Starting from scratch on freedom of information

Trishaw driver reading paper

A trishaw driver reads a newspaper while waiting for passengers in downtown Yangon. (Photo: Wei Yan)

There is yet any hint of official recognition of the public right-to-know in Burma, after half a century of military rule. Presently, any public or individual attempt to access state-held segment of social, economic and political information receives a response of blunt-denial or, very likely, a backlash of punishment.

‘Incommunicado’ is the normal mode of state response that public could expect in the exercise of their right to freedom of information under the ruling government. Legal protection for those who claim this right to accessing information is not guaranteed in any case. Also, public information is sealed off as exclusive state property and guarded tightly to shield the interest of a privileged few.

Following the previous 2010 elections, restored civil liberties and press freedoms fueled the demand for public right-to-know, but a the confines of civic space and debate quickly became evident, and momentum also ultimately dropped off.

This time, given the dramatic political changes heralded by the recent 8 November elections, it is expected that the general public will have a chance to seek information that matters in their lives without personal risk. .

Country context

As a member of the Association of Southeast Asian Nations (ASEAN), Burma is also gearing up to embrace the ASEAN Community, which takes effect at the end of 2015.

In the past 20 years, only two ASEAN countries adopted national FOI laws. Even then, there is a gap, in both Thailand and Indonesia, in implementing their FOI laws.

The rest of ASEAN still lag behind in the global shift towards the free flow of information, as a core value in democratic governance. Despite the demands and desire of national and regional civil society, many countries in the region, including Burma still refuse to empower their own people through better access to information that matters in their life.

Burma, officially known as Republic of the Union of Myanmar is comprised of seven states and seven divisions. Consecutive ruling juntas have ruled the country through harsh, centralised the national governance. Various ethnic groups have waged armed insurgencies in a bid for improved federal autonomy since gaining independence in 1948. As a result of the various conflicts, its isolationist policies and repression of human rights, democracy have stunted nationwide development as a constant challenge for the country of 52 million.

The current constitution was drafted by the military government in September 2008, which is the country’s third constitution since independence from the British. As a parliamentary republic with a bicameral legislature, 25 percent of the legislature are reserved for appointed representatives of the military personnel.1 Despite the relaxation of civil liberties and press freedom since 2011, the country’s outdated and draconian laws are still in place and practiced as to deter any attempt to access information.

One quest echoes to many

Ma Thandar 3

Activist-politician Ma Thandar on the campaign trail for a parliament seat in Einme township. (Photo: Ma Thandar’s Facebook page)

Ma Thandar was recently elected in the 8 November elections in Einme Township of the Irrawaddy Delta under the banner of Aung San Suu Kyi’s National League for Democracy (NLD). Her choice to represent the marshy town of the Delta in the National parliament is a triumph of aspiration for public service for the respected activist and former political prisoner.

Prior to campaigning for elections, Ma Thandar has been seeking justice and information on the killing of her husband in 2014 while in the military custody . Her husband Aung Kyaw Naing, a.k.a. “Par Gyi”, was a freelance journalist, reporting on armed-conflict related news to the various Rangoon-based publications.

While on a reporting trip to Mon State, southern Burma in September 2014, Aung Kyaw Naing was apprehended by the military, and days later was shot to death. The military claimed that he was a liaison officer for the Karen Benevolent Army, an ethnic armed group. The army announced his death with a letter to the country’s Interim Press Council weeks after his death, saying he tried to escape.

Since then, Ma Thandar has launched unflagging efforts to seek justice and answers from the responsible authorities on the untimely dead of her husband. Thus far, she has been unsuccessful.

A death inquest was opened, but Ma Thandar and her lawyer were not informed or invited to any hearings for several months.

Initially, two soldiers were identified for the crime and a later court verdict in Mon State ruled that the journalist was shot to death. The ruling failed to name anyone responsible. Subsequently, the Myanmar National Human Rights Commission (MNHRC), discovered that the two soldiers had been already been acquitted by the Court Martial:

“As it was affirmed that the death of Ko Aung Naing (a) Ko Aung Kyaw Naing (a) Ko Par Gyi occurred during the period of active service, it came within the jurisdiction of the Court Martial under section (72) of the Defence Services Act. Accordingly the case was heard by a Summary General Court Martial as Case No (146/147) under the provisions of the Defence Services Act 1959, the Code of Criminal Procedures and the Rules and Procedures of the Court Martial and an order of acquittal was passed on two guard soldiers of (210) Light Infantry Regiment namely Lance Corporal Kyaw Kyaw Aung and Private Naing Lin Tun under section 71 of the Defence Services Act and section 304 of the Penal Code. The order was upheld by the Commander of the Southeast Command, it was learnt.”2

The MNHRC had endorsed “for attainment of the fundamental rights of the citizens and also for transparency in the eyes of the public, [that] this case should be tried in a civil court”3.

