Thread: Burma : Ten case studies in illegal arrest and imprisonment

Ten case studies in illegal arrest and imprisonment

Terminology

CrPC : Criminal Procedure Code
Kyaikkasan : Location of military interrogation facility
MAS : Military Affairs Security, military intelligence
SB : Special Branch police
Swanar-shin : 'Masters of force', gangs operating under command of local councils
USDA : Union Solidarity & Development Association, government mass body

Note
Some of the cases described here have already had verdicts handed down which are mentioned. In others no verdict is mentioned either because they are still under trial or because at time of writing additional full details were not available on the verdict.


1. Khin Sanda Win: Meaningless pledge, lawless system

ACCUSED Khin Sanda Win, 23, 2nd year philosophy major, Rangoon Eastern University

ARREST 29 September 2007, outside Pansodan Department Store, Kyauktada Township, Rangoon, by persons in civilian clothes, believed to be Swanar-shin and USDA attached to Rangoon Town Hall

CUSTODY Kyaikkasan, 29 September to 7 October; Insein Prison, 7-25 October and 12 November onwards

REARREST 1 November 2007, by Kyauktada police

CHARGES 19(e), Arms Act, changed to 336/511, Penal Code, brought by Inspector Soe Naing (Kyauktada), Police No. La/147569

TRIALS Kyauktada Township Court Felony No. 525/2007, Assistant Judge U Thaung Lwin (First Class) presiding, Rangoon Western District Court, Revision of Criminal Case No. 323/2007, Judge U Kyaw Swe, Deputy District Judge No. 3, Judge No. Ta/1867, presiding, Rangoon Divisional Court Criminal Case No. 1024/2007

SENTENCE Six-months imprisonment

ISSUES Illegally arrested, held at special military camp, released after signing a "pledge", rearrested and charged, bail set at a higher amount than legal maximum, bail unilaterally retracted by judge

APPEAL NO .AHRC-UAC-022-2008

A group of men in plain clothes, apparently members of a government gang and a government-organised mass group, allegedly stopped Khin Sanda Win, a 23-year-old university student, in Rangoon at around 10am on 29 September 2007 during the military-led crackdown on protestors. They searched her and although she only had her ID cards, a small amount of money and some personal items, they tied her hands behind her back and took her to the town hall.

At the town hall, she was put together with ten men who were unknown to her and then they were each photographed with various weapons, including knives, slingshots and pellets. Then they were allegedly forced to sign confessions that the weapons had been found in their bags. When Khin Sanda Win refused to sign, one of the men in plain clothes hit her on the head with a bamboo rod.

That night, Khin Sanda Win was sent to a special interrogation centre and she was kept there without charge, warrant or otherwise until October 7, when she was transferred to the central prison and held there, again without charge, warrant or any other legal order until October 25.

Khin Sanda Win

On October 25, Khin Sanda Win was sent to the Hlaing Township Peace and Development Council office where in the presence of the council chairman and her parents she was told to sign a pledge that she would not take part in any anti-state activities, after which she was released. Many persons released after having taken part in the protests were first forced to sign these pledges, which have no basis in law, as proven by what happened to Khin Sanda Win, and are anyhow so vague as to be meaningless, requiring signatories to promise that they will not again commit undefined offences.

Although it seemed like Khin Sanda Win's ordeal was over, it was not. On November 1 two police officers came to her house and informed her that she would be charged with having illegal arms, although the "arms" they claimed to have found were a slingshot and some pellets, which do not violate the law.

But when Khin Sanda Win went to court the next day, the charge that the court put against her was not as the police had indicated but instead, acting "to endanger human life or the personal safety of others".

PENAL CODE

336. Whoever does any act so rashly or negligently as to endanger human life or the personal safety of others shall be punished with imprisonment of either description for a term which may extend to one year...

511. Whoever attempts to commit an offence punishable by this Code with transportation or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with transportation or imprisonment of any description provided for the offence for a term of transportation or imprisonment which may extend to one-half of the longest term provided for that offence...

This is a charge for which the accused can get bail. But when her lawyer applied, the judge set bail at five million kyat (USD 4000) from two separate bailors. In fact, this amount was far more than the amount that the judge could legally set, which is three million kyat (USD 2400) from a single bailor.

Then, on November 12 the judge, without any request from the police, unilaterally revoked the bail on the absurd grounds of Khin Sanda Win being a threat to security forces personnel because the charge against her relates to the "disturbances" of September.

Khin Sanda Win's lawyer unsuccessfully appealed at the subdivisional and divisional courts to have her released on bail on health and legal grounds.
The following are just a few of the glaring violations of criminal law, criminal procedure and human rights in this case:

1. The persons who took Khin Sanda Win into custody did not indicate at any time that they were state officials and there were no grounds for arrest by a private citizen as provided by section 59 of the CrPC.

2. The persons searched her in violation of section 52 of the CrPC that the search of a woman should be conducted by another woman, and also tied her hands in violation of section 50 that no more restraint than necessary should be applied to prevent escape.

3. While in custody at the town hall, Khin Sanda Win was allegedly coerced to sign a fake confession and was assaulted.

4. Khin Sanda Win was first held without charge for a total of 26 days, in violation of CrPC section 61, which limits detention without charge to 24 hours, and she was denied access to a lawyer and her family. In order to be released she had to sign a document which has no legal authority.

5. Assistant Judge U Thaung Lwin exceeded the maximum amount at which he could set bail in the first instance and then without justification withdrew the bail order altogether.

CRIMINAL PROCEDURE CODE

50. The person arrested shall not be subjected to more restraint than is necessary to prevent his escape.

52. Whenever it is necessary to cause a woman to be searched, the search shall be made by another woman, with strict regard to decency.

59 (1) Any private person may arrest any person who in his view commits a non-bailable and cognizable offence... and without unnecessary delay shall make over any person so arrested to a police officer, or... to the nearest police station.

60. A police officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions herein contained as to bail, take or send the person arrested before the officer in charge of a police station.

61. No police officer shall detain in custody a person arrested without a warrant for a longer period than under all the circumstances of the case is reasonable and such period shall not... exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the police station, and from there to the Magistrate's Court.

In a lawless land, any law will do
Awzar Thi, Jurist Hotline, 6 March 2008

Human rights advocates, lawyers and journalists are often concerned with how special laws are used to suppress dissent and deny basic freedoms in countries around the world. Internal security acts and emergency decrees attract widespread interest and strong critiques. How ordinary laws are used to the same ends often obtains less notice. And yet it is in the workings of mundane codes and procedures that the efforts of governments to control the largest numbers of their citizens are brought into sharpest focus.

Burma is a case in point. Democracy campaigners have long described it as having some of the most draconian and sweeping security laws in the world. Now a lawyer has said that around 20 detainees are likely to be charged under one of these. The persons, held since last August, are expected to face charges under law 5/96 for "acts such as incitement, delivering speeches, making oral and written statements and disseminating in various ways [sic] to belittle the National Convention" on a new constitution.

Like hundreds of other people locked up since the nationwide uprising last year, none of these persons were ever in fact arrested. Unidentified men bundled them into unofficial vehicles and took them to undisclosed places. They were snatched. Even the state media quietly acknowledged this much, describing them as "brought, investigated and questioned". Those freed have been forced to sign incoherent pledges, admitting that they have committed undefined crimes and have been released because of the state's goodwill.

