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BURMA: Man jailed over footage of army-confiscated farmlands

ASIAN HUMAN RIGHTS COMMISSION – URGENT APPEALS PROGRAMME

Urgent Appeal Case: AHRC-UAC-009-2009

2 February 2009

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BURMA: Man jailed over footage of army-confiscated farmlands

ISSUES: Right to land; impunity; administration of justice; torture;
illegal detention; rule of law

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DEFEND RIGHTS OF LAWYERS IN BURMA

http://campaigns.ahrchk.net/burma-lawyers/

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Dear friends,

The Asian Human Rights Commission (AHRC) has obtained details of the
charging, sentencing and imprisoning of a man in Burma for helping
farmers to lodge complaints about confiscation of land in the central
part of the country. Ko Zaw Htay was found guilty of giving out
official secrets and sentenced to ten years’ jail on 23 January 2009
because he had allegedly arranged someone to take footage of the land
that was confiscated and send it abroad.

CASE DETAILS

In 2005 the Burma army in Natmauk, Magwe Division confiscated more
than 5000 acres of land that was legally registered to farmers, who
paid taxes and otherwise complied with government regulations in
order to use it. Then the army demanded 50,000 Kyat and 20 baskets of
physic nuts (used for biofuel under a government scheme) per acre to
any farmer wanting to use the land on a permit system.

In 2008, some 50 farmers lodged a complaint about this matter with
the International Labour Organisation (ILO) representative in the
country. After that, the army unit called four villagers and
interrogated them about the complaint. Thereafter, three were
illegally arrested on 20 October 2008 without prior authorisation
from a court, and then Ko Zaw Htay was arrested on October 29. The
army personnel allegedly tortured and illegally detained the four
inside their compound. The four were not brought to a court in 24
hours as required by law. Finally, only one of the first three, U Hla
Soe, and Zaw Htay were held and the other two were released. After
that they were again allegedly tortured at the police station in
Aunglan and forced to make confessions. They were only produced and
charged before a judge in December.

According to the case lodged against the two accused, Hla Soe
illegally entered the area that the army had confiscated and took
video footage that was sent to an overseas media group, which then
broadcast the images. Zaw Htay allegedly did no more than give him
the camera and train him to use it. Because of the contents of the
footage they were accused of breaching the official secrets law. The
army officer responsible for the unit concerned insisted that there
were no unlawful payments to the unit and that the growing and giving
of physic nut was on mutual agreement.

After Hla Soe agreed to testify for the prosecution against Zaw Htay,
the charges against him were dropped and only the latter was
prosecuted.

Aside from what has been described above, there were many other wrong
procedures in the lodging of the case against the accused and hearing
evidence in court. The accusations about the footage sent abroad,
such that it included images of bunkers that would jeopardize army
security, did not match the contents of the footage presented to the
court, which was of fields, a pass for villagers to work on the
confiscated land, and some signboards. The camera on which it was
allegedly shot also could not be produced before the court and the
CDs with the footage given in evidence were not taken directly from
the accused but were copied from the television broadcast. There were
no eyewitnesses that either of the two accused men were responsible
for the alleged offence but only that they had supposedly admitted to
the crime when in police custody, an admission that anyway by law
cannot be accepted by the court. Nor was there any evidence to show
that either of the accused had been in contact with overseas media,
either through email or post.

Notwithstanding, on January 23 Zaw Htay was found guilty of the
offence and sentenced to ten years’ imprisonment.

According to media reports, the ILO office in Burma has acknowledged
that it is working on the case but at this stage is unable to comment
further.

ADDITIONAL INFORMATION

While this case was going on, one of the lawyers representing the
accused, U Phoe Phyu, 30, was himself arrested. Phoe Phyu said that
when he went to Magwe to attend hearings in this case in early
January he was taken to the local council and questioned by police
and councillors while they searched his belongings. Then in the
morning of January 15 Special Branch and township officials arrested
him after he again went to Magwe in order to give case files to
another lawyer, after he had already boarded a bus to go back home.

Meanwhile, the farmers who had made the complaint to ILO had
reportedly in December been denied access to the land and the army
was harvesting their produce in their stead.

BACKGROUND INFORMATION

Evidently the case against Zaw Htay was launched as retribution for
the complaints that he has initiated with farmers to the
International Labour Organisation. This is not illegal, as the ILO is
there for the purpose of receiving such complaints, although its
mandate concerns forced labour and child soldiers rather than land
issues. The government itself also encourages the making of
complaints about the wrongdoing of government officials, through
advertisements in newspapers and other media.

Zaw Htay had previously also been accused in a similar case of
sending false information to the ILO over the alleged death of a
villager at the end of 2004 during forced labour on a road in
Aunglan, along with two other men. The case was constantly postponed
and finally it was closed thanks in part to ILO interventions (AHRC
UP-054-2006 <http://www.ahrchk.net/ua/mainfile.php/2006/1610/>
).

At least four other lawyers representing many persons accused of
antigovernment offences in Burma have also in recent months been
prevented from doing their jobs and have themselves been imprisoned,
including two who have been jailed for contempt of court, U Aung
Thein and U Khin Maung Shein, whose case the AHRC has highlighted in
a new campaign page <http://campaigns.ahrchk.net/burma-lawyers/>
.

See also the comprehensive report on Burma: “Burma, political
psychosis and legal dementia <http://www.article2.org/pdf/v06n05.pdf>
” issued by the AHRC’s sister organisation and the 2008 AHRC Human
Rights Report <http://material.ahrchk.net/hrreport/2007/index.htm>
chapter on Burma
<http://material.ahrchk.net/hrreport/2007/Burma2007.pdf>
.

