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UPDATE (Burma): Villagers given six-months' jail term for alleging forced labour

October 11, 2004

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

ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAM

Update on Urgent Appeal
12 October 2004

(UA-112-2004: BURMA: Complaints against forced labour blocked and victims punished issued on 2 September 2004; UP-50-2004: BURMA: Another complaint registered against local authorities in Henzada Township issued on 17 September 2004; UP-51-2004: BURMA: Henzada Township court throws out forced labour complaints issued on 28 September 2004)
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UP-55-2004: BURMA: Villagers given six-months' jail term for alleging forced labour

BURMA: Forced labour; impunity; judicial partiality; misuse of authority
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Dear friends,

The Asian Human Rights Commission (AHRC) has received news from the Yoma-3 news service that on 7 October 2004 the Henzada Township Court convicted U Ohn Myint and Ko Khin Zaw for criminal defamation after they had attempted to take complaints of forced labour to the courts. The same court threw out the forced labour cases against local government officials on 27 August 2004 that were filed by these two victims. (See further: UP-51-2004)

According to the information received, U Ohn Myint and Ko Khin Zaw were found guilty of criminally defaming the government officials for alleging that they had been forced to do labour in violation of the national law, after their allegations were thrown out of court without proper investigation. The presiding special judge Daw Htay Htay Win sentenced the two men on October 7 to six month's imprisonment or a fine of 10,000 Kyat each (US$10). After one hour have passed, judge Daw Htay Htay Win informed U Ohn Myint and Ko Khin Zaw that they had to pay the penalty immediately, and added that if they could not pay, their houses could be confiscated. After another hour passed, she called the two victims again and asked if they would pay the penalty by installments, however, the accused opted to go to prison.

The International Labor Office (ILO) in Yangon has reportedly been notified about this matter, and is said to be taking up the case with the Myanmar authorities.

Other villagers are also said to be planning legal action, therefore the sentencing of the two men for criminal defamation can be seen as an additional warning to those persons of the consequences of their planned actions. However, the choice of imprisonment over a relatively small fine by the two victims also speaks to their defiance of the court in this instance, and determination to take a strong position as human rights defenders, both in relation to international standards and the domestic law.


BRIEF REMINDER OF THE CASE

As outlined in our first urgent appeal on this case (UA-112-2004), starting from 10 July 2003, the Kanyinngu Village Tract Peace and Development Council instructed villagers of Oatpone village to act as sentries at the local Buddhist monastery. After U Ohn Myint and Ko Khin Zaw failed to serve, the chairman lodged charges against them. Both were subsequently imprisoned for refusing to follow the local government officer's orders.

The two men argued that they were punished in violation a number of orders issued by the government in 1999 and 2000, which banned forced labour in compliance with International Labour Organisation (ILO) Convention 29. They filed a case against the local authorities accordingly. The chairman of the village tract council then filed a counter-complaint to the effect that both he and the council had been defamed.

On 8 September 2004, another villager from the same place, U Mya Sein, also lodged a complaint alleging that he was obliged to serve as a sentry at the village monastery. In his case, the complaint was lodged on his behalf by a Supreme Court lawyer, and in it he averred that he was threatened to do the sentry duty with reference to the case of U Ohn Myint, who was imprisoned at the time (see further UP-50-2004).


SUGGESTED ACTION:

Please write to the Attorney General to call for a legal review of the decision. Send copies to the Minister for Home Affairs and Prime Minister, as they issued the orders prohibiting forced labour. You may also like to send a separate letter to the ILO to demand that it take steps to guarantee the security of persons bringing cases of forced labour to the courts or re-examine its mandate in Burma, and send copies to concerned UN officers. A suggested letter for the Attorney General follows. Please note that for the purposes of these letters, the country should be referred to by its official title of Myanmar, rather than Burma.

Sample letter:

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Dear Director General,

Re: CONVICTION ON CRIMINAL DEFAMATION CHARGES IN HENZADA TOWNSHIP COURT OVER FORCED LABOUR ALLEGATIONS

I am most disappointed to hear that two villagers, Ko Khin Zaw & U Ohn Myint, were convicted by the Henzada Township Court on October 7 of criminally defaming the Kanyinngu Village Tract Peace and Development Council, and sentenced to six-months' imprisonment as a result.

The allegations brought by Ko Khin Zaw and U Ohn Myint against the members of the Council, under section 374 of the Penal Code and in accordance with Order 1/99 and the Supplementary Order prohibiting forced labour had credibility, but do not appear to have been properly investigated. After the same court, headed by special judge Daw Htay Htay Win (No. Ta/1767), threw out the section 374 complaint on 27 August 2004, it took up the counter-complaint lodged by the chairman, alleging criminal defamation. It comes as little surprise to hear that judge Daw Htay Htay Win found the two men guilty of this charge.

Criminal defamation has in recent years been condemned globally as offensive to basic rights. Many countries have recognised that criminal defamation is obsolete, and have removed it from the statute books. Among the principal reasons for its removal are that criminal defamation cases are used to intimidate citizens from asserting their basic rights, as in this instance. In particular, under no circumstances should criminal defamation be available to government agents criticised for their actions by citizens acting in the public interest, and with regards to the official duties of those concerned. I therefore urge you to review the statues in Myanmar, with a view to removing the charge of criminal defamation from existing legislation.

I further urge you to take steps to review the decisions made in the cases pertaining to Ko Khin Zaw and U Ohn Myint, with a view to overturning the grossly unjust sentence passed by the Henzada Township Court, and re-examining the allegations against the village tract council officials. This should be done particularly in light of another case brought by a villager from the same location against the same officials, that of U Mya Sein (Complaint No. 1542/2004), lodged on 8 September 2004 by Supreme Court lawyer Daw Mya Mya Aye. I am especially concerned that the complainant in this case will be subjected to the same treatment as Ko Khin Zaw and U Ohn Myint, and not given a proper opportunity to have his allegations seriously examined by the courts.

Finally, I urge you to hold discussions with the mission of the International Labour Office in Yangon to ensure that Order 1/99 and the Supplementary Order are effectively implemented without further delay, and that complainants under Penal Code section 374 are offered protection in making their complaints. These discussions should be undertaken both with specific reference to the above-mentioned cases, and any others pending.

Yours sincerely

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PLEASE SEND YOUR LETTERS TO:

1. Dr. Tun Shin
Director General
Office of the Attorney General
101 Pansodan Street
Kyauktada Township
Yangon
MYANMAR
Fax: + 95 1 282 449 / 282 990

PLEASE 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 & Minister for Home Affairs
c/o Ministry of Home Affairs
Corner of Saya San Street and No 1 Industrial Street,
Yankin Township
Yangon
MYANMAR
Fax: +95 1 549 663 / 549 208

3. Mr. Paulo Sergio Pineheiro
Special Rapporteur on the situation of human rights in Myanmar
OCHR-UNOG, Palais Wilson,
Rue des Paquis 52, Geneva
SWITZERLAND
Fax: + 41 22 9179 018

4. Mr. Leandro Despouy
Special Rapporteur on the independence of judges and lawyers
OHCHR-UNOG,
1211 Geneva 10,
SWITZERLAND
Fax: +41 22 917 9006

5. Ms. Hina Jilani
Special Representative of the Secretary General for human rights defenders
Att: Ben Majekodunmi
Room 1-040
C/o OHCHR-UNOG
1211 Geneva 10
SWITZERLAND
Fax: +41 22 917 9006


Thank you.

Urgent Appeals Programme
Asian Human Rights Commission (AHRC)
Document Type :
Urgent Appeal Update
Document ID :
UP-55-2004
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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.