Among those still inside, including dozens of defrocked monks and nuns, few have been charged under security laws. Most have been accused of ordinary crimes: insulting religion; keeping obscene materials or illegal videos; gambling, carrying weapons. And if one charge doesn't stick, there's sure to be another.

The imprisonment of Khin Sanda Win, a 23-year-old university student, is indicative. She was stopped by unknown men on September 29 and taken to the town hall in Rangoon where she was photographed standing behind some arms on a table, with a group of other people whom she had never met. Then she was put inside. Law never even entered into it.

At the end of October, Khin Sanda Win was let out after signing a pledge, but shortly thereafter police came to her house and said that she would be charged after all, for allegedly having a slingshot in her bag when she was picked up. Apparently the officers had not realised that possessing a slingshot is not prohibited.

When Khin Sanda Win came to court she was instead accused of endangering life. The judge granted bail at an amount that exceeded what was legally permissible, and then without reason unilaterally retracted it. She has since been held in solitary confinement at the central prison and attempts to get her released have been singularly unsuccessful.

Such cases are nothing new to Burma. Officials large and small routinely lay run-of-the-mill charges against perceived troublemakers or personal enemies. Cases for upsetting the peace, interfering with public servants and lodging false complaints are commonplace. Other targets are accused of apparently unrelated crimes, such as trading in illegal lottery tickets or tutoring without a licence. Judges have been known to advise inept prosecutors on charges with which to secure a guilty verdict.

In this setting talk only about specialised security laws and high-profile dissidents holds little value. When a country's entire criminal legal system has been reduced to a means to other ends, trying to make sense of one particularly nasty provision or an especially ugly case is pointless. Instead, real effort is needed to understand and describe the whole; to identify those features that a single case has in common with others rather than those that may distinguish it from the rest.

Having documents called laws and people called judges does not alter the fact that Burma is fundamentally lawless. The serial abducting, detaining and belated charging of last year's protestors is a symptom of this condition. Ultimately, those accused of threatening the National Convention are just another 20 defendants denied lawyers or rights, and for this reason alone, rather than the law under which they have been charged or their personal backgrounds, they are worthy of concern and advocacy.

2. Ko Thiha: Twenty-two years for some photocopies

ACCUSED Ko Thiha, 34, traditional medicine practitioner; member of the Human Rights Defenders and Promoters (HRDP) group and National League for Democracy (NLD) youth wing member

ARREST 7 September 2007

CUSTODY Kyaikkasan, 29 September to 7 October; Insein Prison, 7-25 October and 12 November onwards

CHARGES 124A/505(b), Penal Code, brought by Police Captain Win Myint, SB

TRIALS Mandalay District Court Criminal Case No. 134/2007, Judge Win Htay presiding

SENTENCE One life term (20 years) and two years rigorous imprisonment, to be served consecutively, given on 17 September 2007

ISSUES Arrested for having some publications linked to protests, wrongly charged, no lawyer, no defence witnesses, one-day closed trial, forged confession read out as evidence

APPEAL NO.AHRC-UAC-052-2008


Ko Thiha

On 7 September 2007, a man named Soe Khaing Win left four publications at a photocopy shop in Mandalay. The publications, which had titles like "The people awake! Time to take to the streets", were described as "inflammatory" and "anti-government". Later, two others, Ye Min Zaw and Ko Thiha, came to collect them. Thereafter, the police went looking for the three; however, the first two were able to evade arrest. They only captured 34-year-old Ko Thiha that night when he was south of Mandalay, near the town of Wundwin, on the road to his hometown of Meikhtila.

The police brought Thiha to the district court in Mandalay on September 14 and charged him with sedition and upsetting public tranquillity, despite the fact that the case against him should have been opened in the court in Wundwin, where he was arrested, not in Mandalay.

The trial was held at a special court inside the Mandalay Prison. Thiha did not have a lawyer to represent him, even though he was facing a life sentence. He was not able to call any witnesses or defend himself in court. Meanwhile, the witnesses that the police called were not the ones present when Thiha was actually arrested. The police did not present any evidence to strongly support the charge of sedition and instead called another judge who briefly testified that Thiha had made a confession before him, which was presented as evidence. However, Thiha claims to have never seen that judge before the trial.

The hearings were all completed in a single day, and on September 17 after only ten days of investigation and trial the presiding judge sentenced Thiha to 22 years in prison. He ordered warrants of arrest for the other two accused. Thiha was sent to the central prison.

PENAL CODE

124A. Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, bring to attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards [the Government established by law for the Union or for the constituent units thereof,] shall be punished with transportation for life or a shorter term...

505(b) Whoever makes, publishes or circulates any statement, rumour or report... with intent to cause, or which is likely to cause, fear or alarm to the public or to any section of the public whereby any person may be induced to commit an offence against the State or against the public tranquility... shall be punished with imprisonment which may extend to two years...

The following are just a few of the glaring violations of criminal law, criminal procedure and human rights in this case:

1. The case should have been lodged in the Wundwin Township Court and then transferred to the Mandalay District Court (177, 178, CrPC), but it was opened directly in Mandalay.

2. Ko Thiha was not able to hire a lawyer as is his right, nor make a proper defence (340, CrPC, Judiciary Law 2000 section 2[f]).

3. Ko Thiha was not able to call witnesses as his case was tried in a closed court within Mandalay Prison, in violation of the Judiciary Law (section 2[e]) and the CrPC (352).

4. None of the witnesses brought to court by the police, including the police, were present when Ko Thiha was arrested.

5. The prosecutor called Batheingyi Township Judge, U Mya Sein, to testify that he had taken a confession from the accused (Evidence Act, section 26). However, according to Ko Thiha he had never seen that judge before he came to the court.

The court also compounded the penalties for the two offences rather than allowing them to be served consecutively.

CRIMINAL PROCEDURE CODE

177. Every offence shall ordinarily be inquired into and tried by a Court within the local limits of whose jurisdiction it was committed.

340(a) Any person accused of an offence before a criminal Court... may of right be defended by a pleader.

352. The place in which any criminal Court is held for the purpose of inquiring into or trying an offence shall be deemed an open Court, to which the public generally may have access...

JUDICIARY LAW 2000

2. The administration of justice shall be based upon the following principles:

(e) dispensing justice in open court unless otherwise prohibited by law;

(f) guaranteeing in all cases the right of defence and the right of appeal
under the law...

Ko Thiha may have been targeted in part because he is a member of the HRDP group. In the December 2007 article 2 special report ('Burma, political psychosis and legal dementia', vol. 6, no. 5-6) the cases against other members of that group, the 'Hinthada 6', were documented and discussed, and other members of the group also have been imprisoned before and since the September protests. The chairman of the group also has now been detained over relief work for victims of Cyclone Nargis and, incredulously, accused of terrorist offences (see 'Nargis: World's worst response to a natural disaster' in this edition.)

According to a report by Democratic Voice of Burma radio in November 2007, unidentified Special Branch police in Meikhtila also called and interrogated Ko Thiha's seven-months-pregnant wife, Ma The The, on suspicions that she was also involved in anti-government activities. They took a statement from her and also photographed her before allowing her to go home.

