Ye Ni: Welcome to Dateline Irrawaddy! This week, we’ll discuss why the court has postponed the verdict in the case of two Reuters reporters Ko Wa Lone and Ko Kyaw Soe Oo, and if the verdict will be against or in favor of the two. Lawyer U Kyi Myint, chairman of the Union Legal Supporting Group and Ko Thalun Zaung Htet, member of the Committee to Protect Journalists join me to discuss this. I’m The Irrawaddy Burmese editor, Ye Ni.
Pressure on Myanmar from the international community, including the United Nations (UN), is rising in connection with the one-year anniversary of the Rohingya issue. The verdict on the case of the Reuters reporters was due to be delivered already but was postponed. Is it because of political pressures or is it because the judge really was sick as they said? What do you think, U Kyi Myint?
Kyi Myint: I was worried on that day that the pair would be imprisoned. I predicted that they would be punished because they were prosecuted by the military under the 2008 Constitution and the government therefore could imprison them in consideration of its national reconciliation policy [to reconcile with the military]. But from a legal perspective, they can’t be punished. There are existing laws that bar them from being punished but still I thought they would be imprisoned due to the national reconciliation policy. Whether the judge was sick or not is a separate issue. In my experience—especially in high-profile cases, and even in a normal case if connected with a journalist—the court has to report weekly to the Supreme Court of the Union on the progress of the trial. In this case, a district judge was transferred after he accepted the appeal to reverse charges. Considering this, there are reasons for us to believe that the court has had to negotiate with the upper level authorities on this case, which is also in the spotlight of the international media, so the verdict has been postponed. This is just my personal view according to my experiences.
YN: According to what you have suggested, I feel sad for the two as it is likely they will be punished anyway even though they are not guilty under existing laws. Ko Thalun Zaung Htet, what measures can the Committee to Protect Journalists take then?
Thalun Zaung Htet: I think there are two parts: the part of journalists and the part of civil society organizations. The two reporters have not yet been sentenced to imprisonment, but it’s likely they will be. Civil society organizations on their part are taking steps. So are other journalists. They may collectively take to the streets before and after the verdict. There may also be activities to inform the public. Because they are being charged under the Official Secrets Act, the public has been misled to believe that they betrayed the country for dollars. There will be activities to clear up this misunderstanding. There will be more confrontations between the media and the government; between the media and the Tatmadaw (Myanmar military); and between the media and the Home Affairs Ministry. Very soon, a new press council will be elected. There are things that can be done within the legal framework and things that can be done outside it like submitting a petition to the government. As the new press council will be sworn in before the president, they can give the message to him that the two reporters are behind bars despite the fact that the country practices democracy. Taking such measures will be effective, I think, but will depend on the performance of the press council. Those elected to the press council must protect journalists and attach a great importance to press freedom. They should not be yes-men of the government. They should be more than a council that beckons to the Tatmadaw’s calls, accepts presents happily and poses for photos. The press council must represent press freedom and the entire media circle. If they take a lead role and work hard, there is no reason for the journalists not to be released. This is the part of what the press council is supposed to do. As I’ve said, this case is very delicate. Taking a look at the root cause of their arrest, the military entrapped them in order to cover up its wrongdoings. This has been testified by the [former] police captain Moe Yan Naing, and the [accused] reporters. This is the truth and everyone knows it but they just won’t say it because it is in contempt of the court to say somebody is guilty or not before the court makes a decision. The Home Affairs Ministry may be blamed for not withdrawing the case. The case is the result of the covering up of wrongdoing by the wrongdoer. The press council and journalists must denounce this and stand by the two Reuters reporters.
YN: Ko Wa Lone and Ko Kyaw Soe Oo were prosecuted for breaching the Official Secrets Act for obtaining classified documents from the police. We have a new media law which protects press freedom but the act is a colonial-era law. So, U Kyi Myint, don’t you think there are contradictions?
KM: The media law was passed by the Union Parliament in 2014. The objective of the law is to realize the freedom to express, publish and distribute, as part of the rights and privileges of every citizen, as outlined by the 2008 Constitution. The law details the rights of journalists. It says they can investigate and publish information and related opinions to which every citizen is entitled. They are obliged to reveal issues related to rights and privileges lost by citizens. Journalists have the right to acquire news in accordance with regulations specified by relevant and responsible organizations. Article 7 of the media law states that journalists have the right to collect news in areas where wars break out, and where conflicts, riots and demonstrations take place. The article also prevents them from being detained and their equipment being confiscated or destroyed. Journalists must also follow stated procedures in collecting information. For example, they have to immediately make a correction if they publish the wrong information. If they don’t do so, a complaint shall be filed with the press council first. If an agreement can’t be worked out, the aggrieved party may file a lawsuit. The maximum punishment is a fine which ranges from a minimum 100,000 kyats to a maximum one million kyats. A journalist may be prosecuted with criminal charges if their ways of writing inflame conflict regarding nationality, religion and race. Apart from that, journalists can’t be prosecuted with criminal charges. The law under which the Reuters reporters were charged was enacted in 1923 by the British in the Indian colony in order to avoid the leak of military intelligence when the British and French were fighting for colonies. The law was also introduced into Myanmar which was a British colony then. The law was originally intended to avoid the leak of military intelligence; it is nothing to do with domestic information. That law has since been scrapped in both England and India. It still exists in only our country. The Official Secrets Act can be enacted on ordinary citizens, but not on journalists. This is because of the 1973 Interpretation of Expressions Law, which replaced the colonial-era the Burma General Clause Act. Article 3(g) of the 1973 Interpretation of Expression Law states that if there are contradictions between a more recent law and an older law on the same matter, the more recent law shall be applied. That is exactly what it says. It is the existing law. It can’t be overruled. Therefore, the media law overrules the Official Secrets Act. If there are contradictions between a special law and an ordinary law, the former overrules the latter. If there are contradictions between two ordinary laws, the more recent one overrules the older one. So is the case for two special laws. So the Official Secrets Act can’t be applied against journalists. Again, it is clear, according to the testimony of the [former] police captain Moe Yan Naing that the two reporters were set up. The [Home Affairs Ministry] could not present another police corporal who was together with Moe Yan Naing [in giving the documents to two Reuters reporters] in the trial. So considering the legal aspects of the case, the charge is wrong. The court has the authority to correct the charge and can deliver the verdict under the correct charge, under media law. According to media laws the two reporters can’t be imprisoned.
YN: Thank you for your contributions!