ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAMME
Urgent Appeal Case: AHRC-UAC-066-2014
8 May 2014
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BURMA/MYANMAR: Journalists prosecuted because of article about army
ISSUES: Judicial system; impunity; military; freedom of expression
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Dear friends,
The Asian Human Rights Commission (AHRC) is concerned about the case of journalists and responsible persons from a news journal in Burma prosecuted under the Burma Official Secrets Act 1923 over an article about a military-owned factory. They have been accused of leaking state secrets and have been detained during the inquiry period, even though the case brought against them is procedurally incorrect.
CASE NARRATIVE:
The Unity Journal on 25 January 2014 published an article alleging that a military facility in Magway Region was being used for the making of chemical weapons. The officer responsible for the factory then brought a criminal case against the journal director and reporters for allegedly breaching state secrets, taking photographs of the facility without permission, and publishing the article without first obtaining approval.
However, the arrested men were not actually sending any secret documents by spying to other powerful countries. They were merely trying to acquire information concerning land confiscating by the military, police, ministries, the army holding company, and businessmen.
Furthermore, the manner of their arrest, detention and prosecution is not procedurally correct. According to the Burma Official Secrets Act 1923, the police need an order from the Minister of Home Affairs to investigate. After investigation, if detention is necessary the police need permission from a concerned court to arrest with warrant. However, the journalists had been arrested during the period when the army officer made a complaint against them, which is opposed to the provisions of the law. The Minister of Home Affairs gave an order to prosecute only some 14 days after the men had already been arrested.
On top of this problem, no evidence exists that the factory concerned constitutes a facility that should be subject to the terms of the Burma Official Secrets Act. For one thing, it is still under construction and even the buildings have not been finished yet. Local people and farmers said in court that no signboard or any notification near the factory area states that the area of the factory is a prohibited place. The factory workers also don’t have any employee cards given by the factory. Moreover, villagers pass near the factory area everyday without any type of restrictions placed on their movements.
Lastly, Special Branch (SB) police officers have allegedly forced three of the accused to confess and have used their confessions against them in court in violation of law. The wife of one of the accused men also was detained for a time during the investigation.
Further details of the case are in the sample letter below.
ADDITIONAL INFORMATION:
Despite the changed political conditions in Myanmar, still many journalists and writers are facing legal actions for doing nothing other than exercising their right to free expression. For instance, Ma Khine, a journalist with Eleven Media, was sentenced to jail over a story of alleged judicial corruption by accusing her of interfering with the duties of public service personnel. Journalist with the Democratic Voice of Burma (DVB) Ko Zaw Phay and parents of school children who tried to get information on choosing scholarship awards to go to Japan from the Magway Regional Education Office also were sentenced to one year’s imprisonment.
REQUESTED ACTION:
Please write a letter calling for the release of the five accused men from the charges against them. Please note that for the purposes of the letter Burma is referred to by its official name, Myanmar.
Please be informed that the AHRC is writing separate letters to the UN Special Rapporteurs on Myanmar and on the independence of judges and lawyers, and to the regional human rights office for Southeast Asia calling for interventions into this case.
SAMPLE LETTER:
Dear ………………,
MYANMAR: Executive Director and Journalists of the Unity Journal prosecuted for alleged leaking of state secrets
Names of persons being prosecuted:
1.U Tint San aged 52 (Son of U Thein Tun), Executive Director of Unity Journal
2.Thae Yazar Oo aged 28 (Son of U Thein Maung Gyi), Senior Journalist
3.Paing Thet Kyaw (a.k.a.) Aung Thu Ya aged 25 (Son of U Aung Ko Lwin), Senior Journalist
4.Si Thu Soe aged 22 (Son of U Win Hlaing), Senior Journalist
5.Lu Maw Naing (a.k.a.) Lin Kyaw Oo (a.k.a.) Lu Maw aged 28 (Son of U Maung Maung Kyi), Journalist for rural areas
Names of persons involved in prosecution:
1. Lt-Colonel Kyaw Kyaw Oo, Serial No. Kyi/28299, No. 24 Defence Material Factory, Myar Pine Village Tract, Pauk Township, Magway Region
Criminal Case: No. 4/2014, Pakkoku District Court, under the Burma Official Secrets Act 1923
I am very concerned to hear that the army in Burma has brought a case against a news journal director and four journalists because they had published an article alleged to have violated the law on state secrets.
According to the information that I have received, after the Unity Journal on 25 January 2014 published an article alleging that a military facility in Pauk Township of Magway Region was being used for the making of chemical weapons, the officer responsible for the factory, Lt-Col. Kyaw Kyaw Oo brought a criminal case against the journal director and reporters for allegedly breaching state secrets, taking photographs of the facility without permission, and publishing the article without first obtaining approval.