3. Ma Honey Oo: A 'reliable source' said she did something

ACCUSED Ma Honey Oo, 21, final year law student

ARREST 9 October 2007

CUSTODYI nsein Prison

CHARGES 124A/143, Penal Code, Organisation Law No. 6/88, brought by Sub-Inspector Soe Moe Aung, Police No. La/134172, Tamwe police

TRIALS Rangoon Eastern District Court Felony Case Nos. 30/2008 and 31/2008, Daw Aye Thein, Deputy District Judge (1), Judge No. Ta/1724, presiding

ISSUES Illegally held without charge, torture, forced confession, evidence-less case, contradictory witness testimonies, use of numerous incorrect procedures

APPEAL NO.AHRC-UAC-083-2008

Ma Honey Oo is accused of having had contact with overseas radio stations to give out information at the time of the protests, and having been involved in forming a student union. She was taken into custody on 9 October 2007 but was not brought before a court until December 20; during those more than two months she was held illegally without charge at the central prison.

The police have accused Honey Oo of having been involved in a student union, having talked to foreign media by telephone and of having participated in protests at the Yuzana Plaza and on the road from Mingalar Market to Natmauk on 25-6 September 2007. However, when pressed in court they could not produce any evidence to support any of their claims and on the contrary showed ignorance and confusion about the laws under which she had been charged.

The investigating detective, Sub-Inspector Soe Moe Aung, under cross-examination said that the information they had that Honey Oo was part of the group accused of having contact with overseas media was from a reliable source, but he could not divulge the source to the court and the source was not included among the list of witnesses in the case. He had no evidence to present to the court other than the supposed confession of the accused. Nor could he produce any photographs or other evidence that Honey Oo was in the protests as claimed in the charges against her, saying only that eyewitnesses had seen her, although he acknowledged that it was the responsibility of the police to take photographs and bring enough evidence with which to support the case. On the other hand, among the "evidence" presented against Honey Oo was that she had gone for English lessons at the American Center library, about which the defence lawyer asked if it was a crime to learn English; the officer replied that he just collected and gave information about her and it wasn't for him to decide if it was relevant or not. Finally, on the charge of sedition, the defence lawyer pointed out to the policeman that there was nothing in the case brought against his client that could meet the elements of this charge and at most she could be charged with obstructing a public thoroughfare. Sub-Inspector Soe Moe Aung replied that the protests included seditious behaviour but when asked to explain the section to the court he admitted that he could not.

Ma Honey Oo

The chief of the Tamwe Township police, Inspector Hla Thein (Police No. La/155953) said that on December 10 he received four interrogation records of Honey Oo from Sub-Inspector Hla Htun, SB, which he submitted to the court as evidence. When the defence lawyer asked him if he knew that the accused had been interrogated "under duress" the police chief denied it, but when the lawyer challenged him, he admitted that he didn't actually know how she had been interrogated. The lawyer also asked the officer if he didn't know that Honey Oo was taking an exam on September 25 and couldn't have been on the road waving a flag as the eyewitnesses had purportedly said. Inspector Hla Thein replied that he didn't know this but maybe she had gone before she went to the exam, although he also didn't know what time she might have had the exam. When told by the lawyer that the time of the exam was the same as she was supposed to have been on the road and therefore the eyewitnesses must be lying, the police chief denied it and said that it must just be a matter of not being able to identify the time of her involvement in the protests exactly. The chief also claimed fantastic ignorance of basic criminal procedure, denying knowledge that the Evidence Act prohibits forced confession and also that he is supposed to keep a record of any investigation in his station's Daily Diary, not in a personal book as he said he did. Finally, coming back to the submitting of the confessions to the court, the defence lawyer asked the police chief if he knew that they were inadmissible, to which the inspector replied that "in some cases they can" but asked to explain to the court which cases these would be he admitted that he was unable to do so.
Importantly, Honey Oo was first detained on 9 October 2007; however, she was not put in remand until December 20, during which time she was held in Building 3 of Insein Prison without charge. When the defence lawyer asked the police chief about this, he simply said that he was not involved in the case for the period of alleged illegal detention, but denied anyhow that it had been illegal. The lawyer observed though, and the policeman agreed, that she had not been charged until December 17, so that when the lawyer asked the officer to confirm that Honey Oo was arrested and held for over two months before the case was opened, he replied, "I don't know."

PENAL CODE

143. Whoever is a member of an unlawful assembly shall be punished with imprisonment of either description for a term which may extend to six months...

At the same time that the case was brought against Honey Oo another under section 124A was brought against a 20-year-old man named Aung Min Naing, who was detained on September 7 and accused of joining around 50 persons on August 23 and going to Tamwe Plaza and the road in front of the Tamwe Temporary Market and Kyaukmyaung Market and marching in protest at the fuel price hikes, for which he was also held for over three months without remand and charged with sedition by the same police as in Honey Oo's case. Again they laid the charge apparently without properly understanding it, Sub-Inspector Soe Moe Aung admitting that the decision to lay this charge had nothing to do with him and that it was "under instructions" from somewhere and someone else. He also acknowledged that he didn't know whether or not there is even a law for obtaining a permit to rally on the road. Again, neither he nor Inspector Hla Thein had any evidence to present to the court at all, and the inspector inadvertently denied having made an illegal arrest without the defence lawyer even asking him about this. Again, the police had presented an inadmissible confession to the court, allegedly obtained through torture, which they denied. Finally, in response to the lawyer's question about whether the policeman understood or not that in the absence of other evidence witness testimonies alone do not constitute a strong case, the officer replied, "That's not so."

4. U Ohn Than: Inequality before the law

ACCUSED U Ohn Than, 60

ARREST By persons in plain clothes, after 1pm, 23 August 2007 outside then Embassy of the United States of America, Kyauktada Township, RangoonCUSTODYKyaikkasan, then Insein Prison

CHARGES 124A, Penal Code, brought by Inspector Soe Naing (Kyauktada), Police No. La/147569

TRIALS Rangoon Western District Court (Special Court), Felony No. 12/2008, Judge U Kyaw Swe, Deputy District Judge No. 3, Judge No. Ta/1867, presiding

SENTENCE Life imprisonment

ISSUES Illegally arrested, held at special military camp, tried in a closed court amid multiple other procedural irregularities

APPEAL NO.AHRC-UAC-131-2008

U Ohn Than had joined a number of earlier protests against price rises but had been released after being interrogated.

On August 23 however, he went by himself to the front of the then-US embassy in downtown Rangoon and held a placard with a series of points written on each side. On one, he called among other things for the UN secretary general to intervene and support the people's will for the restoring of parliament. On the other, he called on soldiers to uphold the armed forces' dignity and defy the orders of their superiors in order to bring an end to dictatorship. He was taken away in a small public vehicle shortly thereafter.

U Ohn Than’s protest

Like other protestors, Ohn Than was not arrested according to any law.

After being bundled away in a vehicle by men in plain clothes, he was kept in a special military interrogation camp until the end of January when his case was finally brought into a court. Like others, he was not tried in an open court but in a special closed court in accordance with an order from the Supreme Court concerning cases arising from the 2007 protests.
Of the nine witnesses who appeared for the prosecution seven were police and local officials. The other two identified themselves as belonging to the Swanar-shin gangs and under cross-examination by Ohn Than himself one of them admitted that he was assigned by the local council to "render assistance" as necessary. Both of them said that they were working with the local police.

