February 1, 2013
ASIAN HUMAN RIGHTS COMMISSION – URGENT APPEALS PROGRAMME
Urgent Appeal Case: AHRC-UAC-013-2013
01 February 2013
BURMA: Islamic community leader unfairly tried and imprisoned over communal violence
ISSUES: Arbitrary arrest and detention; administration of justice; state of emergency
The Asian Human Rights Commission (AHRC) has received detailed information concerning the case of a prominent retired medical doctor and Islamic community leader in the west of Burma imprisoned for allegedly sending news abroad about the first wave of violence in his town during mid-2012. Border security personnel detained Dr Tun Aung in June and accused him not only of sending news but failing to notify them of events that would lead to violence, even though he had reportedly put his own life at risk to stop the violence from occurring. A court in November sentenced Dr Tun Aung to 11 years in jail in a patently unfair trial. He is currently imprisoned and suffering from serious health conditions that require specialist treatment but have so far gone unattended.
On 8 June 2012, communal violence flared in Maungdaw, on the border of Bangladesh and Burma. Dr Tun Aung, also known as Nurul Haque, a respected community leader and member of the district Islamic council, had in the days before hand work with other local leaders in trying to negotiate between officials and angered youths in their community, so as to prevent violence. For this he had reportedly incurred the anger of some sectors of his own community because he had attended meetings with the administrative and security authorities on how to deal with tensions. On June 5, less than a week before his arrest, he had addressed Muslims at the main mosque and an Islamic school to convey information about events in accordance with responsibilities assigned to him by the local authorities.
After the violence flared, a local member of parliament called Dr Tun Aung to come and help to try to calm the crowds. At personal risk he came to the site but local police with whom he worked told him to leave the area because he was in danger. He and his family fled for safety at the compound of an international organisation. His family members later continued on to another part of the country, but Dr Tun Aung reportedly himself contacted the authorities to ask for a security detail so he could return to his residence.
Instead of taking him home, security personnel in Maungdaw brought Dr Tun Aung to the headquarters of a special border security force, NaSaKa, on June 11. They confiscated a laptop (which was not his) and two mobile phones and took him into custody. They accused him of sending information abroad about violence in preceding days, of provoking communal violence, and of not having informed them of a mourning procession for ten Muslims killed, despite his having known about it prior to its occurrence. They sent him to the regional army headquarters for further questioning and then on to the prison in another district, where he was held for trial. Throughout this time he was held incommunicado, without access to family—some of whom had also been arrested—and others who could give assistance.
The trial was patently unfair. Dr Tun Aung had no lawyer to defend him and had no witnesses in his defence, since the trial was held too far away and at a time that the state was under emergency regulations, making travel difficult and conditions fearful. Nearly all of the witnesses for the prosecution were security personnel whose evidence consisted almost entirely of oral depositions. No substantive material evidence was brought against the detainee, yet he was convicted of a series of charges and sentenced to 11 years in jail. He is currently detained in prison.
For additional details, please see the sample letter below.
Dr Tun Aung is an elderly man with a history of poor health in recent years. He has undergone surgery for his enlarged pituitary tumor twice (in 1998 and 2005). The condition is chronic, so, he has to have constant medication and a regular check ups that can only be done at a hospital with a well-equipped laboratory and head scanner or magnetic resonant imaging machine. He has also lost his peripheral visions in both eyes due to pressure from the tumor. Due to medication, he has suffered from varicose veins and he underwent surgery to his left thigh and leg in 2011. The same surgery for his right leg was due in December 2012, but because of imprisonment it could not be conducted. He also suffers from other side effects, such as reduced immunity. Given that prison conditions in Myanmar are often extremely bad, and that many persons have died in custody or after release due to illnesses left untreated while in prison, his situation in prison is extremely precarious and calls for urgent intervention on grounds of health alone.
Dr Tun Aung ran for parliament in the 1990 election the results of which a military government refused to recognize as a mandate to govern, obtaining over 41 per cent of the vote in the Maungdaw electorate. He is a graduate of Mandalay University with a degree in medicine, and a well-known and longstanding respected member of his community who over the years has participated in many projects aimed at the improvement of conditions for local people. Among these, he has helped to arrange for the repatriation of released prisoners from Bangladesh to Burma, and vice versa; and, helped police in a number of serious criminal cases in the locality.
The charges brought against Dr Tun Aung are all typical of, and consistent with, the bringing of charges in Myanmar in politically motivated cases under successive military dictatorships, aimed at depriving persons of their basic rights. Over the years, the AHRC documented many such cases, which can be found on its country homepage: http://www.humanrights.asia/countries/burma.
Whereas many persons had hoped that with the changes in political conditions in recent times such cases would become a thing of the past, the current case demonstrates that the practices associated with repressive government from earlier periods are very much habituated in institutional behaviour in Burma, and it would be naïve to think that they will be quickly or readily driven out of the criminal justice system.
