My Expert Evidence and Analysis for Immigration Tribunal

IN THE UPPER TRIBUNAL OF THE IMMIGRATION AND ASYLUM CENTRE AA/02803/2009 TS -v- UK BORDER AGENCY INDEX OF COUNTRY BUNDLE 3 Page Description Foot note to Dr Zarnis Report 1-27 Report of Marcia Robiou 22.1.13 28-54 Report of Dr Maung Zarni 16.11.11 55-67 Transcript of Conference Call with Dr Maung Zarni 11.2.13 68-70 Burma: Halt Indiscriminate Attacks on Kachin State 17.1.13 1 71-73 Press TV: Rohinga Muslims in Myanmars Rakine state face genocide: OIC 17.11.12 2 74-76 Burmese Pipeline to China Under Construction, Despite Criticism 6.9.11 3 77-78 The Telegraph: Burma Copper Mine Protest Broken up by Riot Police 19.2.13 4 79-94 Land Grabbing in Dawei September 2012 5 95 Monks Protest in Burmese Cities over Mine Crackdown 12.12.12 6 96-98 Burma: Riot Police Move in to Break up Copper Mine Protests 29.11.12 6 99-102 List of Injured in Copper Mine Protest 7 103 Kachin Rebels in Burma Lose Key Hilltop 26.1.13 8 104 Myanmar Launches Cyberspace Attacks 20.9.08 9 105-107 E-Mails of Reporters in Myanmar are Hacked 10.2.13 9 108 UN: Myanmar Tortured Kachin 17.2.13 10 109-111 Torture and Ill Treatment in Burma 31.5.12 10 112-113 Burma Initiates Committee Scrutinizing the Political Prisoners Left Behind 7.2.13 10 114-117 Google and Facebook Remain Tentative in Myanmar 11.2.13 11 118-119 Govt Slams US Kachin Statement 28.1.13 12 120 Voice of America: Burma Protests US Embassy Criticism 26.1.13 13 121-133 Air War in Kachinland: Burma Military Air Attacks on Kachin Territory 4.12.12 14 134-135 Video Shows Burma Military Targeting Kachin Rebels 2.1.13 15 136-137 Myanmar Military Admits to Airstrikes on Kachin Rebels 2.1.13 16 138-140 Burma Observers Participate in US Led Military Exercises in Thailand 10.2.13 17 141-142 Burma Blogger Jailed for 20 Years 11.11.08 18 143-144 Burma: In Memoriam: Phyo Wai Aung, a Courageous Fighter Against Inhuman Abuse 6.1.13 19 1 Expert Report Prepared for: Gillman-Smith Lee Solicitors By: Ms. Marcia Robiou EXPERT REPORT FOR THE COUNTRY GUIDANCE CASE OF TS Reference: Annex A (attached): Ms. Marcia Robiou biographic information Introduction You requested an Expert Report in relation to the Burma Test Case of TS. I have read through the following documents that you provided: a) Statement of Facts b) Ambit of Burma Country Guidance Case and list of questions to the Expert Ambit of Burma Country Guidance Case 1. What is the risk to a Burmese citizen who has taken part in demonstrations in the UK against the current Burmese regime, upon his return to Burma? 2. What is the relevance to the assessment in (1) above of someone who came to the adverse attention of the authorities before leaving Burma but was nevertheless able to travel out of the country on a valid Burmese passport? 3. To what extent do the Burmese Authorities distinguish between returnees from the UK who have no real political commitment but attend demonstrations to bolster a claim and those who attend demonstrations but have a genuine commitment to the opposition cause? 4. Taking account of answers of 1-3 above, to what extent is the country guidance given in TL still valid as an assessment of risks to Burmese failed asylum seekers returned after making a protection claim based as oppositionists whether in Burma or during their stay in the UK? 5. Do the Burmese authorities distinguish between those who are perceived to have no real political or oppositionist commitment but who attend demonstrations to bolster a claim to asylum and those who attend political demonstrations out of a genuine commitment to the anti-regime cause? 6. If the answer to (3) above is yes what impact does this have on the risk on return? The following are my answers to the questions for Experts: 1. Please characterise the mind set of the Burmese regime, in particular its attitude to (i) criticism of the regime (ii) displays of opposition or defiance (iii) the opposition in exile; (iv) foreign influences generally. 1.1 The current Burmese regime headed by President Thein Sein is a quasi-civilian regime at its best and a military authoritarian regime at its worst. Burma is dominated by an authoritarian mindset in that there is no respect for the rule of law crime is simply what the authorities 2 say it is. The retention of political power within the small circle of the military elite is crucial for the Thein Sein administration. 1.2 Characteristics commonly exhibited in authoritarian regimes remain. This includes state control over media, heavy-handed policing and arbitrary detention, and deep ethnocentrism. 1.3 The military regime in Burma, which held absolute power for 5 decades, appears to be slowly opening, giving rise to what appears to be soft authoritarianism. Even though one party remains in control, small-scale reforms such as legalizing protests and increased space for political parties to operate have taken place under TheinSein. The people of Burma have been testing the limits of these reforms by calling attention to social injustices and problems through public processions or the Internet. As a result, there is a greater sense of freedom that was not existent under the previous military regimes. 1.4 Even so, there is still no guarantee or respect for basic human rights. People are arrested and tortured whenever they are deemed a threat to the state. Genuine free and fair elections have yet to take place in Burma. The court and judicial system are apparatuses of the ruling party. According to Freedom Houses 2012 Burma report, Burma remained one of the most repressive countries in Asia1. Committee to Protect Journalists has ranked Burma as number 7 in their top 10 most censored countries report from May 20122. 1.4.1 Criticism of the regime is not tolerated. 1.4.1.1 Any legal reforms that appear to protect and promote freedom of expression and assembly are undermined by vague and broad provisions that make it clear criticism of the regime is off limits. For example, the Law Relating to Peaceful Assembly and Peaceful Procession allows up to 6 months imprisonment if a protestor gives speeches that contains false information or says anything that could hurt the state or Union3. This punishment is applicable to those who have already been granted a permit to protest. 1.4.1.2 Nyi Nyi Lwin (formerly known as U Gambira), a dissident monk who recently disrobed, was detained shortly after voicing criticism of the regime in March 20124. He was taken from his monastery in the middle of the night without any explanation of what laws he had breached. He was re-arrested in early December 20125. Such examples cast serious doubt over whether the Thein Sein administration is serious about implementing genuine political reform. 1.4.1.3 Only 6 years ago the military regime viewed humanitarian aid and charity workers as domestic critics. In the wake of Cyclone Nargis, one of the worlds worst natural disasters that killed more than 140,000 people, Burma authorities arrested aid workers, giving them harsh sentences. Six volunteers received sentences ranging from 10 to 1Freedom of the Press: Burma 210 Most Censored Countries, Special Report, Committee to Protect Journalists, 2 May 2012 3For a legal analysis on the assembly bill, please visit Myanmar: The Decree on the Right to Peaceful Assembly and Peaceful Procession, Article 19, 2012. 4 Burmese protest leader monk Gambira taken away. BBC News. 10 February 2012. 5AAPP Condemns the Re-Arrest of AshinGambira (aka) NyiNyiLwin, Assistance Association for Political Prisoners (Burma), 3 December 2012 3 35 years for activities ranging from delivering aid to the victims, for reporting on the cyclone, and even for burying the dead6. 1.4.2 Displays of opposition or defiance are not tolerated. 1.4.2.1 I believe my response under (i) covers this section as well. 1.4.3. The Thein Sein administration treats the opposition in exile with scepticism. 1.4.3.1 They are aware that extending an olive branch to activists in exile would allow them to gain much needed political capital in the eyes of the international community, and have thus acted accordingly. In March 2011, the President publicly invited exiles to come home, but did not put in place any official policy or procedures that would make exiles feel safe in returning home7. In addition, the President claimed exiles with no criminal records are welcome, making it unclear whether those who have been imprisoned for their political activism and spuriously charged with criminal offenses would fall under this category. Overall, the invitation was seen as weak among the opposition in exile given the absence of concrete actions that would ensure the safety of exiles. 1.4.3.2 These fears were not unfounded. Human rights lawyer Saw Kyaw Kyaw Min became the first former exile to be prosecuted upon his return to Burma8. He was convicted to six months imprisonment for an outstanding contempt of court while representing democracy activists in 2007. His clients were arrested during a march calling for the release of democracy icon Aung San SuuKyi. He was sentenced in absentia. Upon his return to Burma, he was arrested and sent to prison to serve his sentence. 1.4.3.3 The Office of the President removed the names of 2,082 people from the states infamous blacklist and made those names public in August 20129. The list is comprised of foreign and Burmese nationals seen as threats to peace and stability, and includes Burmese journalists, dissidents, foreign activists, historians, etc. 6Cyclone Nargis: One year on, 21 people imprisoned for helping victims.Amnesty International. 