In his defence, Ohn Than said that he had acted out of concern for the nation after the price rises and fear that there could be another bloodbath like in 1988. He also pointed out that there had been protests twice earlier in the year with groups of a hundred or so persons in the same place but no one had ever been charged from these: in fact, he was referring to the government-sponsored "demonstrations" outside the US embassy against foreign interference in the country. He said that if these people were not charged and sentenced, then nor should he.

The judge also asked Ohn Than after his testimony if he was acting on behalf of anyone else and he replied firmly that he protested on his own to represent the true wishes of the people. But the judge concluded that standing alone at a busy place in front of a foreign embassy with a placard amounted to an act of sedition and sentenced Ohn Than to life imprisonment on 2 April 2008.

After his conviction Ohn Than was transferred to the Khanti Prison in Sagaing Division, upper Burma, apparently in order to isolate him from his family and other persons inside the prison whom he might know. At last report he had been suffering from malaria and there were serious concerns about his health.

The following are just a few of the glaring violations of criminal law, criminal procedure and human rights in this case:

1. None of the men who snatched U Ohn Than and threw him into a vehicle were in uniform or identified themselves, and they took him to Kyaikkasan instead of a police station in accordance with the CrPC.

2. U Ohn Than was not kept in a police station or for a period of less than 24 hours (CrPC section 61). He was held at the Kyaikkasan camp without reference to any law and a case was not filed against him in court until 30 January 2008. Thus he was held incognito in illegal detention for 160 days before the case was filed.

3. The criminal trial of U Ohn Than was held in a closed court in violation of the Judiciary Law 2000 (section 2[e]) and the CrPC (section 352). A question by the accused to a police officer about whether or not groups of persons who had on and before 12 February 2007 protested outside the US Embassy had also been arrested and charged was removed from the court record as inadmissible on the grounds that it did not relate to the case at hand, despite the obvious connection and the clear point that the accused was trying to make about the double standards in the treatment of himself versus those other persons.

No show trials for Burma's protestors
Awzar Thi, UPI Asia Online, June 19, 2008

Nearly a week ago, the Asian Human Rights Commission issued an appeal on behalf of U Ohn Than, who is imprisoned in Khanti in upper Burma. The 60-year-old was among the few who protested last August against the government's unannounced dramatic increase in fuel prices, precipitating the historic monk-led revolt in September.

Ohn Than went out alone, standing opposite the U.S. Embassy in the center of Rangoon with a placard that called for United Nations' intervention and pleaded for the armed forces and police to join in efforts to topple the junta.

His protest did not last long. Within a few minutes an unidentified vehicle pulled up and a group of men threw him inside and drove away. For the public, that was it. For Ohn Than, it was only the beginning.

Ohn Than was not taken to a police station, as required by Burma's criminal procedure code, but to a special army barracks that was used to house thousands, similarly detained without charge or procedure, in the coming days and weeks. He was kept there, a non-detainee in a non-prison.

Several months later, at the end of January, Ohn Than was finally charged with sedition, which requires that the prosecutor prove that Ohn Than had provoked "hatred or contempt" for the government, or had attempted to "excite disaffection" toward it.

Under other circumstances, this may be a difficult task, but Ohn Than was tried in a closed court, unable to present witnesses, and was denied a lawyer, making the prosecutor's job less onerous.

Still, Ohn Than did his best to argue a case, cross-examining nine witnesses, all of them state officials and government thugs, and asking questions that were consequently struck from the record when the judge found them impertinent.

In his defense, Ohn Than said that he had not intended to incite hatred toward the state and pointed out that the wording of his silently-held placard was simply calling for democracy instead of dictatorship, and for the armed forces to uphold their dignity by siding with the people.

He also noted that a government-backed group had held a rally near the same spot in February. None of the hundred or so that had gathered had been charged with any offence. He had assumed that he had the right to do as they did.

In the end, it seemed Ohn Than's words were of no import. The judge skipped lightly over the facts and handed down the required sentence.
Dictators have long relied upon pliable judiciaries to deal with political opponents or former allies, and in this respect Burmese courts are unremarkable. Still, whereas in many countries the courts have been used for rehearsed public performances of justice, it is not the case in Burma.

In Moscow, show trials under Stalin were highly scripted; in Beijing, the Gang of Four trial was an important part of a public and political catharsis. In each case, the performances were paramount. The law mattered little.
What is striking about the trials in Burma today is that neither the performance nor the law matters. They go on without fanfare or outside interest for no purpose other than the illegal imprisonment of persons who were already illegally imprisoned, without anyone to witness their parodies of justice other than the performers themselves.

Ultimately, it is this lack of audience that makes these trials particularly disturbing. Unable to operate with integrity, Burma's courts do not even serve as a locale shaping and exhibiting state propaganda. Their judgments, having been stripped of both coherence and relevance, are disinterested in the police's attention to the law, the presence of the prosecutor's evidence, or the defendant's defense. There is no sound, no fury, and no significance.

The significance of U Ohn Than's case, then, is its absence. For a few fleeting moments, Ohn Than was visible on the streets outside the embassy. There was no other opportunity: no television camera recorded his testimony to the court; no newspaper declared in print the passing of his life sentence. His was the role of an actor in an uncelebrated farce, a farce repeated daily.

5. Ko Htin Kyaw: Seditious appeal to keep commodity prices down

ACCUSED Ko Htin Kyaw (a.k.a. Ko Kyaw Htin), 44

ARREST By persons in plain clothes, outside Maha Theindawgyi Monastery, Papedan Township, around 1pm on 25 August 2007

CUSTODY Kyaikkasan, then Insein Prison

CHARGES 124A, Penal Code, brought by Police Captain Myint Swe, Police No. La/59314, Papedan police

TRIALS Rangoon Western District Court (Special Court), Felony No. 16/2008, Judge U Htay Win, Deputy District Judge No. 5, presiding

ISSUES Illegally arrested, held at special military camp, tried in a closed court amid multiple other procedural irregularities

APPEAL NO.AHRC-UAC-146-2008

Ko Htin Kyaw was among the first persons to protest against the August 15 price rises in fuel that provoked the nationwide uprising in September 2007. He and another person, Ko Zaw Nyunt, came onto the street outside the Maha Theindawgyi Monastery in Papedan Township with a placard calling for no increase to fuel prices at around 1pm on 25 August 2007. Shortly afterwards men in plain clothes came and grabbed them and threw them into an unmarked vehicle before driving them away. The "arrest" occurred without any uniformed police officers being present even though the Pansodan Township Police Station is only a short distance from where the incident occurred.

As in other cases, although Htin Kyaw and Zaw Nyunt should have been taken to a police station and then to a court within 24 hours as per the Criminal Procedure Code, they were taken to Kyaikkasan. Zaw Nyunt was released after some weeks, during which time his whereabouts were unknown to friends and relatives and government officials denied having him in custody. Htin Kyaw, however, was transferred to the Thanlyin (Syriam) Police Battalion No. 7. The Papedan Township Police did not lodge the sedition charge in court until 6 February 2008, and did not even bring his case to the notice of a court until 11 November 2007. Thus he was kept in illegal custody for 165 days.