The ruling prompted Ma Thandar to send an objection letter to the defence minister and commander-in-chief. However, the chances of receiving any reply from either recipient is very slim for her.

MNHRC’s statement also included information from the Ministry of Defence affirming that the case was held according to the 2008 Constitution, the Code of Criminal Procedures and the Defence Services Act. A reference to the section 304 of the Code of Criminal Procedure implies that a person cannot be retried for the same offence. Hence, the civilian jurisdiction is not likely be to pursued for the case anymore.

Ma Thandar’s quest for justice and information about her husband’s death has not been answered yet. Her attempt of the right to know mirrors the current states of transparency and accountability in Burma. Her grief and pain is also shared by so many others, whose inquests for their lost loved ones have also not been resolved yet.

In the name of national security

Burma’s over-broad and vaguely-defined national security laws are often applied to bar any attempt to access information of public interest. Harsh penalties are time and gain pronounced to set examples to discourage possible future attempts. The presence of at times overlapping provisions of these laws restricts the right to freedom of expression, including access to information. Thus, it is of vital importance to push for reform in these legislations in accordance with dignity and respect for human rights.

Recently, one of these laws was applied against newspaper owner U Tin San for authorising his reporters to access, take pictures and file an investigative report on an alleged chemical weapons facility belonging to the army. The report was intended to raise public interest based on the fact that Burma is a just signatory of the Chemical Weapon Convention (CWC), but has not yet ratified.

Tin San and four journalists were sentenced to 10 years of imprisonment with hard labour on 28 August 2014. They are still behind bars, even though their sentences have been reduced to seven years after appeals.

The law in this case – section 3 of the Official Secrets Act – was enacted in 1923 when Burma was still a British colony. This law was patterned after the British Official Secrets Act of 1911, targeting at espionage of rival foreign countries, which is irrelevant under Burma’s current context, and not to mention for its application to local journalists.4 In this case it was applied to persons wsuspected of being a threat to national peace and security. 

Until August 2012, Burma’s censorship bureau the Press Scrutiny and Registration Division under the Ministry of Information – had absolute authority to block and bar any publication deemed as an impediment to the State’s peace and order. The censorship body held sway for nearly five decades since the enactment of the Printers and Publishers Registration Law introduced after the 1962 coup d’état.

The abolition of the PSRD in 2012 heralded the relaxation of the country’s media environment.5

newspaper stand

The lifting of pre-publication censorship in Myanmar led to a dramatic increase in privately-owned newspapers in Myanmar. (Photo: Wei Yan)

Rights and restriction in new laws

The News Media Law, drafted by the interim Press Council, was enacted in March 2014. It was hailed by the state-owned press as opening a new framework for freedom of press and access to information.

Many have also expected the new law to replace the repressive 1962 Printers and Publishers Registration Law. But, much to the dismay of observers, the News Media Law only replaced the overlapping provisions of the 1962 law.

Furthermore, the Ministry of Information (MOI) has endorsed a new Printers and Publishing Enterprise Law, that retained many restrictions on publications as the 1962 law. The parliament enacted the two laws together in 2014 .

The news media law contained new guarantees for rights and entitlement of news media workers in general, which were not recognised under any law of the country thus far. However, these protections are mostly limited by existing regulations that can be leveraged against the guarantees of the law. It also prescribes penalties for offences to a prescribed code of ethics.

The law establishes for the first time a Media Council to be appointed from representatives of different sectors of the news media, concerned communities, as well as persons selected by the President and both houses of parliament. The presence of state appointees raises the question of independence of the Media Council from the state influence.

According to the law’s implementing rules, government departments, ministries and public organisations are required to reply within 24 working hours to the inquires of present events and 15 working days for the past events upon request on information by the media. Journalists can file complaints if public bodies refuse to give information without any substantive reason.

The scope of mechanism in dealing with inquires and complaints have not been tested yet, as the implementing by-laws have just been released recently.

However, despite the relative progress in terms of media rights, the News Media Law is effectively crippled by the new version of Printers and Publishers Registration Law.

