Dateline Irrawaddy: ‘Those in Power Have Given the Wrong Message by Using This Law’
By The Irrawaddy 10 June 2017
Ye Ni: Welcome to Dateline Irrawaddy! This week, we’ll discuss the controversial Article 66(d) of the Telecommunications Law. Poet Maung Saung Kha and director of the Myanmar Journalism Institute U Sein Win join me for the discussion. I’m Irrawaddy Burmese editor Ye Ni.
Under the new government, there have been a total of 61 cases filed under Article 66(d). But under the previous government, there were only seven cases and only five were given penalties. Under the new government, there have been 61 cases, 11 have been given penalties, and seven were denied bail and are awaiting trial behind bars. Why has the number of cases filed under Article 66(d) increased under the democratically elected government? Does this show a lack of maturity and tolerance? Ko Saung Kha, you have been conducting research and campaigns to change Article 66(d), which you were also jailed under for a poem deemed defamatory to former President U Thein Sein. What do you think is behind the increase?
Maung Saung Kha: The Telecommunications Law was enacted in 2013 under former President U Thein Sein’s administration and it was not intended to stifle online speech but to regulate foreign telecom operators as they entered the market. But, Article 66(d) of that law has now become a tool to sue netizens and journalists. The previous government began using this law in October, one month before the November election in 2015. In Oct. 2015, Chit Thamee, Patrick Khum Jaa Lee, and I were the first individuals to be charged under Article 66(d). There were only seven cases under the previous government because it only began using it just prior to stepping down. Otherwise, there would have been many more cases.
It continued to be applied under the new government. This created controversy – especially when Rangoon Chief Minister U Phyo Min Thein sued Eleven Media Group under this article. Since then, people have become educated about Article 66(d). They realized that they could use this law to counter online criticism against them. And there have been many cases in which citizens sued each other [as opposed to the government suing citizens]. Besides those 61 cases, there may be many more that have gone unnoticed, for example, cases that were settled at police stations [and did not reach the court]. There may also be cases that reach the court that we do not hear about.
YN: As many as a dozen of these cases were filed against journalists. Some have been jailed and some are still awaiting trial. The case of the Voice Journal was the latest. Ko Sein Win, as a journalist and journalism teacher, what are your concerns regarding Article 66(d)?
Sein Win: It will limit the flow of information and discourage journalists from reporting freely. It will encourage them to practice self-censorship and objectivity will be lost as a result. The objective of reporting is to reveal the truth. Article 66(d) is cause for police arrest, and the law states that judges can grant bail based on their discretion. But you now have the problem of intervention from higher-level authorities in administering justice [those in power intervening in judicial matters continues from previous regimes]. Suing under Article 66(d) has become a developing trend. I am concerned that this has become a tool to oppress journalists.
Suppose I am a man in power. I can use this law to prevent any criticism against me. This will deter people from criticizing me and the flow of information will be limited as a result. A society needs to be built on true information. If there is less of it, there is a real likelihood that authorities will make wrong decisions when managing the country. From a political point of view, we can say national reconciliation has been achieved now. The government, Parliament and the military all have common ground regarding Article 66(d). They all use this article against those who criticize them. This is completely wrong. Is this the legacy they will leave for our country?
YN: Under U Thein Sein’s government, journalists started to gain freedom of expression, and people had a greater chance to discuss issues online with greater Internet access.
Supporters of Article 66(d) say this law is necessary to prevent wrongful accusations and defamatory posts. Ko Saung Kha, your research group is calling to amend it but not scrap it. Could you discuss this?
SK: The parliamentarians have concerns. We have pointed out that Articles 499 to 511 in the Penal Code are concerned with defamation. Articles 383 to 389 cover extortion, threats and obstruction—some of the situations stated in Article 66(d).
So, we asked why Article 66(d) was still needed while there are other provisions that cover the situations stated in it. We told them that it was unnecessary. Initially, we recommended that Article 66(d) be scrapped. We suggested amending it if they were unwilling to abandon it. I want to be clear that we first asked them to scrap it.
YN: Which parts would you like to amend?
SK: If lawmakers are not willing to scrap it and only want to amend it, we have pointed out parts of the article that are covered by the Penal Code. We want to refer to the Penal Code regarding legal proceedings, penalties and provisions rather than stretching the definition of Article 66(d). Here, we found that the permission of the communications ministry is also important.
Filing a lawsuit under Article 66(d) should require the ministry’s approval, we think. The Burma Army recently sued columnist British Ko Ko Maung. He should not be sued. The ministry should have the authority to leave such cases pending.
We also want to change third party concerns. There are eight cases in which third parties filed lawsuits under Article 66(d) against people who shared posts deemed to be defamatory to State Counselor Daw Aung San Suu Kyi. Maybe they filed lawsuits out of their love for her. However, this will adversely impact the image of the state counselor.
No international law concerning defamation, or the Penal Code, allows a third party to file a lawsuit, and it is therefore unacceptable under the Telecommunications Law. It seems like third parties can even sue friends who jokingly swear at each other. What is worse is that third parties can file lawsuits without being required to seek remarks from the victims deemed to be defamed. This should only be used when victims cannot appear in court – in discreet cases, or for those who are disabled, elderly or feeble. In those cases, third parties can file lawsuits with the victim’s permission. In other instances, this is not allowed.
YN: Ko Sein Win, looking at the cases filed under Article 66(d), there is currently a total of 21 cases—seven filed by the Burma Army, six by the National League for Democracy (NLD), and eight by third parties on behalf of Daw Aung San Suu Kyi. It is fair to say that those 21 cases are politically motivated. To what extent can Article 66(d) act as a deterrent to the country’s democratic transition?
SW: According to our understanding, there are two aspects regarding defamation and personal attacks—one concerns ordinary citizens and the other concerns celebrities, politicians and those in power.
Celebrities and those in power are in high positions. Suppose I mock or satirize the president. I cannot be sued for this; it does not amount to defamation. We are entitled to criticize the president. Whether he likes it or not, he has to bear this in his position. There is no such thing as 100 percent support. Those in power have to tolerate and forgive even if they are unfairly criticized.
In addition, they have to grant intellectual freedom. If those in power are sensitive to criticism, what methods can ordinary citizens use to check the government and the administrative mechanism? I can understand that those in power do not like criticism. But what else can ordinary citizens do except speak critically?
Defamation is no longer a criminal law but a civil case. The British, who enacted this law, changed it. But we continue using it. Now, people do not even bother to file lawsuits under other defamation provisions. Instead, they use Article 66(d) because the police can make arrests and then bail depends on the judge. Looking at cases filed under Article 66(d), we can see that those cases have been filed by lawmakers, the government, the military, and against peer party members or members of other parties. If the upper echelon increasingly uses this law, ordinary citizens will also think that they can use it. Those in power have given the wrong message by using this law. They should stop immediately.
YN: Thank you for your contributions.