Urgent Appeal: BURMA: A young man is unlawfully detained and accused over a bombing

ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAMME

Urgent Appeal Case: AHRC-UAC-112-2010



30 July 2010
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BURMA: A young man is unlawfully detained and accused over a bombing

ISSUES: Administration of justice; torture; arbitrary arrest and detention; fabrication of charges; right to fair trial
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U.N. HUMAN RIGHTS COUNCIL
ALRC SPECIAL REPORT ON BURMA

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Dear friends,

The Asian Human Rights Commission (AHRC) previously issued a statement on the case of Phyo Wai Aung, whom the authorities in Burma have blamed for an attack on a festival in April. In this appeal we bring you the details of his case and the charges that have now been brought against him. His trial is ongoing.

CASE NARRATIVE:

As the AHRC wrote in its statement (Conviction by press conference--the case of Phyo Wai Aung), on May 6 the police chief of Burma announced that his force had arrested one of four persons involved in the April 15 water festival blasts in Rangoon that officially killed 10 and injured 168. The police chief said that the accused person, 30-year-old Phyo Wai Aung, had confessed to being among those responsible, and that he was connected to exiled groups based in Thailand.

The police arrested Phyo Wai Aung on the same day as the attack, and have accused him of being one of five persons involved in the plot – the others having escaped. Charges were then taken against him over the explosions, as well as for allegedly having had contact with outlawed groups abroad.

The police held Phyo Wai Aung for over a month without laying any charges, during which time they allegedly tortured him to obtain a confession. They searched his house but did not find any evidence to connect him to the crime. Eyewitnesses have said that they did not see him at the scene when the incident occurred.

Shortly after the police arrested Phyo Wai Aung, his family hired a lawyer to represent him; however, the police refused to allow the lawyer to meet with his client. Finally, the lawyer was able to meet with him only when the case began in a special court inside the central prison on 14 July 2010. However the family of Phyo Wai Aung has been prevented from attend the hearings, we are told, on instruction from the Special Branch police.

Further details of the case are in the sample letter below, as usual.

BACKGROUND INFORMATION:

In recent years, government-held press conferences have been a platform for an escalating number of persons accused in concocted cases over bomb plots, including U Myint Aye, the founder of local group Human Rights Defenders and Promoters (UAC: Three innocent men are tortured into confessing to a bomb plot). Myint Aye and his two co-defendants also alleged that they had been tortured during interrogation.

Such was the experience of Zaw Lwin, a.k.a. Nyi Nyi Aung, in September 2009, who was arrested as he disembarked from a flight from Bangkok (UAU: Activist due to be sentenced over alleged bombing plot ). An American citizen, Kyaw Zaw Lwin was released and deported after high-level interventions, but has since described his torture in custody.

Most recently, the AHRC issued an appeal on the case of Than Myint Aung, who was initially accused over a minor explosion in March 2009, but against whom the police subsequently shifted charges to other offences (UAC: A man is severely tortured for a month at Rangoon police headquarters and sentenced to 15 years in prison ).

ADDITIONAL INFORMATION:

All urgent appeals on Burma can be accessed by going to the appeals homepage and typing "Burma" or "Myanmar" into the search box: http://www.ahrchk.net/ua/. For further discussion see articles and special reports on the article 2 website:http://www.article2.org/search.php again search for Burma/Myanmar; and, see the 2009 AHRC annual report on Burma.

The Asian Legal Resource Centre recently released a special report on rule of law and human rights issues in Burma in the lead up to the Universal Periodic Review process for the country at the United Nations in Geneva. The report and annexe are available on the ALRC website at: http://www.alrc.net/doc/mainfile.php/upr/ (scroll to bottom of page).

The AHRC Burmese-language blog is updated constantly for Burmese-language readers, and covers the contents of urgent appeal cases, related news, and special analysis pieces.

SUGGESTED ACTION:

Please write to the persons listed below to call for the release of Phyo Wai Aung. Please note that for the purpose of the letter, the country should be referred to by its official title of Myanmar, rather than Burma, and Rangoon, Yangon.

Please be informed that the AHRC is writing a separate letter to the UN Special Rapporteurs on Myanmar, on the independence of judges and lawyers, and on torture; the UN Working Group on Arbitrary Detention; and the regional human rights office for Southeast Asia, calling for interventions into this case.
To support this appeal please click here:

SAMPLE LETTER:

Dear ___________,

MYANMAR: Illegal detention, baseless charges and alleged torture of man accused over bombing

Details of accused: Ko Phyo Wai Aung, a.k.a. Mohammad Sharvan, 31, construction contractor, resident of Ward 2, Pazundaung Township, Yangon, Myanmar

