The Irrawaddy

Journalists’ Case to Test Judiciary

The ball is now in the court of the judiciary when it comes to the recent arrest of three reporters.

“It is not for us to comment on how the various cases should be tried in the court. That’s for the justice sector to take care of,” said Daw Aung San Suu Kyi on Thursday when asked about the recent arrest of three reporters.

Myanmar’s de facto leader said in a press conference on Thursday, “But if we think the justice sector is not doing its work well, then we have the responsibility as the executive to take necessary actions.”

The State Counselor was commenting about The Irrawaddy’s reporter Lawi Weng (Thein Zaw) and DVB reporters Aye Nai and Pyae Phone Aung who were arrested by the military and charged under the Unlawful Associations Act enacted by the British colony in 1908.

I think what she said can be interpreted as the justice sector should act independently. That is exactly what it is supposed to do. But the question is whether the judiciary in our country is independent.

The problem Myanmar still faces today is that courts and judges have not yet emerged from the bad legacy of the past, in which the judiciary was controlled or at least influenced by the country’s authoritarian and military systems after a 1962 military coup d’état. The country has opened since 2011 but reform of the judicial system has lagged far behind reform in other sectors, even under the democratically elected government of Daw Aung San Suu Kyi.

Courts here were no more than a stage that was influenced by authorities or bought by the rich. During the military regime from 1988 to early 2011, military authorities instructed judges and courts to give lengthy sentences to those who were charged in connection with anti-government activities. No courts could deter these arbitrary sentences and most of the judges merely read verdicts from paper that had come from upstairs. Otherwise, military trials directly handled such cases. For apolitical cases, those who were rich enough to buy judges or had connections with high-ranking military officials usually won.

Nothing significant has changed over the past few years. Local legal experts say that the country’s judiciary operates based on the military-drafted 2008 Constitution. In 2011, the general-turned-president U Thein Sein appointed current judges for the Supreme Court with a former military official as Chief Justice of the Union. The 2008 Constitution allows them to hold these positions until they turn 70.

Like many critics, I doubt that such judicial system will bring justice for the three reporters of The Irrawaddy and DVB.

But Daw Aung San Suu Kyi is obviously aware of this situation. She added in the press conference: “But if we think the justice sector is not doing its work well, then we have the responsibility as the executive to take necessary actions, so this should not be seen very narrowly as three journalists against the army or vice versa, but in general, as to whether the existing laws now are in line with our desires for justice and democratization.”

It seems to me that that’s also the message for the courts and judges, especially for particular courts and judges that will handle the arrest of the three journalists in northern Shan State and The Voice Daily’s editor U Kyaw Min Swe. It’s pretty clear that both she and her government can’t tell the military not to prosecute those that they want to. But the verdict for the three journalists will be in accordance with the law if the court or judge acts independently.

The State Counselor continued to say, “And if they are not in line with our desire for justice and democratization, then we must go to due process of amending the laws through the legislature. And we have to make sure of course that our courts are vetting the integrity.”

The upcoming court date for our three journalists will be a trial in which we will see whether the court and its judge will act independently and justly without being influenced or intimidated by anyone.

Thus, the ball is now in the court of judiciary. This case will be another testimony for the country’s judicial system.