Please write a letter to the following government authorities to urge that Dr Tun Aung be released from prison and be ensured specialist medical treatment without delay. Please note that for the purpose of the letter Burma is referred to by its official name, Myanmar.
Please also be informed that the AHRC is writing separate letters to the UN Special Rapporteurs on human rights in Myanmar, on the independence of judges and lawyers, on the right to health, on freedom of opinion and expression; and, the Working Group on Arbitrary Detention, and regional office in Bangkok, calling for their interventions into this matter.
MYANMAR: Arbitrary detention and unfair trial of elderly Islamic community leader
Names of detainee: Dr Tun Aung, a.k.a. Nurul Haque, 64, chairman, Maungdaw District Islamic Affairs Council, retired medical doctor, resident of Myomataung Ward, Maungdaw Town, Rakhine State, Myanmar
Names of personnel involved:
1. Captain Win Myo Htet, Military Affairs Security (military intelligence), Western Command
2. Inspector Aung Naing, Station Commander, Kyiganbyin Police Station (complainant)
3. Police Captain Aung Saw, Maungdaw Township Anti-Human Trafficking Unit
4. Sergeant Kyi Han, Military Affairs Security, Maungdaw Detachment
5. Sergeant Kyaw Oo, Platoon Commander, Military Affairs Security, Western Command
5. Sergeant Saw Khin, army personnel attached to Maungdaw District Police Office
6. Sergeant Than Aye, Military Affairs Security, Platoon 2, Western Command
7. Police Constable Soe Win, Maungdaw Police Station
8. Deputy Immigration Officer Myint Maung
9. Deputy Immigration Officer U Ne Nwei Win
Date of arrest: 11 June 2012
Place of arrest: Border Migration Investigation and Supervision Department (commonly known the acronym NaSaKa) Headquarters, subsequently Western Command HQ (regional army HQ)
Charges: Penal Code sections 153A/505(b)/148; Foreign Exchange Regulation Act, section 24(1); Myanmar Wireless Telegraphy Act, section 6(1) (as amended 1993), 1950 Emergency Provisions Act 5(j)
Court cases: Sittway District Court, Judge Aye Thein presiding, Criminal Regular Case Nos. 45-47/2012, 58/2012, all decided on 21 November 2012, sentenced accused to a total of 11 years in jail
I am writing to express my concern over the arbitrary arrest, unfair trial and subsequent imprisonment of Dr Tun Aung, an Islamic community leader and longtime resident of Maungdaw, on the border with Bangladesh, whom the authorities in Myanmar have accused of sending material over the internet concerning the violence in Rakhine State in June 2012, and having incited the violence and failed to stop it from occurring. I call for a review of this case with a view to releasing the detainee at the earliest possible opportunity.
According to the information that I have received, security personnel in Maungdaw brought Dr Tun Aung to the headquarters of a special border security force, commonly known as NaSaKa, on 11 June 2012, where they confiscated a laptop (which was not his) and two mobile phones. They took him into custody. They accused him of posting material on Internet about violence in preceding days, of provoking communal violence, and of not having informed them of a mourning procession for ten Muslims killed, despite his having known about it prior to its occurrence. They sent him to the regional army headquarters for further questioning and then on to the prison in another district. Meanwhile, they searched his house and claimed to have uncovered various items—such as a walkie-talkie, an out-of-date SIM card from Bangladesh and a few notes of foreign currency—with which to bring criminal cases against him.
Contrary to the contents of these allegations, according to other sources, Dr Tun Aung throughout this time did his best to prevent violence from occurring and in fact had reportedly incurred the anger of some sectors of his own community because as a member of the district Islamic council he had cooperated with the authorities in order to keep the situation peaceful, and had attended meetings with the administrative and security authorities on how to deal with tensions in the region. On June 5, less than a week before his arrest, Dr Tun Aung had addressed Muslims at the main mosque and an Islamic school in Maungdaw to convey information about events in accordance with responsibilities assigned to him by the local authorities. He had been in further meetings with officials over the subsequent days and was involved in the organising of peace committees at the very time that on June 8 serious violence broke out in Maungdaw town.
After the violence flared, a local member of parliament called Dr Tun Aung to come and help to try to calm the crowds. At personal risk he came to the site but left the area when he was feeling unwell. He and his family fled for safety at the compound of an international organisation. His family members later continued on to another part of the country, but Dr Tun Aung reportedly himself contacted the authorities to ask for a security detail so he could return to his residence, whereupon he was taken into custody.
The authorities later sent Dr Tun Aung to Sittway for trial, even though the transfer of the case was not done in accordance with law. Partly because of that transfer, he was unable to obtain a lawyer or call witnesses in his defence. Although he tried to call witnesses, because of the security situation and imposition of a state of emergency with curfews across the state, none of those called were willing to come. Nonetheless, the judge falsely inferred the failure of anyone to attend under these extraordinary conditions as that they did not want to attend because their testimony would conflict with that of the defendant. Aside from witnesses to searches, all of the witnesses for the prosecution were police, military or immigration personnel. No substantive material evidence was brought against the detainee. What material evidence was brought came from seized items that were either not his own—such as the laptop—or was so trivial as to constitute a criminal offence only in the most ludicrous of circumstances—such as the handfuls of foreign currency found in his house used to frame a foreign exchange charge. Yet he was convicted without regard to the facts of the case and, it can be safely concluded, under instructions from non-judicial agencies.