When Htin Kyaw was at last brought to court he was charged with sedition, which requires proof that the accused person had "excited disaffection" or hatred towards the state. However, all of the evidence that has been brought against him shows only that he called for the lowering of commodities prices, as on previous occasions, and did not say or do anything to malign the government itself.

The police laid the charges on the accusation that the two men made the protest "against the state government as well as law and order" and that Htin Kyaw had in February 2007 led a small protest against increasing price rises in Burma "in the manner of a riot". He had been detained and investigated that time but released after six days. However, the allegations of a crime committed on that occasion were included against him in the charges arising from the protest in August.


Htin Kyaw

In his testimony and cross-examination, Police Captain Myint Swe fantastically tried to deny that he knew anything about the vastly increased price of natural gas on August 15 he admitted that he had noticed crowding at bus stops that morning, but he apparently does not take the bus as he denied knowledge that the cost of public transport travel had also increased. He knew, he said, that the government has a monopoly on sales of natural gas, or CNG, but refused to acknowledge that the government alone could solve the problem of overly high fuel prices. He admitted that there had been no damage to public property at the two protests where Htin Kyaw had been involved, but insisted that there could have been if other people had kept gathering. Finally, when the defence lawyer put it to him that there was nothing written or done to amount to a charge of sedition against the state, he said the placard with the words "Don't raise commodity prices" was sufficient.

In each case Htin Kyaw and the other dozen or so demonstrators had issued demands that were strictly economic and non-political in nature, such as that inflation be brought down, that health and education services be provided for free, and that there be reliable electricity supply. However, as the chief of the Papedan Township police Inspector Kyaw Tint, (Police No. La/112610), denied in court knowing that there is no prohibition on a peaceful demonstration in the Penal Code, it is unsurprising that the rallies were quickly broken up, although not by the police themselves but by groups of plain-clothed thugs under their directions and those of the local councils.

As in other cases arising from the protests, the trial was held behind closed doors, in this case within the prison itself, contrary to the Judiciary Law 2000 and CrPC.

Closed courts, absurd law and the exception as norm
Asian Human Rights Commission statement, AHRC-STM-224-2008, August 29, 2008

On the eve of the anniversary of the massive nationwide protests that swept Burma last September 2007, a steady stream of cases against persons wrongfully arrested, detained and charged for their involvement in the rallies continues to pass through the courts. The accused include civilians as well as former monks who have been stripped of their robes. In recent weeks they have also been joined by persons who have been charged for giving relief to the May cyclone victims without proper government approval and for speaking to the media about what they had seen.

The Asian Human Rights Commission has been following and studying many of these cases closely and has issued appeals on a number of them over the last few months. Apart from the patently illegal manner of arrest and procedure in laying charges and bringing cases to the courts, one of their striking features is that they are being held behind closed doors: in special criminal courts and sometimes inside the prison itself.

The holding of closed trials violates one of the fundamental provisions of the country's 2000 Judiciary Law, that of "dispensing justice in open court unless otherwise prohibited by law". The same principle has been laid down in the new constitution of 2008, which has been in effect since the end of May. According to the Judiciary Law, open court is the norm and closed court is the exception. But like so many other things in Burma today, in these cases it is the exception that has been made the norm, and absurd law that has been made supreme.

Advocates for defendants from last September's protests, who have been charged with disturbing public tranquility, sedition, upsetting religious harmony and a variety of other absurd offences, have submitted to presiding judges that the hearings should be held in public as the law dictates. However, according to the records obtained by the AHRC, they have been told that under a Supreme Court Order, No. 16/2008, the trials are to be held out of view.

What is this Supreme Court order and what is its basis? There is nothing in any law to prohibit the holding of such trials in the open. Nor should there be any possibility of security problems arising from the trials if they are handled properly. Even under the British colonialists the cases of persons charged with sedition and other political offences were heard in open court unless a specific problem presented itself that forced the court to shut itself off. These tribunals were very often hardly exemplars of justice, and yet it seems that the current courts in Burma are not even able to come up to their rather low level.

So why really is it that these persons too cannot have the charges heard against them in public? The only reason that the Asian Human Rights Commission can discern is that the trials are so fraudulent and bankrupted that even for Burma's perverted and dictated judiciary they would be an embarrassment. Police coming to give evidence in these cases acknowledge that they actually know nothing about the facts, and that the investigations were done by combined security forces, meaning army intelligence officers. Other witnesses have included "Swan-arshin" thugs and council officials who carried out many of the so-called arrests rather than police officers, who have openly admitted that they took the accused to army facilities instead of police stations as required by law. What evidence has been presented has consisted of one fabrication on top of the next, one contradiction after another.

It may be too much to expect that these detainees will be readily released and that there will be any prospect for their fundamental rights to be properly acknowledged, but is it really too much to expect that even the absolute minimum standards of trial cannot be met? Does Burma's Supreme Court have nothing to offer other than Stalinist administrative hearings held in places that are described as courts but are devoid of anything that would earn them the name?

The Asian Human Rights Commission hopes for the sake not only of these defendants themselves but for the sake of all persons in Burma that there is still some prospect of minimum standards being met in these cases. It hopes also that the international community will in dealing with Burma emphasise these minimum standards, and that in particular the United Nations and governments of the Association of South East Asian Nations and other countries in the region will make special appeals to the government of Burma, or Myanmar as it prefers, that these cases be tried in open court in accordance with established domestic law. And finally, it also reiterates its hope that the International Committee of the Red Cross be given full and regular access to these detainees in accordance with its mandate, not in accordance with whatever terms that the government authorities choose to apply to it, so that both legal and physical minimums can be ascertained and protected. Otherwise, in the absence of this much, why bother with courts, trials and designated prisons at all?

6. Kam Lat Hkoat, Kat Hkant Kwal & Tin Htoo Aung: Just don't ask the police what they did

ACCUSED 1. Kam Lat Hkoat a.k.a. Kyaw Soe, 34, merchant
2. Kat Hkant Kwal a.k.a. Kwalpi, 28
3. Tin Htoo Aung, 27

ARREST 29 October 2007

CUSTODY Insein Prison

CHARGES 17/20, Printers and Publishers Act 1962, 13(1), Immigration Law (Emergency Provisions, Temporary) 1947, 17(1), Illegal Associations Act 1908, brought by Police Captain Myo Thant, Police No. La/127091, SB, Dagon Pier police, but case in fact investigated by Captain Myo Min Latt, Military Affairs Security

TRIALS New Dagon (Southern) Township Court, Felony Nos. 353-355/2008, Judge Daw Htay Htay Win (Special Power) presiding

ISSUES Detained without charge, investigations done by military intelligence officers, tried in a closed court, evidence-less cases and completely ignorant police

APPEAL NO.AHRC-UAC-177-2008

Kam Lat Hkoat, Kat Hkant Kwal and Tin Htoo Aung were all arrested on 29 October 2007 and accused of a variety of offences in relation to the events of September, including that they printed and distributed anti-government materials at that time, and that in 2006 they had travelled to Thailand illegally and there met with members of organisations banned in Burma.