Just recently on 23 November 2015, five men were charged with breaking Article 4 of the 2014 and fined US$800 each for their role in publishing the 2016 calendar which contained the term ‘ Rohingya’. The prosecuted law forbids a range of contents from being published including those that could threaten national security, law and order.

While the Printers and Publishers Registration Law does not prescribe any criminal sanctions for such offences, the alleged offenders were arrested the following day and sent to Insein Prison under Section 505 (b) of the Penal Code for publishing or circulating any statement, rumour or report with the intent to commit an offence against the state or public tranquillity.

From Offline to Online Restrictions

Burma contributed six percent to the 87 million rise of worldwide mobile subscribers in the past quarter of 2015, indicating that the country is the fourth-fastest growing market on mobile telecommunication industry 6.

The notoriously expensive prices of sim cards went down dramatically to enable 28.1 million people to be connected to mobile phone networks as of March this year, or a total penetration rate of 54.6 percent. In spite of this, the space of free expression on the internet remains restricted due to the existing laws and policies that penalise online expression and online access to information.

The Electronic Transactions Law, enacted on 30 April 2004 under the previous regime and comprises of 52 Articles in 13 chapters7, and includes a provision of up to 15 years jail time for “transmitting, receiving and storing local and foreign information simultaneously, making use of electronic transaction technology” and “receiving , sending and distributing any information relating to the secrets of the security of the State or prevalence of law and order or community peace and tranquility or national solidarity or national economy or national culture”.

The law has been used beyond an addressing of cybercrime and cybersecurity concerns. Rather, it has been frequently applied to prosecute individuals or organisations with criminal and defamation charges for their legitimate expression of social and political opinion.

Since such murky and catch-all laws are abused for political maneuvering, the state measures often transgress international human rights laws and standards, particularly Article 19 of the International Covenant on Civil and Political Rights (ICCPR), on freedom of opinion and expression. Furthermore, judicial bodies often act on behalf of the state to punish offenders of the law.

However, work to replace this controversial and garish Electronic Transactions Law has already kicked off. On 21 August 2013, the seventh regular session of the Lower House has favored a proposal to amend the Electronic Transactions Law, although the bill is yet to be passed.

Nay Phone Latt

Former political prisoner, now state parliamentarian Nay Phone Latt displays his left pinky finger after voting on 8 November. (Photo: Nai Nai)

Nay Phone Latt, a newly minted lawmaker for the upcoming government under the National League for Democracy, was sentenced in 2008 to 2o years of imprisonment under Article 33 of the law for emailing exiled activists. He was released on 13 January 2012 as part of a mass amnesty for political prisoners. Nay Phone Latt’s personal experiences led him to become an advocate to curb the law’s Orwellian clauses. He was quoted two years ago was quoted in the media on the law that stole five years of his youth: “Not everything can be removed, but many of the terms in the law need to be explained and have exact definitions in the wording.”8

Daw Myint Myint Than, director of Myanmar Computer Federation (MCF), a state-affiliated industry body,- was also quoted in the press saying as “We are preparing a new Electronic Transactions Law, which will be different from the old one. We will adjust the law so it is appropriate for nowadays.”

Also, the deputy communication minster told parliament in 2013 to repeal the sections of the law used to lock up journalists and activists while the new legislation is being written.

The amended law, however, is yet to pass, more than two years after its introduction, and with little time left for the current government.

Thus, the tasks to amend these laws to further promote FOI is left for the incoming government, which is also burdened with reforming other sectors of society as well as forging national reconciliation.

Towhship court in downtown Rangoon

The entrance to a township court in downtown Rangoon. (Photo: Wei Yan)

New doors to be opened

In November 2012, President Thein Sein announced his intention to join the Open Government Partnership (OGP), an international initiative to promote transparency of government institutions, empower citizens and fight corruption. However, as OGP members need to score 12 out of 16 points to be eligible, thein Sein’s intentions have been tempered by independent assessments in 2013 peggingBurma’s score at 2 out 16 points.9

Likewise, a World Wide Web Foundation assessment shows that Burma has made almost no progress on government data and information transparency. ItsOpen Data Barometer published in January 2015 pegged Burma as the lowest-ranked in the survey of 86 countries.10

Concurrently, civil society groups have started pushing the government to make a space of freedom-of-information for the general public, pressing for a law requiring the release of government information to the media as well as to individual citizens. They asserted that if the basic but essential informationsuch as landownership is in the public domain, land disputes and confiscation could be avoided.

