November 2, 2001

The United Nation Working Group on Arbitrary Detention ruled in an opinion dated 12 September 2001 and made public on 26 October 2001, a copy of which is attached below, that the State Peace and Development Council ("SPDC") is arbitrarily detaining the under-mentioned prisoners contrary to the principles of the Universal Declaration of Human Rights 1948, and has directed that SPDC takes the necessary steps to remedy the situation:

(1) Aye Tha Aung (Secreatary of the Committee Representing Peoples' Parliament);

(2) Do Htaung (MP-elect for Kale Constituency (1), Sagaing Division);

(3) Khun Myint Tun (MP-elect for Thaton -1 Constituency, Mon State);

(4) Dr Min Soe Lin (MP-elect for Ye-1 Constituency, Mon State);

(5) Saw Naing Naing (MP-elect for Pazundaung Constituency, Rangoon Division);

(6) Saw Oo Rah (MP-elect for the Phruso Constiutency, Kayah State);

(7) Toe Po (MP-elect for Yebyu Constituency, Tenasserim Division).

AAPP HEREBY CALLS UPON SPDC:

1. Unconditionally and immediately ot release the abouve-named political prisoners pursuant to the legal opinion issued by the UN Working Group on Arbitrary Detention.

2. To pay full and proper compensation to the prisoners for the period of their illegal detention up to the their release.

3. Unconditionally and immediately to release Aung San Suu Kyi, all other detained MPs-elect, members of political parties, students and the many hundreds of other political prisoners who are presently being held in detention or under house arrest by SPDC.

4. To put an end to its practice of arbitrary and politically-motivated arrests and detentions and its practice of detention without trial.

5. To ensure that all persons are afforded the minimum guarantees for a fair trial according to due process of law and in conformity with international standards, and to end trials of detainees in secrecy and/or without proper legal representation.

6. To re-introduce democracy to Burma in accordance with the solemn promises binding the military which were given to the people of Burma in 1988 and subsequently, the 1989 election law and the 1990 election result, without delay.

Assistance Association for Political Prisoners (Burma)

OPINION N? 13/ 2001 (MYANMAR)

Communication addressed to the Government on 11 April 2001

Concerning Aye Tha Aung, Cin Shing Thang, Do Htaung, Duwa Zaw aung, Khun Myint Tun, Kyin Thein, Min Soe lin, Saw Naing Naing, SAw Mra Aung, Saw Oo Rah and Toe Po

The State is not a party to the International Convenant on Civil and political Rights

1. The Working Group on Arbitrary Detention was established by resolution 1991/42 of the Commission on Human Rights. The mandate of the Working Group was clarified and extended by resolution 1997/50, and reconfirmed by resolutions 2000/36 and 2001/ 40. Acting in accordance with its methods of work, the Working Group forwarded to the Government the above-mentioned communication.

2. The Working Group regards deprivation of liberty as arbitrary in the following cases:

(i) When it manifestly cannot be justified on any legal basis (such as continued detention after the sentence has been served or despite an applicable amnesty act) (category I);

(ii) When the deprivation of liberty is the result of a judgement or sentence for the exercise of the rights and freedoms proclaimed in articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of Human Rights and also, in respect of States parties, in articles 12, 18, 19, 21, 22, 25, 26 and 27 of the International Covenant on Civil and Political Rights (category II);

(iii) When the complete or partial non-observance of the international standards relating to a fair trial set forth in the Universal Declaration of Human Rights and in the relevant international instruments accepted by the States concerned is of such gravity as to confer on the deprivation of liberty, of whatever kind, an arbitrary character (category III);

3. In the light of the allegations made, the Working Group welcomes the co-operation of the Government. The Working Group transmitted the reply provided by the Government to the source and received its comments. The Working Group believes that it is in a position to render an opinion on the facts and circumstances of the case, in the context of the allegation made and the response of the Government thereto, as well as the observations by the source.

4. According to the source, the following persons have been unlawfully deprived of their liberty by the authorities of Myanmar:

Aye Tha Aung, politician. It was reported that he was arrested on 24 April 2000 at his residence by military Intelligence personnel. It is believed he was given three consecutive seven yeaar prison terms for violating publications (ss. 17 and 20 of the Printers and Publishers Act 1962) and Emergency (s. 5(j) of the Emergency Provisions Act 1950) laws, and possibly also in respect of s. 17(1) of the Unlawful Association Act 1908. He was allegedly denied any legal defence. Further, he was allowed only one family visit between his arrest and sentencing.

Cin Shing Thang Court advocate and a politician. It was reported that he was arrested in September 1998, at his residence by Military Intelligence personnel. He has not been given a trial at all and is currently being held in the Ye Mon military camp.

Do Htaung, a medic and politician. It was reported that he was arrested on 21 May 1996 by military Intelligence personnel under Section 5(j) of the 1950 Emergency Provisions Act. He is believed to be serving a seven-year sentence and is being held in Kalay Prison.

Duwa Zaw Aung. It was reported that he was arrested in August 1999 by Military Intelligence personnel. It is believed he was given a seven years imprisonment for his writings to religious leaders on political matters.

Khun Myint Tun, graduated with a degree in geology from Rangoon University in 1983. It was reported that he was arrested in May 1996 by Military Intelligence personnel, charged with disturbing the State peace and stability and sentenced to seven years in jail under s. 5(j) of the 1950 Emergency Provisions Act. Later, he was sentenced to an additional three years imprisonment for breaching the 1985 Video Act because he had given a journalist from the Australian Broadcasting Corporation a video cassette of Aung San Suu kyi's weekly speeches.

