UNCHR: ARBITRARY DETENTION (BURMA)

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EXTRACTS ON BURMA FROM THE 1998 REPORT OF THE WORKING GROUP ON ARBITRARY
DETENTION


Economic and Social Council
Distr. GENERAL 
E/CN.4/1998/44 
19 December 1997 
Original: ENGLISH/FRENCH/ SPANISH 

COMMISSION ON HUMAN RIGHTS 
Fifty-fourth session 
Item 8 of the provisional agenda 

QUESTION OF THE HUMAN RIGHTS OF ALL PERSONS SUBJECTED TO ANY FORM OF
DETENTION OR IMPRISONMENT 

Report of the Working Group on Arbitrary Detention 

OPINION No. 20/1997 (MYANMAR) 

Communication addressed to the Government on 11 July 1997. 

Concerning: Khin Sint Aung 

Myanmar is not a party to the International Covenant 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. Acting in accordance with
its methods of work, the Working Group forwarded to the Government the
above-mentioned communication. 

2. The Working Group conveys its appreciation to the Government for having
forwarded the requisite information in good time. 

3. 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, by 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 relevant
international standards set forth in the Universal Declaration of Human
Rights and in the relevant international instruments accepted by the States
concerned relating to the right to a fair trial is of such gravity as to
confer on the deprivation of liberty, of whatever kind, an arbitrary
character (category III). 

4. The Working Group, in a spirit of cooperation and coordination, has also
taken into account the report of the Special Rapporteur prepared pursuant
to resolution 1997/64 of the Commission on Human Rights (E/CN.4/1997/64). 

5. In the light of the allegations made the Working Group welcomes the
cooperation 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 allegations made
and the response of the Government thereto, as well as the observations by
the source. 

6. According to the communications received from the sources, a summary of
which was forwarded to the Government, after having been released from
detention under amnesty on 4 February 1995, Khin Sint Aung, aged 61, doctor
and elected member of the National League for Democracy (NLD), was
re-arrested on 23 July 1996 by the Myanmar authorities on charge of recent
activities in support of the opposition. He had been previously arrested on
3 August 1993 and sentenced on 15 October 1993 to 20 years in prison on
charges of destabilizing national unity, printing and publishing material
without official registration and improper use of official secret
documents. Dr. Khin Sint Aung's case had already been transmitted by the
Working Group to the Government in April 1994. The Working Group, by its
Decision No. 13/1994, declared his detention to be arbitrary. His re-arrest
was believed to be related with his membership of the NLD. He was believed
to be currently held in Insein Prison, Rangoon. 

7. In its reply the Government provides the Working Group with details
concerning the charges under which Dr. Aung Khin Sint had been sentenced in
1993 to 20 years' imprisonment. He was convicted under section 5 (j) of the
Emergency Provision Act, under section 17/20 of the Printers and Publishers
Registration Law and under the Burma Official Secrets Act, section 5 (1)
(4). The Government added that Dr. Aung Khin Sint had been granted an
amnesty under section 401 (1) of the Criminal Procedure Code, after he had
given a solemn pledge to the authorities that he would henceforth abide by
the law. But, added the Government, Dr. Aung Khin Sint did not abide by his
solemn pledge and as a consequence, the amnesty extended was revoked and he
resumed serving the remainder of his original sentence. 

8. The source, in its observations to the Government's reply, reiterated
its view that Dr. Aung Khin Sint's detention was based solely on his right
to exercise free expression. The charges against him were believed to be
specifically related to letters he sent out to NLD members during the
January 1993 NLD National Convention. 

9. As indicated by the source, the Working Group, in its Decision No.
13/1994, had already declared the detention of Khin Sint Aung to be
arbitrary. His re-arrest after being released on 23 July 1996 under the
Amnesty Law of 4 February 1995 was motivated, according to the Government,
by the fact that "he did not abide by his solemn pledge"; but the
Government failed to specify in what way Dr. Aung Khin Sint did not abide
by his pledge, what were the activities that led to the revocation of the
amnesty extended to him and in what way they constituted a violation of the
said pledge. 

10. The Working Group deems that the renewed detention of Dr. Aung Khin
Sint, just like the first one that was the subject of Decision No. 13/1994,
is linked to the fact that he peacefully exercised his right to freedom of
opinion and expression, guaranteed by article 19 of the Universal
Declaration of Human Rights. 

11. In the light of the foregoing, the Working Group renders the following
opinion:  

The deprivation of liberty of Khin Sint Aung is arbitrary, as being in
contravention of articles 9 and 19 of the Universal Declaration of Human
Rights, and falls within category II of the applicable categories to the
consideration of the cases submitted to the Working Group. 

12. Consequent upon the opinion rendered, the Working Group requests the
Government to take the necessary steps to remedy the situation, and bring
it in conformity with the standards and principles set forth in the
Universal Declaration of Human Rights, and to take the adequate initiatives
with a view to becoming a State party to the International Covenant on
Civil and Political Rights. 

Adopted on 2 December 1997. 

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