Darcy Moffatt discusses how the criminalisation of journalists robs Myanmar of press freedom.
Editor’s Note: In July this year, nineteen Criminology students from Monash University travelled to Myanmar on a two-week study tour, sponsored by the New Colombo Plan Mobility Grant. This was the first Monash study tour to Myanmar and the first study tour to Myanmar with a focus on crime and criminal justice. Students engaged with a number of representatives from government, non-government, INGOs, universities and other agencies, as well as individuals including young activists and journalists, all working within Myanmar’s law enforcement and criminal justice sector. Through this learning experience, students developed and deepened their knowledge and understanding of the complexities behind Myanmar’s human rights, political, diplomatic, education agendas and how they intersect.
Officially, Myanmar does not have media censorship. The 2012 removal of the requirement for journalists to submit their work for government approval prior to publication appears to validate this position. In reality, there remains a plethora of colonial-era and modern-day legislation that the government and military continue to use to criminalise journalists’ actions, with the cumulative effect of severe restriction of influence over what is reported. As a result, they have created a society in which citizens have the right to vote but do not have adequate access to a press that is free of government interference. In a country where the educational focus on critical thinking is still developing, starving the population of transparent and objective reporting, deprives them critical news analysis. This, in turn, negatively impacts their ability to cast informed votes and enforce government accountability, both of which are cornerstones of genuine democracies.
Myanmar’s governing authorities have a clear history of utilising the country’s media to entrench their power, censoring who can participate and what they can say. In the 1990s, periodicals were overwhelming silent on current news events–limited instead to select topics covering sports, entertainment and science. Reporting on current affairs increased following the introduction of The Myanmar Times, however access to political events and sources remained constricted, with permission being required from the relevant government office, before publication could occur.
In 2015, there was hope that this would change, with the election of Aung San Suu Kyi’s National League for Democracy (NLD). After all, this was a party whose associates had themselves been persecuted for speaking out against the military in an uncensored manner and in support of democracy. Unfortunately, like the military, the NLD too, has utilised the press to control the spread of information, with the use of criminal prosecutions enabling them to silence journalists who do not give voice to government endorsed narratives.
The recent convictions under The Burma Official Secrets Act 1923 (Myanmar), of Wa Lone and Kyaw Soe Oo, is perhaps the most publicised example of the criminalisation of Myanmar’s press. At the time of their arrests, the Reuters journalists were investigating the deaths of 10 Rohingya men in Rakhine State, deaths which have been linked to military actions. Their corruption-tainted arrests and farcical trial have provided a clear message to journalists; there are risks involved in reporting on those in power. Worryingly, this criminalisation of various facets of journalistic actions, has been achieved using Myanmar’s existing laws.
Despite international attention, Aung San Suu Kyi has refused to acknowledge the link between independent press and these convictions, stating that the case “had nothing to do with press freedom at all” and that it was instead, about the breaching of the Official Secrets Act. Such a response indicating either that she too fears the wrath of the military, or that press freedom is simply not desired.
The comprehensive silencing of journalists extends to events of domestic interest. In June 2017, three journalists were arrested when returning from a drug-burning ceremony in Shan State. Despite attending the event in a professional capacity, the journalists were charged under Article 17(1) of the Unlawful Associations Act 1908 (Myanmar) because the ceremony was hosted by the Ta’ang National Liberation Army, an ethnic-armed group disliked by the state authorities. This is despite journalists being entitled to access information from conflict areas, under the News Media Law. Such censorship of journalistic sources presents a major threat to a representative press, essentially gagging those who report on events and topics deemed inappropriate by the government and military.
Disturbingly, the legislative weapons used by the government and military are not limited to colonial-era laws, with Section 66(d) of The Telecommunications Law becoming an increasingly popular tool. This law purports to protect Myanmar’s democratic society, making it unlawful for someone to use a telecommunication network to extort, coerce, wrongfully restrain, defame, disturb, cause undue influence or threaten another. However, in practice it stifles freedom of expression by enabling the criminal prosecution of those who share information that the government and military personnel do not like. For example, in mid-2017 the editor and a columnist of The Voice newspaper were criminally charged under section 66(d) for analysing a military propaganda video and writing an article that reportedly criticised senior military figures for socialising at peace talks whilst junior soldiers lost their lives. These charges were later dropped however this example illustrates how the military is willing to pursue criminal law avenues to suppress unwanted opinions. This ability to limit the spread of information through criminal defamation proceedings suppresses criticism of Myanmar’s powerful and prevents public debate of their actions and those actions’ consequences. Despite slight amendments to Section 66(d) following much criticism, the NLD has so far resisted repealing section 66(d), with a recent Human Rights Watch (HRW) report noting that its use has actually increased during the NLD’s term. This contradicts the support that the party and Aung San Suu Kyi have expressed for the rule of law and instead displays a continuation of Myanmar’s law being utilised to achieve selective silence.