4 May 2009 7Cautious welcome for return home offer.Kyaw Su Mon, Myanmar Times, 22-28 August 2011 8 Burma: Overturn 6 month sentence of human rights defender and lawyer Saw KyawKyawMin.Assistance Association for Political Prisoners (Burma), 30 August 2012. 9 Black-listed Myanmar citizens get green light, New Light of Myanmar, p. 16, 27 August 2012. The New Light of Myanmar is the state of Burmas media mouthpiece and is where the previous military regimes would normally publish their official government decrees, amnesties, etc. The current U Thein Sein administration now has a user-friendly website for the Office of the President both in English and Burmese. Official government announcements can now be found on the President website. Please all refer to the Burma government press release 2/2012, which states The Government of Myanmar has already eliminated a "blacklist" of persons barred from entering or leaving the country based on their suspected political activity. The Government of Myanmar has also established a point of contact in the Office of the President to provide timely response to citizens and foreigners inquiring about their status. Press Release No. 2/2012, President Office, The Republic of the Union of Myanmar, 19 November 2012. 4 1.4.3.4 However, more than 4,000 names remain on the blacklist. No one knows who is on the list except President Thein Sein. In order for exiles to feel safe returning home, the president should grant an official amnesty to exiles and refugees rather than an informal oral invitation. The amnesty should include all those convicted of political crimes and crimes related to internal conflict. 1.4.4 The Thein Sein administration is generally warm to foreign influences insofar as it relates to economic affairs and development projects. Over the year the administration has shown itself to be responsive to foreign pressure when there are concrete concessions involved, such as the lifting of economic sanctions. The administration is not tolerant, however, of foreign agents critical of the government and especially of what is seen as domestic matters such as human rights issues. 2. The Tribunal accepted in TL that photographs are taken by Burmese Embassy staff of demonstrations against the regime outside Burma, Does this practice continue? What is or was the purpose of these photographs? To what extent is the regime concerned with the motives of participants on these demonstrations? 2.1 I am not familiar with how Burmese Embassy staff operates outside Burma so I cannot comment on that part of the question. 2.2 However, it is well known that the succession of military regimes have a sophisticated network of spies throughout the country who monitor the activities of those believed to be dissidents. Military intelligence often go undercover and infiltrate protests, student unions, etc. to gather information. The purpose of photographing in particular and monitoring in general, in Burma at least, is three-fold: to build evidence against an individual in case authorities want to make an arrest; to better understand how activists or oppositionist organizations operate so as to suppress their activities; and to pre-empt any activities that are seen as injurious to the State from taking place. 2.3 I do not think the regime is concerned with motives of participants as much as the act taking place. 3. The Tribunal makes reference in TL to a network of spies in the UK being able to provide information on those who are genuine opponents and those who are not. What is known about these networks of spies? How sophisticated an operation is this? 3.1 I can only comment generally on this question. 3.2 The government of Burma has an institutionalized and sophisticated spy network throughout the world. Burmese embassies around the world are staffed by Military Intelligence. These staff members, in conjunction with the spy network, monitor and document information on individuals involved in the oppositionist movement. 3.3 Needless to say the information is very detailed and includes where oppositionist organizations receive funding, who activists associate with, their family history, places of employment, current whereabouts of, educational background, etc. It is common for Military Intelligence to go undercover and infiltrate protests, student unions, known 5 hangouts for dissidents, etc. Any criticism of the regime, including public demonstrations, is dutifully documented. Each month the information is compiled into a report and sent to the Ministry of Foreign Affairs and the Military Strategic Command Center. 4. Please can you comment on how the Burmese regime would treat persons returned to Burma who have demonstrated outside the Burmese embassy but in respect of which it has no records of opposition activity in Burma. What factors, if any, would either exacerbate or decrease the risk to this group? For example would demonstrators who are members of any of the following be more at risk: 4.1 It is difficult to comment on how a returning exile in Burma would be treated upon their return given the unpredictable nature of the regime and the potential rolling back of any reforms to date. I would venture to say the exile in question would most likely be monitored and followed during the initial stages of his/her return and/or interrogated at the airport. 4.2 A number of highly outspoken activists with foreign passports have returned to Burma on visas with no incidences of arrest or major harassment. These include senior officials of Assistance Association for Political Prisoners (Burma) Bo Kyi and Tate Naing, chief coordinator of Burma Partnership Khin Ohmar1011, student leader Moe Thee Zun, and many more. Many of these returned exiles have been able to meet formally with government officials, sectors of civil society, and representatives of foreign institutions such as the ICRC. 4.3 There have been accounts of returning exiles being forced to sign a form pledging they will not partake in any activities or engage in criticism that will harm the state. This form of harassment appears to be unsystematic and indicative of the messy top-down nature of reforms in Burma. NLD member Nyo Ohn Myint refused to sign the form and was allowed to receive a visa after a government official intervened12. 4.4 Factors that would exacerbate risk would include outstanding grave criminal charges such as rape or murder and a long line of visible and outspoken political activism against the regime in Burma. 4.5 There are steps that can be taken to better assess the risk posed to the individual in question. This includes asking for an official invitation from the government of Burma to visit the country. 4.6 Being a member of an ethnic minority group does not necessarily put an individual at risk of arrest, torture, etc. Their risk increases depending on where they are in Burma. Ethnic minorities living in ethnic minority states such as Chin or Kachin State are at higher risk than those residing in urban Bamar-dominated areas such as Rangoon or Mandalay. Needless to say those living near conflict zones (southern Shan State, Arakan State, etc.) or developments projects where soldiers act as security forces (along Shwe Gas pipeline corridor) are more vulnerable to human rights abuses including forced labor, forcible relocations, and restriction of movement among others. 10For KhinOhmars assessment of Burma at the end of her trip please visit: KhinOhmars Burma Trip Conclusion. Burma Partnership, 23 November 2012. 11 Update: Khin Ohmar is currently on her second trip to Burma and has mentioned she is being followed more heavily than on her first visit. 12Burmas exiles can return if they promise to be good. Andrew Buncombe, The Independent, 19 October 2012. 6 4.7.a Ethnic Kachins? In particular the UN Special Rapporteur reports of arrests of ethnic Kachins suspected of having links with the Kachin Independence Organisation and Kachin Independence Army. Furthermore the Special Rapporteur records attacks against civilian populations, extrajudicial killings, sexual violence and internal displacement. Will ethnic Kachins be at risk of imprisonment, torture or serious physical harm merely by virtue of their ethnic origin or return? 4.7.a.i Ethnic Kachins living near areas of open conflict and regions controlled by ethnic resistance groups such as the Kachin Independence Army (KIA), or controlled by the Tatmadaw, are at serious risk of arbitrary detention, torture, enforced disappearance, and rape as evidenced in the UN Special Rapporteur report you mention. A Kachin living in an urban area such as Rangoon does not generally face any risk to their security or safety. An ethnic Kachin living in an internally displaced camp or near a KIA controlled region is at risk, however. 4.7.a.ii After the conflict broke out in Kachin State in June 2011, there has been a surge in civilians being accused of involvement with the KIA. They are often arrested, kept in detention, and severely tortured13 to extract false confessions. The majority are innocent civilians including civilians residing in IDP camps. 4.7.a.iii If the government or military wanted to assess whether an individual was a KIA soldier or not, all they have to do is refer to KIAs list of recorded soldiers. Their refusal to do so shows that arresting those suspected to be involved with the KIA is just a veil to repress ethnic Kachins in a widespread manner. For legal briefings on 36 Kachins accused of KIA involvement and their treatment in detention and in court, please refer to the Asian Human Rights Commission and Asian Legal Resource Centers special dossier, Cases under the Unlawful Associations Act 1908 brought against people accused of contact with the Kachin Independence Army from January 2013. 