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BURMA: Young man jailed without fair trial over alleged illegal lottery ticket

September 1, 2006

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ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAM

1 September 2006

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UA-285-2006: BURMA: Young man jailed without fair trial over alleged illegal lottery ticket

BURMA: Arbitrary arrest; denial of fair trial; un-rule of law
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Dear friends,

The Asian Human Rights Commission (AHRC) has received detailed information about the case of a young man in Burma who has been jailed without evidence or fair trial, allegedly for selling illegal lottery tickets. Nyi Nyi Htut, a law student, was arrested in the delta town of Bogalay on 16 June 2006 when police saw some illegal lottery stubs lying nearby him. On 23 July 2006 he was summarily and illegally sentenced to three years' imprisonment. His case speaks to what the AHRC has described as Burma's "injustice system".

According to the information received by the AHRC, on June 16 chief detective Deputy Superintendent Aye Htun and six police officers conducted a raid in the Aungthapyay market in Bogalay town, to arrest persons selling illegal lottery tickets, which are very popular and widespread in Burma. At that time all the persons selling tickets threw away the ticket stubs and ran off. Some stubs were on the ground in front of where Nyi Nyi Htut sells betel nut to earn money. The police were unable to catch anyone despite their efforts. So when Deputy Superintendent Aye Htun saw the stubs nearby Nyi Nyi Htut's stall, he accused the young man of being an illegal lottery agent, and arrested him.

On June 21 Township Judge (Second Class) Daw Toe Toe Yin allowed the case to proceed against Nyi Nyi Htut. As he is poor, Nyi Nyi Htut could not afford a lawyer, and as a law student tried to defend himself. But he was denied permission to present witnesses and on July 23 despite the lack of any firm evidence was sentenced to three years' imprisonment. The following day he was sent to Pyapon Prison.

The AHRC is advised that under Burma's domestic law it is illegal for a second-class magistrate to convict anyone for three years in a trial of this sort. The maximum sentence that a second-class magistrate can give is six months. In fact, no summary trial should have more than a six-month sentence passed against the accused. Also, Nyi Nyi Htut was sentenced under a law that requires a full trial, which he was denied.


ADDITIONAL COMMENTS:

The AHRC has in the past reported on other cases where judges in Burma are either ignorant or deliberately ignore the law. For instance, U Tin Nyein was charged under a wrong law because he complained that government authorities destroyed his crops through their negligence (UA-155-2006). A court in Rangoon refused to proceed with an inquest into the torture killing of Aung Hlaing Win despite having testimony from doctors and medical records to substantiate the case (UA-110-2005). A child was sentenced to jail under laws intended for adults (UA-021-2004). In 2004 the AHRC also reported on the jailing of Ko Sein Win under similar circumstances, on spurious charges of illegal gambling (UA-175-2004).

Nyi Nyi Htut's case also speaks to the suffering at the hands of the law by poor people throughout Burma, which is to say, most people. If the young man had had money then he could have easily paid his way out of the charge. But instead he was sentenced to three years in jail. This is a common problem for people in most Asian jurisdictions. See for instance a recent report on neighbouring Bangladesh: Lawless law-enforcement & the parody of judiciary in Bangladesh, (article 2, vol. 5, no. 4, August 2006). See in particular: Bangladesh, a corrupted & tortured nation.

SUGGESTED ACTION:

Please write to the Attorney General and other concerned persons below requesting a review of the conviction of Nyi Nyi Htut. 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: Arbitrary arrest and denial of fair trial in Bogalay township

Name of victim: Nyi Nyi Htut, 21 years' old, son of U Htay Lwin & Daw Khin Mar Choe, law student & betel nut vendor, residing in Ward 9, Bogalay town, Ayeyawaddy Division
Alleged perpetrators:
1. Deputy Superintendent Aye Htun, Chief Detective, Bogalay Township Police
2. Second Class Township Judge Daw Toe Toe Yin, Bogalay Township Court
Date of incidents: 16 June & 23 July 2006
Place of incident: Aungthapyay Market, Bogalay town; Bogalay Township Court
Sentenced under: Gambling Act, No. 6/1986, section 15(b)

I wish to draw your attention to the arrest and conviction under the Gambling Act of Nyi Nyi Htut, which according to the information I have received, was not done in accordance with the law.

Nyi Nyi Htut, a law student, was reportedly arrested in Aungthapyay market, Bogalay on 16 June 2006 when police saw some illegal two-digit lottery stubs lying nearby his betel nut stall. The stubs had been dropped by agents who had run away when six police officers led by Deputy Superintendent Aye Htun had raided the market; however, they had failed to arrest any persons. So when Deputy Superintendent Aye Htun saw the stubs nearby Nyi Nyi Htut's stall, he accused the young man of being an illegal lottery agent, and arrested him instead.

On June 21 Township Judge (Second Class) Daw Toe Toe Yin allowed a summary case to proceed against Nyi Nyi Htut. As he is poor, Nyi Nyi Htut could not afford a lawyer. He was also allegedly denied permission to present witnesses. On July 23 despite the lack of any firm evidence, Nyi Nyi Htut was sentenced to three years' imprisonment and sent to Pyapon Prison the following day?

I am informed that this conviction violates sections 32(1)(b), 261(a) and 262(2) of the Code of Criminal Procedure. Under these, it is impossible for a second-class magistrate, and in a summary trial, to sentence the accused to any more than six months' imprisonment. He could only be convicted under section 15(b) of the Gambling Act under a full trial with a Special Township Court Judge or higher presiding. It is also self-evident that as the accused was allegedly denied the right to present witnesses, the trial was not fair.

Sadly, this is one of a number of instances that has been brought to my attention where judges in Myanmar have shown themselves to either be ignorant or deliberately neglectful of the domestic law.

Accordingly, I urge you to see that the Bogalay Township Law Office files for a review of this case in accordance with section 9(l) of the Attorney General Law 2001. I also urge you to ensure that the performance of both Deputy Superintendent Aye Htun and Second Class Township Judge Daw Toe Toe Yin is examined with a view to disciplining or dismissing either from office if found to have violated criminal procedure. In particular, similar measures should be taken against all judges who are found to have conducted their courts contrary to the law. Such measures may go some small way to instill a measure of public confidence in the performance of Myanmar's judiciary, which today is better known abroad as an "injustice system".

Yours sincerely

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PLEASE SEND YOUR LETTERS TO:

U Aye Maung
Attorney General
Office of the Attorney General
101 Pansodan Street
Kyauktada Township
Yangon
MYANMAR
Fax: + 95 1 371 028/ 282 449 / 282 990


PLEASE SEND COPIES TO:

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

2. Maj-Gen. Maung Oo
Minister for Home Affairs
Ministry of Home Affairs
Corner of Saya San Street and No 1 Industrial Street
Yankin Township
Yangon
MYANMAR
Tel: +951 250 315 / 374 789
Fax: +951 549 663 / 549 208

3. Brig-Gen. Khin Yi
Director General
Myanmar Police Force
Saya San Road
Yankin Township
Yangon
MYANMAR
Tel: + 95 1 549 196/ 228/ 209

4. 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

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

Thank you.

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

Document Type :
Urgent Appeal Case
Document ID :
UA-285-2006
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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.