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CNC Photo News 11th September 2008

Demonstration for Ethnic leader Khun Htun Oo and other Shan


leaders’ release:
Organized by: SND-Japan, SSND-Japan
Supporting and participating: AUN-Japan, All Ethnic groups, JAC
groups and all Democratic Activists
In front of the UN House on 11th September 2008

Photo by Lian Khan Sum (CNC-Japan)


News record by Julia Man Ngaih Hau (CNC-Japan)

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Imprisonment of U Khun Htun Oo and Other Shan Leaders -
Analysis Statement
1. Brief Summary of the Case

On 9 February 2005, nine Shan national leaders including U Khun Htun Oo, Chairman of the
Shan National League for Democracy (SNLD), were arrested by the Burmese military regime
for attempting to form a committee called the “Shan State Academics Consultative Council”.

The Burma military regime held a press conference to describe the Shan leaders' activities.
Even from the government statement read at the press conference, it is clear that the Shan
leaders were merely exercising their lawful right to peacefully assemble, associate and
express themselves. At the press conference, the government announced that the Shan
leaders gave some speeches and read statements at a meeting that resulted in a
recommendation to form a consultative council. According to the government press
conference, afterwards, the Shan State Academics Consultative Council was formed. The
Council would not only be based in Shan State, but would also have branches in each of the
six remaining states and the seven divisions. After the meeting, there was a dinner at “Sein
Taung Tan” restaurant in Taung Gyi Township paid for by the Shan State Army. More
statements were distributed during the meal, some with motivational quotes such as, “Now
we are at the first step of creating our own fortune for Shan state” and “All ethnic
nationalities living in Shan State are encouraged to actively participate and work together
with united spirit.” From these actions, the government concluded that the objective of the
involved groups was to facilitate the construction of a genuine federal union. The government
added, however, that the term “genuine federal union” can be easily misunderstood. They
accused the Shan leaders of actually intending to use this term to get people's support but that
their real intent was to one day secede from the union and establish a separate state.

The Shan leaders were quickly convicted of serious crimes and punished with long-term
imprisonment. U Khun Htun Oo was punished with 93 years imprisonment, Secretary Sai
Nyunt Lwin was punished with 85 years, U Sai Hla Aung with 79 years, U Myint Than with
79 years (where he died), U Htun Nyo with 79 years, Sai Myo Win with 79 years, Sai Nyi
Nyi Moe with 79 years and General Hso Ten with 106 years.

From the evidence, however, it is apparent that they were simply attempting to implement
their political aspirations by exercising their fundamental human rights and freedoms,
including freedom of expression, freedom of peaceful assembly and freedom of association.
None of them committed a crime punishable under national Burmese laws. Rather, out of its

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concern that the Shan leaders' peaceful movement would spread throughout the country and
inspire the other ethnic peoples, the State Peace and Development Council (SPDC)
criminalized the peaceful political actions. Currently, U Khun Htun Oo and other innocent
Shan leaders, who are able to play an essential role for the establishment of a democratic
federal union, are languishing in the notorious prison in Burma, as forgotten victims of
heinous crimes.
2. Failure to Apply the Laws Properly

In each and every case against U Khun Htun Oo and the other arrested Shan leaders, the court
failed to apply the laws properly. A close review of the facts, charges and applicable laws
shows clearly that no laws were violated. In fact, there was never any basis to bring any legal
action against the defendants.

Charges under the 1988 Law Relating to Forming of Organizations

The convictions under the 1988 Law Relating to Forming of Organizations were incorrect
because the defendants had not yet formed their organization, and thus were not liable under
the law's penalty provision. Legal action cannot be taken against an organization on the
ground that it did not apply for permission to form because there is no penalty Section
providing punishment for a violation of the prohibition against forming unpermitted
organizations. In this case, the defendants were arrested and punished while trying to
organize Shan State Consultative Council, prior to the application for registration. Thus, their
conviction was inappropriate.

Charges under the Control of Imports and Exports (Temporary) Act of 1947

In the case brought under the Control of Imports and Exports law, the evidence simply did
not support a conviction. Other than a Deputy-Police Officer, none of the other 16 witnesses
of the complainant gave oral testimony that U Hsay Htin, the accused, supported the
smuggling of teak and finished product to another country. One of the witness statements
favoring the complainant was clearly hearsay and should not have been admitted. There was
no evidentiary support for the allegation; instead, the court clearly had already made its
decision before the evidence was presented.

Charges under the Law Protecting the Peaceful and Systematic Transfer of State
Responsibility and the Successful Performance of the Functions of the National Convention
against Disturbance and Oppositions

The statements made by the Shan leaders which allegedly violated the law protecting the
National Convention were merely political expressions that the leaders had a right to make.
They were the opinions of Shan leaders regarding the emergence of a genuine federal union.
For instance, U Khun Htun Oo’s speech was not directed at the Constitution, nor was it
criticism of the National Convention. An excerpt from “The Future Burma” merely addressed
the unity needed among the nation’s different nationalities and did not affect the National
Convention. Other statements similarly had no relation to the National Convention.
Nonetheless, even if their comments did address the constitution or National Convention, all
citizens have the right to propose adding or not adding something in the constitution of their
own country -- making a suggestion is not a crime. It is merely an expression of free speech.

