BURMA: Complaints against forced labour blocked and victims punished 

Dear friends,

The Asian Human Rights Commission (AHRC) has received detailed documentary evidence and additional information from the Burma Lawyers’ Council indicating that persons in Burma attempting to take complaints of forced labour to the courts, in accordance with national law, are being obstructed and themselves accused of defaming the authorities. In this Urgent Appeal, details of two cases, one from Henzada Township, Ayeyawaddy Division, and one from Kawmhu Township, close to the capital, are given; however, the AHRC is concerned that other cases are coming to light. This may indicate an alarming trend towards turning the accusers into the accused in forced labour cases.

The AHRC urges you to write to the concerned officials to call for legal reviews of these cases. In particular, it also wishes to highlight the problematic role of the International Labour Organisation (ILO) in Myanmar, where it informs people of their legal rights to complain of forced labour in the courts, but is unable to protect such persons when they are subject to persecution by the accused officials.

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

1. Case of Ko Khin Zaw & U Ohn Myint, Henzada Township Court, Ayeyawaddy Division

Victims:
1. Ko Khin Zaw, son of U Htun Shwe
2. U Ohn Myint, son of U Maung Lay
Both residents of Oatpone village, Kanyinngu Village Tract, Henzada Township, Ayeyawaddy Division
Alleged perpetrators: U Tin Htun, Chairman of the Kanyinngu Village Tract Peace and Development Council, and the eight other council members
Date of incident: starting from 10 July 2003

Case details:

Starting from 10 July 2003, the Kanyinngu Village Tract Peace and Development Council arranged for villagers of Oatpone village to act as sentries at their village’s Buddhist monastery, on a rotation system, three persons in the daytime, and five at night. The reason for the arrangement was that the resident monk was away, and the property of the monastery needed to be protected. According to the chairman, U Tin Htun, he was instructed verbally and in writing to make this arrangement by the Township Peace and Development Council, and called a meeting with the villagers accordingly.

However, the two complainants failed to serve as sentries at the monastery, and subsequently the chairman lodged charges against them. Ko Khin Zaw appeared in the Henzada Township Court on 15 October 2003 and was sentenced by judge Daw Nwet Nwet Yi to one-month of imprisonment for failing to assist a public servant when bound by the law to give assistance (Penal Code section 187). U Ohn Myint appeared in the Henzada Township Court on 28 November 2003 and was sentenced by special judge Daw Htay Htay Win to six-months of rigorous imprisonment for failing to assist a public servant when bound by the law to give assistance, and threatening to injure a public servant (Penal Code section 187/189). Ko Khin Zaw alleges that starting from about a week after he was released from jail on 14 November 2003 he had to go for sentry duty about seven times.

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. (Those are: Order 1/99 issued by the Minister for Home Affairs Colonel Tin Hlaing on 14 May 1999; the Supplementary Order issued by the same authority on 27 October 2000; and the corresponding letter issued by the then-Secretary-1 of the State Peace and Development Council, Lt-Gen Khin Nyunt, on 1 November 2000). They filed a case under section 374 of the Penal Code, as allowed for under relevant instructions from the Secretary-1, Attorney General, Police Force Director General, Minister of Home Affairs and others.

On July 28, the chairman of the village tract council filed a counter-complaint to the effect that both he and the council had been defamed by the complaint, and asking the court to take “effective action against U Ohn Myint and Maung Khin Zaw in accordance with the law”. On August 12, special judge Daw Htay Htay Win took an affidavit from U Tin Htun. In it, the chairman avers that the police inquired into the matter, and no case of forced labour was found, although the facts of the case are not disputed. He asserts that none of the regulations pertaining to forced labour were violated by calling a meeting to arrange for sentry duty at the monastery, although he does not offer any grounds for this assertion. He asks that action be taken against the two complainants for defamation (Penal Code section 499/500). The Henzada Township Court is understood to have subsequently summarily dismissed the complaint, and action is now pending against the two men in accordance with the stated intentions of the chairman.

