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BURMA: Child jailed for witnessing massacre

February 23, 2004

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ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAM

23 February 2004

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UA-21-2004: BURMA: Child jailed for witnessing massacre

BURMA: Child rights, illegal imprisonment
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Dear friends

The Asian Human Rights Commission (AHRC) has learnt from the Burma Lawyers' Council (Thailand) that a 15-year-old boy was sentenced to a juvenile detention facility after witnessing the attack on the National League for Democracy at Depayin, on 30 May 2003. The boy, Maung Chan Thar Kyaw, who is now in a camp in Yangon Division, was sentenced in violation of provisions of the government's own Child Law.

AHRC urges you to call for the release of Maung Chan Thar Kyaw by writing letters to the senior legal officials in the country and bringing the case to the attention of the international community.

Urgent Appeals Desk
Asian Human Rights Commission (AHRC)
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DETAILED INFORMATION:

Maung Chan Thar Kyaw was a 15-year-old high school student nearby whose place of residence in Monywa Township the attack on the National League for Democracy by government-organised gangs occurred on 30 May 2003. (For more details, see article 2, vol. 2, no. 6, December 2003, www.article2.org). He was arrested by police on June 3 and accused of having thrown rocks at police at the scene of the attack. He denied this, but was charged and detained nonetheless. On July 7 the Monywa Township Court found him guilty of obstructing the police and sentenced him to the Nge Awsan Training School (detention centre) in Yangon Division. He is to remain there until 4 October 2005, when he turns 18. After that time he may be charged as an adult and transferred to a prison.

The court records reveal that Chan Thar Kyaw was sentenced in violation of the government's own regulations under the Penal Code and the Child Law. Among the violated provisions were the following:

1. Section 333/114 of the Penal Code under which he was tried applies only to non-bailable offences, but under the Child Law children cannot be held under detention while a trial is ongoing. Therefore, Chan Thar Kyaw should not have been charged with this offence.

2. Chan Thar Kyaw was kept in detention for the duration of the trial, in violation of the Child Law.

3. Chan Thar Kyaw was given no counsel and his parents were not permitted to assist him. He appeared on his own, despite provisions in the Child Law requiring representation unless the parents or guardian waive this right.

4. No witnesses were called for Chan Thar Kyaw, although the judge has the power to call them on his behalf even if he does not. By contrast, the prosecution named 24 witnesses and called ten to the trial, being four police officers, two Ward Peace and Development Council chairmen, and four doctors who treated the police. The four doctors, however, were not witnesses to the alleged event, but merely treated the injured police.

The Child Law was enacted in 1993 to bring Burma into compliance with the Convention on the Rights of the Child (CRC), which it acceded to in 1991. Under that law, the court may sentence a child to a juvenile detention camp as a last resort, that is, if the child has no parents or guardian or is otherwise of such bad character that he cannot be cared for outside of a state facility. Under any other circumstances, the judge may release the child with a warning, and where appropriate, a fine, a good behaviour bond and—if necessary—even a supervision order. In this case, the judge has failed to meet any of the provisions for a juvenile trial under the Child Law, and, without even consulting with the parents of the child or other persons ready to speak on his behalf, handed down a maximum sentence. To reach a decision on the child’s character, the judge relied entirely on the depositions of the prosecution witnesses and a report by a Juvenile Probation Officer. This act clearly violates both domestic and international law, and it is a terrible irony that a law introduced to ensure that international standards of justice be applied in Burma is being used to take retribution on an innocent bystander to a state-orchestrated massacre.

SUGGESTED ACTION:
Please write to the Attorney General to demand the release of Chan Thar Kyaw. A suggested letter follows. Please note that for the purposes of this letter, the country should be referred to as Myanmar, rather than Burma.

Sample letter:

Dr. Tun Shin
Director General
Office of the Attorney General
101 Pansodan Street
Kyauktada Township
Yangon
MYANMAR

Fax: + 95 1 282 449

Dear Attorney General

Re: Case of Maung Chan Thar Kyaw (Case No. 4518/2003)

I am deeply concerned by reports that the Monywa Township Court has sentenced a minor to a juvenile training camp in violation of the provisions of the Child Law (1993, amended 2001). The child concerned, Maung Chan Thar Kyaw, was a 15-year-old high school student at time of sentencing on 7 July 2003, and was ordered to go into the custody of the Chan Awsan Training School, Yangon Division, until 4 October 2005, when he will become an adult.

The procedure and sentencing of the Monywa Township Court violate many provisions of the Child Law, of which the presiding judge appears to be almost entirely ignorant. In particular, the following provisions were violated.

1. Under section 41(c) the accused should have been released into the custody of his parents or other suitable persons during the trial, but he was kept under detention. Additionally, he was charged under section 333/114 of the Penal Code, which applies only to non-bailable offences, and therefore should not have applied in this case.

2. Under section 42(c) the accused should have had legal counsel unless his parents waived this right, however in this case the accused was given no assistance by the court, and nor were his parents permitted to assist him. He appeared before the court alone.

3. As the accused lacked legal counsel, no witnesses were called on his behalf, although it is within the powers of the judge to take steps to do so, in order to ensure fair trial.

4. The accused was committed to the custody of the training school under section 47(d) of the Child Law, however this provision is a last resort for children without parents or guardians, or who are otherwise of such bad character that no alternative exists. A number of lesser sanctions are outlined in section 47 (a)(b)(c), however the judge sentenced the accused without due consideration of these and without consulting with the child's parents or others appearing on his behalf.

Clearly, the proceedings of this trial violated not only national law, but also the Convention on the Rights of the Child, which Myanmar acceded to in 1991, and in relation to which the Child Law was subsequently enacted. It is not enough to enact a law and expect that it will bring the country into compliance with international law. The provisions of the law must be applied. In the case of Maung Chan Thar Kyaw they most certainly have not. I therefore urge you to use your powers call for a review of this case and see to it that the accused is released from detention and his record cleared without delay. I also urge you to take steps to ensure that the Child Law is applied and cases such as this do not continue to occur in Myanmar.

Yours sincerely


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LEASE SEND COPIES TO:

1. General Khin Nyunt
Prime Minister
c/o Ministry of Defence
Signal Pagoda Road
Yangon
MYANMAR
Fax: + 95 1 652 624

2. Colonel Tin Hlaing
Chairman
Myanmar Human Rights Committee
c/o Ministry of Home Affairs
Corner of Saya San Street and No 1 Industrial Street,
Yankin Township
Yangon
MYANMAR

3. Ms. Manuela Carmema Castrillo
Working Group on arbitrary detention
C/o OHCHR-UNOG,
1211 Geneva 10
SWITZERLAND
Fax: +41 22 917 9006

4. Mr. Paulo Sergio Pineheiro
Special Rapporteur on the situation of human rights in Myanmar
c/o Ms. Hulan Tsedev
Room 3-090
Office of the United Nations High Commissioner for Human Rights,
Palais Wilson,
Rue des Paquis 52, Geneva
SWITZERLAND
Fax: + 41 22 9179 018
email: htsedev.hchr@unog.ch

5. Mr. Leandro Despouy
Special Rapporteur on the independence of judges and lawyers
Office of the United Nations High Commissioner for Human Rights
Palais Wilson, Rue des Paquis 52, Geneva
SWITZERLAND
Tel: +41 22 9179130
Fax: +41 22 9179006


Thank you.

Urgent Appeals Desk
Asian Human Rights Commission (AHRC)

Document Type :
Urgent Appeal Case
Document ID :
UA-21-2004
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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.