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James Mawdsley: UN Working Group Op
- Subject: James Mawdsley: UN Working Group Op
- From: darnott@xxxxxxxxxxx
- Date: Fri, 13 Oct 2000 07:39:00
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UNITED NATIONS WORKING GROUP ON ARBITRARY DETENTION,
OPINION ON THE DETENTION OF JAMES MAWDSLEY, 14 SEPTEMBER 2000
OPINION No.25/2000 (MYANMAR)
Communication addressed to the Government on 5 May 2000.
Concerning: James Mawdsley,
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 resolution1991/42 of the Commission on Human Rights. The mandate of
the Working Group was clarified and extended by resolution1997/50 and
reconfirmed by resolution 2000/36. Acting in accordance with its methods
of work, the Working Group forwarded to the Government the above-mentioned
communication.
2 The Working Group regrets that the Government has not replied
within the 90nday deadline.
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 articles7, 13, 14, 18, 19, 20 and 21 of the Universal
Declaration of Human Rights and also, in respect of States parties, by
articles12, 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 nonnobservance 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. In the light of the allegations made, the Working Group would have
welcomed the cooperation of the Government. In the absence of
anyinformation from the Government, the Working Group believes that it is
ina position to render an opinion on the facts and circumstances of the
case, especially since the facts and allegations contained in the
communication have not been challenged by the Government.
5. The essential facts and allegations as stated by the source may be
set out suscintly:
Mr. James Mawdsley is a British citizen and human rights activist who is
currently held in solitary confinement at Kengtung Prison, about 400 miles
northeast of Yangon, Myanmar. According to the source, he was first
arrested on 17 September 1997 for spraying a pro-democracy slogan on a wall
and handing out pamphlets outside Public High School No. 6 in Yangon. He
was arrested but not charged, and deported to Bangkok on 18 September 1997.
On 30 April 1998, Mr. Mawdsley was arrested in Moulmein, a coastal town in
southern Myanmar, when playing pro-democracy songs on a tape recorder and
calling for the release of student leader Min Ko Naing. He was allegedly
not told the reasons for his arrest. After several hours of questioning, he
was placed in a van, blindfolded, and allegedly tortured for 15 hours. He
was then transferred to Yangon to face charges of entering the country
illegally and of associating with terrorist groups. The latter, more
serious, charge was eventually dropped. Mr. Mawdsley pleaded guilty to
entering the country illegally under section 13(1) of the Immigration Act.
On 13 May 1998, he was sentenced to five years= imprisonment. After 99 days
of detention, his sentence was commuted in accordance with section 401(1)
of the Criminal Code of Procedure, and he was deported on 6 August 1998.
On 31 August 1999 at around 8 a.m., Mr. Mawdsley entered Shan state,
Myanmar, from Thailand, and went to the border town of Tachilek. Soon
thereafter, he was arrested at the market while distributing leaflets which
called for civil disobedience with orders considered to be cruel and
unjust. He was not presented with an arrest warrant or any other decision
emanating from a judicial authority justifying his arrest. He was charged
with having committed illegal acts after having entered Myanmar illegally
(section 13(1) of the Immigration Act) and for allegedly printing and
distributing Aanti-government literature@ (section 17 of the Printing and
Publishing Act).
Mr. Mawdsley reportedly was detained incommunicado and without access to
legal advice or representation, in spite of his numerous requests for legal
assistance. His trial took place only hours after his arrest, namely from
4:00 to 6:45 p.m. in the Tachilek Township Court. No transcript was
allegedly taken of the proceedings, and Mr. Mawdsley affirms that he was
unaware that the proceedings he attended on 31 August 1999 in fact
constituted his trial. Furthermore, he claims that at no time was he told
the reasons for his arrest, or informed of his rights.
In addition, it is argued that Mr. Mawdsley was denied his right to access
to consular services, in violation of article 36(1)(c) of the Vienna
Convention on Consular Services, to which Myanmar is a party. It was not
until 14 September 1999 that he was first allowed a visit from the British
Consulate.
