Dateline Irrawaddy: ‘If the Fourth Estate is Strong, Authorities Dare Not Play Unfairly’

By The Irrawaddy 2 July 2016

Kyaw Zwa Moe:  Welcome to Dateline Irrawaddy! The Burma Army recently filed a lawsuit against 7 Day newspaper over a news story. But, the army dropped the lawsuit this morning after negotiations. We’ll discuss how the Myanmar Press Council (MPC) can intervene and protect media agencies against such lawsuits. Saya Kyi Min, member of the MPC and writer, and lawyer U Robert San Aung will join me for the discussion. I’m Irrawaddy editor Kyaw Zwa Moe.

Saya U Kyi Min, the military filed a lawsuit against 7 Day newspaper for a story called ‘Thura U Shwe Mann urges DSA [Defense Services Academy] graduates to cooperate with the current government.’ But, we learned that it dropped the lawsuit, which is good news. We heard that the military did not inform the Myanmar Press Council of its plan to sue 7 Day. Even if they have a sound reason to sue, how should they have proceeded under the current guidelines?

Kyi Min: The Press Council Act states that in the case of a dispute, the suffering side may file a complaint to the council. It does not say filing a complaint is a must. So, the suffering side can either file a complaint or not. It is free to directly file a lawsuit to the court.

KZM: It is up to the suffering party?

KM: Yes. The act was designed to prevent us from becoming the main monitoring mechanism. If the act makes it necessary to file complaints to the press council for any dispute, then all complaints will be filed with us. Then, we will have to mediate every case. So, the law states complaints may be filed with us. In the case of the army’s lawsuit against 7 Day, the army did not file complaint with us; they sued 7 Day directly.

KZM: The army filed the case under Section 131 of Chapter 7 ‘Offences relating to Army, Navy and Air Force’ of Burma’s Penal Code [which punishes anyone who abets mutiny or attempts to seduce an officer from his allegiance or duty]. Does the charge fit or is it a heavy charge for this story?

Robert San Aung: As far as I understand, it is not that 7 Day wrote the story in a misleading manner. I doubt that the charge under Article 131 of Penal Code is appropriate. Today, at a time when the Commander-in-Chief of Defense Services Snr-Gen Min Aung Hlaing himself is taking a leading role in building national reconciliation and friendship between the military and the people, we can’t say prosecuting a newspaper or journal related to people is appropriate. My suggestion is that if there are difficulties or disputes, they should be settled through the MPC first so that the problem will not get worse. If not, the problem may be aggravated by outside factors. In the current case, some Facebook users wrote this and that on social media, which adds fuel to the flames. This is neither good to the military nor to 7 Day.  I would suggest that the best option is to take action in coordination with the MPC. Under Article 3 of the Myanmar Press Council Act, the press council can mediate settlement. This morning, we heard that the army settled the lawsuit against 7 Day. I saw the report on the Standard Daily. I would say today is an auspicious day.

KZM: Anyway, it is good that the army dropped the lawsuit. But I am afraid that the lawsuit comes as a warning to all other media. This is the first case of the military prosecuting a media outlet under the new government led by President U Htin Kyaw and Daw Aung San Suu Kyi. There were similar cases under the previous government. These lawsuits have impacts. In your view as a member of the press council, what should be the procedure be to file a lawsuit? Is it fair to say that the military suing 7 Day is a threat to the media?

KM: Our council is here to facilitate people’s right to be informed and to prevent obstacles against that. It is also supposed to protect the freedom of expression of journalists on the condition that they report ethically, that what they’re reporting is true and that the reporting will not harm state interests. We have to intervene if a reporter who follows these guidelines is prosecuted. However, under the Myanmar Press Council Act we are not supposed to intervene unless concerned parties file complaints with us and seek our intervention. Previously, our council was an interim council and now it has become a permanent one. We have settled about 190 cases—between the government and journals, private publications and private publications, and journals and people. We could settle most of the cases through negotiations. Some of them were not satisfied and in that case they could initiate legal proceedings. We can only engage within our limited mandate. To answer your question, we want a peaceful settlement. If media personnel are not ethical in their reporting, it is their fault. We assume that we need to intervene if authorities or people are too sensitive about a truth and file unnecessary lawsuits.