However, the case contains a great many problems in law as well as in violation of human rights. Briefly, these problems include the following:
1. According to the Burma Official Secrets Act 1923, the police need to investigate first by order of the Minister of Home Affairs. After investigation, if detention is necessary the police need permission from a concerned court to arrest with warrant. However, the journalists had been arrested during the period when the army officer made a complaint against them, which is opposed to the provisions of the law. The Minister of Home Affairs gave an order to prosecute under sections 3 and 5 of the Burma Official Secrets Act (Letter No.PaHtaYa/2-6/Oo) only some 14 days after the men had already been arrested.
2. According to the Burma Official Secrets Act Section 2(8) “any place belonging to or used for the purpose of the State which is for the time being declared by the President of the Union, by notification in the Gazette, to be a prohibited place for the purposes of this Act on the ground that information with respect thereto or damage thereto, would be useful to an enemy, and to which a copy of the notification in respect thereof has been affixed in (Burmese) and in the (language of the locality, if any)”. Under the terms of this section, the concerned factory is not a place subject to this law at all. The factory is still under construction and even the buildings have not been finished yet. Local people and farmers said in court that no signboard or any notification near the factory area states that the area of the factory is a prohibited place. The factory workers also don’t have any employee cards given by the factory. Moreover, according to the testimony of Colonel Htet Wai Aung, the Security Officer of the factory, the factory didn’t produce any weapons till now and it is still under construction. Workers from the factory are from the Asia Metal Company, and the villagers pass near the factory area everyday, whereas the published photos of the factory were taken far from the factory.
3. Three of the accused, Paing Thet Kyaw, Si Thu Soe and Lu Maw Naing were all forced by the military to confess and their confessions have been submitted to court. Lu Maw Naing’s wife, Ma Lwin Lwin Myint, was also temporarily detained when she went to visit him in prison.
4. The arrested men were not sending any secret documents by spying to other powerful countries. They were merely trying to acquire information concerning land confiscating by the military, Myanmar Police Force, ministries, the army holding company, and businessmen. The contents of the published article reflect this orientation and it should be obvious to any fair-minded person that they do not deserve to be punished.
In view of these and other flaws in the current case, I urge that the prosecution of these five persons be ceased and the media in Myanmar is able to report openly and without fear of intimidation or prosecution.
In this regard, I regret to note that despite the changed political conditions in Myanmar, still many journalists and writers are facing legal actions for doing nothing other than exercising their right to free expression. For instance, Ma Khine, a journalist with Eleven Media, was sentenced to jail over a story of alleged judicial corruption by accusing her of interfering with the duties of public service personnel. Journalist with the Democratic Voice of Burma (DVB) Ko Zaw Phay and parents of school children who tried to get information on choosing scholarship awards to go to Japan from the Magway Regional Education Office also were sentenced to one year’s imprisonment.
Lastly, it seems profoundly obvious yet necessary to add that the Burma Official Secrets Act 1923 is not up to date anymore and that it ought to be revoked or significantly amended to be made consistent with Myanmar’s new era of political and social change, and not to enable people who would prefer that the country remain stuck in the past to use it as a weapon against persons legitimately exercising the freedom of expression.
Yours sincerely,
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PLEASE SEND YOUR LETTERS TO:
1. Lt-Gen. Ko Ko
Minister for Home Affairs
Ministry of Home Affairs
Office No. 10
Naypyitaw
MYANMAR
Tel: +95 67 412 079/ 549 393/ 549 663
Fax: +95 67 412 439
2. U Thein Sein
President of Myanmar
President Office
Office No.18
Naypyitaw
MYANMAR
3. U Tun Tun Oo
Chief Justice
Office of the Supreme Court
Office No. 24
Naypyitaw
MYANMAR
Tel: + 95 67 404 080/ 071/ 078/ 067 or + 95 1 372 145
Fax: + 95 67 404 059
4. Thura U Aung Ko
Chairman
Pyithu Hluttaw Judicial and Legislative Committee
Pythu Hluttaw Office
Naypyitaw
MYANMAR
5. U Aung Nyein
Chairman
Pyithu Hluttaw Judicial and Legislative Committee
Committee for Public Complaints and Appeals
Office of the Amyotha Hluttaw
Naypyitaw
MYANMAR
6. U Win Mra
Chairman
Myanmar National Human Rights Commission
27 Pyay Road
Hlaing Township
Yangon
MYANMAR
Tel: +95-1-659 668
Fax: +95-1-659 668
7. Daw Aung San Suu Kyi
Chairwoman
Pyithu Hluttaw Rule of Law and Tranquility Committee
Office of the Pyithu Hluttaw
Naypyitaw
MYANMAR
Thank you.
Urgent Appeals Programme
Asian Human Rights Commission (ua@ahrc.asia)
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