2. Case of Ma Su Su Nwe, Kawmhu Township Court, Yangon Division

Victim:
Ma Su Su Nwe, 34 years old, daughter of U Tin Sein and Daw Nyunt Yin (both deceased), residing in Tanmanaing village, Kawmhu Township, Yangon Division
Alleged perpetrators:
1. U Sein Paw, Chairman of the Tanmanaing Village Tract Peace and Development Council
2. U Kyaw Thin, Officer in Charge of 10-house section, Tanmanaing village
Date of incident: during April 2004

Case details:

The chairman of the Tanmanaing Village Tract Peace and Development Council, U Sein Paw notified the villagers to participate in the construction of a road to Kanthonekan village and other nearby villages. In a loudspeaker announcement at 8pm on 29 March 2004, and 4am the following morning, villagers were informed that each household would dig and pile up earth for a stretch of road embankment equivalent to 25 feet long and 5 feet high, measuring 25 feet across at the base and 15 feet at the apex, over a five-day period. For those persons without a family, three persons would be combined and treated as a household. As Ma Su Su Nwe lives alone, the officer in charge of the ten households to which she belongs, U Kyaw Thin, combined her with Daw Phyu and Daw Ngwe Yin for the purposes of the work.

According to the Ma Su Su Nwe, the authorities notified villagers that failure to comply would incur a 6000 Kyat fine. She has also alleged that U Kyaw Thin threatened that those persons failing to comply would be put in detention. Two circulars issued by the village tract chairman on April 20 and 25 instruct villagers who had not yet completed their section of work to report to the council office without delay. Additionally, Ma Su Su Nwe has alleged that on April 23 another announcement was made to the effect that persons failing to comply with instructions to work on the road would face legal action.

According to Ma Su Su Nwe, she then went to the office of the ILO mission in Yangon to seek advice, and was informed that she could make a complaint to the police, and lodge a petition in the court. Therefore, on April 27, she lodged a petition at the Kawmhu Township Court under section 374 of the Penal Code, to the effect that the instruction by the village tract authorities to work on the road was in violation of Order 1/99 and the Supplementary Order of the Ministry of Home Affairs.

After Ma Su Su Nwe made her complaint, the accused authorities responded that the labour was not on their orders, but was a voluntary undertaking from consensus agreement among the village people. Interestingly, in his deposition U Kyaw Thin observes that, “There was no order to go and do forced labour digging for the road construction; in fact, persons unable to go and dig were told that they could hire someone in their place.” However, he denies that villagers were told that fines or other sanctions would apply if they did not work. He concludes his deposition with an observation to infer that the Ma Su Su Nwe’s refusal to work was politically motivated: “I went to talk with Ma Su Su Nwe about the road excavation only once, and she told me, ‘We can’t excavate democracy’, after which I did not speak to her again.”

The authorities have organised numerous villagers to depose against Ma Su Su Nwe to the effect that they went to work voluntarily. According to information received as of August 20, all of the witnesses in the case have been examined and the judgment is forthcoming. There has been reporting on this case in the Burmese-language radio broadcasts from abroad, and there are well-founded fears that the case will be decided against Ma Su Su Nwe and subsequently she will face legal action similar to the two men in the preceding case.

ADDITIONAL COMMENTS:

In Urgent Appeals issued earlier this year, the AHRC has pointed to how government officials in Burma enjoy total impunity over their subject populations by manipulating administrative and legal proceedings in their favour. Likewise, in both of the above cases, the village tract chairmen have used their positions to turn the accusers into the accused, with the compliance of the local judicial and other officials. In this respect, the cases are particularly reminiscent of a case raised by the AHRC earlier in the year involving two girls raped by a local administrator who were themselves jailed after lodging complaints (UA-40-2004). To date no news has been made available of the whereabouts or circumstances of the victims. Another more recent case illustrated how a police officer could escape punishment for violent maltreatment of street hawkers with instead a local man attempting to intervene being the one to go to jail (UA-111-2004).

In the above cases, an additional matter for concern is the role of the ILO in Burma. The ILO had for years expressed concern about the widespread use of forced labour in Burma, but after the government formally outlawed the practice it reached an agreement to establish an office in the capital. Since that time, while it has been somewhat effective in publicising the fact that forced labour in now illegal in the country, it has been unable to have any cases against government officers successfully taken through the courts. It has also been unsuccessful in establishing any proper system for investigation of complaints, as the government has established teams of investigators under its control the sole purpose of which appears to be to absolve government officers of any guilt. More to the point, as demonstrated by the above cases, it is unable to offer any protection to persons who, upon its advice, take cases against government officers to the courts and then themselves end up as the accused.

SUGGESTED ACTION:

Please write to the Attorney General to call for a legal review of the two decisions. 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.

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