KZM: As far as we are concerned, we don’t think the news is wrong. How can we resolve it when lawsuits are filed against media outlets that publish the truth?

KM: We held a meeting Monday and immediately stated our position. We released the statement Monday evening and we were happy to hear the good news this morning. We are proud of ourselves.  We seldom issue statements, especially on issues related to the military because they are too sensitive. Under the circumstances, we issued a rare statement with carefully chosen words and extra caution. Therefore, I was happy to hear the good news this morning. The entire press council is happy.

KZM: U Robert San Aung, what do you think of this case from a legal aspect? 7 Day was sued for publishing a story based on what Thura U Shwe Mann said. Other media outlets also reported it. Isn’t Thura U Shwe Mann, who said those words, directly responsible? Should the lawsuit be targeted at the person who made the statement or the reporter?

RSA: Thura U Shwe Mann’s case is not the first case like this. There was a previous example in which lawyer U Myint Aung from Mandalay got his license revoked permanently for quoting the phrase, “No one is above the law,” in a case related to a high-profile person. In the current case, Thura U Shwe Mann is mainly responsible. He is more knowledgeable about military affairs and he should take the lead in solving the problem. 7 Day exercised ‘the right to know’ enshrined in Article 3 (e) of the press council act. In that case, 7 Day should be considered a witness or abettor. The main offender is Thura U Shwe Mann and 7 Day just quoted him in its reporting. It bears no responsibility unless it includes its opinion of the speech in the story. I want Thura U Shwe Mann to take responsibility because only when there is amity between the military and the people can internal peace and the 21st Century Panglong Conference be realized. At this time, anything that harms the military or the people should be avoided.

KZM: It is fair to say that Snr-Gen Min Aung Hlaing is fairly friendly toward the media, unlike his seniors. He always grants interviews to foreign news agencies. Many people like his interviews. Given that, why did the military take it so seriously and decide to prosecute rather than negotiate?

RSA: The commander-in-chief of defense services did not seem to know the particulars of the situation. It seems that the lower level [of the army] misunderstood it and took preventive measures out of their own concern. We are encouraged to see Snr-Gen Min Aung Hlaing speaking very politely when he engages with the people. Regarding the army’s prosecution of 7 Day, I believe that the army chief did not know about it. We don’t know why the army decided to sue—maybe there were complicated underlying factors.

KZM: You mean it was one of their political moves.

RSA: Yes, it could be. It would be better if reporters mentioned sources below their stories in brackets. The most important thing is that I would like to urge journals not to sue each other because it may harm unity and lead to division. Third parties may not hesitate to touch them if they think there is no unity among journals. Therefore, I would like to request that journals don’t sue each other.

KZM: The right to know is very important for people, especially in democracies where people need to know all that they should know. We accept that publications that make false reports should be prosecuted. But, there are cases in which governments or private companies file wrongful lawsuits against journals. Saya U Kyi Min, what is your suggestion to both sides to reduce these types of cases in the future?

KM: As I occasionally give lectures at journalism institutes, I give lectures on how to be objective and truthful without crossing a line. When I entered the field of journalism in 1969, my master Atauktaw Hla Aung asked me to read by heart everything related to Section 500 on my second day as a journalist. I had to learn how to avoid crossing the line in my reporting under different circumstances. Media personnel need to have broad legal knowledge and they should report cleverly and present complete and truthful investigations. If they can do that, they have nothing to worry about in front of a fair trial, should that exist.

KZM: What about the authorities?

KM: If the fourth estate is strong, authorities dare not play unfairly because the fourth estate serves the people. But I stress the condition of: if there is a fair judicial system.

KZM: I doubt that fair courts will emerge overnight in our country.

RSA: There are hardly any.

KZM: Thank you for your contributions.

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