However, like other cases from last September and October, the three men were not taken to a police station and then brought before a magistrate as required by the CrPC (section 61). Instead they were held incommunicado and the charges framed and presented against them in court only on 20 January 2008. Thus they were kept in illegal detention in the interrogation cells within the central Insein Prison for 82 days, during which time it is alleged that they were tortured. It was also revealed that the case was in the hands of the MAS and it was only turned over to the police for them to put the case into the court.

Unfortunately, this is only the beginning of illegality and wrongdoing in this case. When the case was brought into the court, it was found that the police officers presenting it have no evidence at all against the accused. They could not name what dates the supposed offences were supposed to have been committed. Other questions they refused to answer on grounds of national security or because they were not authorised. They referred to the case as being investigated by "combined units" but gave no details.

The police, most of who were from Special Branch, which is supposedly an elite unit tasked with covert operations, had no material evidence to show the court to prove any of the allegations. Instead they just read confessions supposedly obtained from the accused, in violation of the Evidence Act (sections 25-26). When the defence lawyer for the three accused asked the police officer reading the confessions if he knew this, he said yes, but that he was following orders.

No evidence please, we're Burmese police
Awzar Thi, UPI Asia Online, August 7, 2008

Almost a year has passed since the day Burma's military regime suddenly upped fuel prices without telling anyone, triggering off a series of small protests that led to some bigger ones, and finally, the really big ones that for a few days in September captured the world's headlines.

No one is any the wiser about the reasons for the price hike, or at least, why it was sprung upon the unsuspected public that particular August morning. Among the theories, a few people caught up in political intrigues have claimed that it was a plan to flush out and grab re-emerging dissidents prior to the referendum on a new Constitution, which was held amid the cyclone ruins in May.

Whether they planned it or not, the authorities did net a large number of opponents in the days, weeks and months after the rallies. Most were kept in illegal custody for further days, weeks and months. Some are still missing, but the cases of many others are now seeping into the courts, and what they reveal is just how far officialdom in Burma has strayed from any notions of legality in dealing with dissent.

Take the case of three men, Kyaw Soe, Kwalpi and Tin Htoo Aung, detained at the end of October. The three were taken to the torture chambers at the central prison, where they were left in the hands of MAS officers until the middle of January. Only then were they handed over to the police, whereupon their case was registered in court.

The men were charged with a number of crimes for supposedly having had contact with illegal groups outside the country and having distributed anti-government pamphlets at the time of the protests.

So far there is nothing striking about any of this. Sadly, illegal imprisonment, torture and heavy criminal charges are typical to the cases from last September. What is more interesting is that despite all that, the police had nothing to show for it when they brought the case into the court. Nor did they care.

Speaking at the hearings in March, the Special Branch officer in charge of the case admitted that he could not say on exactly what day, or even what month, the alleged crimes had been committed.

Another, this time from the Criminal Investigation Division, said that his unit had looked into the case together with other agencies, but when asked to give details said that he wasn't authorized. He could not give the exact date that he had interrogated one of the defendants. He had not sought to get approval to bring the material evidence in support of the case to the courtroom. And so on.

Then the defense lawyer turned to the matter of a confession that was said to have been obtained from an accused while in custody, which the policeman had read out during trial.

The witness, he noted in questioning, had been in the service for over 25 years. He was a seasoned officer, an inspector. He knew that a confession to a police officer is not admissible to the court. So why did he read it anyway?

"My testimony is a duty assigned to me from above," the inspector frankly replied.

There's the nub. These police officers, middle ranked, from specialized units, were the dummies sent to do the dirty work of others. Not only did they not have anything to offer, they didn't bother to hide it. Whereas in Thailand or Bangladesh the police would at least do some work to fabricate a case for the sake of the court, in Burma even that much is unnecessary.

In this lies the difference between a damaged criminal justice system and a defeated one. While in Bangladesh or Thailand the courts need a small performance to convict an accused, in Burma the responsibility to fabricate ultimately lies with the judge herself. Her judgment too is a duty assigned from above.

It was not always so. Through the 1950s Burma's courts were vibrant and assertive. But in 1962 the top justices were replaced with military appointees whose role was to bring down the system from within. Over the years, their readings about what the courts could and could not do became progressively narrower, their adherence to law progressively weaker.

A decade later judges were replaced by tribunals of unqualified "people's justices," and things went from bad to worse. When the new junta stepped in two decades ago it reverted back to an earlier default model of professional judges and private lawyers, knowing full well that by then the judiciary had been gutted. What remained was little more than an empty vessel that could be filled with any old rubbish.

Hence the case lodged against Kyaw Soe and the other two, and the disregard with which the police treated the court in which they are being tried, and the criminal case that is supposed to have been built against them. The law books may overflow with standards of evidence, about facts, relevance and the burden of proof, but what are these frauds when compared to the duty from above? That duty beats them all, and it will beat Kyaw Soe and his friends too.

Basically the same thing happened to the next three defendants brought in the very next case before the same judge in the same court by the same police officer. Kyaw Win Chay (28, a contractor), Maung Maung Than Shwe (24, student) and Aung Hsun Min (45, private telephone operator) were accused of hiding a monk involved in last year's protests, having been arrested at the end of October but not charged under section 212 of the Penal Code until 20 January 2008 (New Dagon [Southern] Township Court Felony No. 356/2008; AHRC-UAC-188-2008). As in the preceding cases, the investigation had supposedly been conducted by "combined units" but these units apparently did not include the police who presented the case to the court, as they could not say what offences the monk whom the three are supposed to have harboured had himself committed, other than having been a part of the rallies in which tens of thousands of monks and people took part, or give evidence of the fact that he had stayed with the accused or that they knew that he was in hiding, since he was by then wearing ordinary civilian clothes to conceal his identity and there was no warrant of arrest out against him upon which the accused could be said to know that he was a fugitive. Inspector Hsan Lwin (Police No. La/93286, SB) freely admitted that he did not himself examine the accused and had come to the court simply because he had been ordered to testify by a superior whose name he was not at liberty to tell the court. He acknowledged that there was no evidence that the monk had actually been harboured by the accused, or that if they had housed him they had known that he was a monk fleeing from the protests. He did not know what charges had been laid against the monk either, only that there was no warrant out against him at the time that the accused had allegedly harboured him.

PENAL CODE

212. Whenever an offence has been committed, whoever harbours or conceals a person whom he knows or has reason to believe to be the offender, with the intention of screening him from legal punishment, shall, if the offence is punishable with death, be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine; and if the offence is punishable with transportation for life, or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and if the offence is punishable with imprisonment which may extend to one year, and not to ten years, shall be punished with imprisonment of the description provided for the offence for a term which may extend to one-fourth part of the longest term of imprisonment provided for the offence, or with fine, or with both.