At the conclusion of the trial, Mr. Mawdsley was immediately sentenced to
12 years= imprisonment - five years for committing illegal acts upon
entering the country legally, and seven years for offences publishing and
relating to distributing leaflets. At the time of the first visit from the
British Consulate, he learned that the earlier , 1998 , five year sentence
for his activities in April 1998, had been reinstated, thus bringing the
total to 17 years= imprisonment. It is argued that there are no effective
avenues for appealing this sentence, and that Mr. Mawdsley will be forced
to spend his prison term in solitary confinement.
6. From the facts as disclosed by the source, Mr. Mawdsley was doing
no more than expressing his opinions. Distribution of leaflets and calling
for civil disobedience with orders considered to be cruel and unjust is a
legitimate form of freedom of thought. Mr. Mawdsley has not perpetrated
the use of violence. Peaceful expression of opposition to any regime
cannot give rise to arbitrary arrest. Freedom of thought and expression
are both protected by articles 18 and 19 of the Universal Declaration of
Human Rights. Those have been clearly violated by the State in arresting
Mawdsley, as alleged.
7. There is another aspect which requires consideration in this
case. The allegations, unrebutted, demonstrate the violation of all norms
of fair play and justice. Mr. Mawdsley was not informed of the reasons for
his arrest; he was detained incommunicado without legal advice or
representation; his trial is a mockery of all legal principles applicable
in jurisdictions where the rule of law prevails. He was not even aware of
the nature of the proceedings which constituted his trial. Surprisingly at
the time of his conviction, when he was sentenced for 12 years in relation
to his activities in August 1999, his earlier sentence for previous
activities in 1998, was revised and he is now to serve a sentence of 17
years. The five years sentence now added is for an offence in which the
sentence had earlier been commuted and Mr. Mawdsley been deported. This
mode of sentencing is also contrary to all considerations of due
process. Consequently, the procedural infractions in the arrest, trial and
mode of sentence are such as to make Mawdsley=s detention arbitrary, even
on this count.
8. In the light of the above, the Working Group renders the following
opinion:
- The deprivation of liberty of James Mawdsley is arbitrary and in
contravention of articles 9, 10 and 19 of the Universal Declaration of
Human Rights and falls within categories II and III of the categories of
cases submitted to the Group=s examination.
- The revival of the earliest sentence of five years in a subsequent
trial is also arbitrary and falls under category Iof the categories
applicable to the consideration of the cases submitted to the Working Group.
9. Consequent upon the opinion rendered, the Working Group requests
the Government to take the necessary steps to remedy the situation, and
bring it in conformity with the standards and principles set forth in the
Universal Declaration of Human Rights;and to take the adequate initiatives
with a view to becoming a State Party to the International Covenant on
Civil and Political Rights.
Adopted on 14 September 2000.
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<font face=3D"Courier, Courier" size=3D4>UNITED NATIONS WORKING GROUP ON
ARBITRARY DETENTION, <br>
OPINION ON THE DETENTION OF JAMES MAWDSLEY, 14 SEPTEMBER 2000<br>
<br>
<br>
<br>
<x-tab> </x-tab>OPINION
No.25/2000 (MYANMAR)<br>
<br>
<u>Communication</u> addressed to the Government on 5 May 2000.<br>
<br>
<u>Concerning</u>: James Mawdsley,
<dl><u>
<dd>The State is not a Party to the International Covenant on Civil and
Political Rights</u>
</dl>1.<x-tab> </x-tab>The Working
Group on Arbitrary Detention was established by resolution1991/42
of the Commission on Human Rights. The mandate of the Working Group
was clarified and extended by resolution1997/50 and reconfirmed by
resolution 2000/36. Acting in accordance with its methods of work,
the Working Group forwarded to the Government the above-mentioned
communication.<br>
<br>
2<x-tab> </x-tab>The Working
Group regrets that the Government has not replied within the
90</font><font face=3D"WP TypographicSymbols" size=3D4>n</font><font=
face=3D"Courier, Courier" size=3D4>day
deadline.<br>
<br>
3.<x-tab> </x-tab>The Working Group
regards deprivation of liberty as arbitrary in the following cases:
<dl>
<dl>
<dd><x-tab> </x-tab>I.<x-tab>=
</x-tab>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);=20
</dl>
</dl><x-tab> </x-tab> &n=
bsp;=20
<dl>
<dl>
<dd><x-tab> </x-tab>II.<x-tab=
> </x-tab>When
the deprivation of liberty is the result of a judgement or sentence for
the exercise of the rights and freedoms proclaimed in articles7, 13, 14,
18, 19, 20 and 21 of the Universal Declaration of Human Rights and also,
in respect of States parties, by articles12, 18, 19, 21, 22, 25, 26 and
27 of the International Covenant on Civil and Political Rights (Category
II); <br>
<br>
<dd>III.<x-tab> </x-tab>When the complete or
partial
non</font><font face=3D"WP TypographicSymbols" size=3D4>n</font><font=
face=3D"Courier, Courier" size=3D4>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).