SUGGESTED ACTION:

Please write to the persons listed below to request the immediate
release of Ko Zaw Htay from prison. 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 Rapporteur on human rights
defenders, the UN Working Group on arbitrary detention, the regional
human rights office for Southeast Asia and the representative of the
ILO in Burma calling for interventions into this case.

SAMPLE LETTER:

Dear ___________,

MYANMAR: Man wrongfully jailed over complaint of land confiscation by
army

Convicted person: Ko Zaw Htay, 43, residing in Setyone Ward, Aunglan
Township, Magwe Division, Myanmar

Primary officials involved:

1. Captain Phyoe Way Myint, Army Serial No. Kyi/44448, 23, armoury
unit commander, Natmauk Township

2. Superintendent San Ngwe, 54, Police No. La/114920, Station
Commander, Natmauk Township Police 3. Police Captain Thet Tin Htun,
Police No. La/112691, Natmauk Township Police

4. Police Sergeant Htein Lin, Police No. La/145774, Natmauk Township
Police

Charge and trial: Charged under section 3(1)(a) and (c) of the
Official Secrets Act (No. 19/1923) with approaching a prohibited
place and obtaining and communicating secret official information to
others; Felony Case No. 53/2008, Magwe District Court, heard by Judge
U Soe Win, sentenced to ten years on 23 January 2009

I am writing to express my deep distress at learning that a man who
had worked to bring alleged illegal confiscation of land to the
attention of the authorities in Myanmar and has been rewarded with a
jail sentence, and to call for your intervention to see that he is
promptly released.

According to the information I have received, in 2005 the Myanmar
Armed Forces in Natmauk Township of Magwe Division confiscated more
than 5000 acres of land that was legally registered to farmers in the
Ywapun Village Tract, including land of farmers in Myetyekan,
Kyaungywale, Ywathit and Nyaungpauk villages, who paid taxes and
otherwise complied with government regulations in order to use it.
Then the army demanded 50,000 Kyat and 20 baskets of physic nuts per
acre to any farmer wanting to use the land on a permit system.

In 2008, some 50 farmers lodged a complaint about this matter with
the International Labour Organisation (ILO) representative in the
country. After that, the army unit called four villagers, U Hla Soe,
U Sein Maung, U Tin and U Aung Htay Hlaing, and interrogated them
about the complaint. Thereafter, three villagers, U Hla Soe, U Ne Lin
Htet and U Sein Sa Tin were illegally arrested on 20 October 2008
without prior authorisation from a court, and then Ko Zaw Htay was
arrested on October 29. The army personnel allegedly tortured and
illegally detained the four inside their compound. The four were not
brought to a court in 24 hours as required by law (Criminal Procedure
Code  section 61). Finally, only Hla Soe and Zaw Htay were held
and the other two were released. After that the remaining two
detainees were again allegedly tortured at the police station in
Aunglan and forced to make confessions. They were only produced and
charged before a judge on 11 December 2008, such that each man was
held for over six weeks outside of the legal process.

According to the case lodged against the two accused, Hla Soe
illegally entered the area that the army had confiscated and took
video footage that was sent to an overseas media outlet, the
Democratic Voice of Burma, that broadcast the images on 10 October
2008 at around 8pm.

Aside from what has been described above, there were other wrong
procedures in the lodging of the case against the accused and hearing
evidence in court, such that the court should not have admitted the
evidence of the prosecution but still it did, in violation of section
200 of the CrPC mandating that the prior authorisation of a court be
given and in breach of laws on the keeping of records and signatures
of the accused. The accusations about the footage sent abroad, such
that it included images of bunkers that would jeopardize army
security, did not match the contents of the footage presented to the
court, which was of fields, a pass for villagers to work on the
confiscated land, and some signboards. The camera on which it was
allegedly shot also could not be produced before the court and the
CDs with the footage given in evidence were not taken directly from
the accused but were copied from the television. There were no
eyewitnesses that either of the two accused men were responsible for
the alleged offence but only that they had supposedly admitted to the
crime when in police custody, an admission that anyway by law cannot
be accepted by the court. Nor was there any evidence to show that
either of the accused had been in contact with overseas media.
Finally, the prosecution witnesses testified that the accused had
confessed orally to the crime in the police station, even though this
is inadmissible as evidence (CrPC section 162, Evidence Act section
24).

Notwithstanding, on January 23 Zaw Htay was found guilty of the
offence and sentenced to ten years’ imprisonment.

Given that the economic and food conditions in Burma are dire, I
wouldn’t expect that government authorities would devote their
energies to taking over of productive land being used by villagers
and obstructing their work activities. However, I am informed that
such incidents are widespread in Burma and are in fact one of the
contributors to the hunger and malnourishment that millions of people
living there face daily.

Accordingly, In view of the patent flaws and lack of material
evidence in this case, I call for the Minister of Home Affairs and
the Attorney General and other concerned officials to review it
promptly with a view to seeing the accused persons released without
delay. There must also be a thorough investigation into the
allegations of torture of the accused both in the army camp and
police station concerned, as well as concerning the original
complaint of confiscation of land among farmers in the region.

I also note with concern that a lawyer for the accused has himself
been imprisoned in recent weeks and urge that he also be released
without delay and that there be no further harassment of lawyers in
Myanmar who are simply trying to do their jobs.

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 so as to ascertain the conditions of
imprisonment for persons like the accused in this case and others and
ensure that they are held humanely and in accordance with minimum
international standards.

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: +951 549 663 / 549 208

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@ahrc.asia <mailto:ua@ahrc.asia>
)

—————————–
Asian Human Rights Commission
19/F, Go-Up Commercial Building,
998 Canton Road, Kowloon, Hongkong S.A.R.
Tel: +(852) – 2698-6339 Fax: +(852) – 2698-6367

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