrongs, and to ensure that judgments are based upon sound judicial principles rather than arbitrary and selective decision making.
PLEASE SEND YOUR LETTERS TO:
U Aung Toe
Office of the Supreme Court
101 Pansodan Street
Tel: +951 372 249 / 253 066
PLEASE SEND COPIES TO:
1. Lt-Gen. Soe Win
c/o Ministry of Defence
Signal Pagoda Road
Tel: + 95 1 372 681
Fax: + 95 1 652 624
2. U Aye Maung
Office of the Attorney General
101 Pansodan Street
Fax: + 95 1 371 028/ 282 449 / 282 990
3. Maj-Gen. Maung Oo
Minister for Home Affairs
Ministry of Home Affairs
Corner of Saya San Street and No 1 Industrial Street,
Tel: +951 250 315 / 374 789
Fax: +951 549 663 / 549 208
4. Mr Richard Horsey
Liaison Officer (Myanmar)
International Labour Organization (ILO)
4, route des Morillons
CH-1211 Geneva 22
Fax: +41 22 798 8685
5. Mr. Patrick Vial
Head of Delegation
No. 2 (C) - 5 Dr. Ba Han Lane
Kaba Aye Pagoda Road, 8th Mile
Tel.: +951 662 613 / 664 524
Fax: +951 650 117
6. Professor Paulo Sergio Pinheiro
Special Rapporteur on Myanmar
Attn: Ms. Audrey Ryan
1211 Geneva 10
Tel: + 41 22 9179 281
Fax: + 41 22 9179 018 (ATTN: SPECIAL RAPPORTEUR MYANMAR)
7. Ms Leila Zerrougui
Working Group on Arbitrary Detention
Attn: Mr Miguel de la Lama
1211 Geneva 10
Fax: +41 22 917 9006 (ATTENTION: WORKING GROUP ARBITRARY DETENTION)
8. Mr. Leandro Despouy
Special Rapporteur on the independence of judges and lawyers
Att: Sonia Cronin
1211 Geneva 10
Tel: +41 22 917 9160
Fax: +41 22 917 9006 (ATTN: SPECIAL RAPPORTEUR JUDGES & LAWYERS)
9. Ms. Hina Jilani
Special Representative of the Secretary General for human rights defenders
Attn: Melinda Ching Simon
1211 Geneva 10
Tel: +41 22 917 93 88
Fax: +41 22 917 9006 (ATTN: SPECIAL REPRESENTATIVE HUMAN RIGHTS DEFENDERS)
Urgent Appeals Programme
Asian Human Rights Commission (email@example.com)