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Myanmar army soldiers take positions near Laukkai, February 17, 2015. © 2015 Reuters

(Yangon) – Myanmar authorities should exonerate and release a former child soldier who spoke to journalists about his army experiences, Human Rights Watch said today. On March 28, 2018, the Dagon Seikkan Township Court sentenced Aung Ko Htwe to two years in prison with hard labor under penal code section 505(b), whose overbroad provisions have frequently been used to curtail freedom of expression.

Myanmar security forces arrested Aung Ko Htwe on August 18, 2017, following an interview he gave to Radio Free Asia detailing his forced recruitment into the army in 2005 at age 14. A military officer then filed a complaint against him under section 505(b). Aung Ko Htwe faces up to three additional years in prison for allegedly desecrating Myanmar’s seal during the trial. 

“The prosecution of Aung Ko Htwe reveals the depths of the Myanmar military’s efforts to muzzle anyone who exposes its wrongdoing,” said Brad Adams, Asia director. “Former child soldiers should receive support and rehabilitation, not further military abuse. The authorities should immediately pardon and release him.” 

In his interview with Radio Free Asia, Aung Ko Htwe described how he was abducted from a Yangon train station and conscripted into the army. In 2007, he tried to flee from the army with two other child soldiers. During their escape, they allegedly killed a motorbike owner while attempting to rob him. All three children were arrested on murder charges and sentenced to death. Aung Ko Htwe signed a confession after months in an army prison camp, but later stated he had no involvement in the killing. The sentence was commuted to 10 years in prison, and he was released in July 2017 – one month before his arrest under section 505(b).

The prosecution of Aung Ko Htwe reveals the depths of the Myanmar military’s efforts to muzzle anyone who exposes its wrongdoing.
Brad Adams

Asia Director

In 2009, his family filed a complaint about his recruitment with the International Labour Organization (ILO), media reported. Under the terms of the 2007 ILO agreement with Myanmar, Aung Ko Htwe is entitled to continued protection from “judicial or retaliatory action” related to his forced recruitment complaint.

Section 505(b), which has been used by successive administrations to target activists and critics of the government, carries a sentence of up to two years in prison for anyone who “makes, publishes, or circulates any statement, rumor, or report with intent to cause, or which is likely to cause, fear or alarm to the public, or to any section of the public, whereby any person may be induced to commit an offence against the State or against the public tranquility.” While international law permits restrictions on speech to protect public order, the United Nations Human Rights Committee has stated that the limitations imposed must be “appropriate to achieve their protective function” and be “the least intrusive instrument amongst those which might achieve their protective function.” The provision’s overly broad terms violate these permissible restrictions and facilitate the suppression of peaceful expression. 

As a “non-bailable” offense under the Code of Criminal Procedure, section 505(b) also facilitates long-term pretrial detention and abuse. The government should repeal the provision or amend it to bring it in line with international standards on the protection of free expression. 

After Aung Ko Htwe’s sentencing, the court announced he would face additional charges under the Union Seal Law, which carries a maximum sentence of three years in prison, for allegedly damaging the seal of Myanmar when stepping on a copy of the 2008 Constitution. In addition, he had been sentenced to six months in prison in February on a contempt of court charge under section 228 of the penal code for criticizing the presiding judge. The excessive charges and harsh sentencing reflect the government’s increasing use of repressive laws to prosecute journalists, activists, and critics for peaceful expression deemed critical of the government or military.

Authorities also targeted supporters of Aung Ko Htwe who staged peaceful protests outside his court hearings, according to family members and media reports. Two supporters were charged with multiple offenses, including penal code section 505(b) as well as section 153, which provides up to one year in prison for intentionally or knowingly provoking a riot. Arrest warrants have also been issued for four others, including one of Aung Ko Htwe’s sisters. Prosecuting individuals for taking part in nonviolent protests violates the internationally protected right to peaceful assembly, and all such charges should immediately be dropped.

While the Myanmar army has made progress in recent years toward reducing the recruitment of children into the armed forces, the practice has nevertheless continued. In December, the UN secretary-general reported that 49 cases of child soldier recruitment had been verified in Myanmar in the first six months of 2017, with approximately 100 complaints of child soldiers deployed in battalions under investigation. The government should release all remaining child soldiers in its forces as well as ensure that the draft Child Rights Law contains provisions to criminalize recruitment of children, hold military and civilian recruiters accountable, and protect child victims. 

“It’s a cruel irony that Aung Ko Htwe has been forced to serve a prison term for describing his forced services in the army,” Adams said. “Silencing a victim calls into serious question the government’s pledges to identify child soldiers and root out the perpetrators of their abuse.”

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