4.7.b Ethnic Karen? 4.7.c Ethnic Karenni? 4.7.d Ethnic Chin, 4.7.e Ethnic Shan, 4.7.f Ethnic Mon; 4.7.g Ethnic Rakhine Rohinga; 4.7.h Ethnic Ghurkas; 4.7.i Members of Kachin National Organisation; 13 Please refer to the case of Lahtaw Brang Shawng, a Kachin IDP camp resident severely tortured on accusations of being involved with the KIA. He was tied up with ropes, his cheeks were burned with hot knives, his thighs were heavily carved, and the skin on his calves shows extensive signs of peeling. Read more here: Burma: Allow Torture Victim Medical Treatment and Prosecute Security Forces Responsible for Torture, Assistance Association for Political Prisoners (Burma), 13 July 2012. 7 4.7.j Members of NLD-LA UK; 4.7.k Members of 88 New Generation Students UK (88 NGS); 4.7.l Any other groups known? 5. Would a person who is not an ethnic minority who demonstrates in support of an ethnic group such as Kachin, Karen, Rakhine Rohinga or Chin, place himself or herself at risk. 5.1 Yes. Anyone who publicly demonstrates in Burma, regardless of their ethnic origin, puts themselves at a real risk. 5.2 Burma authorities arrested 13 activists who led a peaceful march of approximately 1,000 people to commemorate International Peace Day and call for an end to civil war both in Kachin State and around the country in September 2012. The activists are being prosecuted under section 18 of the peaceful assembly law. If prosecuted and charged, they face up to one year in prison and a 30,000 kyat fine. The activists may be charged in every township they marched through, meaning they potentially face up to 10 years jail terms. 5.3. The 13 activists represent a network of about 20 civil society organizations known as the Peace Network. Not all of those arrested for leading the peace protest are Kachin. 5.6 Below is an excerpt from a Human Rights Watch press release that explains the treatment of the 2 Kachin activists who were arrested in association with the peace day protests14: 5.7 On September 28, the Dagon township court in Rangoon summoned two of the Kachin Peace Network organizers, Jaw Gun and May Sabae Phyu. The court accepted the case against them for violating the peaceful assembly law, ordered them to face trial on October 10, and released them on their own recognizance. The Sanchaung township court also summoned Jaw Gun and May Sabae Phyu on October 1. 6. What is the regime' s attitude to those who merely associate with known or suspected opponents? Would the regime have any interest in questioning such an associate if they were returned to Burma and if so for what purpose? What would any such questioning involve and how would they be treated? 6.1 The regime regards those who associate with suspected opponents with the same level of suspicion it regards genuine dissidents and activists. The regime authorities follow an unofficial policy of detain first and ask questions later. Therefore, anyone who associates with known activists or dissidents is subject to harassment by authorities. Depending on the perceived risk of the person in question, the authorities usually take any number of actions, including: 6.1.1 Following and monitoring the suspect. While this was common under the previous military regime, I have only noticed this practice continue for prominent activists. For example, an outspoken critic of the regime who works in exile along the Thai-Burma border has recently returned to Burma twice, both on official visits. She has complained about being followed by plain-clothed authorities even outside Rangoon and having 14Burma: Peaceful Protest Organizers Charged. Human Rights Watch. 1 October 2012. 8 her mobile phone tapped. In addition, after meeting with a prominent member of 88 Generation group, the 88 member received death threats from an unknown source. I am not familiar of any recent (as in post-Thein Sein) cases where an individual who merely associates with activists is questioned, though it may have very well just not have been brought to my attention. 6.1.2 Visiting the suspect at his/her place of residence to conduct a (usually unwarranted) search of their home. Under the previous military regime, it is common practice that these visits take place late at night to further intimidate and disorient the suspect. Now under the TheinSein administration, this practice does not happen as often or I am not aware of them happening often. One example I can point to is the case of Nyi Nyi Lwin (formally known as U Gambira), a dissident monk (who has now resigned his monkhood) who was taken away from his monastery in the middle of the night for questioning after vocally criticizing the Thein Sein administration. 6.2 Follow and monitor those closest to the suspect, including family members, friends, and colleagues in order to learn more about the potentially dissident activities the suspect is involved in. These individuals may also be subject to questioning. 6.3 Apprehending the suspect and bringing him/her to a detention center for questioning. 6.3.1 The questioning process is usually as follows: plainclothes authorities (either military or police) place the suspect into an unmarked vehicle. It was common to hood the suspect but I have not heard of such incidences recently. The suspect is brought to a nearby detention center where he/she is placed in an interrogation room for questioning. If authorities have reason to believe the suspect has credible information that is valuable to them (such as whereabouts of a high-profile activist or the structure of an underground activist network) or are eager to find a scapegoat for a particular crime (a recent bombing for example) they will use a wide range of tactics. This includes incessant questioning for hours, degradation, placement in solitary confinement, fear tactics, stress positions, etc. Often, suspects are not told why they are being detained, how long they will be detained for, are prohibited access to a lawyer and family members, and are not told where they are being taken. 6.4 Please refer to the case of Nang Wo Phan, a young Shan woman who fell to her death in the detention center after being interrogated for hours on end in Kyauktada Township in March 201215. It is believed the aggressive interrogation led to her death. Nang Wo Phan is an ethnic Shan woman with no known history of political activism. 15 My Wife Died from Police Abuse, Says Husband.The Irrawaddy. 29 March 2012. 9 6.5 Former political prisoners who have been released under Thein Seins presidential orders have complained of being monitored16. 6.6 To understand why associates of activists are monitored it is important to understand that the regime of Burma, like any dictatorship, is characterized by paranoia of losing their hold on power. This has given rise to a network of spies throughout the country who monitor the activities of dissidents and their associates and report their findings back to relevant police/military authorities. 6.7 More concretely, associates of activists are monitored to: gather information on the activist/network in question in an effort to either pre-empt something from happening, such as a large protest; force a false confession; intimidate and suppress a certain sector of the population; and gather information to frame an individual. 6.8 Activists and ethnic minorities are often subject to being framed for a grievous crime in order to degrade them and their cause or suppress the ethnic minority population. Political prisoners are often charged under rape, murder, and other serious criminal offenses. Phyo Wai Aung, a Muslim with no known history of activism, was arrested in 2010 in conjunction with a water festival bombing. He was severely tortured in an effort to extract a false confession. The torture had lasting impacts on his health and is believed to have led to his death in January 2013, despite numerous pleas from the international community requesting his early release based on humanitarian concerns. To read more about his case please visit here17, here18, and here19. 7. The Tribunal considered it reasonable to draw a distinction between demonstrations in Burma, where it is inconceivable that a person would demonstrate unless he opposedthe regime and demonstrations in the United Kingdom, in which a hanger on with noreal commitment to the oppositionist cause might participate in the hope of creating a false entitlement to refugee status? Do you think that the Burmese authorities would seek to draw a similar distinction, and if so, how would they do so in practice? 7.1 No, I do not think the Burmese authorities would seek to draw a similar distinction. First, the risks of demonstrating in Burma are real and high making it unreasonable for someone to demonstrate if they are not committed to the oppositionist cause. Indeed, there are thousands in Burma who agree with the values of the democracy and human rights movement will not publicly proclaim their support for fear of arrest and harassment. 8. Do you agree with the Tribunal' s assessment in TL that the regime would not persecute someone whom they knew to be a hanger-on with no real commitment to the oppositionist cause who was demonstrating merely in order to enhance a false claim for 16 Burma: Former political prisoners persecuted, Human Rights Watch, 17 September 2012 17Burma: Allow early release of 3 political prisoners facing imminent threats to life due to critical health conditions, Press Statement by Assistance Association for Political Prisoners (Burma), 23 May 2012. 