In the beginning of 2017, there were already two cases filed under the infamous Telecommunications Law of Myanmar. One of those cases involved a prominent investigative journalist — Swe Win, 38, who is the chief editor of Myanmar Now News Agency, has been intensively contributing news on various human rights issues across the country. He was accused of insulting the Islamophobic monk U Wirathu for sharing a news report on his Facebook page. This is a developing story.
Validity of the defamation case
On 15 March 2017, Swe Win and his lawyer Khin Maung Myint met with two police officers from Mandalay at the Myanmar Journalists Network (MJN) Office. The lawyer has advised the police to use the processes of the Myanmar Press Council after verifying the merits of the defamation case with the Ministry of Religious Affairs and Culture and State Sangha Maha Nayaka Committee (Ma Ha Na). He has suggested to secure the necessary statements from these two bodies before proceeding.
Khin Maung Myint pointed out that the complainant has yet to specify under which article of the Telecommunications Law Swe Win is being charged with.
Threats to the journalist
On 14 March 2017, Swe Win was assaulted by three men around 9 p.m. on his way home after the dinner hosted by United States Ambassador Scot Marciel. Swe Win was able to flee from the scene when one of three men approached and asked him: “Are you Swe Win?” After 15 minutes, the village-head and policemen arrived at the editor’s house asking about the incident.
On his Facebook account, Swe Win shared the encounter and CCTV (closed-circuit television) images of the three men. He and the village-head received the video surveillance from the owner of the beer station, where the attackers went before they met with Swe Win. He noted that one of the men took his close-up photo using a Huawei phone without consent. On 15 March 2017, Swe Win filed a case at the Sanchaung Township Court against the three for verbal threats and attempted assault.
This incident followed a lawsuit against the editor filed on 7 March 2017 under the country’s notorious Telecommunications Law for sharing a news article on his Facebook account “Ba Kaung.” Swe Win’s post quoted a sentence from the news article saying that ultra-nationalist monk U Wirathu violated the monastic code of conduct in expressing support for the assassination of National League for Democracy (NLD) legal advisor U Ko Ni. The editor has previously received death threats on social media following his and Myanmar Now’s reporting on the U Ko Ni murder.
Kyaw Myo Shwe, a resident from Mahar-aung-myay Township in Mandalay, filed the case against Swe Win for the U Wirathu-related Facebook post. He is a strong follower of the Association for the Protection of Race and Religion (Buddhist nationalist group Ma Ba Tha, of which U Wirathu is the vice-chairman). Meanwhile, a resident from Yangon’s Sanchaung Township filed a case under Article 66(d) against Kyaw Myo Swe for allegedly defaming Aung San Suu Kyi on his Facebook status.
Details of the defamation case
Using the “Ba Kaung” account, Swe Win shared the news report titled “Ma Ba Tha warned to those who want to amend the constitution” and published by Myanmar Now on 27 February 2017. Along with the news link, he wrote: “It was known that Wirathu incurred parajika so that his monkhood was over. It might not be only now that he incurred parajika.” The status referred to a comment in the news article but Swe Win did not identify the speaker and other details. The comment was by U Sein Ti Ka, a monk from Mandalay who joined the 2007 Saffron Revolution, saying that U Wirathu was guilty of third parajika.
U Wirathu asked Swe Win to apologize within a week following his post, but the editor refused to do so. Thus, the monk’s follower filed a defamation case.
Support from the media and civil society
Swe Win and Myanmar Now have been publishing comprehensive investigative reports on human rights issues. His coverage of the abuses in prison labor camps led Ms. Yanghee Lee, a Special Rapporteur on the situation of human rights in Myanmar, to visit and check the situation herself. Another of their investigative reports revealed how two teenage maids were tortured and mistreated. He received the President’s Certificate of Honor from the Ministry of Information for this report. In December, the Myanmar Press Council gave him an honorary award for revealing the failure of the police and authorities to resolve this case. The reports led to the resignation of four members of the Myanmar National Human Rights Commission (MNHRC).