Date of arrest: 15 May 2010

Officials involved:
1. Police Major Aung Swe, Serial No. La/58844, Special Branch
2. Police Captain Win Maung, Serial No. La/128431, Operations Department, Special Branch
3. Inspector Aung Naing Oo, Serial No. La/139281
4. Inspector Saw Aung, Serial No. La/128627, Special Branch, Thanlyin
5. Inspector Kyaw Sein Win, Serial No. La/127321, Underground Unit, Internal Affairs Department, Special Branch
6. Inspector Htun Soe Thein, Serial No. La/139240, detective, Prosecution Department, Special Branch
7. Inspector Thaung Ngwe, Serial No. La/65715, Mingalar-taungnyunt Township Police
8. Township Judge U Win Swe, Hlaing Township Court, Yangon
9. Maung Maung Aye, Myawaddy District Immigration and National Registration Department

Charges and trial: Unlawful Associations Act, 1908, section 17(1); Immigration (Emergency Provisions) Act, 1947, section 13(1); Penal Code, sections 302, 307, 326 read with 114 (abetting murder, attempted murder and hurt); Explosive Substances Act, 1908, section 3, Yangon Western District Court, Criminal Case Nos. 102-104/10

I am writing to express my concern over the arrest, imprisonment, trial and alleged torture of a man in Myanmar over the April 15 blasts at the water festival in Yangon that officially killed 10 and injured 168.

According to the information that I have received, the police arrested Ko Phyo Wai Aung on the same day as the attack, and have accused him of being one of five persons involved in the plot (the others are described as having absconded) and have laid charges against him over the explosions as well as for allegedly having had contact with outlawed groups abroad.

While I acknowledge and respect the responsibility that the police and other authorities in Myanmar have for bringing the persons culpable for the explosions to justice, I am gravely concerned that Phyo Wai Aung's fundamental human rights have already been grossly violated and I do not believe that he can obtain a fair trial. My concerns include the following:

1. On 6 May 2010 before any charges were brought against Phyo Wai Aung, the chief of the Myanmar Police Force, Brigadier General Khin Yi, gave a press conference which was reported in the official New Light of Myanmar newspaper the next day under the headline "MPF apprehends one of the offenders" in which he set out the accused man's alleged role in the bomb plot as a matter of fact and described him as a terrorist. In light of the contents of this press conference, it is obvious that Phyo Wai Aung has already been found guilty before he has been tried in any court.

2. Shortly after the police arrested Phyo Wai Aung, his family hired a lawyer to represent him; however, the Special Branch refused to allow the lawyer to meet with his client. Finally, the lawyer was able to meet with him only when the case began in court on 14 July 2010.

3. The case is being heard inside the Insein Central Prison, in violation of the Judiciary Law 2000, which provides for open trial; reportedly, not even the family of Phyo Wai Aung has been able to attend the hearings, on instruction from the Special Branch police, even though only the presiding judge has the authority to decide who can or cannot sit in the court.

4. The police held Phyo Wai Aung for over a month without laying charges, during which time according to the accused they tortured him and obtained a confession by force; however, the court has not entertained his allegations, even though they are consistent with those of other persons detained over alleged involvement in bombings. None of the material evidence accepted from the police by the court was obtained from the accused man's house or from among his personal property; however, eyewitnesses who deny seeing him at the site and time of the blast as the police allege, have not been called to appear.

In view of the above I do not believe that Phyo Wai Aung can obtain a fair trial and I urge that the concerned Yangon Western District Law Office drop the cases against him. I also call for a special inquiry into his allegations of torture; and into the reasons that his lawyer was denied access to him for over three months, and that his family has been prohibited from attending the trial.

Furthermore, I urge that in similar cases of this sort in the future, the chief of the Myanmar Police Force refrain from the holding of press conferences in which people who have not been tried for any crime are already declared guilty of some offence, because such press conferences effectively serve as notices of conviction of accused persons even before they have been heard in court.

Lastly, I take this opportunity to remind the Government of Myanmar of the need to allow the International Committee of the Red Cross access to places of detention as a matter of the utmost urgency. I can see no reason as to why the government has failed to agree to the ICRC mission in accordance with the terms of its international mandate and has for the last few years refused it access. The persistent refusal to allow the ICRC access to detainees like Phyo Wai Aung is one of the reasons that Myanmar's international reputation remains among the worst in the world, and it will continue to be that way until the Government of Myanmar changes its position on this matter.

Yours sincerely,

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PLEASE SEND YOUR LETTERS TO:


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

2. Lt-Gen. (Retd.) Thein Sein
Prime Minister
c/o Ministry of Defence
Naypyitaw
MYANMAR
Tel: + 95 1 372 681
Fax: + 95 1 652 624

3. U Aung Toe
Chief Justice
Office of the Supreme Court
Office No. 24
Naypyitaw
MYANMAR
Tel: + 95 67 404 080/ 071/ 078/ 067 or + 95 1 372 145
Fax: + 95 67 404 059

4. U Aye Maung
Attorney General
Office of the Attorney General
Office No. 25
Naypyitaw
MYANMAR
Tel: +95 67 404 088/ 090/ 092/ 094/ 097
Fax: +95 67 404 146/ 106

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

6. U Myat Ko
Secretary of Myanmar Human Rights Group
Director-General, General Administration Department
Ministry of Home Affairs

Office No. 10, Naypyitaw, MYANMAR
Tel: +95 67 412 079/ 549 393/ 549 663
Fax: +95 67 412 439
umyatko@myanmar.com.mm

7. U Kyaw Tint Swe
Representative of Myanmar to the ASEAN
Intergovernmental Commission on Human Rights
10 EAST 77th STREET,
NEW YORK, N.Y.1005, U.S.A

Tel No: (212) 744-1475, 744-1279
FACSIMILE: (1) (212) 744-1290
myanmarmission@verizon.net

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Thank you.

