BURMA: A man charged without evidence for sending news abroad

ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAM

Urgent Appeal Case: AHRC-UAC-223-2008

8 October 2008
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BURMA: A man charged without evidence for sending news abroad

ISSUES: Rule of law; rights to liberty and security; military government; judicial system; illegal
detention; freedom of expression; torture
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NEW PUBLICATION
SAFFRON REVOLUTION IMPRISONED, LAW DEMENTED
www.article2.org

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Dear friends,

The Asian Human Rights Commission (AHRC) has been closely following and
documenting the detentions and trials in Burma following last September's mass
protests. In this appeal we bring you the case of Zaw Min, who was accused of having
sent news abroad, although no independent witnesses or evidence have been brought
to the trial against him. The non-legality and abuse in his case follows the same pattern
as others of its type on which appeals have already been issued.

CASE DETAILS

Zaw Min, also known as Paung Paung, 39, was detained at the end of November 2007 and
has been charged with upsetting public tranquility for having sent "false news" abroad about
the protests and conditions for detainees afterwards.

The case was not brought to the court until 26 March 2008 before which time Zaw Min was
held illegally, apparently in the custody of military intelligence where he is believed to have
been tortured.

The list of prosecution witnesses in his case consists only of five Special Branch officers,
including the officer bringing the case. As in other similar and related cases (including that of
Win Maw: AHRC-UAC-200-2008) the police have brought no evidence to match the elements
of the charge against the accused, and in fact no evidence at all. They allege that they had
arrested Zaw Min in possession of a memory stick with photographs on it but they could not
produce the memory stick in court. Nor could they produce documents in court to show that
he had produced any false news.

The absence of evidence can be partly explained by the fact that as in other cases of its sort,
the police were not actually the ones to have made the arrest of the accused. Rather, it was
the military intelligence that took and interrogated Zaw Min and then gave the case to the
police with instructions on how to prosecute it, even though this is against the law.

The police officer handling the case also presented a confession to the court obtained from
Zaw Min while he was in custody, probably through the use of torture, and read it to the court
in order to "refresh his memory" which violates the Evidence Act not only as such confessions
are not allowed but also because material brought to refresh the memory of a witness must
be that which the witness wrote him or herself.

Zaw Min was previously imprisoned from 1991 to January 2007 on charges of involvement in
student politics.
ADDITIONAL INFORMATION:

The AHRC has been documenting cases of illegal arrest, detention and prosecution since the
nationwide protests in Burma last September and has in recent months also issued a number
of other recent cases of young women imprisoned under similar circumstances and on similar
charges, including blogger Nay Phone Latt (AHRC-UAC-204-2008), the cases of three men
who harboured a monk (AHRC-UAC-188-2008), Kam Lat Koat and two others (AHRC-UAC-
177-2008), Ko Htin Kyaw (AHRC-UAC-146-2008), U Ohn Than (AHRC-UAC-131-2008),
Honey Oo and Aung Min Naing (AHRC-UAC-083-2008), Ko Thiha (AHRC-UAC-052-2008)
and Khin Sanda Win (AHRC-UAC-022-2008).

Similarly, it has been following the growing number of arrests and legal actions taken against
persons who have launched their own cyclone relief operations since May. See on the arrest
of human rights defender U Myint Aye and two others: AHRC-UAC-183-2008.

For links and other material on the protests in Burma of August and September 2007 see:
http://campaigns.ahrchk.net/burmaprotests/

See also the comprehensive reports "Burma, political psychosis and legal dementia" and
"Saffron Revolution imprisoned, law demented" issued by the AHRC’s sister organisation, as
well as the 2007 AHRC Human Rights Report chapter on Burma.

SUGGESTED ACTION:

Please write to the persons listed below to call for the charge against Zaw Min to be dropped.
Please note that for the purpose of the letter, the country should be referred to by its official
title of Myanmar, rather than Burma.

Please be informed that the AHRC is writing a separate letter to the UN Special Rapporteurs
on Myanmar and independence of judges and lawyers as well as the UN Special
Representative on human rights defenders, the UN Working Group on arbitrary detention and
the regional human rights office for Southeast Asia, calling for interventions into this case.

