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UPDATE (Burma): Further details of cases against person accused of treason & other offences

January 25, 2007

UPDATE ON URGENT APPEAL UPDATE ON URGENT APPEAL UPDATE ON URGENT APPEAL

ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAMME

Update on Urgent Appeal

25 January 2007

[UA-017-2007: BURMA: Appeal against unlawful conviction for treason & other offences of 8 men]
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UP-008-2007: BURMA: Further details of cases against person accused of treason & other offences

BURMA: Illegal arrest; denial of fair trial; denial of rights to assembly & association; custodial death; un-rule of law
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2006 AHRC ANNUAL REPORT: BURMA
http://material.ahrchk.net/hrreport/2006/Burma2006.pdf

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Dear friends,

The Asian Human Rights Commission (AHRC) has received further detailed documentation on the cases against one of the eight men appealing their conviction for treason in Burma (UA-017-2007). The accused, Sai Nyunt Lwin, was the general secretary of the Shan Nationalities League for Democracy, a registered political party. However, he was sentenced to 85 years for treason, sedition and other offences. The legal process to convict him and the others involved in the case was highly flawed, as discussed further in this update.?

CASE DETAILS:

As described in the appeal issued by the AHRC last week, nine persons in Burma were accused of treason because they established a new umbrella group called the Shan State Advisory Expert Group with the objective of working to end decades of civil war in northeastern Shan State (bordering China, Laos and Thailand). The military government accused the new body of being a terrorist organisation that allegedly produced subversive documents. The accused were sentenced to treason by a tribunal without legal jurisdiction, on inapplicable charges, without proper evidence or the right to cross-examine witnesses that had appeared for the prosecution. The penalties were all wrongly compounded, so that the minimum sentence given was 75 years in jail.

Among the persons convicted were the leadership of the Shan Nationalities League for Democracy, including Sai Nyunt Lwin. In addition to the charges against the other accused, Nyunt Lwin was convicted of sedition on the same grounds and evidence twice over, and also on the charge of subversion under a special security law. The preliminary hearings opened in May 2005 and the trial began the following month. The court found the accused guilty in October. He was sentenced to 85 years in jail in total.

The two charges of sedition relate to information found on Nyunt Lwin's computer on the setting up of a federal state in Burma, rather than the current unitary arrangement. However, the judgment was flawed because the charge of sedition requires action to aggravate the public against the government, whereas none of the material found on the computer had been publicised.

The charge of subversion relates to a meeting that the accused says he did not attend. The claim of non-attendance was not countered by the prosecution and nor was evidence shown to suggest that he was there. However, the state said that other colleagues of the accused were at the meeting and acted on his behalf. But this is not enough to convict a person of subversion.

There were, therefore, no grounds for the convictions.?

For additional comments on this and related cases, please refer to the original appeal (UA-017-2007) and the AHRC Burma webpage: http://burma.ahrchk.net

SUGGESTED ACTION:

Please write to the Attorney General and Chief Justice of the Supreme Court to demand that the accused obtain his legal rights, either by way of his case being reviewed and the accused released, or by upholding appeals against the convictions.

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, Yangon.

Please also see the sample letter in the original appeal for the case against all of the accused (UA-017-2007).

Sample letter:

Dear ___________,

MYANMAR: Wrongful conviction of Sai Nyunt Lwin for treason, sedition & subversion

Details of convicted person:
Sai Nyunt Lwin, 52, General Secretary, Shan Nationalities League for Democracy (and others)
Complainants: Police Lt-Col. Khin Htay & Police Captain Aung Myint Than, Special Branch, Myanmar Police Force
Convictions: Two counts of sedition, Penal Code sn. 124A, Felony Nos. 234 & 239/2005; subversion, Anti-Subversion Law (The Law Protecting the Peaceful and Systematic Transfer of State Responsibility and the Successful Performance of the Functions of the National Convention against Disturbances and Opposition), No. 5/96, sn. 4, Felony No. 235/2005; high treason, Penal Code sn. 122(1), Felony No. 233/2005; registered under Supreme Court Order No. 37/2005

I am writing to you to express my serious concerns about the illegal conviction and imprisonment of Sai Nyunt Lwin and others for treason and other offences because they established the Shan State Advisory Expert Group during a meeting in November 2004 between the government of Myanmar and armed groups aimed at obtaining a ceasefire.

