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Monday, 22 June 2009
Page: 6803

Ms SAFFIN (6:55 PM) —I would first of all like to put on the record my thanks to the honourable member for Berowra for seconding this private members motion tonight. I would also like to thank all the honourable members for speaking. There is good reason for this chamber to debate the deplorable humanitarian, human rights, economic, racial, legal, constitutional and political crisis that confronts the people of Burma. Aung San Suu Kyi has said, ‘Please use your liberty to help us achieve ours.’ We are here; we can give that reassurance.

The most recent despicable act—one of many that form a pattern of systemic and widespread violations of all manner of human rights—of this brutal regime led by General Than Shwe involves the trumped-up charges against Aung San Suu Kyi, Nobel Peace Prize Laureate and someone who is admitted into the Companion of the Order of Australia, made worse by the fact that when she was charged she was already serving a six-year sentence, again on trumped-up charges, laid after she was a victim of an assassination attempt by the regime itself. At that time they also imprisoned her deputy, U Tin Oo, taking him back to his home in Rangoon to serve his sentence. I have here, Madam Deputy Speaker, Opinion No. 11/2005 (Myanmar) of the United Nations Working Group on Arbitrary Detention, which says, among other things, that U Tin Oo’s liberty is arbitrarily deprived. I seek leave to incorporate the opinion into my contribution tonight.

Leave granted.

The document read as follows—

Dear Ms. Saffin,

I would like to refer to the forty-second session of the Working Group on Arbitrary Detention, in which the Working Group adopted several Opinions on cases of detention submitted to it. The Working Group decided, inter alia. to transmit its Opinions three weeks after having transmitted them to the governments concerned, to the sources of information which had submitted the cases to the Group.

In accordance with the Working Group’s methods of work, I am sending to you, attached herewith, the text of Opinion No. 11/2005 (Myanmar) regarding a case submitted by you (Mr. U Tin Oo). This Opinion will be reproduced in the Working Group’s next report to the Commission on Human Rights.

Yours sincerely,

Miguel de la Lama


Working Group on Arbitrary Detention


Communication addressed to the Government of the Union of Myanmar on 12 October 2004

Concerning the case of Mr. U Tin Oo

The State 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 by resolution 1997/50 and extended by resolution 2003/31. Acting in accordance with its methods of work, the Working Group forwarded to the Government the above-mentioned communication.

The Working Group regrets that the Government did not provide it, despite repeated invitation to this effect, with the requested information.   The Working Group believes that it is in a position to render an opinion on the facts and circumstances of the case.

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.   According to the information received, Mr. U Tin Oo, a citizen of Myanmar born on 3 March 1927, Vice-President of the National League for Democracy (NLD), was arrested by police and military forces on 30 May 2003 at around 7 p.m. in Kyi village near the Dipeyin (Tabayin) township, Sagaing Division, when the NLD convoy was attacked by government’ affiliated thugs during a speaking tour of Upper Myanmar. Scores were killed and hundreds were wounded during the attack. Mr. U Tin Oo received blows to the head.

5.   Mr. U Tin Oo was taken to Kale (Kalay) prison, Sagaing Division, and detained there. He was later on transferred to Mandalay-Ohpho Prison. The detention of Mr. U Tin Oo was ordered by the State Peace and Development Council (SPDC). As to the legal basis, no arrest warrant or detention order was issued against Mr. U Tin Oo, nor any charges raised against him. The detention might be based on the 1975 State Protection Law.

6.   On 14 February 2004, U Tin Oo was shifted from Kale Prison to house arrest. However, he is still not allowed to see anyone. His home in Yangon is being guarded by armed and security personnel and his phone cut off.

7.   The source alleges that no charges have been raised against Mr. U Tin Oo and no trial is envisaged; his detention is not subjected to judicial review; he is held in incommunicado detention and denied access to a lawyer;

8.   The Government, which had the possibility to answer to these allegations, did not contest them.

9.   The Working Group finds that Mr. U Tin Oo could not benefit of the fundamental guarantees of due process, being an administrative detention. No arrest warrant was issued, no charges have been brought against him; he has not be subjected to an independent judicial process, held in camera and without access to defense.

10.   As to the situation of his house arrest, the Working Group has already stated in its Deliberation No. 1 that house arrest may be compared to deprivation of liberty provided that it is carried out in closed premises which the person is not allowed to leave, which is the case here, as the Government has not denied it.

11.   The Government was also unable to provide information as to the facts that gave rise to Mr. U Tin Oo’s arrest. At the time of his arrest was in a speaking tour in the country for the NLD party. The Working Group considers his deprivation of liberty takes place for the mere exercise of his political rights and the exercise of the right of freedom of movement, peaceful demonstration and of freedom of expression, all rights protected under the Universal Declaration of Human Rigths.

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

The deprivation of liberty of Mr.   U Tin Oo is arbitrary being in contravention of articles 9, 10, 19, 20 and 21 of the Universal Declaration of Human Rights, and falls within categories II and III of the categories applicable to the consideration of the cases submitted to the Working Group.

13.   Consequent upon the opinion rendered, the Working Group requests the Government to take the necessary steps to remedy the situation, and bring it into conformity with the standards and principles set forth in the Universal Declaration of Human Rights.

Adopted on 26 May 2005

The law—and it galls me to call it that—under which Aung San Suu Kyi is currently charged is called the Law to Safeguard the State Against the Dangers of Those Desiring to Cause Subversive Acts 1975. The name says it all. It is an Orwellian sounding act, sometimes called the State Protection Act. It is an act that is used to silence any political contestation voice other than the military in Burma.

We know that there is a humanitarian crisis in Burma. People are hungry and children are malnourished—their development and growth stunted. Since 1990 the matter of human rights in Burma has been before the United Nations and resolutions have been passed every year since 1991. People like Paulo Sergio Pinheiro, the previous UN special rapporteur on human rights violations in Myanmar, has recently called for an inquiry that should happen through the Security Council. He is calling for a commission of inquiry into the human rights violations, possibly leading to an indictment being taken to the International Criminal Court, which can happen in that procedural way through the Security Council. I strongly endorse such a call. It is time. The generals have had long enough.

Part of the reason that Aung San Suu Kyi has been charged is that somebody broke into her home in University Avenue and there is a law in Burma that to have a guest stay overnight you must have permission. When it was a socialist regime it was form 9; it is now just a rule that is enforced. If you do not have that permission, you have violated the law thereby endangering the state or whatever is determined at the time. This is what they are going on about with her at the moment. We also know that there is a constitutional crisis in Burma. Suu Kyi recently said, ‘We are facing a crisis of constitution, not a constitutional crisis.’

I want to note also that on Friday, 19 June it was Aung San Suu Kyi’s 64th birthday. A resolution was passed by all sides in this House and I also note that honourable senators passed a resolution in the Senate on Thursday, 18 June. On Thursday, 18 June all members overwhelmingly signed the card and some people ate some cake. I also note that Aung San Suu Kyi had a cake in prison. She shared that and the bit of food that she had with fellow prisoners and the guards. The purpose of the card was not only to wish her a happy birthday, as many people around the world have done—and there is a special website for it now—but also for us to say to her, ‘We wish you freedom, and anything at all that we can do, in our small way, we will do from here.’ It was nice to have the support of absolutely everybody.

I also want to commend a couple of Australian companies, Downer EDI and QBE, for voluntarily withdrawing their operations in Burma this year. I just wanted to put that on the public record. (Time expired)