Kyaw Zwa Moe: Welcome to Dateline Irrawaddy! Recently, spokespeople for the Tatmadaw (Myanmar military) said during a press conference that State Counselor Daw Aung San Suu Kyi instructed it to crush the Arakan Army (AA). The following day, a spokesperson of the President’s Office, U Zaw Htay, released a statement in response and said it was privileged information. We’ll discuss whether the military spokesperson disclosed something he shouldn’t have or did so with political or other motives, and what impact the claim will have on relations between the government and the military. U Kyi Myint, a lawyer and chairman of the Union Lawyers and Paralegals Association, and Dr. Min Zaw Oo, executive director of the Myanmar Institute for Peace and Security, join me to discuss this. I’m Kyaw Zwa Moe.
Spokespeople for the Tatmadaw at their press conference revealed what was discussed at the top-level meeting between Daw Aung San Suu Kyi, the president, the military chief and some Union-level ministers. U Zaw Htay said it was privileged information, which is defined as secret information that is barred from being disclosed to the public. Ko Min Zaw Oo, what is your assessment of this? Why did the Tatmadaw spokespeople disclose it? Do you think they have political motives, or other motives?
Min Zaw Oo: I wouldn’t like to speculate about their intentions. According to procedure, the records of the meetings of state leaders are top secret. Privileged information is a formal term. Normally it is called classified information. Any piece of information that can negatively impact national security if it is exposed is treated as classified information. Once a piece of information is designated as classified information, it can’t be told to the public until it is declassified. Some of the issues discussed at the national-level meeting relate to policies. Then there must be discussion about whether or not to make those policies public. If something is to be made public, for example, (spokespeople) can say the Tatmadaw and the government share the same position on internal insurgency. But according to procedure, disclosing exactly who said what at the meeting is not allowed. It is difficult to say why [the military spokespeople] said it. But we can say that it is not in line with the procedures for handling and publishing classified information.
KZM: Tatmadaw spokespeople named Daw Aung San Suu Kyi as the one who instructed it to annihilate the AA. It provoked widespread criticism on social media as well as from the Arakanese community, and criticism of Daw Aung San Suu Kyi. What is your assessment of this from a legal perspective?
Kyi Myint: I was quite taken aback by the statement of the Tatmadaw True News Information Team. I wouldn’t have believed it if it were not said by the Tatmadaw True News Information Team. It is in fact a violation of the Official Secrets Act. There is no higher-level meeting than the recent one. If somebody speaks about it the same day as the meeting, it might be because he was instructed (by the leaders) to do so. But if it is said at a different place at a different time, it is a violation of the Official Secrets Act. The term “privileged information” is used to cover up the violation of the Official Secrets Act. How justifiable is that? Union Parliament Law No. 11, Lower House Law Section 12 and Upper House Law Section 12 grant exemptions, but only for lawmakers and not for other people. Filing a complaint against someone under the Official Secrets Act needs the approval of the president. You can’t just file a complaint directly. Penalties vary depending on the degree of the secret — a maximum of 14 years and a minimum of two years in prison. Even if a piece of information is leaked, it depends on the opinion of the president and the state counselor. A lawsuit can’t be filed if they don’t approve it. It is, without doubt, a disclosure of official secrets to have revealed who said what at a top-level meeting. Though U Zaw Htay said it was privileged information, that is not enough justification. Only the state counselor and the president have the authority to decide whether or not to take action.
KZM: We don’t know what political motives the military has. It seems the Tatmadaw spokespeople made the disclosure under instructions from their bosses. Some doubted Daw Aung San Suu Kyi really said it. Whether she said it or not, Arakanese political parties and the Arakanese community expressed their negative feelings towards Daw Aung San Suu Kyi and her government on social media. So how bad was the impact? Didn’t the Tatmadaw leaders expect it, or did they just want to show that Daw Aung San Suu Kyi is on their side on that issue?
MZO: To make a fair assessment, what U Zaw Htay told the media made an impact even before the press conference of the Tatmadaw True News Information Team. And the impact intensified when the Tatmadaw spokesperson named Daw Aung San Suu Kyi in particular. The gulf between the National League for Democracy (NLD) and Arakanese parties widened. The Arakanese community’s view of the government and Daw Aung San Suu Kyi has become more negative. There is more criticism from the Arakanese community on social media. The Official Secrets Act of Myanmar mainly lists the conditions under which the law can be violated and doesn’t clearly define official secrets. And there is no procedure regarding declassification. So there are related problems.
KZM: Before the most recent one, there were top-level meetings in the past. Daw Aung San Suu Kyi, while she was under house arrest, had meetings with former military chief Senior General Than Shwe, Vice Senior General Maung Aye and General Khin Nyunt during the military regime. And since the 2015 elections, Daw Aung San Suu Kyi and commander-in-chief Senior General Min Aung Hlaing have met four, five times including their private meetings. Their last meeting took place in January 2019 and focused on the Rakhine issue. Before this, there were no information leaks. Daw Aung San Suu Kyi has never leaked information even though she might have discussed important issues. There were reports that Daw Aung San Suu Kyi and U Than Shwe met two times in the past few years. But no information leaked about their meetings. There are no regulations about what information should and should not be disclosed. They are mainly concerned with the motives behind it. Today, our country is focusing on national reconciliation, mainly between the civilian government, Tatmadaw and ethnic armed groups. So I don’t think [the government] will take harsh action for saying so. But what can [the government] do in response in a moderate way?
KM: The Official Secrets Act was enacted in 1923 as Act No. 19. Sections 3 and 4 of the law define the conditions deemed to constitute the disclosure of official secrets. And the law classifies actions that are punishable by 14 years [in prison] and punishable by 2 years. [And the Tatmadaw spokesperson’s disclosure of information] infringes on the Official Secrets Act. But then, the law doesn’t necessitate taking action for violations. (The recent meeting) is the highest-level meeting in the country. Everybody knows that such a disclosure negatively affects the image of a people’s leader both inside and outside the country. So I would like to suggest that responsible people should exercise caution with such information in the future.
KZM: The Tatmadaw spokespeople quoted Daw Aung San Suu Kyi as saying there would be finger-pointing if the Tatmadaw did not attack the AA, (whose members are from a recognized) ethnic group, but crushed ARSA (Arakan Rohingya Salvation Army), (whose members) practice a different religion. Do you think the Tatmadaw spokespeople need to reveal such details? The disclosure has caused great division between Daw Aung San Suu Kyi and her government and Arakanese political parties and the Arakanese community. How bad was the impact of the disclosure?
MZO: It seems to have caused some friction between the government and the Tatmadaw. And it caused some friction between the NLD and Arakanese political parties and the Arakanese community. What can be done to prevent this? Suppose the top leaders hold a meeting and adopt a policy. The top leaders should discuss whether or not that policy should be made public. If they agree to make it public, they can do so. The nature of a meeting is that a decision reached at the meeting can be made public, but normally the details about who said what and why are not made public. If such things are disclosed, the classified information will no longer be secret. It would be good if everyone could work together to prevent this from happening again.
KZM: Some scholars suggest that the disclosure of such information could undermine trust.
MZO: In the peace process, there is a need to hold many talks with many ethnic armed groups. They are not lawful groups; they are outlawed. Even in talks with such groups, there are lines that can’t be crossed. Both sides know the other’s misdeeds, which they can use to criticize the other side. But they should not disclose them. Though there is no law [that prohibits the disclosure of information], certain things must be observed according to protocol.
KZM: Thank you for your contributions!
Translated from Burmese by Thet Ko Ko.