SAMPLE LETTER:

Dear ___________,

MYANMAR: Man arrested and charged for having contact with overseas radio

Details of accused:
Zaw Min (a.k.a. Paung Paung), 39, resident of Payakone Village, Thanlyin Township, Yangon
Division
Primary officials involved:
1. Police Major Ye Nyunt, No. La/58188, Special Branch
2. Inspector Thet Naing, No. La/114384, Operations, Special Branch
3. Police Captain Kyaw Soe, No. La/59054, Special Branch
4. Inspector Myint Aye, No. La/127086, Internal Affairs, Special Branch
5. Inspector Kyaw Than, No. La/128907, Special Branch
Charge and trial: Charged under section 505(b) of the Penal Code with upsetting public
tranquility, Felony Case No. 112/2008 Sanchaung Township Court, Judge Daw Than Htay
(Special Power), Assistant Township Judge, No. Ta/2043 presiding

I am writing to you concerning the patently illegal arrest and unfair trial of a man accused of
having sent "false" news abroad during 2007 and I am appealing to you for his immediate
release.

According to the information that I have received, Zaw Min was arrested around the end of
November and has been charged with upsetting public tranquility for having sent "false news"
abroad about the rallies in Myanmar during September and conditions for detainees
afterwards. However, his case was not brought to the court until 26 March 2008 before which
time Zaw Min was held illegally.

Unfortunately, this is only the first of many breaches of law in his case to which I feel obliged
to draw your attention, specifically, numerous breaches of the Evidence Act:

1. No material evidence of any kind: The police allege that they had arrested Zaw Min in
possession of a memory stick with photographs on it but they could not produce the said
memory stick in court. Nor could they produce documents in court to show that he had
produced any false news as claimed.

2. No independent witnesses or eyewitnesses: The five prosecution witnesses listed are

all Special Branch police officers. There are no independent witnesses at all. None of the five
police officers have been able to give direct oral evidence of the offence as required under the
act (section 60), because they themselves did not conduct the investigation but instead are
apparently acting under orders from Military Affairs Services personnel.

3. Unlawful confession: The police also presented a confession to the court obtained from
Zaw Min that was obtained while he was in custody, believed to have been extracted through
the use of torture, and read it to the court in order to “refresh his memory” which violates the
act not only as such confessions are not allowed but also because material brought to refresh
the memory of a witness must be that which the witness wrote him or herself (sections 26,
159).

4. Irrelevant facts submitted to court: The police testified that the accused had previously
been convicted and that he has a bad character even though this was not relevant to the case
and again a violation of the act (section 59).

In light of this patent lack of evidence I urge that the court close the case and release the
accused immediately. In the event that the court itself fails to do so I urge the Supreme Court
of Myanmar to give directions to this effect in accordance with its powers as established by
the new Constitution of Myanmar 2008.

With regards to the court process itself I also wish to express my dissatisfaction that this and
other cases like it are being heard behind closed doors, in this case within the prison itself,
which is in violation of the Judiciary Law 2000, section 2(e), and call for any such trials,
irrespective of other factors, to be conducted in open court.

I likewise call for the Attorney General to review the case and instruct the concerned law
office to withdraw the case from the court as per section 4(b) of the Attorney General Law
2001, and for the Minister of Home Affairs and Director General of Police also to look into the
matter both with a view to seeing the case withdrawn and also in order to review the work of
their subordinates.

Finally, I take this opportunity to remind the Government of Myanmar of the need to allow the
International Committee of the Red Cross access to places of detention and not least of all,
access to those persons and forcibly disrobed monks and nuns who have been held in
violation of criminal procedure and without charge or trial since the events of last September.

Yours sincerely

---

PLEASE SEND YOUR LETTERS TO:

1. Maj-Gen. Maung Oo
Minister for Home Affairs
Ministry of Home Affairs
Office No. 10
Naypyitaw
MYANMAR
Tel: +95 67 412 079/ 549 393/ 549 663
Fax: +95 67 412 439

2. Lt-Gen. Thein Sein

Prime Minister
c/o Ministry of Defence
Naypyitaw
MYANMAR
Tel: + 95 1 372 681
Fax: + 95 1 652 624

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. 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

5. Brig-Gen. Khin Yi
Director General
Myanmar Police Force
Ministry of Home Affairs
Office No. 10
Naypyitaw
MYANMAR
Tel: +95 67 412 079/ 549 393/ 549 663
Fax: +951 549 663 / 549 208

Thank you.

Urgent Appeals Programme

Asian Human Rights Commission (ua@ahrchk.org)
Posted on 2008-10-08
Back to [2008 Urgent Appeals]