Why Was Bail Denied to Journalists Charged Under Article 66(d)?

By Moe Myint 8 June 2017

RANGOON – After a Bahan Township court denied bail to The Voice Daily’s chief editor and columnist on Thursday, legal consultant U Khin Maung Myint criticized police and the court for acting unfairly and inconsistently in the handling of the defamation case, alleging that the decision was influenced by the plaintiffs—the Burma Army.

The Burmese publication’s editor U Kyaw Min Swe and columnist Ko Kyaw Zwa Naing were charged with defamation under the controversial Article 66(d) of the Telecommunications Law after publishing an article on March 26 that satirized the country’s armed struggle and peace process.

Both journalists pledged to honor the terms of bail, however, the Bahan Township judge denied the detainees a temporary release, saying that they had failed to present a medical recommendation letter justifying the granting of bail during Thursday’s hearing.

From inside a police vehicle, Ko Kyaw Zwa Naing told reporters what had happened, saying that the judge told them they did not present the medical release in time.

Police officers asked the judge to extend the remand on bail and to keep the men in custody, explaining that they had not yet completed the necessary police work in the case, including compiling documents and consulting attorneys, according to U Khin Maung Myint.

Placing such a request was “wrong,” U Khin Maung Myint said. “Asking for a medical recommendation from us rather than assessing our pledge [to honor the terms of the bail] is also poor conduct on the part of the judge.”

He added: “we are not asking for bail for health reasons. We are asking for legal rights.”

U Kyaw Min Swe and Ko Kyaw Zwa Naing’s team had in fact prepared a medical recommendation from a doctor to present at Thursday’s court hearing. The individual designated to deliver the document was held up in traffic, leading the judge to call for a resumed session on June 16.

“We are expecting to be granted release on bail next week if we can provide the medical recommendation letter to the judge,” said U Khin Maung Myint.

U Khin Maung Myint told the reporters that the legal team would file complaints concerning the actions of the judge and the police with the Chief Justice and Advocate General.

“The Myanmar police force, and several levels of the court, are not acting in coordination with existing laws—they are instead concentrating on the background of the plaintiffs. That’s why many inappropriate things are happening,” he explained.

Lawyer U Myo Thein and legal adviser U Khin Maung Myint asked for bail to be determined according to Article 497(1) of the criminal code of conduct, which states that any person arrested by the police without a warrant or summoned to the court can request bail. Only if the person is believed to have committed a crime punishable by death or a life sentence can see the right to bail waived.

The detainees are facing a maximum of three years in jail if convicted defaming the Tatmadaw.

“The fact that the detainees, who have been sued by army officials under Article 66(d) for writing an article…were denied bail is not in line with the law,” U Khin Maung Myint said.

The legal adviser said that in other states and divisions, the procedures for bringing charges under 66(d) appeared to be different, citing the case of human rights activist U Tun Tun Oo in Irrawaddy Division. U Tun Tun Oo was charged by an army official with violating the statute, but a township judge granted him bail in line with Article 497(1).

U Khin Maung Myint explained that the conditions for U Tun Tun Oo, U Kyaw Min Swe and Ko Kyaw Zwa Naing were “the same,” but that in the former case, “the judge decided fairly, and granted bail.”

A woman from Pegu Division, Daw Sandi Myint Aung, was also charged with violating Article 66(d) and defaming State Counselor Daw Aung San Suu Kyi; she was granted bail in 2016.

Ex-president U Thein Sein’s government enacted the telecommunications law in 2013 and a media law in 2014, yet plaintiffs and judges have opted to situate defamation charges under the telecommunications law. U Khin Maung Myint said that if there is contradiction between laws enacted by Union legislature, the latest enacted law should override previously enacted laws.

Hundreds of journalists gathered to obtain news and comment from the detainees after Thursday’s court session, but police rushed The Voice Daily’s editor and columnist into a car, making it difficult them to speak to the media.

Representatives of various media houses participated in a white armband campaign entitled “Freedom of Press” on Thursday morning, walking from the Bahan Township courthouse to The Voice Daily’s office in Tamwe. Journalists have pledged to wear the armbands for at least ten days.