Dear friends,
The Asian Human Rights Commission (AHRC) has received detailed documentation on the appeal against conviction for treason of eight men in Burma. The accused, including Hkun Htun Oo, the chairperson of the Shan Nationalities League for Democracy, a registered political party, have lodged special appeals in the Supreme Court against life imprisonment on the ground that they formed an illegal organisation. Meanwhile, they have all been illegally sentenced for other offences for the same offence and ordered to serve the terms consecutively.
CASE DETAILS:
Nine persons 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.
Hkun Htun Oo had been well known for some years for his efforts to broker such an agreement between the government and its armed opponents. He had chaired meetings between the two sides, and it was in one such meeting in November 2004 that the new council was set up. After two further meetings, he and his colleagues were prosecuted for treason in February 2005. One of the defendants was made to appear as a witness for the state. The others pleaded not guilty.
The trial was begun by the Northern Rangoon District Court in June 2005, with proceedings being held on the grounds of the Insein Central Prison (where the accused were detained). The accused obtained legal assistance from lawyers of the National League for Democracy. Only six of the 18 witnesses for the defence could be examined as the others had absconded or were otherwise not contactable. Two witnesses that had appeared for the prosecution also could not be recalled for cross examination. Nonetheless, on November 2 of the same year the accused were sentenced to life in prison; the defendant who appeared as a state witness was freed.
Hkun Htun Oo was then sent to Putao Prison in Kachin State, while others were sent to different jails around the country. On 2 May 2006 one of the men, Myint Than, reportedly died in Sandoway Prison in Arakan State, western Burma.
There were many problems in the case that invalidate the conviction. The main ones being:
1. The charge was of treasonous action against a constitutionally-appointed state.Since 1990 Burma has been ruled by a military regime without a constitution. However, the Penal Code section used to prosecute the accused, sn. 121(d), states that the accused must have tried to “overthrow the organs of the Union or of its constituent units established by the Constitution”. As the government and its organs were not established by any constitution, the men could not be prosecuted under this section.
2. Lack of authority of the court. The case was heard in by a tribunal outside the area of legal jurisdiction for the case, which should have been where the alleged offences occurred in Shan State. Also, the trial was conducted apparently without authorisation on the prison grounds, not on the premises of a court.
3. Non-reappearance of prosecution witnesses. The defence had the right to cross-examine all witnesses who appeared for the prosecution, but two key witnesses could not be recalled.
4. Photocopies used as evidence. Throughout the trial photocopies of original documents were used instead of the actual documents themselves, in violation of the law on evidence.
Additionally, the nine accused have been sentenced under a raft of other offences, namely inciting hatred towards the state, subversion and forming an illegal organisation, with the intention of adding to the penalty already imposed against the accused. Without presentation of further evidence or additional inquiry they have been sentenced to the maximum term in each case: inciting hatred, life sentence; subversion, 20 years; and forming an illegal organisation, five years. One of the accused was sentenced for inciting hatred twice. The tribunal ordered that prison sentences be served consecutively, so Hkun Htun Oo was given 93 years. Others received 75 years or more. Some of the accused were also charged under laws for printing and publication, protection of public property and import-export of goods.
These convictions are all invalid as they were based upon the one set of identical and flawed information, allegations and court testimonies. Both the law 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.
ADDITIONAL COMMENTS:
The AHRC has reported on many cases in the past that speak to the un-rule of law in Burma, including the jailing of two men on spurious charges for carrying a petition calling for the release of five political prisoners (UA-358-2006). The five were released in January (UP-004-2007) but the two remain in jail (UP-219-2006).
The case also bears a resemblance to the sentencing to death for treason of nine persons, including a sports magazine editor, in November 2003 (FA-005-2004). The accused in that case were later released in January 2005 after their sentences had been commuted.
For Burmese-language documentation and commentary on this appeal, see Pyithu Hittaing, vol. 1, no. 9 on the AHRC Burma homepage: http://burma.ahrchk.net
SUGGESTED ACTION:
Please write to the Attorney General and Chief Justice of the Supreme Court to demand that the convicted men obtain their legal rights, either by way of the cases being reviewed and the accused released, or by upholding their 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.