Urgent Appeals Programme
Asian Human Rights Commission (AHRC) (ua@ahrchk.org)

43 illegal immigrants detained at construction site (Star, 30/7/2010)

 

43 illegal immigrants detained at construction site

GEORGE TOWN: Forty-three illegal immigrants, including two pregnant women and a four-year-old Myanmar boy, were detained in a raid at a construction site in Batu Ferringhi.

They were picked up at 10am yesterday in an operation, codenamed Ops Serantau, by 50 police, Rela and Immigration Department personnel.

State Traffic and Public Order chief Supt Wan Aziz Wan Hussain said 32 of the foreigners were men — 15 Myanmar nationals, nine Bangladeshis and eight Indonesians — while 10 were women of whom one was a runaway maid.

Big swoop: Police, Rela and immigration officers rounding up the iilegal immigrants at the construction site in Batu Ferringhi Friday.

Supt Wan Aziz said three of the foreigners had overstayed, one had forged documents while the rest did not have any identification documents or work permits.

Meanwhile, enforcement authorities have begun efforts to rid Batu Ferringhi of unlicensed traders, illegal operators of water sports, and pirated DVD and counterfeit goods stalls.

More than 100 officers from the police force and relevant agencies combed the tourist belt in an operation codenamed Ops Sepadu from 3pm yesterday but found the area almost free of illegal activities.

“The beach boys, touts and illegal operators knew we were coming, so most of the shops remained closed.

“This is good. We will continue to monitor the beach. Our joint operations will not be a one-off thing,” said George Town OCPD Asst Comm Gan Kong Meng. - Star, 30/7/2010, 43 illegal immigrants detained at construction site

Thirty-two Burmese detainees died while in custody in immigration detention

Thirty-two Burmese detainees died while in custody in immigration detention centres , the highest number of foreign detainee deaths, according to the government.

Home Minister Hishammuddin Hussein said a total of 78 foreign detainees died during 2005 to 2009 in the detention camps.

The foreign detainees included citizens from Burma, Indonesia, India, Bangladesh, Cambodia, Vietnam, Thailand, Nigeria, Togo, Pakistan, Liberia and the Philippines. The minister did not attribute the cause of death among the detainees.

Speaking to The Irrawaddy, Tenne Lee, a refugee coordinator from human rights group Suara Rakyat Malaysia (Suaram), said, “What we know about the cause of the deaths is that most of them died because of medical reasons.”

Lee said that there is not adequate medical treatment while detainees are in custody. Even if the detainees have medicine from a hospital when they enter a detention centre, the medicine is confiscated, she said.

“We do monitor things if we get information about deaths. We do pressure the government, but we don't have power to do investigations,” she said. “It is hard to know the exact number of deaths. The government is not accountable.”

According to a press release by the Bar Council in 2009, 1,300 foreigners died in detention centres during the past six years.

Some Burmese human rights activists say that the number of detainee deaths is much higher than acknowledged by the Home Ministry.

Nai Roi Mon, who works with Mon detainees in Kuala Lumpur and is a member of the Mon Refugee office in Malaysia, said: “I doubt their numbers. As I remember, at least 100 Burmese died in detention centers during the past five years.”

He said that many of detainees died because they were denied medical treatment when needed.

Outbreak of leptospirosis

There are about 500,000 Burmese migrants in Malaysia, legally and illegally. Burmese detainees are the largest group in detention centres.

There are 28 Immigration Detention Centres in Malaysia. Human rights advocates say there are constant complaints of inadequate food, water and unsanitary conditions. Detainees are not given clothing.

Advocates say that family members who try to bring cases to court are discouraged by governmental delay. There has never been a successful case of prosecution for negligence, said Lee. She said children are not separated from adults in detention centres.

According to a 2009 Suaram report titled 'Malaysia Civil and Political Rights Overview', nine Burmese detainees died in detention centers from May to August last year due to an outbreak of leptospirosis (an infectious disease caused by contaminated water or food which has been infected with rodent urine).

Human rights groups and civil society groups highlighted the outbreak of the disease in detention centres, but they say the government has been slow to respond.

Malaysia is ranked as one of the worst countries for refugees by the international watchdog, the US Committee for Refugees and Immigrants. Malaysia also ranks poorly among countries in meeting the minimum standards for the elimination of human trafficking, according to the US State Department.

- Irrawaddy - Malaysiakini, 31/7/2010, Burmese rank highest in detention camp deaths

But, the figures do not tally - the numbers may be higher, see earlier post:- 41% of deaths in Immigration Detention Centres are persons from Burma

41% of deaths in Immigration Detention Centres are persons from Burma

Well, according to the Malaysian government, between 2005 and 2009, 78 persons died while in Immigration Detention Centres, and 32 of them were from Burma.