7. Sithu Maung & 6 Others: Complain about your university, go to jail

ACCUSED 1. Sithu Maung, 21
2. Thein Swe a.k.a. Min Soe, 40
3. Myo Thant a.k.a. Jonathan, 41
4. Ye Min Oo a.k.a. Kalarlay, 23
5. Ye Myat Hein a.k.a. Ko Ye, 18
6. Kyi Phyu, 30
7. Zin Lin Aung a.k.a. Rakhine, 18

ARREST 9-10 October 2007

CUSTODY Insein Prison

CHARGES 124A, Penal Code, brought by Inspector Kyaw Thar Oo (Police No. La/150368), Police Chief, Bahan police

TRIALS Rangoon Western District Court (Special Court), Felony No. 8/2008, Judge Myint Soe, Deputy District Judge No. 6, presiding

ISSUES Detained without charge, torture, trial in a closed court, evidence-less case

Sithu Maung and six others who were accused of sedition were all arrested around 9 and 10 October 2007 out of 18 persons in total. Special Branch officers investigated and on December 11 transferred the case to regular police. During this time the seven were held without charge or access to lawyers and without being brought to a court as required by the CrPC.

The case was not lodged in court until December 18 and it was only at that time that Sithu Maung and the others were remanded in custody according to the law; they were thus illegally detained for around 68 days.

One of the defence lawyers also asked the court to allow the case to be heard in an open court but this was refused. It is being heard in a special closed court nearby the central prison, contrary to the CrPC and Judiciary Law 2000.

According to the police, the group were responsible for provoking people in Bahan Township of Rangoon to join the protests and upset law and order, and that they had exhorted the public to commit crimes. However, when the case came into the court in February 2008 the police did not present any firm evidence to support the charges or show that there was cause for the case to be one of sedition. Rather, the nature of the allegations was that the accused had engaged in arranging speeches, distributing documents and presenting information about insufficient teaching materials in universities, insufficient vehicles for transport of students to and from campuses, and that the universities are dilapidated. According to the police all of this was done not because this is in fact the real condition of the universities, but in order to excite disaffection against the government. Furthermore, the police could not bring firm evidence to back up their allegations of any sort, not even copies of pamphlets and photographs. Among the witnesses for the prosecution were mostly police, and two civilians who were apparently coerced.
At the end of the examination of Inspector Kyaw Thar Oo one of the defence attorneys accused the police of torturing his client, Ye Myat Hein. The officer denied this and said that the investigation was "in accordance with the law".

Sithu Maung

Closed courts and more mocking of justice
Asian Human Rights Commission statement, AHRC-STM-077-2008, March 24, 2008

In one of his two latest reports to the UN Human Rights Council, the Special Rapporteur on Myanmar (Burma) has written that:

The Special Rapporteur is seriously concerned at the continued misuse of the legal system [in Burma] which denies the rule of law and represents a major obstacle to securing the effective and meaningful exercise of fundamental freedoms. The Special Rapporteur regrets to observe that the lack of independence of the judiciary has provided a 'legal' basis for abuses of power, arbitrary decision-making and the examination of those responsible for serious human rights violations.

This "legal" basis for abuses has become even more exacerbated in the months since the crackdown on the nationwide uprising of last August and September. The Asian Human Rights Commission has in recent weeks issued urgent appeals on a number of cases of special concern relating to those events, including the arbitrary detention of Khin Sanda Win and Ko Thiha.

Among the other cases that it is following closely is the case of Sithu Maung and six others, which is currently going before what can only be very loosely described as a court in Rangoon. Sithu Maung (21), Thein Swe (40), Myo Thant (41), Ye Min Oo (23), Ye Myat Hein (18), Kyi Phyu (30) and Zin Linn Aung (18) have--like Ko Thiha--been charged with sedition for allegedly inciting the events of last year.

Like Ko Thiha and a string of other persons accused of crimes that purportedly threaten the military regime in Burma, these seven men are being tried in a closed court within prison confines, contrary to the principle of open court established under both domestic as well as international law.

Under the latter, it is upheld especially by article 14 of the International Covenant on Civil and Political Rights, whereby, "In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law..."
Although Burma has never joined the treaty, even under Burma's own standards, the 2000 Judiciary Law provides in section 2(e) that, "The administration of justice shall be based upon... dispensing justice in open court unless otherwise prohibited by law".

There are good reasons for this principle. Above all, judicial accountability depends upon outside scrutiny. Where things go on behind closed doors in prisons, there is no justice but only its mockery. Where justice is mocked, the courts are ridiculed; judges lampoon themselves. Unfortunately, such courts of burlesque are typical of Burma today.

Notwithstanding, each court has it within its power the opportunity to do otherwise, not least of all in cases where the charges against the accused are harsh, the punishment severe.

The charge of sedition carries a life sentence. Those accused of it deserve the right to defend themselves, in view of the public: a right that even in Burma exists in principle. The Asian Human Rights Commission thus calls for the case of Sithu Maung and his co-defendants should be transferred to a court where anyone can hear it, and asks that if even this much cannot be done, why bother holding it at all?

8. Win Maw: Sent 'false' news abroad about a national uprising

ACCUSED Win Maw, a.k.a. Maw Gyi, 46

ARREST 27 November 2007

CUSTODY Insein Prison

CHARGES 505(b), Penal Code, brought by Inspector Police Major Ye Nyunt (Police No. La/58188), Special Branch

TRIALS Mingalar-taungnyunt Township Court, Felony Case No. 313/2008, Judge U Tin Latt (Special Power), presiding

ISSUES Detained without evidence and with police-arranged witnesses

APPEAL NO.AHRC-UAC-200-2008

Win Maw was arrested and charged by Special Branch police with having upset public tranquility because during the August and September protests he sent news by phone and email and took photographs for the Norway-based Democratic Voice of Burma (DVB) radio, together with an assistant.

Win Maw, who was imprisoned previously for seven years under emergency regulations from 1996 to 2002 for performing as lead guitarist in a rock group, has been accused of sending false news abroad in order to damage the public well-being. The reason that the police have accused him of this offence is that it is not illegal for a person in Burma to have contact with overseas media, so by Win Maw sending the news to DVB he was not doing anything wrong: only if the police accuse him of sending false news with intent to harm the public can they try to make a case out of nothing.

The case opened against Win Maw on 28 March 2008 in a closed court, like other cases from the protests of last year, which is against the normal procedure of courts in Burma. Again as in other cases of its type from last year, the police couldn't present anything to show that Win Maw had been sending the news in order to do what they said he had done.
The police gave a list of "evidence" to the court that includes legally-published books owned by Win Maw's father and bearing his signature, some photos of democracy leader Daw Aung San Suu Kyi, which also are not illegal, and a computer hard disk. If Win Maw had prepared anything against the law as accused the police should have been able to find it on the hard disk and present it as evidence, but they have not. Only the disk itself has been submitted as evidence. Also, what they recorded on the evidence list as 18 "political" texts they admitted in the court are actually just English learners from the American Center in Rangoon where Win Maw had gone to study.


Win Maw

Of the eight witnesses listed for the prosecution in the case against Win Maw, six are all Special Branch police, including Police Major Ye Nyunt. The other two are civilians identified as Maung Maung Than Htay and U Zaw Thura, who were witnesses to the search as required by the Criminal Procedure Code (section 103). The purpose of having the two witnesses is so that there are independent observers to the actions of the police, so that later if there were any confusion about what had occurred then they could be called to testify and verify facts to a court. However, in the perverted legal setting of Burma this purpose has been completely lost. Instead, Police Major Ye Nyunt has been using the same two "witnesses" for repeated cases.

