Content Regulation / Censorship, Defamation / Reputation, National Security, Political Expression, Press Freedom
Le Ministère Public v. Uwimana Nkusi
Closed Contracts Expression
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Five journalists of Unity Weekly were sentenced to 10 years imprisonment with hard labor by the Pakokku Townshop Court in Mandalay, Burma on July 10, 2014. The sentence was reduced later from 10 to 7 years with hard labor on October 2, 2014 by the Magwe Divisional Court. The journalists were punished for their involvement in the publication, “A secret chemical weapon factory of the former generals, Chinese technicians and the commander-in-chief at Pauk Township.” They were accused of disclosing state secrets, trespassing and taking photos of a restricted area. The case has been widely regarded as a violation of press freedom. The five journalists were released along with other 83 prisoners due to Presidential pardon on April 17, 2016.
Global FoE could not identify official legal and government records on the case and information on the case was derived from secondary sources. Global FoE notes that media outlets may not provide complete information about this case. Additional information regarding legal matters will be updated as an official source becomes available.
The five journalists included Tin Hsan (52), who was the CEO of the Unity Journal, Lu Maw Naing (28), Sithu Soe (22), The Yazar Oo (28), and Aung Thura or Paing Thet Kyaw (25). The report which appeared on the front page of the January 25 edition of Unity Weekly stated old that the chemical weapon factory was built in 2009 on land that was confiscated from farmers. It also included photographs of the supposed chemical weapons plan.
Lu Maw Naing was arrested on January 31, 2014 while the rest were arrested the following day. The arrests were arbitrary and they were held at an undisclosed location before The Voice journal reported that the journalists were being held at Insein Prison while awaiting the trial.
The charges against the journalists were directly filed by the Office of the Myanmar President Thien Sein for violating Section 3 (1) (a) and 9 of the 1923 State Secrets Act. The journalists’ lawyer, Robert San Aung, commented that this instance demonstrates that the legislature and the judiciary of Myanmar are still under the control of some people. The journalists were sentenced to 10 years imprisonment with hard labor by the Pakkoku Township Court on July 10, 2014 under the colonial-era State Secrets Act. The sentence was reduced to 7 years with hard labor by Magwe Divisional Court on October 2, 2014 after the five defendants appealed.
The five journalists submitted appeals to the Supreme Court later in which the CEO Tint San asked to have his sentence reduce to five years in prison, while the four journalists asked for full acquittal. Unfortunately, the Supreme Court rejected their appeals on November 26, 2014. Following the rejection, Robert San Aung said that he would help them by filing an appeal by special leave which would be the last appeal option for them with the Supreme Court. In his own words, he stated that “[w]e will try again for the journalists to get full acquittal, but if the special leave appeal is rejected then there are no more [legal] options.”
President Thein Sein announced in a speech which was broadcast on state radio in early July 2014 that Myanmar has now become a nation with one of the highest levels of press freedom in Southeast Asia. However, he warned that the media is expected to work without disturbing the national security. In his own words, he said “[if] media freedom threatens national security instead of helping the nation, I want to warn all that we will take effective action under existing laws.”
After the report was published, Burmese officials denied the allegations that the factory was producing chemical weapons. Following the incident, the Unity Journal had to shut down. The journalists had been held at the Pakokku Prison. They were released on April 17, 2016 as part of Presidential amnesty.
Even though the witnesses testified that they did not see any signs warning that the factory was designated as a restricted area and that such signs were only shown after the article had been published, Judge Maung Muang Htay found that the five defendants violated Section 3 (1) (a) and 9 of the law. In the ruling, Tin San was seen as the man in charge who featured the news with the intent to harm state security and the national interest. The rest of the journalists were sentenced under the same sections because they approached the factory which is designated as a national security area (Sithu Soe and Yazar Oo), took photos of the scene (Sithu Soe, Yazar Oo and Aung Thura), and wrote the news article (Lu Maw Naing).
Section 3 (1) (a) of the 1923 State Secrets Act prescribes “If any person for any purpose prejudicial to the safety or interests of the State – approaches, inspects, passes over or is in the vicinity of, or enters, any prohibited place, he shall be punishable with imprisonment for a term which may extend, where the offence is committed in relation to any work of defense, arsenal, naval, military or air force establishment or station, mine, minefield, factory, dockyard, camp, ship or aircraft or otherwise in relation to the naval, military or air force affairs of [the State] or in relation to any secret official code, to fourteen years and in other cases to three years.”
Section 9 of the law states “Any person who attempts to commit or abets the commission of an offence under this Act shall be punishable with the same punishment, and be liable to be proceeded against in the same manner, as if he had committed such offence.”
The ruling has affected media workers in Myanmar by creating fear among them for simply doing their jobs. It should be noted that the State Secrets Act is from the British colonial times, and it might not be suitable to the current state since Myanmar is trying to establish democracy in the country. In this case, the law acts as a barrier to free investigative reporting.
On May 15, 2015, the Supreme Court rejected a ‘special leave’ filed by the five journalists. The ‘special leave’ is the last appeal option available under Myanmar law.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The journalists’ freedom of expression is violated in this case. This also makes other journalists in the country cautious regarding their expression due to the fear of being prosecuted and imprisoned.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Myanmar has not followed the International Covenant of Civil and Political Rights. There is also no national law that guarantees the freedom of expression of its citizens.
Case significance refers to how influential the case is and how its significance changes over time.
The Magwe Divisional Court still sentenced the journalists to 7 years imprisonment on October 2, 2014 after the Pakokku Townshop Court originally sentenced them to 10 years imprisonment on July 10, 2014.
Let us know if you notice errors or if the case analysis needs revision.