Military Charges Man for Complaint to Human Rights Commission

(Bangkok, December 18, 2014)— Authorities in Myanmar should drop criminal charges against human rights defender Shayam Brang Shawng, said Fortify Rights and five leading international human rights organizations in an open letter to President Thein Sein published today. Brang Shawng, 49, faces two or more years in prison for filing a complaint with the Myanmar National Human Rights Commission (MNHRC) that alleged the Myanmar Army was responsible for the death of his 14-year-old ethnic-Kachin daughter, Ja Seng Ing.

“The criminal prosecution of Brang Shawng highlights a culture of disregard for human rights within Myanmar’s military, judiciary, and human rights commission,” said Matthew Smith, executive director of Fortify Rights. “The authorities should punish soldiers who commit crimes, not retaliate against individuals like Brang Shawng who seek truth and justice.”

On December 8, Fortify Rights, Human Rights Watch, Amnesty International, Physicians for Human Rights, the International Commission of Jurists, and the Harvard Law School International Human Rights Clinic sent President Thein Sein a four-page open letter, which was published today. Rather than prosecute Brang Shawng, the organizations are asking the Myanmar authorities to investigate Ja Seng Ing’s death, hold perpetrators accountable, and take measures to ensure that Myanmar’s courts and the MNHRC appropriately handle such cases in the future.

Brang Shawng is being prosecuted under Article 211 of the Myanmar Penal Code, which describes the crime of making “false charges.” In an October 2012 letter to the MNHRC, Brang Shawng alleged that Myanmar Army soldiers shot and killed Ja Seng Ing in Sut Ngai Yang village, Hpakant Township, Kachin State on September 13, 2012. Myanmar Army Major Zar Ni Min Paik initiated the legal case against Brang Shawng, citing an internal Myanmar Army investigation that reportedly claims a KIA mine killed Ja Seng Ing. Court documents specifically cite Brang Shawng’s letter to the MNHRC as the basis of the case.

On December 6, 2014, a group of ten Kachin community-based organizations, known as the Ja Seng Ing Truth Finding Committee (the Committee), published a 41-page report entitled, Who Killed Ja Seng Ing?, which includes eyewitness testimonies collected during their independent investigation into Ja Seng Ing’s death. Several eyewitnesses told the Committee that Ja Seng Ing was shot and killed by Myanmar Army soldiers. Fortify Rights provided technical assistance to the committee during the investigation and the preparation of their report.

From August to September 2014, Fortify Rights conducted a parallel investigation into the death of Ja Seng Ing and prosecution of Brang Shawng. Fortify Rights interviewed Brang Shawng and five eyewitnesses to Ja Seng Ing’s fatal injury, reviewed photographic and video evidence, and analyzed court documents.

Fortify Rights believes Myanmar Army soldiers are responsible for Ja Seng Ing’s death and that the case against Brang Shawng is without merit.

According to the Kachin Committee and Fortify Rights, a remotely-detonated mine in Sut Ngai Yang village exploded at approximately 4 pm on September 13, 2012, injuring at least two Myanmar Army soldiers from Infantry Battalion (IB) 389. A KIA officer claims soldiers under his command planted the mine that caused the explosion. In the hour that followed the explosion, Myanmar Army soldiers indiscriminately fired rifles and heavy weaponry in and around Sut Ngai Yang village. During this period, Ja Seng Ing was fatally wounded and additional villagers were reportedly injured.

The events in Sut Ngai Yang village are consistent with previously documented indiscriminate attacks by the Myanmar Army during the ongoing war in Kachin State and northern Shan State. In a November 6 publication, Fortify Rights reported that the Myanmar Army had attacked civilians in Kachin State and northern Shan State in 2011, 2012, and 2013. The Myanmar Army shelled and razed civilian homes, attacked makeshift camps for displaced persons, entered villages and opened fire on civilians, and committed extrajudicial killings and other abuses.

The nature of Ja Seng Ing’s injury and her reported physical position at the time of being wounded are inconsistent with the Myanmar Army’s assertions in documents filed with the court that a KIA mine killed her. Moreover, eyewitnesses interviewed by Fortify Rights claim to have seen two Myanmar Army soldiers loading their weapons approximately thirty feet from where a group of six women and girls, including Ja Seng Ing, were hiding. This was followed by gunfire aimed in the direction of those in hiding. Fortify Rights believes it is likely that one of the two soldiers fired the shot that killed Ja Seng Ing.

The military initiated the prosecution against Brang Shawng in March 2013. The court postponed the case on multiple occasions when either the complainant or prosecution witnesses failed to appear, and Brang Shawng has appeared in court more than 40 times, disrupting his life and livelihood. According to Brang Shawng and his lawyer, Ywet Nu Aung, the defense’s cross-examination in the Hpakant Township Court established that the members of the army committee who purportedly investigated the incident had not been to the site of Ja Seng Ing’s fatal injury and were unaware of the events of September 13, 2012.

Additionally, a key witness in the case—the doctor who treated Ja Seng Ing’s injuries and pronounced her dead following an emergency surgery—was transferred to a remote posting in Chin State and struck from the witness list before he was able to testify in court. Furthermore, the presiding judge was replaced after hearing the prosecution’s witnesses, and the new judge immediately ruled to confirm charges against Brang Shawng without hearing evidence. On July 3, 2014, after a series of appeals, the Union Supreme Court declined Brang Shawng’s request to reduce the charges he faces.

The MNHRC has failed to intervene in the case against Brang Shawng, address the matter publicly, or support his right to submit a complaint without reprisal. Moreover, Brang Shawng’s lawyer reported that staff of the MNHRC refused to assist Brang Shawng and expelled her from the premises when she visited the MNHRC in August 2013.

“The human rights commission is duty-bound to address this injustice but has so far remained silent,” said Matthew Smith. “It’s not too late for the commission to fulfill its mandate by investigating and speaking out on the case against Brang Shawng.”

The open letter published today states that the continuation of the case against Brang Shawng “would have a chilling effect” on potential complaints to the MNHRC and “risks further entrenching impunity in the country.”

The letter calls on President Thein Sein to address Brang Shawng’s case with the military, judiciary, and the MNHRC to ensure the charges are immediately and unconditionally dropped. Under Myanmar procedural law, the case against Brang Shawng can only proceed with the cooperation of the complainant. To close the case, Major Zar Ni Min Paik should immediately withdraw his complaint against Brang Shawng.

There also remain unanswered questions regarding Ja Seng Ing’s death. In particular, the authorities have failed to identify and hold to account those directly responsible for her death. The open letter calls for “a prompt, independent, and effective investigation, with the assistance of international experts, into the death of Ja Seng Ing as well as allegations of human rights and conflict-related abuses in Kachin State and northern Shan State.”

“This case calls into question the Myanmar authorities’ commitment to human rights and genuine reforms,” said Matthew Smith. “The criminal justice system shouldn’t be used as an instrument of persecution or a pawn to protect the military’s interests.”

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