Dear friends,
The Asian Human Rights Commission (AHRC) is gravely concerned about the situation of a group of Burmese human rights defenders who were assaulted with the backing and involvement of local authorities and the police last April (UA-135-2007). Six have been charged upsetting public tranquillity and have been refused bail (UP-062-2007). Meanwhile, the criminal complaint lodged by one of the group against the alleged perpetrators was accepted by the court only after half of those named, including all senior government officers allegedly involved in organising the April assault, were removed from the charge sheet.
As the AHRC described in its original appeal, four members of the Human Rights Defenders and Promoters (HRDP) group were attacked after midday on 18 April 2007 in Oatpone village, west of Rangoon, by a government-organised gang. Two of them, Ko Maung Maung Lay and Ko Myint Naing, were severely assaulted and hospitalised (photographs are contained in the original appeal).
There are now three criminal cases arising out of the assault: in the first two, the government authorities have accused the human rights defenders of being responsible for public disturbances prior to the incident; in the third, one victim of the assault has lodged a criminal complaint against the people involved in and behind the attack.
RIGHTS DEFENDERS JAILED AND CHARGED:
The heads of two local councils have lodged two cases against six human rights defenders (Ko Myint Naing, Ko Kyaw Lwin, U Hla Shein, U Mya Sein, U Win & U Myint) accusing them under two sections of inciting public fear and alarm that may cause others to commit crimes, each of which carries a two-year jail term. They have accused them in connection with a series of incidents in the lead-up to the alleged assault, including falsely alleging forced labour and creating local disputes.
The lawyers to the defendants in both cases have lodged petitions for charges to be dismissed on the grounds of lack of evidence and because the allegations against the accused don’t fit with the charges that have been lodged against them. They have also questioned the authority of the local officials to lodge such charges and suggested that only higher government officials are entitled to do this. According to legal advice obtained by the AHRC, these cases have clearly violated the law on criminal procedure in Burma, under which only township police commanders or above can lodge such charges.
On May 2, the court heard both the cases and ordered all six men to be kept in custody, including Myint Naing, who was still receiving treatment for head injuries he suffered during the April assault. On May 24 they again approached the court for bail on grounds that now it is the time for planting rice and as the defendants are farmers if they cannot go ahead with planting it will severely affect their families (who are already facing economic hardship due to the defendants being imprisoned); and, that Myint Naing needed to have medical consultations. But the next day the court again refused to grant bail. The doctor tending to Myint Naing has reportedly been refused access to the prison in Henzada where he is being held.
On May 4 the hearings in the second case were opened. At the time of the hearings, the defendants saw that there was a military intelligence officer secretly recording the proceedings in court. Their lawyer complained and the judge had him taken from the court by the police, but nothing is known of what happened to him after that. There were around 200 persons in court to support the defendants; so, on May 11 when the hearings continued around 60 persons came to the court as observers on the side of the state, after the authorities had sent instructions that five persons should be sent from each ward in Henzada town. The hearings were continuing yesterday and today, June 12 and 13.
CRIMINAL COMPLAINT AGAINST AUTHORITIES:
As noted previously, on May 2, Ko Myint Naing, one of the two severely assaulted men, lodged a criminal complaint in the Henzada court against the chairman of the local council of Oatpone village and three of his subordinates; the secretary of the township government-organised mass body, the Union Solidarity and Development Association (USDA) and one of his subordinates; the local police commander and his deputy responsible for security; and four villagers, whom he accused of organising and participating in the planned assault of him and his colleagues (names and other details are in previous update). He accused them of causing grievous bodily harm with dangerous weapons and endangering life, using criminal force and committing robbery.
On June 8 the court reviewed the police report about the incident and accepted the complaint on just one relatively-minor charge of voluntarily causing hurt (one-year jail term if found guilty), and only against the six minor accused, namely three ten-household heads and three ordinary villagers; it omitted the other six, including all of the primary accused: the local council chairman, USDA secretary and local police. The judge did not call the accused police or others to court to conduct his own inquiries as he is empowered to do, but just followed the police findings. Unlike the six human rights defenders, the six accused in this case were all given bail.
ADDITIONAL INFORMATION:
This case is of very special importance for the situation of human rights defenders in Burma. The authorities are clearly using a new strategy to intimidate a growing village-level movement for change. They are reported to be increasingly using thugs organised by the USDA and local officials and police in plain clothes to create disturbances where human rights defenders and campaigners are present, and then have the local authorities act as complainants in criminal cases against them. Similar tactics have been used against prayer campaigners for the release of political prisoners in Burma in recent weeks and months, and more such incidents and arrests are expected.