Kyin Thein, a politician with a degree in geography. He was arrested in 1996 by Military Intelligence personnel and was sentenced to seven years in prison under Section 5(j) of the 1950 Emergency Provisions Act.

Min Soe Lin, with a medical degree from the Rangoon Institute of Medicine. He was arrested on 6 November 1997 and was charged under Section 5(j) of the 1950 Emergency Provisions Act. In 1998, he was reportedly sentenced to seven-years imprisonment.

Saw Naing Naing, with a post-graduate diploma in Management and Administration from Rangoon University. He was reportedly arrested on 13 September 2000 at his residence by Military Intelligence personnel. It is believed he was sentenced to 21 years imprisonment under Section 5(j) of the Emergency Provisions Act 1950, s. 17 of the 1962 Printers and Publishers Registration Act and s.17 (1) of the Unlawful Associations Act 1908. He was held in incommunicado detention between the time of his arrest and his conviction in December 2000. It was said he was given a military trial held in secret within Insein Prison. A previous detention of this person in 1990 was considered to be arbitrary by the Working Group (Opinion 38/ 1993).

Saw Mra aung, a politician. He was reportedly arrested in September 1998 and has been detained without charge. It is believed that the reason for his detention is that he, together with three other political leaders, asked on 6 June 1998 the Government to have a dialogue with democratic activists for the sake of the country's future. He is being detained without charge and without trial, despite being 82 years old.

Saw Oo Rah, a politician. It is alleged that he arrested in December 1996 and charged with financially supporting the outlawed Karenni National Progressive Party (KNPP) and writing a book entitled "The Crisi of Kyah State and causes of civil war in Burma." He was reportedly charged under the Association with Illegal Organizations Act and the 1962 Printing and Publishing Act and s. 5(j) of the 1950 Emergency Provisions Act. Later, representation for himself at his trial. He is reportedly suffering from serious diabetes and kidney problems.

Toe Po, a politician, was reportedly arrested in September 1998 in Rangoon because he met with some student activists. He was charged under s. 5(j) of the Emergency Provisions Act 1950 and sentenced to seven years imprisonment.

5. The source alleges that Section 5(j) of the Emergency Provisions Act 1950 is itself too vague and nebulous to be upheld as a valid valid criminal law and to give the prisoner any chance of receiving a fair trial. It is said that virtually any conduct could be found to fall within its vague provisions and that it is not clear what conduct is supposed to fall within the Section.

It is also said that the 1962 Printers and Publishers Registration Act creates machinery for blanket registration by anyone printing and publishing written material, and State censorship of printed material, which is in contradiction Article 19 of the Universal Declaration of Human Rights. It was also said that the Unlawful Associations Act is a 1908 Statute, which predates the Universal Declaration.

Finally, it is also alleged that these persons have not used or threatened or advocated the use of violence and that they have merely engaged in activities deriving from their freedom of expression, freedom of association and peaceful political activity.

6. In its reply the Government confirms that out of the individuals referred to by the source Aye Thar Aung, Do Htaung, Khun Myint Tun, Kyin Thein, Min Soe Lin, Saw Naing Naing, saw Oo Rah and Toe Po are in detention, all of them serving a prison term to which they have been sentenced by courts. It also out the laws on which their finding of guilt was based. Those laws are the same or similar to those law are the same or similar to those mentioned by the source, namely the 1962 Printers and Publishers Registration Act and the Emergency Provisions Act 1950.

7. In contrast, the Government asserts that the remaining persons referred to by the source have been released: It is said that Duwa Zaw Aung, who was serving his 21 year long prison term, was released on 13 August 2001 subsequent to the commutation and reduction of the sentence; Cin Shing Thang and Saw Mra Aung, who allegedly have been kept in a Government guest house for questioning, are said to be set free on 14 June 2001.

8. The Working Group forwarded this reply to the source. The source confirmed that these three persons were in fact released, but it added that, on 10 September 2001, a fourth detainee, Kyin Thein was also released.

9. The Working Group notes that similarly to communications submitted to it in respect of alleged arbitrary detention of individuals involved in politics in Myanmar (e.g Opinion No. 52/1992 and No. 38/ 1993) the law in most cases the same the same section 5(j) Emergency Provisions Act 1950 is invoked against them because they have contested the political regime in power, without resorting to violence. From the information available to it, the Working Group is satisfied that the individuals referred to in the communication are detained solely for having peacefully exercised their rights to freedom of opinion and expression as guaranteed by Article 19 of the Universal Declaration of Human Rights.

10. In the light of the foregoing, the Working Group expresses the following opinion:

a) Since Duwa Zaw Aung, Cin Shing Thang, Saw Mra Aung and Kyin Thein have been in the meantime released, the Working Group decides, pursuant to paragraph 17(a) of its methods of work, to file their case, without taking position whether their detention was arbitrary, or not.
b) The detention of Aye Thar Aung, Do Htaung, Khun Myint Tun, Min Soe Lin, Saw Naing Naing, Saw Oo Rah and Toe Po is arbitrary, being in contravention of Article 19 of the Universal Declaration on Human Rights, and falls within category II of the categories applicable to the consideration of cases submitted to the Working Group.

11. Consequent upon this opinion, the Working Group requests the Government of Myanmar to take the necessary steps to remedy the situation of the above-mentioned persons in order to bring it into conformity with the provisions and principles encourages the Government to ratify the International Covenant on Civil and Political Rights.

The Working Group also decided to transmit this Opinion to the Special Rapporteur of the Conmmission on Human Rights on the situation of human rights in Myanmar.