The accused was tried and sentenced under a tribunal established through the Northern Yangon District Court from 5 May 2005 (preliminary hearings), with proceedings being held on the grounds of the Insein Central Prison. The October 2 judgment found him guilty on all counts and gave a compounded sentence of 85 years in prison.

In addition to the inapplicability of the charge of high treason under Penal Code sn. 121(d) due to the absence of a constitution in Myanmar, the lack of jurisdiction of the tribunal in violation of Criminal Procedure Code (CrPC) sections 177, 178 & 526 and Supreme Court Directive Nos 7/56 & 3/69, the denial of the right to cross-examination under CrPC sn. 256 and Supreme Court Directive No. 3/66 and the problematic use of evidence, there are a number of other areas of specific concern regarding the two charges of sedition and one charge of subversion against Sai Nyunt Lwin.

The two charges of sedition relate to information found on Nyunt Lwin's computer. This information had not been distributed to the public. However, the charge of sedition under sn. 124A of the Penal Code requires that the accused be proved to have attempted "to bring into hatred or contempt, or excites or attempts to excite disaffection" towards the government or union. As the accused in this case had not distributed the said material nor used it for such a purpose, I fail to understand how he was convicted under this section.

Additionally, the two convictions were based upon the one set of identical and flawed evidence, allegations and court testimonies. Both the law (Penal Code sn. 71, CrPC sn. 403) and precedent make plain that it is not possible to slice up a single illegal act (in this case the alleged forming of an organisation) into different parts and punish an accused more than once for wrongdoing, even where it constitutes an offence under more than one law. Furthermore, to do so amounts to a flagrant violation of the principles established in the 2000 Judiciary Law and the fundamental legal principle of no double jeopardy (and as per sn. 22 of the 1973 Interpretation of Expressions Law).?

As for the charge of subversion, which relates to the alleged attendance of the accused at a meeting on 7 February 2005 that he says he did not actually attend, the claim of non-attendance was not countered by the prosecution and nor was evidence shown to suggest that he was there. The conviction was based solely on the argument that other colleagues of the accused were at the meeting and acted on his behalf. But sn. 3 of the Anti-Subversion Law requires that the accused (as an individual, rather than as a member of an organisation), that person should have committed or abetted the act of subversion. In this case, as there was no evidence presented to the tribunal to support such claims against the accused, I again fail to understand why he was convicted.

I find it shameful that the court system in Myanmar can be so blatantly misused and perverted for the purpose of patently political objectives. I urge that the case against the accused be thoroughly reviewed and he be released from detention by way of appeals or revision of the case.

In this respect I remind you of the comments of the UN Special Rapporteur on Myanmar, Professor Paulo Sergio Pinheiro, to the Human Rights Council on 27 September 2006, in which he said that

"The capacity of law enforcement institutions and the independence and impartiality of the judiciary have been hampered by sustained practices of impunity. I am also very concerned by the continued misuse of the legal system, which denies the rule of law and represents a major obstacle for securing the effective and meaningful exercise of fundamental freedoms by citizens. Grave human rights violations are indulged not only with impunity but authorized by the sanction of laws. In that respect, I consider especially as a matter of grave concern the criminalization of the exercise of fundamental freedoms by political opponents, human rights defenders and victims of human rights abuses."

These views about your legal system are widely held abroad. The fact is that your courts and laws will continue to lack all credibility until you demonstrate a commitment to the basic principles of the rule of law, not merely the artifices of the law. I again urge you to do so with regards to this accused.

Yours sincerely

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PLEASE SEND YOUR LETTERS TO:

1. U Aung Toe
Chief Justice
Office of the Supreme Court
101 Pansodan Street
Kyauktada Township
Yangon
MYANMAR
Tel: +951 372 249 / 253 066

2. 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
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
Office No. 10
Naypyitaw
MYANMAR
Tel: +95 67 412 040/ 069/ 072
Fax: +95 67 412 016/ 439 

3, Brig-Gen. Khin Yi
Director General
Myanmar Police Force
Naypyitaw
MYANMAR
Tel: + 95 1 549 196/ 228/ 209

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 Ibrahim Gambari
Undersecretary General for Political Affairs
United Nations
S-3770A
New York
NY 10017
USA
Tel: +1 212 963 5055/ 0739
Fax: +1 212 963 5065/ 6940 (ATTN: UNDER SECRETARY GENERAL POLITICAL AFFAIRS)
E-mail: gambari@un.org

6. 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

7. 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)

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

Thank you.

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

 

Document Type :
Urgent Appeal Update
Document ID :
UP-008-2007
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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.