The human rights defenders in this case have been accused under section 505 of the Penal Code, which is also being increasingly used against any persons considered to be doing anything contrary to the interests of the state or local authorities. Other cases where it has been used that the AHRC has reported in recent times include:
Ko Than Htun & Ko Tin Htay (UA-150-2007): Imprisoned under section 505 for allegedly having illegal video footage showing the marriage of the daughter of the country’s supreme military commander (see also “A wedding video & an unjust system” at UPI Asia Online);
U Thein Zan (UA-078-2007): Charged under section 505 after satirising state media reports; the charges were dropped under mysterious circumstances (UP-052-2007; see also “Politics & the price of eggs” at UPI Asia Online);
U Tin Nyein (UA-155-2006): Released after eight months’ imprisonment under section 505 for accusing local officials of negligently destroying his crops (UP-018-2007).
This most recent attack on human rights defenders in Burma has received a large amount of attention internationally, including from two UN human rights experts. The Special Rapporteur on Myanmar and the Special Representative on human rights defenders made a joint statement in which they said of the incident that “the level of violence and the absence of intervention by the local police to protect the victims… remind us of the circumstances surrounding the tragic incident of Depayin in 2003” (see the Asian Legal Resource Centre report on that incident: http://www.article2.org/pdf/v02n06.pdf. See also: http://www.ibiblio.org/obl/docs/Depayin_Massacre.pdf).
For further background information see the 2006 AHRC Human Rights Report chapter on Burma, and visit the AHRC Burma homepage: http://burma.ahrchk.net.
______________________________
SUGGESTED ACTION:
Please write to the attorney general and other concerned persons below calling for the cases against the victims of the attack to be closed, and for prosecution of all the alleged perpetrators. 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 as Yangon.
To support this case, please click here: SEND APPEAL LETTER
SAMPLE LETTER
Dear ___________,
MYANMAR: Criminal charges against human rights defenders in Henzada while alleged perpetrators of assault escape liability
Details of human rights defenders:
1. Ko Myint Naing (a.k.a. Ko Myint Hlaing), member, Human Rights Defenders & Promoters (HRDP), resident of Henzada Township, Ayeyarwaddy Division (respondent to both criminal cases)
2. Ko Kyaw Lwin, farmer, married with three children, resident of Tamaing village, Taluttaw, Henzada Township (respondent to first criminal case)
3. U Hla Shein, farmer, married with two children, resident of Oatpone village, Kanyinngu Village Tract, Henzada Township (respondent to second criminal case)
4. U Mya Sein, farmer, married with six children, resident of Oatpone (respondent to second criminal case)
5. U Win, farmer, married with five children, resident of Oatpone (respondent to second criminal case)
6. U Myint, farmer, married with four children, resident of Oatpone (respondent to second criminal case)
Complainants:
1. U Win Zaw Oo, Chairman, Eingapu Village Tract Peace & Development Council (PDC), Oatpone village, Henzada Township (complainant in first criminal case)
2. U Aung Than, Chairman, Kanyinngu Village Tract Peace & Development Council (PDC), Oatpone village, Henzada Township (complainant in second criminal case)
Date of original incident: 18 April 2007
Place of incident: Oatpone-Taluttaw road, near Oatpone village, Henzada Township, Ayeyarwaddy Division
Cases details: Felony Nos. 742 & 743/2007, Henzada Township Court, Judges U Aung Min & Daw Myint Myint San (Special Powers)
I am writing to express my serious concern at the prosecution and imprisonment of a group of human rights defenders and villagers after the brutal attack on Ko Myint Naing and others in Henzada Township, Myanmar on 18 April 2007, and to call instead for the proper investigation and prosecution of all 12 persons accused of being behind the attack. I trust you are familiar with the case already, as it has been widely publicised, including in international and domestic media, and has been condemned by the UN Special Rapporteur on the situation of human rights in Myanmar and the UN Special Representative on the situation of human rights defenders.
I am aware that on May 2, Judge Daw Myint Myint San heard both felonies with which the six rights defenders have been charged and denied them bail, ordering that they be held in custody awaiting trial. The lawyer for the six made a special request for bail for Ko Myint Naing, who was still getting medical treatment for head injuries he suffered during the assault, but Township Law Officer U Myint Swe opposed granting of bail, claiming that he had recovered; bail was refused and the court ordered that all six be detained. I am also aware that on May 24 the counsel for the defendants again approached the court for bail on grounds that now it is the time for planting rice and that as the defendants are farmers if they cannot go ahead with planting it will severely affect their families, who are already facing economic hardship due to the defendants being imprisoned; and, that Myint Naing needed to have medical consultations, but on the next day the court again refused to grant bail. Furthermore, I am informed that the doctor tending to Myint Naing has reportedly been refused access to the prison in Henzada where he is being held.
Above all else, I urge that the six accused be entitled to bail in order that their families are not forced to suffer needlessly from this ill-considered prosecution, and that Myint Naing be entitled to receive all necessary medical treatment. I therefore call for a review of the opposition to the granting of bail by the said law officer, in accordance with section 9(f) of the Attorney General Law (2001).
