Ten Months After Telecom Law Amendments, Defamation Cases Remain Common

By San Yamin Aung 19 June 2018

YANGON — Amending the heavily criticized Telecommunications Law has been one of the most significant legal reforms undertaken so far by the National League for Democracy-led government.

The Parliament passed changes to the law in August last year following months of outcry over the growing number of defamation cases opened under the legislation.

Yet, free-speech advocates doubt the effectiveness of the reforms in addressing their concerns, as the most controversial provision of the law, Article 66 (d), which they want repealed, remains in place.

Now, 10 months after the amendments, according to Maung Saungkha of Athan, a freedom of expression activist organization, the only change has been that no more individuals have been prosecuted under the law for defaming State Counselor Daw Aung San Suu Kyi. Previously, there were 10 cases in which supporters filed lawsuits on her behalf as they felt she had been defamed.

Prior to the amendments, many individuals prosecuted under the law were accused of defaming national leaders including former President U Thein Sein and Myanmar Army chief Senior General Min Aung Hlaing, despite the fact that the leaders themselves did not personally file the cases.

The amendments passed in August last year ban a third party from filing a case unless that individual has been granted legal power to do so by the “defamed” individual — a move that was considered a way of reducing the number of cases opened under the law.

Two other significant changes under the amendments are allowing bail to be granted to defendants, and a reduction in the maximum prison sentence to two years from three.

Maung Saungkha said the amendments had been ineffective as many cases relating to authorities such as government officials, political parties and religious leaders continue to be filed.

He cited a recent case in Arakan State in which an official from the State Education Department opened a case against regional lawmaker U Than Maung Oo under Article 66 (d) over his online post criticizing the state’s education system, economy and heath care system.

“The government is asking the public to be patient regarding its work, but it can’t tolerate public criticism,” he said.

According to Athan, even after the amendments, 27 cases had been filed under Article 66 (d) within 10 months as of June 5.

Before the amendments to the law, there were 90 cases within a year and four months of the NLD taking power, compared to 11 cases under U Thein Sein’s government after the law was originally enacted in 2013.

Of the 27 cases filed since the amendments to the law, Maung Saungkha said most were filed by nationalists including supporters of Buddhist monk U Wirathu who have opened cases on his behalf.

Maung Saungkha, who was jailed under Article 66 (d) of the law in 2016 for writing a poem deemed insulting to ex-president U Thein Sein, said that as a result of the failure to terminate the provision, the law is still being used to stifle dissent and remains a threat to freedom of expression despite the amendments.

In a recent report published by Athan on June 10, the group asked the government to terminate the provision.

Maung Saungkha said the second-most important factor is that the law still treats the violation as a criminal (rather than civil) offense, which means police can arrest the accused after a complaint is filed and detain them, even though they have yet to be found guilty.

Legal adviser U Khin Maung Myint said the number of cases being filed under the law is not declining as expected, as the police and the courts are accepting cases without properly understanding the amendments.

He said that in many cases, the institutions are accepting cases filed by a third party despite the clear provision in the amendment requiring the granting of legal power to do so by the affected person.

He said the amendments were also intended to reduce punishments. But the prosecuting institutions generally still do not do this, even though they also have the option of fining those who are found guilty.

“Amending the law is not done [for the sake of] legal reforms; the government should review the amendments to see whether they have improved the situation,” he added.