To support this case, please click here: SEND APPEAL LETTER
SAMPLE LETTER
Dear ___________,
MYANMAR: Special appeal against conviction for treason of nine persons & serious breaches of law
Details of convicted persons:
1. Hkun Htun Oo, 63, Chairperson, Shan Nationalities League for Democracy (SNLD)
2. Sai Nyunt Lwin, 52, General Secretary, SNLD
3. Maj. Gen. Hso Ten, 69, President, Shan State Peace Council
4. Myint Than (a.k.a. Eh Phyu), 59, SNLD (deceased)
5. Nyi Nyi Moe, 36, SNLD
6. Sai Myo Win Htun (a.k.a. Eh Lun), 42, SNLD
7. Htun Nyo (a.k.a. Eh Nyo), 57
8. Sai Hla Aung, 61
9. Sao Tha Ut, 45 (freed after appearing as a witness for the state under Criminal Procedure Code sn. 337)
Complainant: Police Lt-Col. Khin Htay (No. La/57970), Special Branch, Myanmar Police Force
Conviction: High treason, Penal Code sn. 122(1), Felony No. 233/2005, registered under Supreme Court Order No. 37/2005, before Assistant Divisional Judges U Mya Thein & U Khin Maung Kyi; appeal pending before Special Appellate Bench of Supreme Court
I am writing to you to express my serious concerns about the illegal conviction and imprisonment of Hkun Htun Oo and eight others for treason 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 were tried and sentenced under a tribunal established through the Northern Yangon District Court in June 2005, with proceedings being held on the grounds of the Insein Central Prison. Only six of the 18 witnesses for the defence could be examined as the others had absconded or were otherwise not contactable. Two witnesses that had appeared for the prosecution also could not be recalled for cross examination. Nonetheless, on November 2 of the same year the accused were sentenced to life in prison; Sao Tha Ut, who appeared as a state witness, was freed.
According to the information I have been given, on 2 May 2006 Myint Than died in Thantwe Prison.
From what I understand, there were many problems in the case that invalidate the conviction. The main ones were:
1. The charge was of treasonous action against a constitutionally-appointed state.Since 1990 Myanmar has been without a constitution. However, the Penal Code section used to prosecute the accused, sn. 121(d), states that the accused must have tried to “overthrow the organs of the Union or of its constituent units established by the Constitution”. As the government and its organs were not established by any constitution, the men could not be prosecuted under this section.
2. Lack of authority of the court. The case was heard by a tribunal outside the area of legal jurisdiction for the case, which should have been where the alleged offences occurred in Shan State, in violation of Criminal Procedure Code (CrPC) sections 177, 178 & 526, which require authorisation of the national president or chief justice to transfer a case outside of the area of usual jurisdiction. Also, the trial was conducted apparently without authorisation by a two-judge tribunal on the prison grounds, not on the premises of a court as required by Supreme Court Directive Nos 7/56 & 3/69.
3. Non-reappearance of prosecution witnesses. The defence had the right to cross-examine all witnesses who appeared for the prosecution (CrPC sn. 256), but two key witnesses, U Ba Thin (a.k.a. U Aung Myat) and Zin Aung, could not be recalled, despite the fact that they were needed for proper examination of the case and the court did not follow the procedure for non-recall as laid down in Supreme Court Directive No. 3/66.
4. Photocopies used as evidence. Throughout the trial photocopies of original documents were used instead of the actual documents themselves, in violation of the law on evidence (see Court Manual, sn. 614) (also in Felony Nos 234, 235, 236 & 237/2005, below).
Additionally, I am informed that the accused have been convicted under a raft of other offences, namely inciting hatred towards the state (Felony Nos 234 & 239/2005, Penal Code sn. 124A), subversion (Felony No. 235/2005, Anti-Subversion Law, No. 5/96, sn. 4), and forming an illegal organisation (Felony No. 236/2005, Organisation Law, No. 6/88, sn. 6). Sai Nyunt Lwin was sentenced for inciting hatred twice. All convictions were secured without presentation of further evidence or additional inquiry, and the tribunal ordered that the sentences be served consecutively. Additionally, Myint Than, Nyi Nyi Moe, Sai Myo Win Htun, Htun Nyo and Sai Hla Aung have been charged under sns 17 & 20 of the 1962 Printers and Publishers Registration Law; Hso Ten has been charged under sn. 3 of the Public Property Protection Act 1947, and under sn. 5(3) of the Control of Imports and Exports (Temporary) Act 1947 (Felony No. 254/2005).
These convictions all appear invalid as they were based upon the one set of identical and flawed information, 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).
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 they be released from detention by way of acceptance of their special appeal or review and revision of the case.
I also request that details be given of the reported death in custody of Myint Than, and where wrongdoing is suspected that the responsible state officers be held responsible in accordance with the law.
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 these nine accused.
Yours sincerely
————–
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
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
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
Saya San Road
Yankin Township
Yangon
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)
