Calls Mount for Official Secrets Act to Be Amended in Wake of Reuters Case

By Kyaw Phyo Tha 10 September 2018

YANGON — Legal experts, journalism professionals and human rights defenders have called for the outdated Official Secrets Act to be amended after the jailing of two reporters for possessing classified government materials prompted concerns that news gathering was leaving journalists vulnerable to prosecution.

Last week, a court in Yangon’s Insein Township convicted Reuters journalists Ko Wa Lone and Ko Kyaw Soe Oo of violating the law and sentenced them to seven years in prison.

The Official Secrets Act was enacted by the country’s former British colonial rulers in 1923 to criminalize the sharing of almost any kind of information held by the government.

The court ruled there was sufficient evidence to show the pair breached Article 3 (1) (c) of the law, and Judge U Ye Lwin said in his verdict that “confidential documents” discovered on the two would have been useful “to those who oppose the state or are enemies of the state”.

In imposing the sentence, he quoted Article 3 (2) of the law: “It shall not be necessary to show that the accused person was guilty of any particular act tending to show a purpose prejudicial to the safety or interests of the State, and, notwithstanding that no such act is proved against him, he may be convicted if, from the circumstances of the case or his conduct or his known character as proved, it appears that his purpose was a purpose prejudicial to the safety or interests of the State….”

In other words, you can be found guilty of the crime if you possess classified documents, even if the prosecutor fails to provide evidence that you used the information to commit an act that jeopardized the interests or safety of the state, as long as your action and intention “appear to harm the state”.

For journalists in Myanmar, this outdated and ill-defined law has become a threat to their professionalism. It leaves them easy prey to being charged under the Official Secrets Act, as they sometimes rely on leaked government documents (directives, internal memos or police wires, etc.) as first-hand information, because the government’s lone spokesperson is difficult to reach for timely confirmation, while the police and army are rarely cooperative.

“It could have a negative impact on news gathering, especially if you write about police or the armed forces,” said U Than Zaw Aung, one of the lawyers for the two Reuters journalists.

He said the key phrase in Article 3 (2), “appear to harm the state”, is vague and open to interpretation.

“How do you judge if the accused ‘appeared to offend’? It’s very broad,” he said.

U Than Zaw Aung said that in today’s era of advanced information technology, there is often a fine line between confidential and public information. Once classified documents go viral online, they are in the public domain.

“So the law has to be fixed to rectify these problems,” he said.

His two clients were prosecuted over military documents planted on them by the police, as well as other “classified” material found on their phones. The material on their phones included the itinerary of the vice president’s visit to volatile northern Rakhine State and a security deployment plan for the papal visit to Myanmar last year, as well the phone number of an Arakan Army (AA) official. The AA is an ethnic armed group currently battling the Myanmar Army.

Both Reuters reporters testified that they didn’t even know the contents of the documents that a policeman handed to them shortly before their arrests, and weren’t aware of the existence of the classified documents found on their phones, as they were probably sent to them via an information-sharing app like Messenger. They said that information had nothing to do with the Rohingya massacre story they were working on at the time of their arrests. But the judge said “the information from the classified documents might be helpful directly or indirectly to those who oppose the state, including armed groups like the AA.”

“It is very disappointing. This shows the critical situation facing democracy, freedom of expression and the rule of law in Myanmar,” Ko Than Zaw Aung said.

Colonial-era laws have been invoked to bring criminal charges against journalists before. In 2014, five journalists from The Unity Weekly received 10-year jail terms under the Official Secrets Act for their reporting about an alleged military chemical weapons factory in northern Myanmar. They were later released in a presidential amnesty.

Last year, one of The Irrawaddy’s senior reporters was charged along with two others from Democratic Voice of Burma by the army with violating the Unlawful Association Act during their trip in northern Shan State to cover a drug elimination program by an ethnic armed group that has been fighting government troops. The army later dropped the charges.

According to the International Commission of Jurists (ICJ), the offenses contained in these laws are often broadly defined, carry harsh penalties, and are open to abuse by authorities.

Sean Bain, a legal adviser for the ICJ, told The Irrawaddy that the Official Secrets Act is an outdated colonial legacy that is inconsistent with human rights and the rule of law.

“The punitive use of antiquated laws against journalists threatens the development of a democratic society in Myanmar,” he said, adding that “to fulfill its stated commitment to the rule of law the NLD [National League for Democracy] government should immediately amend these repressive colonial-era laws.”

Myanmar Journalism Institute training director U Sein Win said journalists in Myanmar have to be more careful when handling government documents these days, explaining that they are more vulnerable to prosecution under the Official Secrets Act because nearly everything related to the government is considered “secret.”

“So, the law has to be fixed. If not, it is highly likely that more journalists will face prison terms under the Official Secrets Act,” he said.

According to the human-rights NGO Free Expression Myanmar (FEM), the Official Secrets Act as deeply anti-democratic and needs to be replaced with a modern law that protects freedom of information and defines official secrets in a very clear way with safeguards for publishing information that is in the public interest, such as on government wrongdoing or corruption.

“Myanmar’s government pretends the Official Secrets Act is for national security, but everyone can see they use it to hide allegations of their own wrongdoing,” said Daw Yin Yadanar Thein, the program manager of FEM, referring to the Reuters case.

She said Britain reformed its version of the law in 1989 following public demands for a more democratic approach to the right to information. “But Myanmar has kept its colonial version,” she said.

The new British law also makes it clear that “only government officials have a duty to keep information secret. Under their amended law, journalists or activists could never be held liable for having information leaked from the state,” Daw Yin Yadanar Thein added.

The FEM supports amending Articles 3 (under which the Reuters journalists were charged) and 5 (which also criminalizes the sharing of information about the government) of the Myanmar law so as to define clearly what information must be kept secret to protect national security, and to include a “public interest” test so that the law cannot be used to hide corruption and wrongdoing.

Reform of the nearly 100-year-old law was debated in Parliament in 2014 after the jailing of the Unity journalists. Describing the law as oppressive, U Thein Nyunt of New National Democracy Party told the Parliament that the act should be amended to bring it in line with the 2008 Constitution and reflect the rights of citizens and the news media.

But his attempt to reform the law was in vain; then Deputy Minister for Home Affairs Brigadier General Kyaw Kyaw Tun said, “The amendment would prevent action against people intruding into a prohibited area and would effectively kill the law.” With no other lawmakers will to support reform of the law, the Parliament took no further action.

The FEM has been advocating for the amendment of the act, along with other repressive laws, since 2014. When the NLD came to power in 2016, Daw Yin Yadanar Thein said, the NGO had meetings with officials, including those from the Attorney General’s Office and Ministry of Information, to lobby for reform.

“They referred the cases to and fro. But there has been no green light yet,” she said.