</dl>
</dl>4.<x-tab> </x-tab>In the light of
the allegations made, the Working Group would have welcomed the
cooperation of the Government. In the absence of anyinformation
from the Government, the Working Group believes that it is ina position
to render an opinion on the facts and circumstances of the case,
especially since the facts and allegations contained in the communication
have not been challenged by the Government.<br>
<br>
5.<x-tab> </x-tab>The essential facts
and allegations as stated by the source may be set out suscintly:<br>
<br>
Mr. James Mawdsley is a British citizen and human rights activist who is
currently held in solitary confinement at Kengtung Prison, about 400
miles northeast of Yangon, Myanmar. According to the source, he was first
arrested on 17 September 1997 for spraying a pro-democracy slogan on a
wall and handing out pamphlets outside Public High School No. 6 in
Yangon. He was arrested but not charged, and deported to Bangkok on 18
September 1997.<br>
<br>
On 30 April 1998, Mr. Mawdsley was arrested in Moulmein, a coastal town
in southern Myanmar, when playing pro-democracy songs on a tape
recorder and calling for the release of student leader Min Ko Naing. He
was allegedly not told the reasons for his arrest. After several hours of
questioning, he was placed in a van, blindfolded, and allegedly tortured
for 15 hours. He was then transferred to Yangon to face charges of
entering the country illegally and of associating with terrorist groups.
The latter, more serious, charge was eventually dropped. Mr. Mawdsley
pleaded guilty to entering the country illegally under section 13(1) of
the Immigration Act. On 13 May 1998, he was sentenced to five
years</font><font face=3D"WP TypographicSymbols" size=3D4>=3D</font><font=
face=3D"Courier, Courier" size=3D4>
imprisonment. After 99 days of detention, his sentence was commuted in
accordance with section 401(1) of the Criminal Code of Procedure, and he
was deported on 6 August 1998.<br>
<br>
On 31 August 1999 at around 8 a.m., Mr. Mawdsley entered Shan state,
Myanmar, from Thailand, and went to the border town of Tachilek. Soon
thereafter, he was arrested at the market while distributing leaflets
which called for civil disobedience with orders considered to be cruel
and unjust. He was not presented with an arrest warrant or any other
decision emanating from a judicial authority justifying his arrest. He
was charged with having committed illegal acts after having entered
Myanmar illegally (section 13(1) of the Immigration Act) and for
allegedly printing and distributing
</font><font face=3D"WP TypographicSymbols" size=3D4>A</font><font=
face=3D"Courier, Courier" size=3D4>anti-government
literature</font><font face=3D"WP TypographicSymbols" size=3D4>@</font><font=
face=3D"Courier, Courier" size=3D4>
(section 17 of the Printing and Publishing Act).<br>
<br>
Mr. Mawdsley reportedly was detained incommunicado and without access to
legal advice or representation, in spite of his numerous requests for
legal assistance. His trial took place only hours after his arrest,
namely from 4:00 to 6:45 p.m. in the Tachilek Township Court. No
transcript was allegedly taken of the proceedings, and Mr. Mawdsley
affirms that he was unaware that the proceedings he attended on 31 August
1999 in fact constituted his trial. Furthermore, he claims that at
no time was he told the reasons for his arrest, or informed of his
rights.<br>
<br>
In addition, it is argued that Mr. Mawdsley was denied his right to
access to consular services, in violation of article 36(1)(c) of the
Vienna Convention on Consular Services, to which Myanmar is a party. It
was not until 14 September 1999 that he was first allowed a visit from
the British Consulate.<br>
<br>
At the conclusion of the trial, Mr. Mawdsley was immediately sentenced to
12
