The case against two Reuters journalists jailed in Myanmar will proceed, with a judge today giving the green light to hear charges laid under the colonial-era Official Secrets Act.
The pair face a maximum sentence of 14 years and have already served seven months behind bars. Critics say the case against Wa Lone and Kyaw Soe Oo, which has galvanized criticism from high profile personages as diverse as the Pope to horror scribe Stephen King, has been flimsy from the outset.
From the admission by key witnesses that the pair were set up, to the falsification of documents by police, to forgetful witnesses scrawling notes on their hands, to the fact that the “secret documents” in question weren’t secret at all — each new twist in the saga would be laughable if the stakes for the country were not so high.
The reporters are now officially charged under the Official Secrets Act’s Section 3.1c, which pertains to the possession, distribution or transmission of documents that “directly or indirectly” would be “useful to an enemy” of the state.
The case so far has been widely viewed by independent observers as an arbitrary application of archaic and overbroad legislation. Many regard the charges as intended to silence critics of the military and send a chill through the press corps, which by any measure has had the desired effect.
This case is as high profile as it could possibly be. Foreign embassies have been vocal in calling for the charges to be dropped. Across the board, there has been significant backsliding on press freedom in Myanmar, particularly when it comes to the issue of reporting on military abuses in the country’s conflict-riddled periphery.
A number of journalists have left the country following threats and harassment; others have simply backed away from hard-hitting reporting.
On the campaign trail, State Counsellor and de facto national leader Aung San Suu Kyi’s answer to many questions emphasized the need for greater “rule of law.” She has since clarified that the country’s legal framework must be effective and just, and that amendments should be sought in cases where the public felt the law to be unjust.
While laws that were commonly used during direct military rule to haul in dissidents and suppress dissent have been amended, there has been little movement on those most commonly invoked in political cases. Meanwhile, new repressive provisions have emerged, namely 66(d) of the Telecommunications Act, that criminalize free speech and are being put to widespread use, including by prominent NLD members.
The Official Secrets Act used against the Reuters reporters is particularly controversial. In 2014, one parliamentarian argued it was oppressive, a relic of colonialism and not consistent with other provisions in the 2008 constitution.
At the time it was revealed in parliament that the colonial era law had never been officially translated from English into Burmese, a fact that then House Speaker U Shwe Mann indicated he would seek to address. It was later translated but never amended.
Nor has the NLD government made good on its promises to free all political prisoners. According to a June report from Assistance Association for Political Prisoners in Burma, an independent monitoring group, there are still 245 political prisoners in the country, including 48, like the Reuters’ reporters, being held in pre-trial detention.
By comparison, the military regime held well over 2,000 political prisoners before a mass amnesty in 2012. Currently, 122 ex-political prisoners are serving as parliamentarians, many associated with the NLD, according to AAPPB’s count.
They include those in both houses of the national legislature, state parliaments and high level officials including the president and state counsellor.
The Reuters case is likely to drag on for months: Myanmar’s overburdened and critically under-resourced legal system is often beset by major delays. Time served is often factored into sentencing.
The revelations contained in a Reuters’ report on the massacre of 10 Rohingya men at Inn Din village, believed to be the real reason behind the charges, have been in the public domain for many months now.
Domestically, the military’s explanation that the men were executed amid the chaos of clashes with ethnic Rohingya insurgents has been widely accepted. The military has prosecuted some of its own for a handful of killings in Rakhine state, including some of those involved at Inn Din.
While the lack of transparency in military court proceedings is not unique to Myanmar, legal and rights groups question whether those with command responsibility for extrajudicial killings are truly being brought to justice.
While government intervention in legal proceedings could open the way to allegations of overreach, the lack so far of any high-level guidance or signaling is more likely due to political expediency – lest any intervention be seen as a move hostile to the autonomous and powerful military.
The court’s decision to allow the case to proceed should raise concerns that a firmly entrenched and emboldened military is able to exert a worrying amount of influence on the course of justice, despite recent democratic gains.
At worst, it shows a civilian government willing to shoot the messenger while purporting to uphold democratic reforms. As the world watches what many already view as a travesty of justice, the credibility of Myanmar’s judiciary and wider democratic transition will be at stake.