If it is a conspiracy of silence then what was that

Aman Ullah

RB Article

December 27, 2015

“The pain and loss of losing a loved one is the same for everyone; you don’t feel more or less if you’re a Buddhist or a Muslim or a Christian or a…” 

 Rev. John Iwohara (Venice Buddhist Temple)

A Thai court has sentenced two Myanmar migrants to death for murdering two British backpackers on a resort island last year. 

Delivering the verdict at a court on neighbouring Koh Samui, an unnamed judge said it found Win Zaw Htun and Zaw Lin, both 22, guilty of killing David Miller, 24, and raping then murdering Hannah Witheridege, 23, last year on the island of Koh Tao.

In its ruling, the court said that prosecutors had presented evidence from the crime scene and provided witness testimony that proved "without any doubt to the court" that the two men had killed Miller and raped Witheridge before murdering her "to cover up their wrongdoings." DNA evidence showed that the semen of both men was found inside Witheridge, the court said.

Miller and Witheridge's battered bodies were found Sept. 15, 2014, on the rocky shores of Koh Tao, an island in the Gulf of Thailand known for its white sand beaches and scuba diving. Autopsies showed that the young backpackers, who met on the island while staying at the same hotel, suffered severe head wounds and that Witheridge had been raped.

Following weeks of pressure to solve the case, the two migrants, who had entered Thailand illegally and were working on the island, were arrested on October 2, about two weeks after the murders.

The killings tarnished the image of Thailand's tourism industry, which was already struggling to recover after the army staged a coup just months earlier in May 2014. And from the arrests to the trial, the killings also raised serious questions about Thailand’s treatment of migrant workers. About 2.5 million people from Myanmar, work in Thailand, most as domestic servants or in low-skilled manual jobs such as construction, fisheries or the garment sector. Migrants are often abused and mistreated without the safeguard of rights held by Thai citizens.

From the start, the case raised questions about police conduct. Investigators faced a variety of criticism, starting with their failure to secure the crime scene, and then for releasing several names and pictures of suspects who turned out to be innocent.

After Britain's Foreign Office expressed concern to Thai authorities about the way the investigation was conducted, British police were allowed to observe the case assembled by their Thai counterparts.

Under intense pressure to solve the case, police carried out DNA tests on more than 200 people on Koh Tao. Police said the pair had confessed to the killings and that DNA samples linked them to the crimes. Both men later retracted their confessions, saying they had been coerced by the police. Police have denied the accusations.

Throughout the trial prosecutors insisted their evidence against the men was rock solid.

One of the defendants, Win Zaw Htun, also known as Wai Phyo, testified that he was tortured, beaten and threatened so he would confess. He told the court that police handcuffed him naked, took pictures of him, "kicked him in the back, punched him, slapped him, threatened to tie him to a rock and drop him in the sea," according to defense lawyer Nakhon Chompuchat.

Zaw Lin, the other defendant, testified that he was blindfolded, beaten on his chest and told he would be killed if he didn't admit to the charges, Nakhon said, adding, "He also said he was constantly suffocated by a plastic bag that was put over his head until he passed out."

As is customary in Thailand, where trials have no jury, a judge delivered the verdict and sentence and said the DNA tests by investigators were carried out to accepted standards and the DNA found on Witheridge matched that of the defendants.

In an emotional statement after the verdict, Miller's family said they had initial doubts about the investigation but found the evidence against the accused to be "absolutely overwhelming."

"Justice is what has been delivered today. We respect this court and its decision completely," said Michael Miller, the brother of David, reading from a statement beside his two parents.

The verdict and sentence follow an investigation and trial that triggered allegations of police incompetence, mishandling of evidence and torture of the suspects. Both later retracted their confessions saying they had been made under duress.

The long-awaited verdicts came after 21 days of witness hearings in a trial that began in July and ended in October. Allegations by defense lawyers of police incompetence and evidence mishandling dominated the trial.

Thailand's best known forensic scientist, Porntip Rojanasunand, testified that police had mishandled evidence, including the hoe the authorities say was the murder weapon. She tested the hoe and found that it contained DNA from two males — but not from the suspects.

Human Rights Watch called for the verdict to be reviewed in a "transparent and fair appeal process."

"In a trial where torture allegations by the two accused were left uninvestigated and DNA evidence was called into question by Thailand's most prominent forensic pathologist, both the verdict and these death sentences are profoundly disturbing," said Phil Robertson, the deputy director of Human Rights Watch's Asia division.

Defense lawyers had asked to retest crucial DNA samples taken from the bodies but authorities issued conflicting statements on DNA evidence and, at one point, said that it had been used up.

No independent re-testing of DNA evidence has been done in the case.

Following the announcement of the death sentence handed down by a Thai court, a wave of public protest came together in front of the Thai Embassy in Rangoon.

According to Hmu Zaw, a director of Myanmar President’s Office wrote in his Facebook post that, an appeal will be brought against the verdict and further efforts will be made diplomatically without harming Thailand’s sovereignty, independent judgment nor friendship and amity between the two governments and two peoples.

As for Ko Win Zaw Tun and Ko Zaw Lin, the director presented five steps to be taken in accord with the law and legal system of Thailand.

Appeals against the verdicts will be filed with the High Court. The sentences will be amended if the successful, the director wrote, adding that they must appeal within one month.

Committing to the first steps prior to appealing the sentences, the Lawyers Council of Thailand and the Myanmar Embassy and Myanmar Civil Society Organisations in Thailand will have coordination meetings. A 21-member legal committee provided by the Council is set to meet on 11 January, said the director. It is planned that an appeal will be sent to the Supreme Court of Thailand and the Privy Council of Thailand, if necessary, in the hope of further legal action, he added.