Sadly, the causes of death was not revealed - and,  we also do not know the number who died when the RELA and/or Immigration officers were trying to arrest them.

We do not know exact numbers of those that died in police lock-ups, prisons, and other places of detention. We recall that 1,300 foreigners were said to have died in the past 6 years.

We recall that it was reported in the media in December 2008, that "About 1,300 illegal foreigners have died during detention in the past six years, Malaysia Nanban quoted Malaysian Human Rights (Suhakam) commissioner Datuk N. Siva Subramaniam as saying. He said many of them died in immigration detention centres, prisons and police lockups because they were denied medical treatment at the right time.” [Star, 18/12/2008, ‘1,300 foreign detainees died due to neglect’] This was again reiterated ABC News(28/5/2009) Malaysia detention centres 'violating rights' .The Bar Council tells us that, "...The Dewan Rakyat figure would mean that an average of one migrant dies in custody almost every day!" - Bar Council: Deaths of migrants in prisons, rehabilitation and detention centres - Another Burmese migrant dies in Alor Star Detention Centre

In July 2009, the Dewan Rakyat was told that some 2,029 persons died in prisons, rehabilitation centres and immigration detention centres between 2002 and 1 June 2009.  More recently SUHAKAM Commissioner Datuk Siva Subramaniam was quoted as saying that 1,300 foreigners died in detention within the past six years.  The Dewan Rakyat figure would mean that an average of one migrant dies in custody almost every day! - Malaysian Bar [Bar Council: Deaths of migrants in prisons, rehabilitation and detention centres]

And now, we are told....

JAWAPAN LISAN DEWAN NEGARA YBM TUNKU ABDUL AZIZ BIN TUNKU IBRAHIM PADA 26 JULAI 2010 [Written Answers in respond to question raised by a Senator]

SOALAN:

Tunku Abdul Aziz bin Tunku Ibrahim minta MENTERI DALAM NEGERI menyatakan bilangan kematian tahanan imigresen yang berlaku di depot tahanan imigresen dan hospital mengikut kategori negara asal, jantina dan umur dalam masa lima tahun yang lepas dan bilangannya bagi setiap tahun.

JAWAPAN:

Tuan Yang Di-Pertua,

Terima kasih diucapkan kepada Yang Berhormat Senator yang mengemukakan pertanyaan.

Untuk makluman Ahli-ahli Yang Berhormat, sejumlah 78 tahanan telah mati di dalam Depot Imigresen untuk tahun-tahun 2005 hinga 2009, dengan pecahan bilangan seperti berikut:

i.                    Bagi tahun 2005 sebanyak 1 kematian;

ii.                  Bagi tahun 2006 sebanyak 5 kematian;

iii.                Bagi tahun 2007 seanyak 27 kematian;

iv.                Bagi tahun 2008 sebanyak 14 kematian; dan

v.                  Bagi tahun 2009 sebanyak 31 kematian.

Dari jumlah ini, didapati bilangan tertinggi terdiri dari:

i.                    32 tahanan warganegara Myanmar yang kesemuanya merupakan lelaki;

ii.                  12 tahanan warganegara Indonesia yang mana 8 adalah lelaki, 2 adalah wanita dan 2 kanak-kanak;

iii.                11 tahanan warganegara India yang amna 10 adalah lelaki dan 1 wanita;

iv.                11 tahanan warganegara Bangladesh yang kesemuanya merupakan lelaki.

v.                  4 tahanan warganegara Kemboja yang kesemuanya merupakan lelaki;

vi.                2 tahanan warganegara Vietnam yang kesemuanya merupakan lelaki;

vii.              Dan

viii.            Masing-masing 1 tahanan lelaki dari Thailand, Nigeria, Togo, Pakistan, Liberia dan Filipina.

See also earlier post Death in Custody: Could be more than 3,000 since 1990...

30 Groups : REVOKE EMERGENCY DECLARATION & RESTORE HUMAN RIGHTS AND RULE OF LAW IN THAILAND

Media Statement  26/7/2010

REVOKE EMERGENCY DECLARATION & RESTORE HUMAN RIGHTS AND RULE OF LAW IN THAILAND

We, the undersigned 30 organizations, groups and networks, are extremely perturbed about the deterioration of human rights and universally recognized freedoms in Thailand.

In response to people’s exercise of their freedom of expression, opinion and peaceful protest, the government of Thailand had responded with force and violence, that to date has resulted in about 88 deaths, majority of whom were civilians, and injured some 1,800 people.

On 7/4/2010, the Thai government invoked Thailand's Emergency Decree on Public Administration in Emergency Situation, B.E. 2548 (2005), and placed Bangkok and 23 other provinces under a State of Emergency, allegedly to deal with the anti-government peaceful protests led by the United Front for Democracy against Dictatorship(UDD). The ‘red-shirt’ protest was crushed by the Thai government using the military on 19/5/2010. On 6/7/2010, the Thai government has unreasonably extended the state of emergency in 19 provinces, including Bangkok citing, the reason for doing so was "to prevent possible violent or unlawful activities."

