Free Speech Advocates: Proposed Changes Make Telecoms Law ‘Worse’

By San Yamin Aung 11 July 2017

YANGON — Free speech advocates slammed the government’s draft bill to amend Myanmar’s Telecommunications Law on Monday as failing to address expressed concerns about the controversial statute.

Twenty-two civil society organizations that jointly advocated for the reform of the law and the termination of Article 66(d) called for there not to be a rush to approve all proposed amendments, and for urgent public consultations to take place.

Maung Saungkha, who was jailed under Article 66(d) of the law last year for writing a poem deemed insulting to the former president, said that the draft has made the statute worse in some ways. In particular, he highlighted the proposed removal of a requirement to seek permission from the Ministry of Transport and Communications to file charges under the law.

“This would put everything in the hands of the police,” Maung Saungkha said, including acceptance of a case, bringing charges against the accused, and following through with detainments. “The police force is under the home affairs ministry and the home affairs ministry is under the military. It is really worrisome,” he said, adding that the number of cases opened by the military have increased in recent months. According to a research team he leads, there have been seven such cases.

“All of our recommendations have been neglected including the termination of 66(d),” he added.

Article 66(d) has been used in recent years to prosecute individuals for “online defamation,” including members of the media who have been detained and jailed.

It calls for up to three years in prison for “extorting, coercing, restraining wrongfully, defaming, disturbing, causing undue influence or threatening any person using a telecommunications network.”

The draft bill that was publicly released on Friday suggests three significant changes to the Telecommunications Law. It states that the accused who are charged under articles 65 and 66(a), (b), and (d) may be granted bail, and that third parties would be banned from opening cases unless they are affected directly by the action or are acting on such an affected individual’s behalf. Finally, charges filed under articles 66(c), (d) and article 68(a) of the law would not require permission from the Ministry of Transport and Communication to proceed.

The first two changes were welcomed by some Myanmar social media users as a slight improvement to the law, as many of those who were charged have been denied bail and detained for long periods, even remanded to jail during trials.

Many of the individuals prosecuted under the law have been accused of defaming the country’s leaders: former President U Thein Sein, State Counselor Daw Aung San Suu Kyi and Myanmar’s army chief Snr-Gen Min Aung Hlaing, despite the fact that the leaders themselves did not personally file the cases; their supporters did on their behalf.

But Maung Saungkha, who has been advocating for reforms of the Telecommunications Law and the termination of Article 66(d), pointed out the proposed change to allow the granting of bail still can be exercised at the judge’s discretion, because it stated that the accused “may” be granted the bail, not “must.”

Legal adviser U Khin Maung Myint told The Irrawaddy that from a legal perspective, provisions concerning bail are generally not added to the primary law. According to Myanmar’s criminal procedure, it is stated charges which can be accompanied by three years or more in jail shall not be granted bail. Thus, in order to guarantee bail, the terms of imprisonment under the law must be reduced to less than three years.

But Friday’s draft failed to do this, he added.

“I would like to recommend reducing the imprisonment from three years. I don’t want to exclude the seeking of permission from the ministry. Instead, we need to add that the police must get permission from the ministry before they take the accused into custody,” U Khin Maung Myint said, emphasizing that “the law shouldn’t be a police case.”

As much of the determination lies in the hands of the police, they can arrest the accused right after a complaint is filed, meaning that the accused would be detained even they are later found not guilty.

How will they give that time back, U Khin Maung Myint asked.

Local media outlet 7 Day Daily reported that the Upper House Bill Committee’s chairman U Zaw Min said after the parliamentary meeting had ended on Monday, the bill had arrived at the Parliament and that lawmakers would carry on with examining the amendments as soon as possible. He added that they would carry out a public consultation before implementing changes.

According to an Upper House lawmaker, the draft has been distributed amongst legislators and will be discussed soon.

“We will keep advocating for what concerns us. If the [current] amendments are enacted, it will be difficult to make further changes,” Maung Saungkha said.