18 PhyoWaiAung: catalogue of human rights abuses stain the lawfulness of his trial, Press Statement by Assistance Association for Political Prisoners (Burma), 7 May 2012 19 Burma: Investigate death of former political prisoner, Press Statement by Assistance Association for Political Prisoners (Burma), 5 January 2013 10 asylum? Are you aware of any way in which the Burmese authorities would ' know' what a person' s motivation was for demonstrating? If they were interested in this, how would they seek to find out either before or after such a person returned to Burma? 8.1 I do not know of any way in which the Burmese authorities would know what a persons motivation was for demonstrating, or even if they are interested in seeking this information. 8.2 I do not know if Burmese authorities would be able to distinguish between a person who is a hanger-on or not. To find out if an individual is a threat to their hold on power or not, they may seek to temporarily detain and question the individual, or have the individual monitored. However, if the individual is not a prominent activist, nor has a history of oppositionist activity in Burma, then I think the person is at low risk of serious harassment. However, if he/she continues demonstrating in Burma, then they will be putting themselves at risk. 8.3 The Burmese regime is currently making a real effort to court exiles in order to gain legitimacy with the international community. I think they have learned through the cases of Saw Kyaw Kyaw Min and Nyi Nyi Aung20(Burma-born American citizen and activist who was arrested upon his return)that arresting exiles upon their return tarnishes the administrations reputation. Therefore, it would not be in their interest to arrest a returned exile from the UK. 9. How would someone who is assessed to have no real commitment to the oppositionist cause be processed on return to Burma at the /airport and/or thereafter? Please set out any interview process you are aware of the types of question and techniques used. 9.1 A tourist who is visiting Burma with no history of oppositionist activity generally will not be questioned at the airport. High-level activists are normally not questioned either, though as I mentioned previously they are subject to heavy monitoring during their time in Burma. The only harassment I am aware of is forcing activists/dissidents seeking a Burma visa to sign a form confirming they will not participate in any activities that will harm the State or criticize the State. 10. Please comment on the quotations from correspondence from the FCO at 15.28-15.31 of the Home Office' s Country of Origin Information Service report dated 2nd February 2012. 10.1 15:28 correspondence: 10.1.1 I also am unaware of a returning exile being arrested for their activism in their UK. Leaders in the international spotlight who return to Burma are often protected by their prominence from overt forms of harassment such as arrest. The government of Burma is careful not to upset members of the international community, especially those who have the power to re-impose sanctions and roll back financial aid/grants. Prominent leaders are subject to more silent and veiled forms of harassment such as phone tapping, restrictions on their freedom of movement, denial of permission to hold a ceremony/fundraiser, etc. 20 Burmese-American awaits verdict in Myanmar case, Thomas Fuller, NY Times, 8 February 2010 11 10.1.2 Activists known only in certain geographic areas are harassed openly and are subject to arrest, mistreatment during detention, etc. Please refer to cases of Nyi Nyi Lwin (U Gambira), who has been arrested and harassed several times since his release on January 2012. Harassment includes monitoring, public humiliation, and middle of the night visits by authorities. He is relatively well known as a dissident (former) monk in Burma but not in the international sphere. 10.2 15:29 correspondence: 10.2.1 I agree with this assessment. 10.3 15:30 correspondence: 10.3.1 I agree with points 1-2. However it is hard to judge whether a returning individual will be persecuted or not given the haphazard nature of authorities in Burma. Also, I am not personally aware of any returning exile being arrested since the Thein Sein administration. 10.4 15:31 correspondence: 10.5 I agree with the assessment that the arrest of returning activist appears to have lowered. The risk of persecution and prosecution remains very high however if the returnee continues to engage in oppositionist activity in Burma. 11. Are there any other factors of which you are aware which would increase or decrease any risk to Mr San on return to Burma? 11.1 Mr San will be at risk if he continues his oppositionist activity in Burma or travels to ethnic minority regions where there is open conflict, such as areas of Kachin and Arakan State. 11.2 If Mr. San is genuine about working towards democracy in Burma, I would suggest he request an official invitation to Burma from the Office of the President or the Ministry of Home Affairs where he details why he is coming back and what work he would like to do in regards to democracy/human rights. Other high level activists have received official invitations from the government to return which provides them with security from arrest and other forms of harassment. 12. In relation to the recent changes in Burma please answer the following: 12.a According to the Special Rapporteurs report dated 25th September 2012 the release of political prisoners was subject to conditions and those released received no assistance and are barred from certain employment possibilities. To what extent to the conditions of release point to a risk that the amnesty is only temporary and is likely to be withdrawn in the near future? 12.a.i I think it is important to note that political prisoners were not released under an amnesty. Political prisoners are released with their spurious criminal records intact, without recognition of their political status, and under conditions. These conditions include Article 401 of the Code of Criminal Procedures, which 12 effectively grants the President wide powers to cancel the suspension of the sentence, and order for the person to be re-arrested by a police officer without any warrant and remanded to complete the un-expired portion of the sentence21. 12.a.ii Therefore, political prisoners who have been released under presidential order are still not really free and vulnerable to re-arrest at any time. Democratic Voice of Burma journalist Sithu Zeya, who was released from prison under the celebrated 13 January 2012 presidential order, explained, Its like we are being freed with leashes still attached to our necks22. 12.a.iii The conditions attached to the releases point to the limiting and potentially temporary nature of the releases. Former political prisoners are subject to harassment including having their professional licenses revoked23, denial of passports effectively restricting their freedom of movement24, being barred from employment opportunities due to their outstanding criminal records, and denial of educational opportunities for the above-mentioned reason25. 12.a.iv Whether the so-called amnesty is withdrawn or not in the near future is not the main issue for many of the former political prisoners. The larger issue is the fact that they have been released in an open prison where their basic freedoms continue to be suppressed. 12.a.v The image below shows how a much higher proportion of criminal offenders were consistently released alongside political prisoners, suggesting releases were more about extracting key international concessions than emptying Burmas prisons of all political prisoners. (All months from 2012). 21Article 401 of the Code of Criminal Procedures 22Released Burma Dissident: Were on a leash. UN Watch. 15 January 2012. 23 Please refer to UN Special Rapporteur Tomas Ojea Quintanas 7 March 2012 progress report, page 5, as well as Asian Legal Resource Centers appeal on behalf of lawyers in Burma who have had their licenses revoked here. 24 Free Last Political Prisoners: Lift Travel Ban. The Irrawaddy. 17 September 2012 25 Burma: Former Political Prisoners Persecuted. Human Rights Watch. 27 September 2012. 0100200300400500600700January July September NovemberRelease of Political Prisoners under Presidential Order Political PrisonerCriminal Offender 13 12.b How many politically motivated arrests have been made since the releases on 17th September 2012 including internal arrests and arrests of exiled activists returning to Burma from abroad? Please inform us of the suspected reason for any such arrests and include any information you have about their ethnic background and political affiliation/activities. What has happened to the individuals concerned? 12.b.i I am not aware of any arrests of exiled activists since 17 September 2012. 12.b.ii My numbers show that there have been at least 52 politically motivated arrests since 17 September 2012. In November and December, many of the arrests are of Kachin ethnic minorities and members of the All Burma Student Federation Union. I have attached a table to the e-mail detailing the information we know regarding those arrested in November and December. When I return to the office I can send information about September and October. The list is just for those who are currently in prison. In the 52, some may have been released on bond but still face court proceedings. 