Despite the political reforms that accompanied the National League for Democracy (NLD)’s rise in recent years, material conditions for journalists and dissidents have hardly improved. Article 66(d) of the Telecommunications Law, most notably, looms threateningly like a lethargic guard dog—ambiguous enough to allow for potential violators to slip by, but unforgiving when it decides to attack. Last month saw the latest invocation of the article, leading to the June 2 arrests of U Kyaw Min Swe and Ko Kyaw Zwa Naing (known by his pen name British Ko Ko Maung), chief editor and columnist, respectively, of the Burmese-language The Voice. Their arrests, based on a piece that satirized the peace process, prompted a display of solidarity from media groups across the country last week, with journalists from Mandalay to Sagaing to Yangon donning “Freedom of the Press” armbands, collecting signatures for an appeal to the authorities, and issuing statements calling for the review and repeal of the Telecommunications Law.
This explosive solidarity comes in light of a consistent, yet unsuccessful push for the repeal of 66(d). Since its inception in 2013, 66(d)—which prohibits the use of a telecommunications network to “extort, threaten, obstruct, defame, disturb, inappropriately influence or intimidate”—has been used as a political tool to punish dissent. Its vague language has made it especially prone to arbitrary interpretation and application, and its disproportionately harsh punishments makes it stand out amongst Myanmar’s  defamation laws (offenses under 66(d) can lead up to three years’ imprisonment).
What is particularly disturbing is that, in spite of the NLD’s ascent to power, the article has become an even more potent force. According to a research team led by poet-activist and former victim to 66(d) Maung Saung Kha, 61 cases under 66(d) have already been filed under the NLD-led Government, while only seven were filed under the previous Union Solidarity and Development Party (USDP) administration.
But despite sharp increase in defamation cases, the NLD-led Government has failed to actively cultivate a domestic culture that encourages freedom of speech. For one, while the Government has not enacted any new laws to curb freedom of speech, it has done little to amend or repeal legislation enacted under previous military governments. The October 2016 repeal of the 1950 Emergency Provisions Act was an especially welcome move—its article 5(j), which banned content that would “affect the morality or conduct of the public or a group of people in a way that would undermine the security of the Union or the restoration of law and order,” was used frequently and notoriously to target political dissent. However, what was lauded as a “breakthrough for press freedom” seems to have been an empty move. In an era where the internet is increasingly being used as a mode of communication, 66(d) has become the new 5(j). Similarly, improvements made to the controversial 2011 Peaceful Assembly and Peaceful Procession Law fell short. Notably, the revised law continues to criminalize acts—such as not providing advance notification for gatherings—that encourage genuine freedom of speech.
It remains to be seen how seriously the party that once championed freedom of speech approaches their role in promulgating democratic reform. Mix signals are aplenty. While the NLD-led Government has repealed, and is in the midst of reviewing, certain repressive laws—including apparently 66(d)—its process remains opaque and devoid of adequate engagement with civil society. Last week, the NLD’s parliamentary questions supervising group refused, for the second time, to permit a question about 66(d), asserting that the government already had plans to “amend” the law. Similarly, the drafting of the right to information bill, which journalists say is crucial to a free press, is shrouded in obscurity.
Broadly, however, actions of the NLD suggest a stagnant institutional mindset. As noted by Kyaw Zwa Moe, editor of the English-language version of The Irrawaddy, in an open letter to the State Counsellor last week, NLD members and supporters have filed a combined 14 defamation lawsuits under 66(d) since April 2016. And, as exemplified notably with the firing of Myanmar Times reporter Fiona McGregor in November 2016, the authorities do not shy from intervening to bend policies to their will.
In this context of top-down insensitivity, high levels of self-censorship prevail. Government inaction has also led to other worrying trends that reflect a public culture against freedom of speech. With 66(d), for instance, it is frequently third parties, and not the victims of “defamation” themselves, who are filing charges. Moreover, 66(d) is frequently treated as a non-bailable offense by the courts, despite the lack of legal stipulation to do so.
Going forward, the NLD-led Government must continue to review and amend laws that limit freedom of speech. Specifically, given its recent popularity and allowance for broad arrests, it must repeal 66(d) of the Telecommunications Law, which continues to expend limited national resources on overly broad, politicized arrests of individuals that do not pose a genuine danger to society. More importantly, the NLD-led Government must ensure increased transparency and consultation with civil society and other stakeholders in their legislative review processes. If the NLD-led Government wants to prevent the statements that it works so hard to quell, it would be better off providing platforms for the population to constructively criticize its policies and actions. 66(d) must go, as must the culture of insensitivity against freedom of speech.
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Progressive Voice is a participatory, rights-based policy research and advocacy organization that was born out of Burma Partnership. Burma Partnership officially ended its work on October 10, 2016 transitioning to a rights-based policy research and advocacy organization called Progressive Voice. For further information, please see our press release “Burma Partnership Celebrates Continuing Regional Solidarity for Burma and Embraces the Work Ahead for Progressive Voice.”