years</font><font face=3D"WP TypographicSymbols" size=3D4>=3D</font><font=
face=3D"Courier, Courier" size=3D4>
imprisonment - five years for committing illegal acts upon entering the
country legally, and seven years for offences publishing and relating to
distributing leaflets. At the time of the first visit from the British
Consulate, he learned that the earlier , 1998 , five year sentence for
his activities in April 1998, had been reinstated, thus bringing the
total to 17
years</font><font face=3D"WP TypographicSymbols" size=3D4>=3D</font><font=
face=3D"Courier, Courier" size=3D4>
imprisonment. It is argued that there are no effective avenues for
appealing this sentence, and that Mr. Mawdsley will be forced to spend
his prison term in solitary confinement.<br>
<br>
6.<x-tab> </x-tab>From the facts as
disclosed by the source, Mr. Mawdsley was doing no more than expressing
his opinions. Distribution of leaflets and calling for civil
disobedience with orders considered to be cruel and unjust is a
legitimate form of freedom of thought. Mr. Mawdsley has not
perpetrated the use of violence. Peaceful expression of opposition
to any regime cannot give rise to arbitrary arrest. Freedom of
thought and expression are both protected by articles 18 and 19 of the
Universal Declaration of Human Rights. Those have been clearly
violated by the State in arresting Mawdsley, as alleged.<br>
<br>
7.<x-tab> </x-tab>There is another
aspect which requires consideration in this case. The allegations,
unrebutted, demonstrate the violation of all norms of fair play and
justice. Mr. Mawdsley was not informed of the reasons for his
arrest; he was detained incommunicado without legal advice or
representation; his trial is a mockery of all legal principles
applicable in jurisdictions where the rule of law prevails. He was
not even aware of the nature of the proceedings which constituted his
trial. Surprisingly at the time of his conviction, when he was
sentenced for 12 years in relation to his activities in August 1999, his
earlier sentence for previous activities in 1998, was revised and he is
now to serve a sentence of 17 years. The five years sentence now
added is for an offence in which the sentence had earlier been commuted
and Mr. Mawdsley been deported. This mode of sentencing is also
contrary to all considerations of due process. Consequently, the
procedural infractions in the arrest, trial and mode of sentence are such
as to make
Mawdsley</font><font face=3D"WP TypographicSymbols" size=3D4>=3D</font><font=
face=3D"Courier, Courier" size=3D4>s
detention arbitrary, even on this count.<br>
<br>
8.<x-tab> </x-tab>In the light of the
above, the Working Group renders the following opinion:
<dl>
<dl>
<dd>-<x-tab> </x-tab>The
deprivation of liberty of James Mawdsley is arbitrary and in
contravention of articles 9, 10 and 19 of the Universal Declaration of
Human Rights and falls within categories II and III of the categories of
cases submitted to the
Group</font><font face=3D"WP TypographicSymbols" size=3D4>=3D</font><font=
face=3D"Courier, Courier" size=3D4>s
examination.<br>
<br>
<dd>-<x-tab> </x-tab>The revival
of the earliest sentence of five years in a subsequent trial is also
arbitrary and falls under category Iof the categories applicable to the
consideration of the cases submitted to the Working Group.
</dl>
</dl>9.<x-tab> </x-tab>Consequent upon
the opinion rendered, the Working Group requests the Government to take
the necessary steps to remedy the situation, and bring it in conformity
with the standards and principles set forth in the Universal Declaration
of Human Rights;and to take the adequate initiatives with a view to
becoming a State Party to the International Covenant on Civil and
Political Rights.<br>
<br>
<x-tab> </x-tab>Adopted on
14 September 2000.<br>
<br>
<br>
</font></html>
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