On 13/7/2010, the Thai government announced that the emergency decree in the three southern border provinces of Pattani, Yala and Narathiwat for another three months, from July 20 to Oct 19. These regions have been under a state of emergency for the last 5 years.

Thailand's Emergency Decree On Public Administration In Emergency Situation

The declaration of a state of emergency allows the Prime Minister and his Council of Minister wide powers that include prohibition of movement, assembly, peaceful protest,  freedom of expression, flow of information, restriction on press freedom, arrest and detention without trial for up to 30 days, power to summon persons to go to the authorities and/or to produce documents, power to violate privacy of personal communications and to suspend any contact or  communications.

The United Nations Human Rights Committee that considered Thailand’s Emergency Decree, and in their report [CCPR/CO/84/THA/2005] did say that it , “….does not explicitly specify, or place sufficient limits, on the derogations from the rights protected by the Covenant [International Covenant on Civil and Political rights] that may be made in emergencies and does not guarantee full implementation of article 4 of the Covenant.  It is especially concerned that the Decree provides for officials enforcing the state of emergency to be exempt from legal and disciplinary actions, thus exacerbating the problem of impunity.  Detention without external safeguards beyond 48 hours should be prohibited (art. 4)….” As the Emergency Decree has not been amended, these observations are still valid today.

On 18/7/2006, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions,  issued a press release calling on Thailand "to repeal emergency regulations that violate human rights law". The Special Rapporteur also noted that the government had "failed to act on previous calls to bring its emergency regulations into compliance with human rights law" and that, "The emergency decree makes it possible for soldiers and police officers get away with murder… Impunity for violence committed by the security forces has been an ongoing problem in Thailand, but the emergency decree has gone even further and makes impunity look like the official policy."

Arrest & Detention

The government, using the powers it has under the Emergency Decree, have arrested and detained over 400 persons without charge for up to 30 days in unofficial places of detention. The Emergency Decree removes the right to challenge a detention before a court (habeas corpus). Moreover, the Emergency Decree fails to provide sufficient protection to prevent abuse and mistreatment. Unlike Thailand's Criminal Procedure Code, the Emergency Decree provides no assurance of prompt access to legal counsel and family members, or effective judicial and administrative safeguards against the mistreatment of detainees, as required by international law.

What is most disturbing is that these arrests are still continuing, and it has now extended to persons who were not even directly involved in the unrest but also persons who have expressed some opinion on the situation in Thailand. Human Rights Watch recently also stated that they have “…received disturbing reports that journalists, photographers, and medical volunteers have also been ordered to report to the authorities after they publicly stated that they witnessed abuses committed by the security forces.”

The numbers of persons that have been arrested by reason of a violation of a Regulation, Notification or Order under the Emergency Decree, which is an offence that, if convicted, carries a penalty of ‘…imprisonment for a term not exceeding two years or to a fine not more than forty- thousand baht, or to both…’.  is also not known.

Press Freedom & Freedom Of Expression

The right to freedom of expression is essential for the functioning of democracy and guaranteeing other fundamental human rights. However, section 9(3) of the Emergency Decree allows censorship for extremely vague reasons such as "causing misunderstanding of the emergency or affecting the public morals of the people", which can easily be used to limit legitimate political expression. We are troubled by the fact that the government’s Center for the Resolution of Emergency Situations (CRES) has applied restrictions on free expression rights both in the area where an emergency situation has been declared and throughout the entire country. There are reports that more than 1,000 websites, a satellite television station(PTV), online television channels, newspapers, magazines, and community radio stations have been closed down.

PTV (also known as People Channel), a satellite TV station, has been closed under the state of emergency.

The government had also blocked at least 36 websites under the state or emergency  including Prachatai (www.prachatai.com), Sameskybooks (www.sameskybooks.org), Norporchorusa (www.norporchorusa.com) and Weareallhuman (www.weareallhuman.net). It is said that the order came from the Ministry of Information and Communication Technologies (MICT). Any attempt to access the affected sites from within Thailand yields the message “This website has been blocked by ICT & TOT.”

The recent violence has also resulted in the deaths of 2 foreign journalists, Hiroyuki Muramoto and Fabio Polenghi and injuries to at least 8 other journalist. The recent Investigation Report issued by Reporters Without Borders in July 2010 entitled ‘Thailand License to Kill’ raises much unanswered questions about actions of the Thai military and other unidentified persons during the recent unrest. It is disturbing to note that to note that autopsies are still not available, and investigations into these incidents have yet to be completed.

On 13/7/2010, Prachatai said that as the government was hunting for people making comments online, it had decided to close the web board for the safety of users. This is yet another example of the killing freedom of expression and violation of privacy in Thailand using the Emergency Decree. 

Transparency requires that the Thai government reveals in detail the list of websites, blogs, e-mail accounts and other internet services that they have invaded, hacked and/or tampered with in its exercise of the powers it has under the Emergency Decree.