On his Facebook page, U Ye Htut, Union Minister for Information as well as presidential spokesperson, also wrote hoping the accused two are able to prove they are innocent of the murder during an appeal process after reviewing the evidences related to the case. The Union minister stated that the government will assist the appeal process in accordance with the law of Thailand while the Myanmar Embassy in Thailand will be in cooperation with Thailand-based Myanmar CSOs. 

As Win Zaw Tun and Zaw Lin are Rakhine ethnic, everybody in Arakan are very much concerned with their verdict and praying for them.

We also hope and pray for them to be able to prove that they are innocent of the murder during their appeal process after reviewing the evidences related to the case.

Kyaw Thura, a Burmese columnist, terms the trail as “a conspiracy of silence” in the opinion column of the Global New Light of Myanmar on December 25.

But what will we term the rape and murder case of Thi Da Htwe of Yanbye in southern Arakan State that was happened in 2012.

Ma Thi Da Htwe, a 26 year old Rakhine Buddhist woman, was the daughter of U Hla Tin and Daw Ma Mya of Tha Pri Chaung village of Kyauk Ni Maw Village Tract in Yanbe Township. She was disappeared on her way to her home from Kyauk Ni Maw at 5 pm on 28 June. She was found dead, with some marks of having met with a violent attack, at 9 am on 29 June on a bank of a dam between Kyauk Taran Village and Tha Pri Chaung village. Her body was brought to the hospital by the police on that day. After examining the body the doctor confirmed that she had been raped and killed by someone. An elderly man of the that village told that he had seen Htat Htat, Rafi and Lu Yu near the area of the occurrence in the evening of 28 June. All the three are hailed from Tha Pri Chaung village and are Muslims. They are Kaman Muslim not Rohingya. The police arrested them on 30 June and sent them to the Kyauk Pyu Jail. The Kyauk Pyu district court sentenced to Rafi(18) and Lu Yu (21) to death on 18 June. According to the government press, Htat Htat took his own life on 9 June.

‘Every accused of a crime is assumed innocent until proven guilty in a court of law and has the right to a fair trial, even if they cannot afford to hire their own attorney. The criminal justice system is there to protect the innocent and seek the truth’ it is a standard norm of the judicial system.

Now in this case, Ma Thida Htwe was found dead near her village on the morning of 29 May 2012 and assumed that she had been raped and killed by someone. There was no eye witness or no creditable circumstances evident available at that moment. The nature and time of the occurrence were also not so clear. Only an elderly gentle man of that village suspected to the three persons because he had seen Htat Htat, Rafi and Lu Yu near the spot on the evening of 28, not at the spot. They may be or may not be, it was not only suspected. It was a doubt. Everybody knows about who is the beneficiary of the doubt according to law. As far as the doctor’s report is concerned, how far confirmation of a doctor, from a village health clinic, has such qualification to prove beyond a reasonable doubt that the suspect kill or rape the victim! Did he have expertise or special knowledge of such serious crime? The doctor must be a person who is a specialist in a subject, often technical, who may present his/her expert opinion without having been a witness to any occurrence relating to the lawsuit or criminal case. 

The three suspects were arrested on 30 May and the District court sentenced the two of three suspects to death on 18 June—that is only within 19 days (14 working days). 

A crime is committed, it is reported, an investigation conducted and an arrest made (these may all occur in rapid sequence if the offense is committed in the presence of a law enforcement officer). 

This case was not like that. No one knows about what, how, when and why happened and who has committed. There was no single eye witness. No credible circumstance evident. Only one can assume that ought to be. These points ought to be carefully examined, in order to form a correct opinion. The first question ought to be, is the fact possible? If so, are there any circumstances which render it impossible? If the facts are impossible, the witness ought not to be credited.

According to the government press, Htat Htat took his life on 9 June. How did they believe that only a press statement is sufficient for relieving from a burden of responsibility? Where did their responsibility and accountability go to? His death body was not handed over to his close relatives. If he took his life by himself, why his body did not handed over to his family? How can he take his life in the jail so easily who was main accused of the case? Who is responsible for this, the police or the jail authority or the court or the government or any other else? 

Rafi and Lu yu were sentenced to death by the Kyauk Pyu District Court on 18 June within 20 days of their arrest. How the court can pass a judgment of a murder case within 20 days (14 working days) while there is no provision of speedy trial in the Burmese judicial system? How the judge can give a fair justice to them within a very short time? Did they get the right of justice in according article 21 (a) of the existing constitution of Burma, 2008? Did they get the right of defense and the right of appeal under law, which is a constitutional right of a citizen according to article 19 (c) of the existing constitution of Burma, 2008? If, in eyes of the court, they are not citizens of this country, why the court did not prove whether they are citizen or not before bringing them to trial for murder and rape cases? In a criminal trial there are many stages to do, such as, arrest, booking, arraignment, bail or detention, preliminary hearing, pre-trial motion, trail, sentencing, appeal etc... Was the court able to follow all the procedures of trail according to law at this short time? 

Aftermath of that case hundreds of Muslims have been killed, dozens of their villages were looted and burned, many have to flee to hastily constructed camps as IDPs, and unknown thousands have taken to sea as refugees. The population of IDP camps is now approaching 200,000, out of an estimated population of 10, 00,000 Muslims in Rakhine state. The UNHCR estimates that since June 2012, the violence has left more than 200 people dead and displaced about 200,000 more, mostly Muslims. Violence also has spread to other parts of Burma.

Since then, the Rohingya have been backed into a corner, their lives made so intolerable that tens of thousands have fled by sea, seeking safety and a sense of dignity elsewhere. Surviving the perilous journey to Bangladesh, Thailand or Malaysia is, too often, seen as the only way to finally be free from persecution.