Additionally, I am informed that the charges against the six have not been made in proper accordance with the law. The charges lodged against them are of circulating statements, rumours or reports “with intent to cause… fear or alarm to the public… whereby any person may be induced to commit an offence against the State or against the public tranquility” (section 505[b]) and “with intent to incite… any class or community of persons to commit any offence against any other class or community” (section 505[c]). However, under section 45 of the Criminal Procedure Code (CrPC) of Myanmar and in accordance with precedent the village tract chairmen who have brought these charges do not have the authority to do so. Furthermore, I see nothing in the allegations against the six that amounts to a case against them under the provisions of section 505, nor any evidence upon which the charges have been brought. Accordingly, lawyers for the accused have with good reason called for them to be discharged from the cases (as per section 253[2] of the CrPC).
I therefore urge that the Attorney General also instruct the Henzada Township Law Office to review the charges against the six and, in accordance with sections 4(b) and 9(h) of the Attorney General Law see that they are withdrawn.
I am also made aware that on May 4 a person alleged to be an officer of the Office of Military Affairs Security was led from the court by the police after he was found to have been secretly audio recording the proceedings. I wish to enquire as to what action if any has been taken against that person by the police and the Office of the Attorney General.
In parallel to the above proceedings, I am aware that Ko Myint Naing had lodged a criminal complaint in the same court against 12 persons under Penal Code sections 325, 326, 337, 350, 392 and 114, for causing grievous bodily harm with dangerous weapons and endangering life, criminal force, robbery, and aiding and abetting. Accordingly, the court instructed the police to make further inquiries (under CrPC sections 200 & 202) and that it has accepted a case against six of the 12 under Penal Code 323 (Criminal Case No. 779/2007), for voluntarily causing hurt; an offence that carries a one-year penalty. However, I am disappointed to note that out of the 12, the six primary accused, being the secretary of the Henzada Township Union Solidarity and Development Association (USDA) and executive of the USDA in Kanyinngu village; the acting commander of the Myanmar Police Force in Taluttaw, Henzada Township and his deputy responsible for local security; and the chairman of the Kanyinngu Village Tract Peace & Development Council, Oatpone village, Henzada Township, U Aung Than (the complainant in the second criminal case against the human rights defenders), were not charged. The six accused who were charged are only three minor officials (ten-household heads Ko Soe Win, Ko Win Hlaing and Ko Sapu) and three other local residents (Ko Than Aung, Than Kyaw Oo and Ko Than Oo). I note that the court did not call the primary accused to investigate the allegations against them as it is empowered to do under section 202 of the CrPC. I also note that unlike in the case of the six human rights defenders it granted these six accused bail.
I therefore again call for the Office of the Attorney General to review the charges lodged against these 12 persons in accordance with section 9(d) and (l) of the Attorney General Law and consider the means by which legal action may be effectively brought against them.
This is yet another case that has raised serious questions internationally about the capacity of the courts and criminal justice system in Myanmar to act with any credibility and integrity. I urge all persons concerned to act in accordance with their authority to see that justice be done and that the perpetrators of abuses in Myanmar, not the victims, be held to account.
Yours sincerely
—
PLEASE SEND YOUR LETTERS TO:
U Aye Maung
Attorney General
Office of the Attorney General
Office No. 25
Naypyitaw
MYANMAR
Tel: +95 67 404 088/ 090/ 092/ 094/ 097
Fax: +95 67 404 146/ 106
PLEASE SEND COPIES TO:
1. Lt-Gen. Thein Sein
Acting 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
E-mail: ddg.gad@gad.gov.mm
3. U Aung Toe
Chief Justice
Office of the Supreme Court
Office No. 24
Naypyitaw
MYANMAR
Tel: + 95 67 404 080/ 071/ 078/ 067 or + 95 1 372 145
Fax: + 95 67 404 059
4. Brig-Gen. Khin Yi
Director General
Myanmar Police Force
Naypyitaw
MYANMAR
Tel: + 95 1 549 196/ 228/ 209
5. 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
6. Mr. Shariq Bin Raza
Representative
UN Office on Drugs and Crime
11A Malikha Road
Ward 7, Mayangone Township
Yangon
MYANMAR
Tel: +951 666 903/ 660 556/ 660 538/ 660 398/ 664 539
Fax: +951 651 334
E-mail: fo.myanmar@unodc.org, shariq.raza@unodc.org, camila.vega@unodc.org
7. 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
8. Ms. Hina Jilani
Special Representative of the Secretary General for human rights defenders
Att: Melinda Ching Simon
Room 1-040
C/o OHCHR-UNOG
1211 Geneva 10
SWITZERLAND
Tel: +41 22 917 93 88
Fax: +41 22 917 9006 (ATTN: SPECIAL REPRESENTATIVE HUMAN RIGHTS DEFENDERS)
Thank you.
Urgent Appeals Programme
Asian Human Rights Commission (AHRC) (ahrchk@ahrchk.org)
