Activists Deem Amendments to Article 66(d) ‘Ineffective’

By Moe Myint 2 August 2017

YANGON – The Upper House approved amendments to the controversial Telecommunication Law’s Article 66(d) on Wednesday in a confidential vote after a heated debate over whether it should be repealed, left alone, or modified.

Votes were held for two proposals on Wednesday, one for full termination of the online defamation statute, and another, put forward by the Upper House Bill Committee, which recommended amendments.

National League for Democracy (NLD) Upper House MP U Tin Aung Tun was among those who proposed last week that articles 66(c) and (d) be fully dismantled, pointing out that the provisions in those statutes already exist in criminal law.

U Tin Aung’s proposal was largely ignored by the legislature during Wednesday’s vote. Of 193 legislators present, he told The Irrawaddy that 59 voted in support, 92 objected, 23 abstained, and 19 did not attend.

“Those who failed to vote were undutiful lawmakers,” U Tin Aung Tun said. “They should have at least voted on whether they liked or disliked the proposal.”

NLD Upper House lawmaker U Thein Swe told The Irrawaddy that some parliamentarians went for urgent committee meetings during the vote, leading to empty ballots.

The Irrawaddy could not independently verify whether these MPs were attending crucial committee meetings at the time of the decision.

The Upper House Bill Committee’s proposal preserved Article 66(d) but requires prosecutions under the law to be conducted directly by the “defamed” individual, rather than by a third party, unless that party has been granted legal power by the individual. It also allows for bail to be granted to the defendant.

In the vote on the bill committee’s amendments, of 192 eligible lawmakers, 153 voted in approval, 24 voted to reject it, four abstained, and 11 were absent.

Parliamentarian U Thein Swe said he believed the article should remain in place in order to regulate problems regarding defamation in the future, and was pleased that it was not dismantled.

“It should not be completely repealed at the moment,” he said.

Activist Maung Saungkha—who was himself imprisoned in 2015 for allegedly defaming former President U Thein Sein with a poem—heads a research group on prosecutions under Article 66(d). He described the changes approved by the Upper House as “ineffective.”

“In my opinion, they [the NLD] are looking on as injustices occur,” he told The Irrawaddy.

He explained that he had hoped that the statute—which prescribes sentences of three years for those convicted of online defamation—would be reduced to two years, so that bail would be guaranteed in line with the Criminal Code of Conduct. The terminology in the amended article, he pointed out, says bail “can” be granted, so it will be allowed at the judge’s discretion.

Additionally, Maung Saungkha foresees lawsuits continuing by third parties on behalf of a defamed individual, because the NLD MPs appeared keen to keep the allowance for a third party to sue as long as they have a “representative letter.”

“Currently, some ministries are releasing official announcements with a signature of the deputy minister on behalf of Union ministers. Similarly, the third party can easily get a representative letter to prosecute someone in the future,” he said.

A third party lawsuit should be an exception, he explained, granted only to those deemed unable to speak for themselves, or whose identity must be concealed to protect their safety or dignity.

Myanmar’s Telecommunications Law was enacted by former President U Thein Sein’s government in October 2013, theoretically to regulate telecommunications operators. But in practice, the law’s Article 66(d) has been used to suppress political dissidents in a number of rapidly increasing defamation lawsuits in recent years.

The article states that whoever uses a “telecommunication network to extort, threaten, obstruct, defame, disturb inappropriately influence or intimidate,” can be sentenced to a maximum of three years in prison, a fine, or both.

According to Maung Saungkha’s research team, there have been a total of 81 cases put forward under Article 66(d), most of which have occurred since the NLD government came to power in 2016. Civil society organizations as well as media experts have long been vocal in their concerns over abuse of the law.