Independent Inquiry

There is a need that there be an independent inquiry into all the deaths, injuries and damages to property caused during the recent unrest. It is not proper and will be unsatisfactory for the Thai government to have their own internal investigations, given also the fact that many of the accusation of wrong doing seem to be levied against the current government and its military. It may be best that the United Nations or the ASEAN, be called to conduct an open public inquiry into the unrest, which must definitely include separate inquiries into each of the deaths and serious injury cases. Alternatively, an international panel of reputed persons could be tasked to do this.

This inquiry must also try to identify the alleged armed persons, who the Thai government claims are part of the red shirt protesters, and is the justification for the use of live bullets in the crackdown on the protesters. The inquiry must also identify those responsible for the actions of damaging public and private property. The possibility that ‘agent provocateurs’ were involved must be considered.   

In the interim, Thailand must assure that the evidence is not tampered with and/or destroyed. Proper autopsies need to be conducted. It was disturbing to note that in the case of  Fabio Polenghi, the Italian photographer, his body was cremated even before the family members were supplied with a thorough autopsy – thus, depriving them the right to request/conduct a second autopsy.

Adequate Compensation For Victims

Whilst the Emergency Decree states the officials protects from ‘civil, criminal or disciplinary liabilities’, it  ‘…does not preclude the right of a victim to seek compensation from a government agency under the law on liability for wrongful act of officials…’ A closer reading states that these persons are not protected if their actions/omissions were not done in good faith or was discriminatory or excessive or unreasonable. There should be no protection certainly for those who shot unarmed persons, and in some cases more than once. There should be no justification for the shooting of medical personnel and members of the press.

As such, we the undersigned  organizations, groups and networks called upon the government of Thailand to :-

*          Immediately revoke the declaration of emergencies in Thailand;

*          Immediately and unconditionally release all persons detained under the Emergency Decrees;

*          Restore full press freedom and freedom of expression by allowing all television/radio stations, publications, media portals, blogs, etc, especially those that were shut down by reason of the Emergency Decree and/or the recent fiasco in Thailand, to immediately function normally without any conditions and/or restrictions.

*          Reveal in detail the list of websites, blogs, e-mail accounts and other internet services that they have invaded, hacked and/or tampered with in its exercise of the powers it has under the Emergency Decree, and  provide adequate compensation.

*          Constitute an independent international panel of inquiry to conduct an open public inquiry into the unrest, which must definitely include separate inquiries into each of the deaths and serious injury cases.

*          Pay adequate compensation for the loss of life and injury to victims and/or their families/dependents during this fiasco,

*          Pay adequate compensation for the deprivation of liberty under the Emergency Decree, 

*          Pay adequate compensation for loss and damage of property, including also loss of business and/or income which was caused by reason of actions and/or omissions of the government and its officials during this fiasco and/or during the period of Emergency,

*          Repeal immediately the Emergency Decree on Public Administration in Emergency Situation, B.E. 2548 (2005)

Charles Hector

For and on behalf of the following 30 organisations

ALIRAN, Malaysia

Asia Pacific Mission For Migrants

Asia Pacific Research Network

Asian Regional Exchange for New Alternatives (ARENA)

Association Of Indonesian Migrant Workers In Hong Kong, Hong Kong

Burma Campaign Malaysia

Center for Orang Asli Concerns (COAC), Malaysia

Clean Clothes Campaign - International Secretariat

Community Development Centre (CDC), Malaysia

Friends of Asia, South Korea

IMA Research Foundation, Bangladesh

JERIT (Jaringan Rakyat Tertindas), Malaysia

Labour behind the Label

Malaysians Against Death Penalty and Torture (MADPET)

Migrants Center in Gyeonsan, South Korea

Migrant Forum in Asia (MFA)

Migrants Trade Union( MTU), South Korea

Network of Action for Migrants in Malaysia (NAMM)

Parti Rakyat Malaysia (PRM)

Persatuan Masyarakat Selangor & Wilayah Persekutuan (PERMAS), Malaysia

Persatuan Sahabat Wanita Selangor, Malaysia

Pusat KOMAS, Malaysia

Shan Refugee Organization (SRO) Malaysia

Solidarity with Migrants, South Korea

Tenaganita, Malaysia

The Filipino Women's Organization in Quebec

UCCP CO-mission worker with PRRK, Philippines

Writer Alliance for Media Independence (WAMI), Malaysia

Workers Hub For Change (WH4C)

Working People Association, Indonesia

69 Groups want justice for wrongfully dismissed Burmese migrant worker from Maxter Glove..

 

69 Groups want justice for wrongfully dismissed migrant worker from Maxter Glove..

* Besides issuing this media statement, we have also brought this matter to the attention of SUHAKAM (Malaysia's Human Rights Commission), Prime Minister of Malaysia and Minister of Human Resources. We will keep you all updated, if and when, we get a response. 

**On the date of issuing this statement, a copy was also sent to Dato' Seri Stanley Thai, Executive Chairman cum Group Managing Director of Supermax Corporation Berhad, and thereafter, we have also again sent letters together with this statement, now endorsed by 69 organisations.