12.c How many political prisoners remain inside Burmese prisons? Why have they not been released? What bearing does their continued imprisonment have on the risk of return from abroad for perceived opponents of the regime? 12.c.i There are currently 222 political prisoners still behind bars26. Critics of the government believe they have not been released yet because political prisoners are valuable bargaining chips that can be used to extract concessions from the international community. For example, one of the key benchmarks for foreign governments to lift economic sanctions was for Burma to release political prisoners. Economic sanctions were eased a 26 Please see the attached excel file entitled Copy of update all PP list for a list of all the political prisoners. 020406080100120140160Arrested Sentenced Pending TrialArrested, Sentenced, and Pending Trial Political Prisoner Situation in2012 14 few months after the 13 January 2012 release where many prominent activists such as Min Ko Naing, Ko Ko Gyi, and Khun Htun Oo were released. 12.c.ii The government continues to officially deny the existence of political prisoners in Burma, a position maintained in the previous military regimes. More, the current administration holds that those remaining behind bars are dangerous criminals such as terrorists, rapists, and bombers. This is an attempt by the administration to degrade the democracy and human rights movement as well as confuse the identity of genuine political prisoners with common criminals. On February 12, 2012, when Lower House Speaker Shwe Mann reportedly said, The remaining political prisoners are those who have committed criminal activities in this country. Those who are on that list, if they have been involved in terrorist activities or harmed the public, they will not be included27. 12.c.iii Their continued imprisonment is an important sign to exiles wishing to return home that it is still not safe for they may too become a political prisoner. In addition, the unconditional and immediate release of all political prisoners in Burma is a common precondition for exiles or exile groups when debating whether it is safe for them to return home. 13. Would a person who demonstrates in Burma still be liable to arrest and arbitrary detention? If so, for what period is that person likely to be held for? 13.1 Yes, a person who demonstrates in Burma is at very high risk of being arrested and placed in arbitrary detention. The length of time a person will be placed in detention varies widely and appears to depend on the whim of the arresting officer. Individuals can be detained for one hour to an indefinite amount of time (or their court proceedings begin). 13.2 The past year saw a dramatic increase in the number of public demonstrations and peaceful protests as eager citizens tested the limits of the protest bill that was signed into effect by President U Thein Sein on 2 December 2011. The bill, which superficially legalized protests, quickly turned out to be a tool to repress freedom of expression and assembly rather than a means to promote and protect these fundamental rights. 13.3. The government of Burma has a long history of repressing public demonstrations and processions, often with extreme measures. Unfortunately, this trend has not changed even though Burma now superficially legalized peaceful assemblies. Leaders of an anti-copper mine prayer protest in Sagaing Division were subject to physical punishment during their unlawful detention. Ma San SanHla, one of 9 women arrested, had her hair pulled and was brutally assaulted by police officers while in detention. Others had their arms twisted and were pushed to the ground, while one was taken to an unknown 27Burmas Political Prisoners and U.S. Sanctions. Michael F. Martin. Congressional Research Service. 19 October 2012. P.5. For more information please refer to AAPP publications The Name Game: What You Should Know about Burmas Political Prisoners, and The recognition of political prisoners: essential to democratic and national reconciliation process. 15 location in a truck. About 1,500 people were protested against the copper mine in an effort to halt unlawful land confiscations carried out by the copper mine. 13.4 Repression of demonstrators is often unseen. Protestors are quietly taken to a detention center and forced to sign an official form agreeing to never partake in public protests or political activity again. This happened to five farmers who led a demonstration asking for their confiscated lands to be returned to them in July. Or they are treated in a degrading manner. U Aung Myint, a solo protestor who drew attention to the lack of freedoms in Burma by wearing a prison uniform with shackles in public, was arrested alongside his daughter and sent to a mental asylum for a week in March. 13.5 That the protest bill is quickly becoming one of the main tools of repression was evident in the Letpadaung copper mine protests. During the protests, the police were responsible for a range of abuses including arbitrary arrests, illegal detentions, and inhumane treatment that span from water cannons, tear gas, and fire hoses to unleashing fire bombs into the crowd, according to witnesses at the protest. 13.6 At least 70 protestors were sent to hospital for treatment caused by police-led abuse during the protest with 8 seeking emergency care. A seriously wounded monk, U Thaikkha Nyana, from Than Ne Taw Monastery, Monywa district, was sent to Mandalay Public Hospital to seek specialist treatment. Six monks from Phaung-Kar monastery are suffering from extreme wounds. Hundreds of protestors have been injured, with many facing burns throughout their body. 13.7 The protests also resulted in indiscriminate arrests. Six were imprisoned in Insein prison under section 505 (b) of the penal code, for making a rumor conducive to public mischief. Several monks and other peaceful demonstrators were also arrested in the wake of the violence. 13.8 These examples show that by arresting and prosecuting peaceful protestors, the so-called reformist government of Burma is acting the same as the previous military dictatorship. 14. Would a person who has taken part in demonstrations in the UK and whose identity was known to the authorities in Burma by virtue of being photographed during his protests, be more at risk of arrest for attending demonstrations in Burma than a Burmese citizen who had not been involved in protests abroad? 14.1 If by Burmese citizen you mean of the dominant Bamar ethnic group, and the person lives in an urban area, then yes I believe the person would be more at risk of arrest or monitoring by the authorities. 15. To what extent does bribery play a role in life in Burma particularly in dealings with government officials including those concerned with the issue of passports and exit documentation as well as immigration officers at the points of entry and departure? 15.1 Bribery is endemic in Burma but I am not familiar with immigration procedures. 16. Does bribery have any role in police and security matters involving the arrest, detention and release of those seen as political opponents? 16 16.1 Yes but I do not know details. I can only comment on bribery in order to receive an upgrade in prison conditions. However, I can consult with my colleagues on this. 16.2 Update: 16.2.1 In the Asian Legal Resource Centers 2010 Burma submission to the Universal Periodic Review, it stated that the profound level of corruption throughout the entire State apparatus, including the courts and police is one of the two major obstacles to the implementation of human rights in Burma28. The submission notes that while there are copious amounts of information narrating the extent of abuses such as corruption, there is practically no information that sheds light on the institutional arrangements that enable corruption and the extent to which these practices are embedded in the institutions. 16.3 The ALRC UPR submission includes 3 case narratives which I am including here for ease of reference29: 16.3.a. In 2007 a police special drug squad arrested a notorious dealer in possession of a small amount of amphetamines. The local police nominated a defence lawyer for him: a common practice in which there is a 30 per cent kickback to the police station chief. After being hired, the lawyer went to meet with the judge and prosecutor handling the case. The judge explained to the lawyer that the problem was because of the notoriety of his client, there was local and official interest in the case and the judge could not just let the client off without risking accusations of corruption and loosing face. So they arranged the case in a way that would get the client off, give the judge credibility and make everyone money. Payments were made both to the judge and the prosecutor. During the hearings, they deliberately botched the case. The judge admitted evidence that cast doubt on the allegations, and the prosecutor asked questions that supported the defence. Some prosecution witnesses were made hostile and their evidence recorded fully in the judgement. The judge convicted the accused, and public interest in the case ceased. The case was appealed to the district court. Here there were no public hearings and no knowledge of what was going on. The judge in the court of first instance had already contacted the judge in the higher court, and had given money to him. The higher court acquitted the accused, who moved to another locality after his release. 