The first-of-its-kind in Burma, Open Myanmar Initiative (OMI) aims to pull down the wall of ignorance. They are committed to contribute to the democratic transition of Burma by facilitating the process of drafting FOI legislation as an important element for success of any political and economic transformation. As a first step, OMI is organising a series of dialogue and consultation meeting with MPs, various CSO groups, journalists and public members as part of its effort to push for FOI laws.11

Ko Ko Gyi

88-Generation leader Ko Ko Gyi (Photo from his Facebook page)

Well-known democracy activist Ko Ko Gyi is an acting member of the OMI’s advisory team. He believes that a formal system should be established to make the public able to access government documents.

“Citizens should at least have the right to know why government documents are secret. The papers should be open to the public after a certain period,” said Ko Ko Gyi. He explained that most financial documents which are submitted to parliament from the ministries are marked as ‘confidential’, thus, preventing making research on the information.12

Under the present constitution, the parliament’s records are to be published in the public domain unless the specific parliamentary body decides otherwise.

For decades, the country was stricken to poverty due to the widespread and deeply entrenched corruption and graft at many government organisations. As part of a reform package for the emergence of a good governance and clean government, the parliament of Burma appointed an Anticorruption Commission in February 2014 to reduce corruption and bribery. The Commission was supported by the Anticorruption Law, which was enacted in August 2013. As an independent body the Commission is required to carry out its tasks without under any influence.

The Commission has been chaired by former military general and its executive members including two former military generals, two minsters of the president office and a legal affairs adviser of the president.13 However, the functions and scope of operations of the committee are still unknown.

The commission has received 533 complaints letters from the period of six months (March-August 2014). But only three complaints have been dealt with.14 At the parliamentarian session on 23 November 23 2015, responding to an inquiry on the personal wealth of high ranking government officers, the commission chairman’s Mya Win has replied that the commission has not any plan to act on this matter in the near future.15

Connectivity revolution

As part of preparations for the 8 November election, various election-related initiatives were kicked off to introduce a new culture of open data.

Burma’s latest population census has been made available online providing the public with the information down to the lowest administrative level. Those data has vital value of planning and evidence-based decision making at every administration levels for the public benefits. With an estimated cost of about US$60 million from the UN Population Fund and international donors, Burma has determined that its populations of at 51.5 million, way lower than the estimated 60 million based on projections from its last census in 1983.

The Union Election Commission (UEC) also teamed up with the International Federation of Electoral Systems (IFES) to compile the nationwide voter lists. The initial publication of the list have stirred public outcry because of errors in the electoral rolls.

Likewise, with the help of the Korean International Cooperation Agency (KOICA), the Ministry of National Planning and Economic Development has set up the Myanmar Information System (MMSIS) to release statistical data and metadata across issues and sectors such as trade, investment, National income and among others to the wider public.16

While connectivity has become a relatively convenient and space for providing acces, an innovation in information is sorely needed to better and present diversify dry and overwhelming data sets into more categorized formats. It makes the data more digestible and livable.

Public participation has also begun in this intiative. On this year’s National Day of Civic Hacking on 6 June, over 50 people were gathered in downtown Rangoon’s Innovation lab Phandeeyar to experiment on ticker tape census data from the public domain to make these more accessible and understandable. The data of various and diverse situations of the country such as religion, ethnicity, occupation and disability facts and figures from across the country were presented into innovative and easy-to-digest formats for the general public.17

While the Nov 8 elections, also provided an opportunity to open elections-related information and data set of parties, candidates to the growing numbers of smart-phone users. The experiment has filled the information gap on party politics for many youth groups and changed the apathetic attitude of many first time voters in Burma.

Outlook

The introduction of FOI legislation in national parliaments is still in infancy. However, there is a growing number of intitiatives to practice freedom of information in Burma these days. Besides, the country’s present social and political circumstances reveal the urgent need for laws in the country enacted and exercised to guarantee FOI.

Correspondingly, the results of the 8 November elections gave hope that the enactment of such laws which grant basic freedom of information and public’s right to know should not be far off in the future. Given the existing transformation impetus, there is a space for optimism in which the push by FOI advocates and CSOs can accelerate a greater chance of consistent engagement with all sectors topush FOI efforts forwarding.

Having been able to break through the political gridlock, a major need is to continue raising awareness of the pivotal aspects of FOI to contribute to the journey of transformation of the country. All in all, the timing is right for this vital call.