Currently, I am deeply concerned for Dr Tun Aung because he is an elderly man with a history of poor health in recent years. He has undergone surgery for his enlarged pituitary tumor twice (in 1998 and 2005). The condition is chronic, so, he has to have constant medication and a regular check ups that can only be done at a hospital with a well-equipped laboratory and head scanner or magnetic resonant imaging machine. He has also lost his peripheral visions in both eyes due to pressure from the tumor. Due to medication, he has suffered from varicose veins and he underwent surgery to his left thigh and leg in 2011. The same surgery for his right leg was due in December 2012, but because of imprisonment it could not be conducted. He also suffers from other side effects, such as reduced immunity. Given that prison conditions in Myanmar are often extremely bad, and that many persons have died in custody or after release due to illnesses left untreated while in prison, that an elderly man in this poor state of health would be given a 11-year sentence is a cause for special concern. Indeed, I am informed that since the time of his arrest to the present, he has not had any specialist treatment.
In view of the above facts, I call for this case to be reviewed and for Dr Tun Aung to be released from prison at the earliest possible opportunity. I also call for the authorities to assess his medical condition immediately, and to provide him with the necessary specialist care at a facility outside of prison to ensure that his health does not worsen as a consequence of his detention. Here I take the opportunity to recall the case of Phyo Wai Aung, the young man falsely accused over a 2010 bombing, who died in January 2013 only a few months after his release from custody, specifically as a result of the maltreatment and lack of specialist attention he suffered while detained. I urge the authorities in Myanmar not to allow the same to happen in this case.
Despite the changes in political conditions in Myanmar that have been widely welcomed in all quarters, it is manifest to me from this case that the police, security forces and judiciary continue to function not in a manner conducive to democratisation but in a manner consistent with practices of prior years under military dictatorships. But even more disturbing in this case is the likelihood that local authorities obtained orders from high up in the administrative system to prosecute and imprison Dr Tun Aung because they were embarrassed by reports about the violence in the country’s west at a time that they wanted to cultivate a better image abroad, and did not want any facts to get out that would spoil the propaganda image of government agencies doing their best to keep everything under control. In this respect too the handling of the case is consistent with earlier periods, and sends an ominous signal to people in Myanmar thinking that conditions may have changed to enable the type of free speech that they did not enjoy in the past.
In this regard I wish in particular to draw attention to the charges brought against the accused. All of them are antiquated provisions of laws used throughout periods of successive military government in Myanmar to suppress basic rights to speech, assembly and participate in public life of precisely the sort that the government of Myanmar now asserts that it is encouraging. Some of them, such as the Foreign Exchange Regulation Act, are so utterly outdated as to be preposterous, were it not for the consequences of persons against whom they are used. I therefore take this opportunity also to urge the government of Myanmar to thoroughly review these pieces of legislation with a view to revoking or amending them as necessary to bring them into line with the democratic values that it now claims to espouse.
PLEASE SEND YOUR LETTERS TO:
1. U Thein Sein
President of Myanmar
2. U Hla Min
Minister for Home Affairs
Ministry of Home Affairs
Office No. 10
Tel: +95 67 412 079/ 549 393/ 549 663
Fax: +95 67 412 439
3. U Tun Tun Oo
Office of the Supreme Court
Office No. 24
Tel: + 95 67 404 080/ 071/ 078/ 067 or + 95 1 372 145
Fax: + 95 67 404 059
4. Dr. Tun Shin
Office of the Attorney General
Office No. 25
Tel: +95 67 404 088/ 090/ 092/ 094/ 097
Fax: +95 67 404 146/ 106
5. U Kyaw Kyaw Htun
Myanmar Police Force
Ministry of Home Affairs
Office No. 10
Tel: +95 67 412 079/ 549 393/ 549 663
Fax: +951 549 663 / 549 208
6. Thura U Aung Ko
Pyithu Hluttaw Judicial and Legislative Committee
Office of the Pyithu Hluttaw
7. U Aung Nyein
Committee for Public Complaints and Appeals
Office of the Pyithu Hluttaw
8. Daw Aung San Suu Kyi
Pyithu Hluttaw Rule of Law and Tranquility Committee
Office of the Pyithu Hluttaw
9. U Win Mra
Myanmar National Human Rights Commission
27 Pyay Road
Tel: +95-1-659 668
Fax: +95-1-659 668
10. Ko Ko Hlaing
Chief Political Advisor
Office of the President
Tel-+95-1-532 501 ext-605 / 654 668
Fax-+95-1-532 500, 654 668
Urgent Appeals Programme
Asian Human Rights Commission (firstname.lastname@example.org)