Open Letter to the State Counselor

By Kyaw Zwa Moe 5 June 2017

Dear State Counselor Daw Aung San Suu Kyi,

I hope your trip to Canada and Sweden is going well. I have no intention at all to bother you, as I know you will have important meetings with the leaders of those countries to discuss their own transitions to a federal democracy, and how they might inform our own.

Like many people, I understand that this is the most important issue for your government and our entire nation.

However, I’d like to raise an immediate issue that is damaging the reputation of your government, due to an unfortunate legacy.

It might not be as important as restoring the peace process or building a federal nation—priorities of yours since you assumed the role as a de-facto leader of our country. But it is also an issue that your government and Parliament should take into serious consideration without delay.

There is something ugly occurring which I, like many people, believe should not be happening. It concerns Article 66(d) of the Telecommunications Law.

You must be aware that for the past 14 months under your administration, 61 defamation cases have been filed under Article 66(d). Out of these 61 cases, around one dozen journalists were charged and many of them are still awaiting trial.

The latest targets of the statute are U Kyaw Min Swe, chief editor of The Voice, and the publication’s regular columnist Ko Kyaw Zwa Naing, known by his pen name British Ko Ko Maung. They were taken into custody on Friday. The Burma Army filed a lawsuit against the pair under Article 66(d) over a satirical article that questioned the country’s armed struggle and peace process.

I know that 66(d) is not a creation of your government. It was enacted by ex-President Thein Sein’s quasi-civilian administration in 2013. The article bans the use of a telecommunications network to “extort, threaten, obstruct, defame, disturb, inappropriately influence or intimidate.”

Many people believe that the previous government, run by ex-generals, created such a legal mechanism to be able to sue those who stood against their administration. Of the seven cases filed under the Article 66(d) during their tenure, five led to sentencing. Three cases were filed due to “defamation” against the commander-in-chief of the military while one was against then-President Thein Sein. Only one case was filed due to “defamation” against you.

I am sure you, your government and Parliament are quite aware of the previous government’s intentions.

After all, 61 cases have been put forward using this article under your National League for Democracy (NLD) government to date. This has been shocking, indeed, and indicates that something has gone wrong under the NLD-government. However, I don’t interpret it to mean that your government is solely responsible for all of the cases.

According to the Research Team on the Telecommunications Law led by activist Maung Saung Kha—a poet who was himself sentenced and jailed in 2016 under Article 66(d)—the military has used the law to file seven lawsuits while members of the NLD used the article to file six lawsuits. Meanwhile, other known NLD supporters have used the article to file eight lawsuits because they believed others defamed you as the State Counselor. Thus, out of 61 cases, it is believed that around 20 of the cases were politically motivated.

What surprises me is why the NLD government or its Parliaments have let its members and supporters apply this controversial law created by the previous government against individuals today. Even high-ranking officials of the NLD administration and the party have turned to 66(d), rather than more standard defamation charges described in penal codes.

In terms of defamation, there exists Article 500 of the Penal Code. Perhaps the previous government and former parliamentary members of the then ruling military-backed Union Solidarity and Development Party thought that “defamation” over the internet, through the use of social media, might have been more damaging than traditional methods of communication or media.

I can only conclude that some of the NLD government’s officials and key members of the current parliaments share the view with those who enacted Article 66(d) in 2013.

That might be one reason why it has taken far too long to review this controversial law. Many activists have demanded that Parliament repeal or amend the law, so that it is not abused by influential people or institutions. Those activists are disappointed, as it seems that the current democratic administration will this controversial law to be misused by anyone.

State Counselor, I personally believe that it’s high time to review Article 66(d) through concerned parliamentary committees. As long as this controversial statute is yet to be addressed, we will see more individuals, including journalists, be jailed under charges of “defamation.” It’s ugly, isn’t it—both for our country and for your administration.

Kyaw Zwa Moe is the editor of The Irrawaddy’s English edition.