Rather than improving under democratic governance, the criminalisation of journalists in Myanmar has continued. The 2018 Reporters Without Borders’ annual press freedom index ranked the country at 137 of 180 nations, six places lower than in 2017. Furthermore, in Free Expression Myanmar’s 2018 survey, 79% of questioned journalists rated the government’s success in upholding press freedom, as ‘low’ or ‘very low’. To them, the major concern is the government’s ‘continued use of old oppressive laws which it has no real plans to amend and its adoption of new oppressive laws’ to silence at will. Ultimately, journalists regard the government as the ‘greatest threat to media freedom in Myanmar’.
By intimidating journalists with the threat of criminal prosecution, the government and the military control the story that is told and learnt. Combined with the current international focus on the Rakhine crisis, this creates an especially difficult situation for journalists. In a catch twenty-two, the journalists that I spoke with during the study tour emphasised that a story would not sell internationally unless the Rohingya crisis in Rakhine State was mentioned, which then required continual focus on an issue that the government denies even exists.
The very real threat of criminalisation also imposes personal challenges on members of the press who are operating under a dark cloud of uncertainty and risk. One Myanmar journalist explained that the current climate has left her local colleagues and herself anxious and constantly looking over their shoulders, concerned that today will be the day that they become the subject of surveillance. I also heard stories about how the current visa regulations potentially meant that foreign journalists could be refused re-entry into Myanmar – putting at risk their professional and personal situations. Even when their entry is approved, the requirement that they submit a detailed, month-long, personal itinerary reinforces the government’s watchful eye.
Thankfully, despite the dangers to both themselves and their families, journalists are persisting. With caution, they are reporting on events occurring in Myanmar, such as the killing of 19 people at a casino by the Ta’ang National Liberation Army, in Shan State and the challenge face by the NLD at the most recent by-elections. Importantly this reporting includes but also extends beyond the Rohingya crisis in Rakhine State. Their determination and courage are invaluable for Myanmar’s development and the ability of local people to access analytical perspectives on important topics. This spreading of credible, independent news is integral to the legitimacy of the country’s democratic development and is essential to the Myanmar people’s ability to increase government accountability and cast informed election votes.
For the NLD to deliver legitimate democracy, they must enable and protect press freedom. They, themselves must resist using legislation to silence their critics and stop criminalising objective reporting. And they must apply pressure to the military to do the same. The NLD must foster educated and credible public debate and allow it to reach the Myanmar people. During military rule, Myanmar’s media was one of the most censored in the world. The removal of the requirement to submit articles to government before publishing and the increasing presence of independent and international news bodies has, over time, seen slow progression towards press freedom. However, both the NLD and military continue to endorse the criminal prosecution of journalists, who are seeking to report the news as it is occurring.
Since British colonisation, rule by law has been utilised in Myanmar to silence dissidence and immobilise critics. The subsequent ‘array of habitual interference’ by the ruling class has remained present throughout the military’s past rule and the present NLD led government. Well before the election of the NLD, Aung San Suu Kyi publicly labelled the rule of law as ‘essential’, without which ‘communal strive will only continue’. Despite this pronounced support, many of the methods utilised to establish rule by law in the past are still present and operational in Myanmar today. One example of this in regard to the criminalisation of journalists, is the existence and use of colonial-era codification, such as the Unlawful Associations Act.
Such legislation prevents journalists from fulfilling their professional obligations as part of the independent press. This in turn denies the Myanmar people the ability to hear information and form independent opinions, free from authoritative intervention, which is promoted and permissible under the rule of law. Contrastingly, the current rule by law in Myanmar operates to silence journalists and prevent the development of this questioning restlessness. This is hindering the development of a transparent political system, with meaningful progress unable to be achieved until the citizens of Myanmar can access the objective facts. For this to occur journalists need to be allowed to speak.
For the journalists that I spoke to, this is exactly what they want to be doing. They care about Myanmar and passionately want to report on what is occurring in the country, including but not limited to the tragedy in Rakhine State. The possibility of being criminally charged and prosecuted, under any one of the various laws is a persistent concern and for some of their friends, a sad, current reality. And for Myanmar to become a genuine democracy this cannot be the case.
[Image courtesy of Darcy Moffatt]
 Irwin 2002, p. 256
 Myint 2012, p. 206
 Irwin 2002, p. 256.
 Cheesman 2015, p. 27.
Cheesman, N 2015, ‘Opposing the rule of law – how Myanmar’s courts make law and order’ Cambridge University Press, Cambridge.
Irwin, S 2002, ‘The role of a free press and freedom of expression in developing democracies’, University of Miami Law Review, vol. 56, no. 2, pp. 255-306.
Myint, P 2012, ‘The emergence of Myanmar weekly news journals and their development in recent years’, in N Cheesman, M Skidmore and T Wilson (ed.), Myanmar’s Transition: openings, obstacles and opportunities, ISEAS-Yusof Ishak Institute, pp. 205-213.
The Telecommunications Law No. 31 2013 (Myanmar)
The Unlawful Associations Act India Act XIV 1908 (Myanmar)
Darcy Moffatt is a Bachelor of Arts/Laws student at Monash University. She recently visited Myanmar for the first time in July this year and left intrigued about the country’s past and excited about its future.