***We hope that Dato' Seri Stanley Thai, Supermax Corporation Berhad and/or Maxter Glove will respond by immediately re-instating Thu Maung, and ensuring his and other workers' rights are fully acknowledged and respected. There will be a prolonged campaign until Thu Maung and other workers get justice.

Media Statement – 11/6/2010(Updated)

STOP PENALIZING WORKERS WHO WANT TO GET JUSTICE

- MAXTER GLOVE SHOULD REINSTATE BURMESE MIGRANT

WORKER WHO COMPLAINED TO LABOUR DEPARTMENT

We, the undersigned 69 organizations, groups and networks, concerned about migrant and worker rights, are appalled at the treatment of workers at Maxter Glove Manufacturing Sdn Bhd (229862-H), at its factory at  Lot 6070, Jalan Haji Abdul Manan, 6th Miles off Jalan Meru, Klang, Selangor, Malaysia.

We are appalled at the dismissal of Thu Maung, a Burmese migrant worker, who courageously lodged a complaint at the Labour Department to claim his rights as a worker. Claiming worker rights by lodging complaints against errant employers at the Labour Department is the proper and legally recognized procedure in Malaysia. It is very wrong for employers to discriminate against and/or terminate workers who are exercising their legal rights. It is also wrong for employers to discourage and/or threaten workers from seeking justice, when worker rights are being violated.

Maxter Glove Manufacturing Sdn Bhd is a subsidiary of Supermax Corporation Berhad. Maxter Glove Manufacturing Sdn Bhd is a gloves manufacturer that makes Latex Powdered Examination gloves, Clorinated & Polymer Coated Latex Powder Free gloves, Nitrile Gloves and Sterile surgical gloves which is also exported overseas. Supermax Corporation Berhad is an established company, that according to their 2009 Annual Report made an after-tax profit of about RM126 million.

On 23^rd March 2010, Thu Maung and another Burmese migrant worker from Maxter Glove Manufacturing Sdn Bhd lodged a complaint at the Subang Jaya Labour Department.  Their complaints, amongst others, was that the employer:-

a.         had wrongfully deducted levy, that employers have to pay when they employ migrant workers, from the worker’s wages,

b.         had unlawfully deducted the medical check-up fees of RM1000 from the worker’s wages,

c.         had wrongfully withheld 2 months wages,

d.         had failed to provide the migrant worker with accommodation,

e.         had not been giving the workers one rest day per week,

f.          had made the workers work overtime(sometimes up to 13 hours per day), and  also on public holidays and rest days, and had thereafter failed to  pay overtime wages and wages for working on rest days and/or public holidays at the statutorily stipulated rates.

On 23^rd March, Thu Maung and another had also lodged a complaint at the Malaysian Human Rights Commission (SUHAKAM).

On 12 April 2010, Thu Maung went again to the Labour Department in Rawang and gave a detailed complaint, whereby the Rawang Labour Department did record the complaint and forward the same to the Labour Department office in Port Klang, because they said that the Port Klang Labour Office, has the requisite jurisdiction since the employer, Maxter Glove Manufacturing Sdn Bhd, is in Klang.

According to Thu Maung, after about 1 month since the lodging of the complaint at the Subang Jaya Labour office, company’s representatives started intimidating workers individually by asking them who had complained to the Labour Department, and whether they were also going to complain to the Labour Department. This form of intimidation of workers is deplorable. This kind of actions by employers has the tendency of instilling fear and preventing workers from claiming their legally recognized labour rights.

On 28 April 2010, Thu Maung’s supervisor at the company, for no reason, suddenly asked him to return the worker’s pass and not to come back to work. Thu Maung was wrongfully terminated, and he verily believes that this was done just because he had complained to the Labour Department, and was perceived as the leader of the workers who wanted to claim their rights.

It is even worse when the worker is a migrant worker, for a termination will usually mean a cancellation of the work visa, and deportation back to their home country. This also would mean that they would not be able to even pursue their claims at the Labour Department, Labour Courts, Industrial Relations Department, Industrial Courts and/or Civil Courts as the physical presence of the complainant and/or litigant is necessary for the continuation of process of claiming rights.

The practice of terminating, cancellation of work visa and immediate deportation is a blatant disregard of the laws in Malaysia that exist to protect worker rights.

Work passes in Malaysia allow workers to work only for a specific employer – and hence a termination would leave the worker with no ability to work and earn a living legally in Malaysia, while he awaits the determination of the process that may give the worker justice. Cancellation of the work pass also makes his stay in Malaysia illegal, and he risk being arrested, detained and deported.

It is sad that the current laws and practices of Malaysia, which used to employ more than 2 million migrant workers have not been amended yet to ensure that workers who claim their rights are not wrongfully terminated and sent back.

