MYANMAR’S rule of law is hanging in the balance today as a court is expected to hand down a decision as to whether the charges involving the two Reuters journalists will be dismissed. The case marks “a real test for judicial independence” and puts Myanmar “at a fork in the road”, legal and diplomatic experts have said. If journalists are jailed for reporting horrific atrocities, it will be a sign that the country’s fragile democratization is dead, another Myanmar specialist added. 

Laetitia van den Assum, member of the former Rakhine Advisory Commission which was chaired by Kofi Annan, told The Myanmar Times that today is a “momentous day for the two journalists themselves who during more than two hundred days in detention have shown great courage and determination.” It is also an important day for Myanmar because, here, “not only press freedom but the very rule of law hangs in the balance after close to 30 hearings have shown that there never was a case.” 

“And it was a momentous day, lastly, for the country’s place in the world where this case has rightly generated extraordinary concern. It is about Myanmar at a fork in the road,” the independent diplomatic expert commented. Benedict Rogers, specialist on Myanmar at the human rights group CSW, called today’s ruling “a landmark case of immense importance for Myanmar and for how Myanmar is seen by the rest of the world.”

“If the court seriously decides that it is justified to continue the trial of journalists charged simply for reporting horrific atrocities, it will be a sign that Myanmar’s fragile democratisation is dead, because you cannot have democracy without freedom of the press and you cannot have democracy with impunity for grave human rights violations,” the author of three books on Myanmar said. Since Myanmar “already stands accused of crimes against humanity and ethnic cleansing”, if the trial continues and these journalists are convicted, it will deal “another blow to hopes of real change in Myanmar and the international community will have to consider how to respond”. 

“Is Myanmar moving forward, despite its challenges, towards a civilian-led democracy that respects basic human rights and the rule of law, or is it, after a brief period of opening which saw greater press freedom and other freedoms, now returning to military dictatorship that controls the courts, represses the media and denies basic human rights? Those are questions the international community will be asking. This case is a test case, and I hope the court will conclude that there is no justification for the trial,” Mr Rogers went on. 

If the court seriously decides that it is justified to continue the trial of journalists charged simply for reporting horrific atrocities, it will be a sign that Myanmar’s fragile democratization is dead… – Benedict Rogers, CSW

For Sean Bain, legal adviser to the International Commission of Jurists (ICJ) in Yangon, it is “difficult to imagine how these charges could reasonably be accepted” because of the “lack of credible evidence presented”.

“We are hoping to see an immediate end to their detention, which has been unlawful due to flagrant breaches of fair trial rights, including their disappearance for two weeks without access to family or legal representation. It must be remembered that State prosecutors are duty-bound to drop charges when it becomes clear they are unsubstantiated by evidence. The case presents a real test for judicial independence,” the legal expert warned.

We are hoping to see an immediate end to their detention, which has been unlawful due to flagrant breaches of fair trial rights, including their disappearance for two weeks without access to family or legal representation. – Sean Bain, International Commission of Jurists (ICJ)

Myint Kyaw from the Myanmar Press Council told this paper it is “evident” that the two reporters were trapped and then arrested and that the Ministry of Home Affairs has been trying to accuse the journalists by citing the wrong penal sections. 

“There is little hope for their freedom. If the authorities decided to dish out punishments by opposing [sweeping aside] the existing evidences and proofs, they are likely giving an ultimatum to the media sector. Broadly speaking, no one will dare to cover issues like how those two reporters did in the future,” he said.

If the authorities decided to dish out punishments… they are likely giving an ultimatum to the media sector. – Myint Kyaw, Myanmar Press Council

Myanmar lawyer Kyaw Nyein explained that, from a legal perspective, there is tension between whether the charges should go forward and the basic rights of a journalist and the freedom of expression. “If the rule of law is prioritized, I can see that the situation is swinging towards the side which advocates freeing the accused,” he observed.

“If the court chooses to press charges against Wa Lone and Kyaw Soe Oo, it will be a clear signal to the world that freedom of the press in Myanmar is in grave danger,” Summer Lopez, senior director at PEN America, said in a statement last Thursday. PEN America in February honored the pair with the annual 2018 PEN/Barbey Freedom to Write Award.

What happened

Reuters reporters, Wa Lone and Kyaw Soe Oo, were detained on December 12 last year for allegedly obtaining confidential documents relating to Rakhine. On December 13, authorities announced that the two journalists could face charges under the little-used colonial-era Official Secrets Act, which carries a maximum prison sentence of 14 years. The Reuters investigation of the Inn Din massacre was what prompted Myanmar authorities to the arrest two journalists.

Wa Lone has been one of the Reuters team reporting on the Rakhine crisis since August this year. He used to work for The Myanmar Times, specialising in politics and general news. Kyaw Soe Oo, from Rakhine, joined Reuters in Yangon in September. Since then, the pair have spent over six months in detention, facing weekly pre-trial hearings before a judge to decide whether the state has sufficient evidence to pursue this case in trial. Final arguments were presented last Monday, July 2, and the court is expected to hand down a decision today as to whether the case will move forward to trial. 

“Journalists Wa Lone and Kyaw Soe Oo were the victims of an orchestrated scheme by some members of the security forces to trap them and silence truthful reporting. Their six-month imprisonment is an ongoing miscarriage of justice that violates Myanmar’s stated commitment to the rule of law,” defense lawyer Khin Maung Zaw told judge Ye Lwin last week. The defense lawyer argued that the prosecution has neither established how the alleged documents had come into the reporters’ possession, nor showed how they posed a threat to national security.