As the world focuses on crimes committed by the Myanmar military against the Rohingya and other ethnic and religious minorities, as described by the report of the International Fact-Finding Mission to Myanmar (IIFFMM) released on 18 September, 2018, Myanmar’s judicial system continues to demonstrate exactly why international accountability is the only way to seek justice for those crimes – Myanmar’s courts are not fair or independent, and the laws are outdated and repressive. Despite “rule of law” being a key component of Daw Aung San Suu Kyi and the NLD’s platform for change in Myanmar, ordinary citizens continue to suffer from arbitrary and discriminatory laws. The Government must immediately implement judicial reforms and repeal repressive laws, and in the meantime the international community must implement the recommendations in the report of the IIFFMM towards international accountability.
The sentencing of Reuters journalists Wa Lone and Kyaw Soe Oo on September 3 continues to make waves among Myanmar’s civil society, journalists and political circles. Speaking at the World Economic Forum in Vietnam on 13 September, 2018, Daw Aung San Suu Kyi made her first public comments on the verdict, defending the sentence and saying the case had “nothing to do with freedom of expression” but was based on the colonial-era State Secrets Act. However, as Daw Aung San Suu Kyi and many others know well, authorities in Myanmar have long used trumped-up charges based on repressive laws to punish the exercise of political rights, including freedom of expression and assembly. In addition to Daw Aung San Suu Kyi, an estimated 120 national and regional parliament members of the current Government are composed of former political prisoners who have been charged with the same or similar repressive laws.
Reporting on the trial and the verdict of Wa Lone and Kyaw Soe Oo shows a lack of evidence that would support the charges, and a prosecution strategy that grasped at straws to connect information held by the reporters to “an enemy” as required by the law. The reporters were targeted because they reported on a massacre committed by Myanmar security forces in Inn Din, northern Rakhine State, and prosecutors were willing to use any argument necessary to ensure their imprisonment. Since the verdict, civil society organizations and activists have led campaigns calling for the release of the journalists and defending the public’s right to information about what has happened in Rakhine State and elsewhere.
Many of the laws that allow these trumped-up and politically-motivated charges are remnants of the British colonial system. As the IIFFMM put it, the laws “constitute a veritable toolbox for State officials and representatives wishing to stifle dissent and evade legitimate scrutiny of their actions.” Myanmar’s Penal Code is a prime example, with sections such as 500 and 505(b) frequently used against activists. These sections both criminalize speech which is deemed to be harmful – Section 500 addressing ordinary defamation and 505(b) addressing “making, publishing or circulating information that may cause public fear or alarm and incite people to commit offenses against the state.” For the latter offense, it is not even required that the alarming information be false – simply speaking uncomfortable truths can result in imprisonment even when the truth is not disputed. According to a statement released on the International Day of Democracy, by the Assistance Association for Political Prisoners (Burma), “those who exercise their freedom of expression endure the risk of being incarcerated for speaking truth to power” through the use of oppressive laws which suppress democracy.
These two sections have been used in recent months against members of the public speaking about events that the Government does not wish to be discussed. Charges against the Kachin civil society activists – Lum Zawng, Nang Pu and Zau Jat – for speaking of military abuses of civilians in conflict were formally accepted on September 4 after three months of prosecution witness testimony. The three are charged based on statements they made during a protest and related press conference calling for the rescue of internally-displaced persons trapped by fighting in Kachin State in May 2018. On September 11, Naung Naung and Lay Lay were sentenced to one year in prison for statements during a protest in support of the former child soldier Aung Ko Htwe, who is currently serving a sentence under the same section of the Penal Code.
In addition to repressive laws, authorities have exploited the laws and their own power for political or other corrupt purposes. Local authorities regularly use provisions of the 2016 Peaceful Assembly and Peaceful Procession Law (PAPPL) to prevent protests against government or military actions while allowing pro-military assemblies in the same townships. This was the case in May 2018, when authorities tried to prevent an anti-war march and, when activists assembled, charged 17 participants and leaders of the Yangon protest and 25 others from related events. Authorities attempted to do the same leading up to a Freedom of Information assembly on 16 September, 2018, but after extensive negotiations finally allowed the protest – despite the PAPPL not even requiring permission.
These cases demonstrate the state of Myanmar’s judicial system, including lack of independence and the use of repressive laws for politically-motivated charges that aim to stop activism through whatever means necessary. The Government must immediately prioritize rule of law by repealing repressive laws, amending the Penal Code and carrying out robust judicial reforms to root out corruption and ensure independence. In the meantime, the international community must recognize that justice for such serious crimes – as the full report of Independent International Fact-Finding Mission on Myanmar documented – will not come from domestic measures, and take immediate steps toward international accountability. These steps must include referral by the UN Security Council to the International Criminal Court, and establishment of an International Impartial and Independent Mechanism to prepare for any future criminal proceedings, an interim mechanism to continue to document and collect evidence of international crimes and monitor and report to the UN Human Rights Council and General Assembly on continuing crimes and efforts towards accountability.
 One year following the 1988 pro-democracy uprising, the former military junta changed the country’s name from Burma to Myanmar overnight. Progressive Voice uses the term ‘Myanmar’ in acknowledgement that most people of the country use this term. However, the deception of inclusiveness and the historical process of coercion by the former State Peace and Development Council military regime into usage of ‘Myanmar’ rather than ‘Burma’ without the consent of the people is recognized and not forgotten. Thus, under certain circumstances, ‘Burma’ is used.
Resources from the past week
Statements and Press Releases
By Human Rights Watch
By Karenni Civil Society Network
By Karenni Civil Society Network
By Kachin Women’s Association Thailand
By Michelle Bachelet/ UN High Commissioner for Human Rights
By Office of Rushanara Ali MP
By Progressive Voice
By Progressive Voice
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.”