After the defamation case was filed in March 2017, 10 media and human rights organizations including the Myanmar Journalists Association (MJA), Myanmar Journalists Network (MJN), Myanmar Journalists Union (MJU), Burma News International (BNI), and Pen Myanmar have issued a joint statement condemning the possible charges against Swe Win.
The statement mentioned Swe Win’s record as a journalist informing the public of his ethics and professionalism to discourage the spread of “hate speech” against him. The organizations were concerned that instead of exposing and stopping those behind the hate speech, the lawsuit punishes the individual who is after the truth and hence, caused a threat to free speech and hindered the functions of a peaceful and democratic society. The statement called for the abolition of Article 66(d) of the Telecommunications Law and its continuous abuse.
From the regional level, press freedom advocacy group Southeast Asian Press Alliance (SEAPA) urged the Myanmar Press Council to assert its role in addressing these cases, and the police not to pursue charges against Swe Win and protect him from further harassment.
Since the filing of the case, many journalists and civil society groups has called to drop the lawsuit and stand for Swe Win. Ms. Ying Cheng, a journalism professor from Hong Kong University – where Swe Win studied journalism courses in 2008 and 2009, created the Facebook page “Support Ko Swe Win.” The initiative asks the help of international media organizations and universities, and aims to amplify the voices of support for Swe Win if he was arrested. The page, the first of its kind which supports a particular journalist in need, has gotten more than 2,000 followers in a couple of days. It contains updates photos, and news and information related to Swe Win, his accuser, and other related information.
Increasing cases under Article 66(d)
Maung Saung Kha, a poet and activist from the Committee for Amending the Telecommunications Law, told SEAPA that there are 53 cases filed under Article 66(d) as of 10 March 2017.
In February 2017, the Committee’s research team released their Analysis and Recommendation Report. The team consists of information and technology (IT) and legal experts studying to amend the Telecommunications Law.
Of the 49 cases filed under Article 66(d), a total of seven were under former President U Thein Sein’s administration and 42 were under the present administration National League for Democracy (NLD) based on the team’s 13 January 2017 report. Noteworthy, 10 media workers were charged under the NLD Government.
The research highlighted how the weaknesses of Article 66(d) can be abused. For example, the vague definition of “defaming” and “disturbing” can be subjected to a number of interpretations as to what the words constitute. Under the Telecommunications Law, any third party can file a lawsuit. Seeing a problematic trend, citing the past year alone, third parties initiated the most cases and not the “actual victims.”
Maung Saung Kha pointed out that this law has become dangerous as it was being used as a “prejudice tool” by individuals and organizations. He emphasized the impact of abusing the law — people gagging their criticisms against the government could lead to corruption in government. He expressed the urgent need to amend the law and prevent the increasing number of cases in the future.
The four-part research (28 pages) included sections of the Telecommunications Law for amendment – Articles 66, 68, 70 and 80 – and explained the reasons for the proposed changes.
Different views for amendment
The media and civil society are alarmed with the misuse of the law, especially under the NLD Government, and have warned against its negative effect to free expression and media freedom. Many, particularly activists and human rights groups, have called for the amendment of the Telecommunications Law or the complete removal of Article 66(d).
There have been different views inside the NLD party with regard to the amendment. Local news reported that NLD member of parliament (MP) Ye Htut from Saggaing Region submitted his proposal to discuss these issues within the party’s internal scrutinizing committee since two months ago. But the committee rejected his proposal reasoning that it is not yet the appropriate time to have a discussion.
In another news report, Central Executive Committee (CEC) member U Nyan Win said the law should be abolished completely. The law, a result of compiling existing laws from the penal code, has changed the rules on bail and sentencing to the detriment of rights. CEC member U Win Htein, also the party’s spokesperson, countered this argument saying Article 66(d) prevent “chaos” from proliferating on social media.
In Myanmar Now’s latest news, Ye Htut emphasized that the law should be used by victims themselves and not allow any third party to file on their behalf. It should be amended in such a way to avoid any negative impact on the individual’s freedom and security, as well as the values of democracy. He said he would resubmit his proposal when the situation is more favorable.
Maung Saung Kha felt that the NLD Government has neglected the amendment of the law as an urgent issue. He was worried that freedom of expression in the country would worsen should the democratic government further delay the amendment of the law.
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