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 andif necessaryeven 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 childs 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.
To support this case, please click here: SEND APPEAL LETTER
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)