Whilst there is a clear provision in the Industrial Relations Act 1967, that is section 5, which explicitly prohibits employers (or persons acting on behalf of employers) from discriminating, threatening, dismissing or acting negatively against workers who are interested in forming, joining, and/or encouraging other workers to join trade unions, there is no similar clear provision in law protecting workers who want to claim their worker rights through the Labour Departments and other available avenues. As an example, section 5(1)(c) and (d) of the Industrial Relations Act 1967is as follows:-

(1) No employer or trade union of employers, and no person action on behalf of an employer or such trade union shall -

…. (c) discriminate against any person in regard to employment, promotion, any condition of employment or working conditions on the ground that he is or is not a member or officer of a trade union;

(d) dismiss or threaten to dismiss a workman, injure or threaten to injure him in his employment or alter or threaten to alter his position to his prejudice by reason that the workman -

(i) is or proposes to become, or seeks to persuade any other person to become, a member or officer of a trade union; or

(ii) participates in the promotion, formation or activities of a trade union; or…

There should be a similar clear provision in law that will prevent employers from harassing, threatening, discriminating and/or dismissing workers that claim their worker rights using existing avenues of complaints and remedies. The act of employers impeding, dismissing (or threathening to dismiss) workers who claim their worker rights should also be made an offence with a hefty fine. Workers should also receive a significant sum in exemplary damages, over and above their claim. Deterrence is needed to stop this unhealthy practice of employers violating worker rights, and preventing them access to justice.

In the case of Thu Maung, we call for the immediate reinstatement of Thu Maung without any loss of benefits.

We call on Dato' Seri Stanley Thai, Executive Chairman cum Group Managing Director of Supermax Corporation Berhad, to ensure that the wrong done by their subsidiary, Maxter Glove Manufacturing Sdn Bhd, to Thu Maung and other workers in the said company is ended, and that all workers are paid forthwith what has been wrongly deducted from their wages, monies that have wrongly been withheld returned, outstanding overtime payments, and that all legitimate claims are settled.

We call on the government of Malaysia to do the needful, including enacting laws that will deter employers in Malaysia from exploiting workers, and also protect workers that claim their worker rights from the negative acts of repercussion and/or ‘revenge’ by some bad employers.

We also call on the government of Malaysia to ensure that all migrant workers can continue to stay and work legally in Malaysia until their cases in the Labour Department, Labour Courts, Industrial Relations Department, Industrial Courts and/or Civil Courts, and appeals thereafter are completed.

Charles Hector

Pranom Somwong

For and on behalf of the following 69 organizations

ALIRAN, Malaysia

Alliance of Health Workers Philippines

Arakan League for Democracy (ALD-LA-MALAYSIA)

Asia Pacific Forum on Women, Law and Development (APWLD)

Asian Migrant Centre (AMC)

Asian Migrants Coordinating Body-Hong Kong (AMCB)

Association of Indonesian Migrant Workers in HK (ATKI-HK)

BAYAN  USA.

BOMSA, Dhaka, Bangladesh 

BUGKOS

Burma Campaign, Malaysia

Burma Partnership

Canada-Philippines Solidarity for Human Rights (Vancouver, BC Canada)

Center for Japanese-Filipino Families

Clean Clothes Campaign -International Secretariat

Committee for Asian Women (CAW)

Communication Union of Australia (Vic Branch)

Empower, Chiang Mai

Filipino Migrant Center

Frank-Hubner-Scholl Resistance Movement of the White Rose

Free Burma Campaign Singapore (FBCSG)

Friends of Burma, Malaysia

Gabriela-Taiwan

IMA Research Foundation, Bangladesh

Institute for National and Democratic Studies of Indonesia (INDIES)

Interfaith Cooperation Forum

Kabalikat, A Domestic Workers Support Network,US

KAFIN-Migrante (Saitama)

Kafin Migrant Center, Japan

Labour Behind the Label, United Kingdom

MADPET - Malaysians against Death Penalty and Torture

Malaysian Trades Union Congress (MTUC)

MAP Foundation,Thailand

May 1st Coalition for Worker & Immigrant Rights, USA

Mekong Migration Network (MMN)

Migrante Aotearoa New Zealand

Migrante B.C. (Canada)

Migrante Denmark

Migrante Europe

Migrante International

Migrante-Middle East

Migrante Nagoya

Migrante Taiwan

Migrante UK.

Migranteng Ilonggo sa Taiwan

Mission For Migrant Workers (MFMW), Hong Kong

National League for Democracy [NLD (LA)], Malaysia

National Network for Immigrant and Refugee Rights (NNIRR), U.S.

Network of Action for Migrants in Malaysia (NAMM)

PAN Asia and the Pacific

Parti Rakyat Malaysia (PRM)

Persatuan Kesedaran Komuniti Selangor (EMPOWER)

Persatuan Masyarakat Malaysia & Wilayah Persekutuan (PERMAS)

Philippines Australia Union

Philippine Society in Japan

PINAY (Filipino Women's Organization in Quebec)

Pusat Komas

Rights Jessore, India

Shan Refugee Organization, Malaysia

Suara Rakyat Malaysia (SUARAM), Malaysia

The Asia Pacific Mission for Migrants (APMM)

The Best Friend Library - Chiang Mai, Thailand

The Hong Kong Coalition for Free Burma Campaign

Think Centre Singapore

United Indonesians against Overcharging (PILAR)

United Filipinos in Hong Kong

Workers Hub for Change (WH4C)

YASANTI, Indonesia

ZOMI National Congress- Malaysia