Similarly, Police Major Ye Nyunt has also charged 39-year-old Zaw Min (a.k.a. Paung Paung) under section 505(b) with having had contact with Win Maw and sent 'false news' abroad (Felony Case No. 112/2008 Sanchaung Township Court, Judge Daw Than Htay, Assistant Township Judge, No. Ta/2043 presiding). The list of prosecution witnesses in his case consists only of four Special Branch officers, including the officer bringing the case. As in Win Maw's case there is no evidence to match the elements of the charge against the accused, and in fact no evidence at all: 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. 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 MAS who took him and then gave the case to the police with instructions on how to prosecute it. The army also held and interrogated Zaw Min before transferring him to the police, which is against the law. The police 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 (sections 26, 159).

9. Nay Phone Latt & Thin July Kyaw: Some "act detrimental to the security of the state"

ACCUSED 1. Nay Phone Latt, 28
2. Thin July Kyaw

ARREST 29 January 2008

CUSTODY Insein Prison

CHARGES 505(b), Penal Code (both defendants); section 32, Video Act, and sections 33(a) & 38, Electronic Transactions Law 2004 (Nay Phone Latt only)

TRIALS Felony Case Nos. 69-72/2008 Yangon Western District Court, Judge Daw Soe Nyan, Deputy District Judge, No. Ta/1761 presiding

ISSUES Detained without evidence and with police-arranged witnesses

APPEAL NO.AHRC-UAC-204-2008

One of those cases that the same police officer has lodged using the same two witnesses as in the case of Win Maw is against blogger Nay Phone Latt. Like Win Maw, Nay Phone Latt has been charged with section 505(b) after he was arrested at the end of January 2008 and accused of having defaced images of national leaders, writing and cartoons in his email inbox and having distributed these to upset the public tranquility. According to the police, in December 2007 when he went to Singapore he also met political activists and went to see the "Four Fruits" (Thi Lay Thi) entertainment troupe, whose CDs of performances he copied and passed to others, among other things.

Nay Phone Latt

Thin July Kyaw

As in other cases arising from last year's protests, there is a range of problems with the cases against Nay Phone Latt. First, the police have not presented any evidence that he had himself been responsible for distributing any of the contents that they found in his email inbox, which he had received from elsewhere, not made himself. Secondly, the information given by the police on events in Singapore are irrelevant to the cases that have been lodged against him. Thirdly, up to the time it went to Singapore, the entertainment troupe had its CDs freely sold in Rangoon. Fourthly, Nay Phone Latt was interrogated and detained at an army camp, a fact acknowledged by the investigating officer in his testimony, which is a flagrant violation of the law on evidence. Fifthly and finally, the case was yet again heard in a closed court inside the Insein Prison, rather than in an open court as should usually be done by law.

Another person who has been charged together with Nay Phone Latt under section 505(b) (Felony Case No. 70/2008) is Thin July Kyaw, a young woman accused of having taken items for persons in hiding after the protests. According to the police, Thin July Kyaw received items of clothing and CDs from Nay Phone Latt one time at the American Center and one time at a teashop in the Yuzana Garden that were for another person named Ma Ni Moe Hlaing. Furthermore, Thin July Kyaw was accused of having contact with one of the young women who led the first protests in August, Nilar Thein, through a school friend, and of having sent money and other things to her after she went into hiding in August.

Electronic Transactions Law, No. 5/2004

33. Whoever commits any of the following acts by using electronic transactions technology shall, on conviction be punished with imprisonment for a term which may extend from a minimum of 7 years to a maximum of 15 years and may also be liable to a fine:

(a) doing any act detrimental to the security of the State or prevalence of law and order or community peace and tranquillity or national solidarity or national economy or national culture.

38. Whoever attempts to commit any offence of this Law or conspires amounting to an offence or abets the commission of an offence shall be punished with the punishment provided for such offence in this Law.


10. Khin Moe Aye & Kyaw Soe: Guilty of allegedly holding US dollars


ACCUSED 1. Khin Moe Aye (a.k.a. Moe Moe), 40 2. Kyaw Soe (a.k.a. 'Talky'), 41

ARREST 16 December 2007

CUSTODY Insein Prison

CHARGES 24(1), 1947 Foreign Exchange Regulation Act, brought by Inspector Police Major Ye Nyunt (Police No. La/58188), Special Branch; but original investigation under Captain Myo Win Aung, military intelligence

TRIALS Felony Case No. 111/2008 Sanchaung Township Court, Judge Daw Than Htay (Special Power), Assistant Township Judge, No. Ta/2043presiding

ISSUES Concocted case under ordinary criminal offence, illegal arrest and custody, many breaches of trial procedure How the ordinary criminal law is used to target anyone in Burma for any purpose that the state sees fit is exemplified in the case of Khin Moe Aye and Kyaw Soe. As Police Major Ye Nyunt apparently had no case that could be brought against them under the Penal Code he has instead charged them with illegally buying and hoarding foreign exchange.

As authorised exchange outlets in Burma give very low rates, it is common for people, like in all other areas of life, to buy and sell foreign exchange through the black market. Unauthorised traders in money can be found everywhere in Rangoon, and the police and local authorities also engage in this trade and turn a blind eye to those buying and selling cash under their watch.

However, the police officer bringing this case has accused Khin Moe Aye of having been in illegal possession of about USD 1300 and 100 Euros and Kyaw Soe of having kept the money because of their suspected connection to other people involved in the protests of last year.

As in other cases, there are many flagrant breaches of ordinary law in the charges against the two. First, the items of evidence were purportedly kept at the special court inside the Insein Prison rather than at a police station as required by law, although there are serious doubts about the existence of any such evidence at all: the "witnesses" that this evidence was collected and stored at the prison facility are prison guards, rather than ordinary citizens as is normally required. Secondly, as this is an ordinary criminal case it should have been handled under the Sanchaung police station, which covers the area where the offence is alleged to have occurred, not through Special Branch. Thirdly, although the case is under the jurisdiction of the Sanchaung Township Court, the hearings are being conducted inside the prison, which not only violates the law on holding an open inquiry, but also breaches the ordinary criminal procedure that the case should be heard in the court of the locality where the offence was allegedly committed (CrPC, section 177). There are neither grounds nor authority for this case to have been transferred for hearings inside the prison, not in accordance with the law on procedure or any orders given. Fourthly, the two accused were illegally held in prison from December 16 until 26 March 2008 when they were finally brought to the court, without any remand, a fact admitted by the investigating officer in his cross-examination before the court.

Khin Moe Aye

It also emerged from the details of the case as given by Police Major Ye Nyunt in court that as in other cases of this type, the police did not arrest the defendants at all but MAS personnel did at Kyaik Htoe town and sent them to the central prison, and transferred the case to the police for prosecution. Also, when the two were originally brought to the prison, the officers had not uncovered the foreign exchange; it was only as they were going through the baggage of the couple in the presence of prisons' officials, that they supposedly found the money upon which the charges were laid. In other words, the two accused were first detained and brought to the central prison without any specific charge or suspicion having been levelled against them at all, and only once there was the case made. However, the officer who brought the case to the court was not involved in any of this and had no specific knowledge to offer other than what he had been told to present by his superiors.

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