16.3.b. A government car driver a few years from retirement was in 2007 approached by a group of men, who asked to rent his house. The amount they offered was far above the market value. The occupant consulted with local government administrators whom he knew as friends. They advised him that the group apparently wanted the house for gambling, but that there was nothing to worry about and that he should do it. He rented the house and received a years payment in advance. After two months a group of special vice squad police arrested the gang. The manager of the gambling operation used his contacts with the police to 28Diagnosing the un-rule of law in Burma: A submission to the UN Human Rights Councils Universal Periodic Review, Asian Legal Resource Center, June 2010, p. 4. 29 P. 24 17 have the house owner pose as the key accused, securing bail for himself and his men. He told the owner that if he went along with the scheme then he wouldnt have to repay the years rent, and that he would also get him released after a short time. He also threatened him that if he didnt cooperate then the gang would implicate his son. In the end, the house owner and two junior members of the gang faced court, with the owner in jail and the others on remand. In 2008 the court convicted the owner and freed the other two for lack of evidence. On appeal the elderly man was conditionally released, taking into account time served, but without his knowing the prosecutor appealed to a higher court and the original sentence was re-imposed; the police again arrested him and he is serving the remaining time. The gang has moved elsewhere. 16.3.c. The son of an army officer posted to a regional command in 2008 allegedly attempted to rape a classmate together with a companion. The family of the victim took the unusual step of strongly supporting her complaint against the two accused. The case attracted local interest because of the status of the alleged perpetrator as a family member of the ruling military class. At first the charge against the two was attempted rape. They were held as VIP detainees in a room next to the police station chiefs own office that the police normally use for playing cards and drinking. The army officers son received bail on the basis of a supposed health problem that required medical treatment; his companion was held in remand, but in the same room as before. After preliminary hearings and payment of money, the judge ordered that the charge be altered to assault on a woman, which is a much lower offence for which bail is habitually given, and the second accused also was released. Finally both accused were acquitted of that charge on the benefit of the doubt, the judge implying that the victim had misled the two accused and at first had consented to sex. 17. Response to questions posed in e-mail from Siew Lee dating 16 January 2013 17.1. Page 2: When you state that criticism is not tolerated in page 2 are you confining your opinion to comments made in Burma alone? Are you able to comment about the regimes view of comments made abroad, for example, outside the Burmese Embassy in London? 17.1.1 Yes, in regards to question 2 I am confining my opinion to comments made in Burma alone. 17.1.2 I cannot comment on the regimes view of comments made outside the Burmese Embassy in London. 17.2 You mention that TS should request an official invitation from the government of Burma to visit the country: 17.2.a Do you mean an invitation to return to the country permanently or visit on a temporary basis? 17.2.a.i TS can request an invitation for both scenarios (return permanently or visit on a temporary basis). 18 17.2.a.ii If he is interested in assessing the scale of reform or returning to Burma permanently to work on furthering the reform process, he can contact the Myanmar Peace Center, which reports directly to the Office of the President. The Myanmar Peace Center coordinates all peace initiatives and acts as a one-stop service centre for donor governments and international NGOs. 17.2.b. In 1(iii) (p3) you mention the need for an amnesty to cover all those convicted or political crimes and crimes related to internal conflict in order for returning exiles to feel safe. In the absence of such an amnesty what confidence could TS have that he would not at some stage be arrested for his activities either in the UK or the activities he intends to undertake in Burma? 17.2.b.i I would say there would be low confidence that TS would not be arrested for any dissident activities he intends to undertake in Burma. I am not certain TS would be arrested simply for his activities in the UK since I am not aware of arrests of returning exiles under the TheinSein administration, except for the case of human rights lawyer Saw KyawKyaw Min. 17.2.b.ii There is still a possibility that the reform process in Burma may be reversed. This view is shared with many in the opposition, including Human Rights Watch30 and democracy icon Aung San SuuKyi31. In addition, UN Special Rapporteur on the human rights situation in Burma, Tomas Ojea Quintana, referred to the persistence of long standing concerns that continue to pose risks to the reform process in his most recent report on Burma32. 17.2.b.iii Exiles debating whether it is safe to return to Burma point to a number of things that can trigger a reversal of the reform process and/or the insincerity of the government in implementing a genuine democracy. These include: 17.2.b.iv The continued imprisonment of political prisoners, the refusal of the government to officially recognize the existence of political prisoners, and the conditional nature of prison releases for political prisoners. 30 Deputy Director (Asia Division) Phil Robertson stated, But despite the potential for a reversal of reforms, especially given the Myanmar Armys historical role and the power the 2008 Constitution vests in the military to remain beyond the control of an ostensibly civilian government, TheinSeins government appears to have largely satisfied the international community about its democratic intentions. Race to the bottom: Burma and Vietnam head in opposite directions on human rights. Human Rights Watch, 7 November 2012. 31Aung San SuuKyi stated Many people are beginning to say that the democratization process here is irreversible. It's not so, while speaking to students at Carleton University via video link in February 2012. Myanmars SuuKyis says reforms could be reversed. David Ljunggren, Reuters, 29 February 2012. 32Report of the Special Rapporteur on the situation of human rights in Myanmar (A/67/383), 25 September 2012, presented to UN General Assembly. 19 17.2.b.v Nay MyoZin, a charity worker, was re-arrested the day after his release under the 13 January presidential order. His crime was to possess a t-shirt and a key-ring with General Aung Sans image in Insein Prison. He was not optimistic about the verdict, Given that they are seriously building this case with accounts from prosecution witnesses, police and the [police intelligence], I guess they plan to make sure that I go down he told DVB. He was released from detention on bail. 17.2.b.vi Nay MyoZin has the dubious distinction of being the 1st political prisoner under the nominally civilian regime. In good health upon his initial arrest in 2011, he has suffered from a broken hip bone and was in danger of becoming permanently paralyzed as the prison authorities refused to give him adequate medical treatment. His lawyer, AungHla, said the charges against Nay MyoZin are unclear given that possessing a t-shirt with an image of Aung San is not illegal33. 17.2.b.vii NyiNyiLwin (formerly known as U Gambira) was arrested at least twice after his release from prison in January 2012. On December 1st, 2012, NyiNyiLwin was re-arrested by Burmese authorities whilst staying at his brother-in-law NyiNyiZaws house in Thingangyun Township, Rangoon. On December 2nd, he was sent to Insein prison where he was incarcerated. He has been indicted by Thingangyun, Bahan and Tanyin courts with the following three charges: Section 448 of house-trespassing Section 427 of mischief causing damage to the amount of fifty rupees Section 454 of lurking house-trespass or house-breaking in order to commit offence punishable with imprisonment 17.2.b.viii NyiNyiLwin was detained in Insein Prison for over a week and was released on bail (of 4 million kyat) on December 10. While in prison, he was questioned by police about several monasteries suspected of dissident activities. NyiNyiLwin believes he was detained to prevent him from protesting against Novembers Letpadaung Copper Mine crackdown. His trial is set for December 14. 17.2.b.ix NyiNyiLwin still suffers from headaches, memory loss and vision problems that resulted from his time in prison. In his most recent detention, he was placed in solitary confinement, 33 Ex-army captain facing T-shirt charge, Aye Nai, Democratic Voice of Burma, 30 January 2012 20 had to buy his own meals and could only see his brother and sister. 17.2.b.x The governments non-respect of fragile cease-fire agreements with ethnic groups. 17.2.b.xi Peace negotiations between the Kachin Independence Organization and the government have stalled since June 2011 when armed clashes erupted. Even though preliminary agreements for peace talks were signed between the government and Shan State Army South on 2 December 2011, the Burma Army initiated an exchange of gunfire on 20 December 201134.For an up to date guide on the status of clashes please visit Myanmar Peace Monitor: Conflict Alerts here: http://www.mmpeacemonitor.org/#!Conflict/c2t8. 