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High Treason Charges

To be convicted of high treason, one must wage (or attempt to wage) war against the Union,
or otherwise try to overthrow the Union. There was no evidence presented in the case that
the defendants committed or tried to commit these acts. Furthermore, according to the law,
waging war against the government is only a crime when it is against a government that has
been established by the Constitution. Thus, the defendants could not have committed the
crime of treason because the military regime is not a legitimate government established by
the Constitution.

Sedition Charges

The sedition law prohibits making statements that bring hatred, contempt or disaffection
towards the government. Some of the alleged statements that were used to convict the Shan
leaders clearly had nothing whatsoever to do with the military regime. Moreover, some of
the statements were true, contrary to the court's conclusion that they were false. The sedition
law also only applies to statements made against a government established by law; as the
SPDC was established unlawfully by military coup, the sedition charges are inapplicable.

Charges under the Printer and Publisher Registration Act of 1962

In connection with the charges under the Printer and Publisher Registration Act, there was
absolutely no evidence presented that the statement of the Shan State Academics Consultative
Council and other statements were printed by the primary accused, U Myint Than.
Furthermore, U Myint Than only distributed three statements to the people who attended the
meeting; because it was a limited distribution, registration was not required under the Act.
The other defendants did not print or publish anything and thus were not liable under this law.

Charges under the 1963 Act for Protection of Property Relevant to the Public

The case related to the protection of public property was unsupported by the evidence and
inapplicable to the facts. The Public Property Protection Act only applies to property "owned
or transferred to use or kept by" the army or certain other defined entities. The disputed teak
in this case was not such property. Furthermore, General Hso Tin, the defendant to this
charge, was already charged in Case Number 293/05 under Section 5.5(3) of the Control of
Imports and Exports (Temporary) Act. A defendant cannot be charged under several criminal
laws for one act. Additionally, a witness testified that the timber factory was not owned by
General Hso Tin, but rather by the Shan State Army. If any problem arose at that factory, the
whole Shan State Army would be responsible for it. Furthermore, U Lwe Maung, not General
Hso Tin, was the main person who operated the factory. As such, penalizing General Hso Tin,
who had no responsibility at all, was patently erroneous.

3. Criminalization of Peaceful Action and Fabrication of Criminal Cases

The attempt of U Khun Htun Oo and other Shan leaders to form a Shan State Academic
Consultative Committee and to explore how to exercise their right of self-determination
within the framework of a federal union does not constitute any offense under the effective
national laws of Burma and is also in line with international human rights laws. This was the

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major action of U Khun Htun Oo and Shan leaders with which the regime was displeased.
The regime was concerned that such attempts might spread to other provinces or states within
which various ethnic nationalities reside and a number of ethnic armed cease-fire
organizations are based, resulting in a threat to their power. As a result, such peaceful attempt
was criminalized, exaggerated, and combined with other fabricated offenses; subsequently,
for one major action, outrageous penalties were rendered several times under numerous
separate charges, contrary to the effective national laws in Burma, which provide as follows:

Article 22 of the 1973 Law for Interpretation of Clauses, an effective national law of Burma,
provides as follows:

In the event that a commission or omission constitutes two or more offenses, an


offender shall be indicted, and rendered penalty only with one, out of those
criminal offenses. For one offense, penalty shall be rendered only one time.

4. Manipulation of Trials as an Instrument of Oppression

The U Khun Htun Oo case exemplifies a judicial system that is manipulated by the ruling
government to increase persecution of political opponents and anyone who may dare to
challenge the regime. Similar use of the judiciary occurred during Saddam Hussein's rule in
Iraq. One of the most insidious manifestations of this manipulation is the complete absence
of a fair trial. The fate of U Khun Htun Oo and his colleagues was already decided once they
were arrested. The judge in each case merely acted as a rubber stamp to the regime's wishes.
The admittance of hearsay, the failure to correctly apply the law, the use of evidence that had
no relation whatsoever to the alleged crime, were all symptoms of a judiciary that is
completely controlled by the regime. Moreover, generally, justice requires that sentences be
proportionate to the nature of the crimes. Here, the use of maximum sentences in all cases,
regardless of the complete lack of evidence, was another indication that the courts were being
manipulated by the regime and were unable to decide the cases independently.

5. Unlawful Imprisonment and Political Persecution as Crimes against Humanity

The imprisonment of U Khun Htun Oo and the other Shan leaders are crimes against
humanity that fall under the jurisdiction of the International Criminal Court. First, the
unjustifiable prison sentences are a violation of: "Imprisonment or other severe deprivation of
physical liberty in violation of fundamental rules of international law." Article 7(1)(e).
Furthermore, because the unlawful imprisonment was purposeful persecution against a
political group, the sentences were also: "Persecution against any identifiable group or
collectivity on political ... grounds ... in connection with any act referred to in this paragraph
or any crime within the jurisdiction of the Court." These convictions were all a part of the
SPDC's systematic and widespread campaign of crimes against the civilian population.
Accordingly, the UN Security Council must act to refer Burma to the ICC to initiate an
investigation into the crimes against humanity that have taken place in Burma, including the
U Khun Htun Oo case.

Any effort or efforts to be exerted by the international community, and democracy and
human rights activists across the world to put pressure on the military regime in Burma in
order to immediately and unconditionally release our respected Shan leaders will be highly
appreciated.
(Source from SND-Japan, SSND-Japan)

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