17.2.b.xii At page 4 you mention that exiles are forced to sign a form pledging they will not partake in any activities or engage in criticism that will harm the state. If TS were to be invited to return would he not be required to sign such a pledge which would then preclude him from participating in the very activities he has indicated he wishes to pursue? 17.2.b.xiii Not all exiles are forced to sign a pledge. It is an arbitrary procedure that is seen as a tactic to create divisions within the oppositionist movement. 17.2.b.xiv I am only aware of two persons that were forced to sign. NLD member of Thailand office NyoOhnMyint, who refused to sign and was still able to return after government intervention, and U ZawMyint, head of the NLD-LA office in Malaysia and former political prisoner. U ZawMyint signed the pledge and resigned from his post at NLD-LA before returning to Burma. He decided to go back to Burma (it seems definitively) after hearing President TheinSeins invitation to all exiles. He visited the Burma embassy in Malaysia and informed them of his interest to return home. The embassy arranged all the documents, which included the loyalty pledge35. 17.2.b.xv I do not know the extent of this practice because returning exiles may be told by Burma authorities to keep quiet about signing such a pledge. Generally, those who return on official invitations for meetings are not required to sign such a pledge. 17.3 What could happen if he refuses to sign this form; and could this also bring harm upon his family members in Burma? How reliable is the invitation, e.g. that the person will not face any risk upon his return? 34 Burmas ethnic ceasefire agreements, Paul Keenan, Burma Center for Ethnic Studies: Peace and Reconciliation, Briefing Paper No.1, January 2012 35Head of NLD-LA Malaysia office returns, Kyaw Hsu Mon, Myanmar Times, 9-15 July 2012. 21 17.3.1 He will be denied entry into Burma. At this point he can try to have higher government officials intervene. An official invitation from the government to an individual/organization is pretty reliable in ensuring the person will not face risk upon return. The terms of a persons return on official invitation are usually negotiated with the inviting government official prior to the return. Therefore, an invitee is aware and usually agrees to the fact that he/she will be monitored while in Burma. 17.3.2 The nine-member ABSDF delegation that visited Burma in December 2012 were escorted and monitored by Burma authorities for the entire length of their trip. One delegate asked not to be followed when visiting his family in Mon State his wishes were respected. The delegation agreed to being escorted and monitored prior to their arrival in Burma. 17.4 Please identify the individuals that have returned on an official invitation? Have they had to sign pledges of loyalty? 17.4.1 It is mainly exiled organizations, not individuals, that are extended official invitations to return to Burma. These exiled organizations then send delegations to Burma to attend meetings with government officials and sectors of civil society to assess the extent of reforms. 17.4.2 Officially invited exiles generally are not forced to sign a loyalty pledge (I have not heard of any cases). 17.4.3 Those who returned to Burma under an official invitation extended by the government of Burma: 17.4.3.1 The All Burma Student Democratic Front, an outlawed resistance group comprised of students in exile along the Thai-Burma border, received an official invitation36 from U AungThaung, Lower House MP and USDP member. A nine-member delegation comprised of ABSDF members recently visited Burma in December 8 2012 until 3 January 2013. The delegation included ABSDF chairperson Than Ke, Secretary of Foreign Affairs KyawThura, and Central Committee Member Ma Lay Lone. I do not know the other members of the delegation. 17.4.3.2 AungZaw, senior editor of the exiled media outlet The Irrawaddy based in Chiang Mai, reached out to government officials37 about returning to Burma to assess the changes in the country. He was able to go on a 5-day government sponsored visa. 17.4.3.3 Womens League of Burma delegation included General Secretary Daw Tin TinNyi and Joint Secretary Saw San Nyein Thu38. 17.4.3.4 Shwe Gas Movement included senior official Wong Aung. 36 All Burma Student Democratic Front, 13 January 2013, Shan Herald. 37After years, a Myanmar exile returns, Patrick Barta, Wall Street Journal, 10 February 2012. 38 For information on their press conference during this visit in Burma, please refer to: Myanmar womens group calls for more female MPs. EiEi Toe Lwin, Myanmar Times, 24 December 2012. 22 17.4.3.5 Dr.NaingAungs (senior official of ABSDF) first visit to Burma was under an official invitation by the government. 17.4.3.6 Members of Karen National Union in exile returned to Burma for meetings with government officials. The delegation included MahnMahn (Joint Secretary) and General Mutu Say Poe (Chairman39). 17.4.4 Those who returned to Burma without an official invitation, instead applied for a visa: 17.4.4.1 Bo Kyi and Tate Naing - senior officials of Assistance Association for Political Prisoners (Burma) visit from 5 January 2013 to early February 2013. 17.4.4.2 KhinOhmar - senior official of Burma Partnership has gone twice so far. 17.4.4.3 Dr.Naing Aung - senior official of ABSDF on his second visit to Burma applied for a visa. 17.4.5 Those who returned to Burma only on Burmese passport At least 2 of my colleagues, former political prisoners, have returned to Burma permanently with their Burmese passports, without an official invitation. One is working on a mental health project for former political prisoners and another is working for an exiled organization that documents human rights abuses in Burma. Neither have faced any harassment or monitoring from authorities. 17.5 At page 5 you only comment on ethnic Kachins. You indicate that those having links with KIO and KIA are at risk but what is your opinion of KNO (UK), which is fighting the similar cause as KIO and KIA albeit an unarmed and an exiled organisation? 17.5.1 I would need more information to comment on the risk posed by members of the KNO (UK). Risks may vary depending on whether it is a relatively unknown or prominent KNO member returning to Burma and continuing oppositionist activity, whether the member is part of a KNO (UK) delegation officially visiting Burma or not, etc. 17.5.2 The Burma authorities arrest those who have links with KIO/KIA partially as a pretext to justify sweeping arrests of people in Kachin State. The arrests are part of their broader unofficial policy of repressing ethnic minorities in Burma by any means necessary. According to human rights lawyer U Mar Khar in Kachin State, during the battles between the KIA and Burmese troops over the last year, seventy residents and refugees from Kachin and Shan State were arrested under the Unlawful Association Act and Explosives Act. Thirty of them have been sentenced and forty still face trial. 39 PadohMahnMahn discusses KNU meeting with Burma government. Karen News, 14 January 2013. 23 17.5.3 Recent case that may be of interest: Eleventh grade student MaungZawSaiAung from Kachin State was arrested by police after sending a letter to the Kachin Independence Organization (KIO). His court hearing was December 5 at the Township court. On December 4, ZawSaiAung went to the Romei and Brothers machinery equipment shop to send a letter. The shop owners accused him of theft and had him arrested by the police. He was taken to trial during which he confessed to being a KIO corporal, already suspected by Ye Lwin, the police prosecutor. ZawSaiAungs lawyer strongly doubts the truth of the confession explaining, "He was forced to confess. He is just a student. As he is only 18 years old, it is impossible he is a corporal". KoKo, another member of the KIO, who was with ZawSaiAung at the time of arrest, managed to escape. KoKo's twin brother, NyiNyi, was mistakenly arrested by the police instead. The detainees have not been permitted to see their families. Their next court hearing will be on December 18. 17.6 Are you able to comment on the other ethnic minorities? 17.6.1 Only generally. The Rohingya are without a doubt the most persecuted minority group in Burma. Simply being Rohingya is enough to be arrested as the authorities of Burma will grab any flimsy excuse to put Rohingya behind bars. There is ongoing conflict and clashes in areas of Kachin, Shan, Karen, Karenni State individuals living in these areas are very vulnerable to indiscriminate detention and harassment by military authorities. 17.6.2 Forced labor is rampant in Chin State one of the poorest areas of Burma. In the report Life Under the Junta40, Physicians for Human Rights documented that 91% of households in Chin State have at least one family member that was forced to build roads, sweep for mines, porter military supplies, or do other hard labor. In 2011, the Chin Human Rights Organization documented that the Chief Minister of Chin State was forcing citizens to work for no pay. The Chief Minister ordered civil servants to spend their Saturdays cleaning areas of the capital city of Hakha, threatening to cut their salaries if they refused. He also forced 100 other people to work, threatening them with a fine if they did not comply. The civil servants cleaned the construction site of a government guest house and a road leading to a military base. An affected Chin told CHRO, They called us for forced laborwhen we should be working for our own survival. I had to miss out on work for my livelihood that day because of the forced labour41. 17.7 At page 6 (2nd para) you mention the 13 activists who led a peaceful march of approximately 1000 people. Did anything happen to the demonstrators themselves? 17.7.1 Thirteen of the leaders of the peace day demonstration are facing criminal charges under section 18 of the peaceful assembly bill. Eleven of the activists face 40 Life Under the Junta, Physicians for Human Rights, January 2011. 41 Burmas Chief Minister of Chin State Orders Forced Labor, Chin Human Rights Organization, 7 September 2011. 24 up to one year in each of the 10 townships through which the peace march passed. 17.7.2 On 22 and 23 September, the 13 leaders received a written summons to appear at a Rangoon court along with 2 guarantors. The leaders and guarantors were made to sign a document stating they would agree to appear in court if formal charges were brought or face a $1,160 USD fine. 17.7.3 On 28 September, two of the organizers from Kachin Peace Network, Jaw Gun42 and May SabaePhyu, were summoned to a Dagon township court. The court accepted the case against them under the peaceful assembly bill and ordered them to face trial on 10 October. They were also summoned by the Sanchuang Township Court on 1 October. Jaw Gun states in an interview with the Irrawaddy, As human being, I am afraid of being arrested, as treatment by the police during interrogation, and in the prisons, can be so cruel and brutal, he said. But I would like to exchange that risk for peace [in Burma]. I believe the truth will set me free even though my body might die in prison43. 17.7.4 Later in October, U MaranJawgone and a dozen others leaders of the Kachin Peace Network, who held a peace protest on International Peace Day, were tracked down and arrested. Authorities argue that the activists were not granted permission to protest, and have consequently leveled individual charges against U MaranJawgone for each of the six Rangoon townships that he protested in Dagon, Sanchaung, Tamwe, MingalarTaungNyunt, Botahtaung and PazunTaung. October 3, 2012, was set as the date of their initial hearing of the trial. 17.7.5 Two of the 13 being charged claim since September they have had to appear at over 30 court hearings in various townships around Rangoon. One states, Its been two and half months and we have visited the courts more than 30 times already, said one activist. There are costs involved, like transportation, but the delaying of our day to-day lives and work impacts us more than money. There is a lot of stress and tension. I have to balance my work, the court schedules, and my family life, and it is very difficult44." 17.7.6 So far one court, the Dagon township court, has rejected the demonstrators requests to consolidate the charges into one court proceeding but were denied. They are awaiting responses from 2 other district courses. Subjecting the activists to a court hearing process that forces them to miss work, travel long distances, and spend money, is a form of harassment. 17.8 At page 7 you refer to Nang WoPhan do you have further details why she was arrested in the first place? 42 After the protest, Jaw Gun was summoned to a teashop in Rangoon where he was told he would be handed a letter. Upon arrival, he was arrested by the police. 43 Peace day activist prepares for the worst, Francis Wade, The Irrawaddy, 9 October 2012. 44 Burma: Drop charges against peaceful protestors, Human Rights Watch, 13 January 2013. 25 Yes. Nang WoPhan's husband, a Japanese national, purchased land worth a large amount of money - approximately 3 million dollars. He used Nang WoPhan's name to make the purchase. An acquaintance of the family claimed the land actually began to him. Nang WoPhan went to the HlaingTharya Township police station to complain. Instead of following up on her complaint, the police officers arrested and interrogated her about where she found the money to buy land. She was interrogated for 3 days straight until her death. 17.9.a At page 8 you state: However, if the individual is not a prominent activist, nor has a history of oppositionist activity in Burma, then I think the person is at low risk of serious harassment. However, if he/she continues demonstrating in Burma, then they will be putting themselves at risk. 17.9.b You do not appear to answer question 7 on page 8. You do not address whether the Burmese authorities would draw a distinction between those who demonstrate in Burma on the basis that they would be committed to the oppositionist cause and those who demonstrate in the UK without a real commitment to the oppositionist cause. 17.9.1 I agree with the Tribunal's assessment that it is reasonable to draw a distinction between demonstrations in Burma, where it is inconceivable that an individual would demonstrate without any commitment to the cause given real risk of persecution, and demonstrations in the UK, where demonstrators run very low risk of being arrested. 17.9.2 The Burma authorities do not make distinctions about the level of commitment a demonstrator has to a cause. Anyone who engages in oppositionist activity is viewed with mistrust and seen as the opposition. There are recent examples of individuals being arrested who affiliate with activists but may not be activists themselves. For example, Dr.TunAung, a minority Muslim and chairman of the Islamic Religious Affairs Council, was arrested in the aftermath of the clashes in Arakan State on 11 June 2012 and has since been held in incommunicado. He is accused of inciting riots even though eyewitnesses attest that his help was summoned by the police to quell the riots given his respected stature in the community. He was sentenced to 11 years imprisonment in Sittwe prison. His family members, including his daughter, son, and 2 year old grandson, were also arrested for no apparent reason. The son is not related in any activist activities. The daughter is an employee at the UNHCR. They have both since been released. I am attaching information of their case to this e-mail. 17.9.3 Other cases that may be of interest: 17.9.3 In December 2012, a man named Aung San Htay was sentenced to six months in jail for inciting public unrest under section 505(b) of the Penal Code. He was arrested in November for helping MoehtiMoemi gold mine protesters distribute leaflets. He will serve his sentence in Taungoo prison. 26 17.9.4 In early December 2012, a woman named Daw Nyo Aye, held a solo-protest condemning the Letpadaung Copper Mine protest crackdown in ArakanStates capital of Sittwe. She was taken to the police station and warned not to protest without a permit. She did not break any laws, however, because she was protesting alone. 17.9.5 U HlaMaungThwe from Ramree Township, Arakan state was sentenced to one-year imprisonment on December 19 and sent to Kyaukpyu prison. In October 29, U Han Shwe was shot and killed by the authorities during a riot in Kyauk-ne-maw village. U HlaMaungThwe gave financial assistance of 800,000 kyat to the family members of the deceased and was arrested by the authorities in the morning of December 18. He was charged under section 505 (b) and tried at Ramree Township court. His family members were not permitted to see him at his court hearing and he was not allowed to hire a defense lawyer. 17.10 Would you say that a returnee who has no history of oppositionist activity in Burma would be at higher risk than a returnee who is well known in the international activity for his or her political activities against the regime? 17.10.1 Yes, it is conceivable that a returning exile not well known either on the domestic or international scene for his/her oppositionist activity is at higher risk than a more prominent returning exile. 17.10.2 The TheinSein administration carefully calculates what steps need to be taken in order to ease pressure from the international community and then extract certain concessions, such as the opportunity to chair ASEAN, a lifting of economic sanctions, etc. One of the key demands from the international community is allowing a safe space in the political sphere for the oppositionist movement. The government is appearing to do this by officially inviting exiles to return, holding Parliamentary by-elections, allowing Aung San SuuKyi to sit on Parliament, etc. If government authorities persecuted prominent activists known on an international level, it would severely tarnish the current administrations reputation of being reform-minded and potentially result in rollbacks of concessions granted by international actors, such as a re-imposition of sanctions. 17.10.3 A couple examples are the re-arrest of the relatively unknown Human Rights lawyer Saw KyawKyaw Min, the granting of passports to only internationally-known former political prisoners such as Min KoNaing (88 Generation member) or Zarganar (satirist) but not others. Min KoNaing refused to accept the passport to highlight the governments denial of passports to other 88 Generation members and former political prisoners. Statement of Truth Declaration I confirm that insofar as the facts stated in my report are within my own knowledge I have made clear which they are and I believe them to be true, and that the opinions I have expressed represent my true and complete professional opinion. 27 ______________________ Marcia Robiou Date: 22 January 2013 230ct. 2012 17:38 Gi I I man S m i t ~ Lee No. 3481 p 2 Re; Thaung San v SSHD AA/02803/2009 . Expert; R,eport. .',_ :ii," ' ,.' , ":' '.:. , .. ' __ .:- ,. ' . ,, ' , ' < i' I ; : ':, ,' ', :::. , ' ,; '', :' :; ' .. ' ' , : '",I'' .' . ,; ,'', '.:.;: ;.:.::.: ,. ',.,. '.