De­bate over sec­tion 66(d) heats up

The Myanmar Times - - Front Page - LUN MIN MANG lun­min­mang@mm­times.com

The defama­tion clause is gain­ing no­to­ri­ety af­ter an uptick in cases un­der the NLD govern­ment, with lawyers, rights groups and ac­tivists de­mand­ing an over­haul of the law.

THE govern­ment is un­der mount­ing pres­sure from the pub­lic and from rights groups to amend its crim­i­nal defama­tion laws af­ter a spate of cases against jour­nal­ists and blog­gers has raised ques­tions about the ad­min­is­tra­tion’s com­mit­ment to pro­tect­ing free speech.

Per­sis­tent re­pres­sion of crit­i­cism through sec­tion 66(d) of the Telecom­mu­ni­ca­tions Law has led lawyers, politi­cians and ac­tivists to sug­gest that con­di­tions for free speech have con­tin­ued to de­te­ri­o­rate un­der the Na­tional League for Democ­racy-led govern­ment, de­spite ex­pec­ta­tions that the new lead­er­ship would usher in an era of free­dom.

Ar­rests, prose­cu­tions and long prison sen­tences were com­mon meth­ods of re­pres­sion un­der the for­mer mil­i­tary regime, and such prac­tices con­tin­ued un­der the for­mer civil­ian govern­ment elected in 2010. The prac­tice has not ceased and laws of du­bi­ous stand­ing con­tinue to be wielded against so­cial me­dia satirists, ac­tivists and jour­nal­ists.

One such piece of leg­is­la­tion, the Telecom­mu­ni­ca­tions Law was adopted in 2013 with the aim of im­prov­ing the cli­mate for for­eign in­vestors. But its sec­tion 66(d) has been used to crack down on in­di­vid­u­als who ex­press opin­ions on so­cial me­dia that meet with of­fi­cial dis­ap­proval.

Ob­servers cite the cases of Ma Chit Tha Me aka Ma Chaw Sandi Tun, Pa­trick Kum Ja Lee and poet Ko Maung Saung Kha, all of whom faced le­gal ac­tion un­der the for­mer govern­ment in re­la­tion to Facebook posts that crici­tised the for­mer pres­i­dent or the Tat­madaw chief.

Even the rul­ing party has no respite from pros­e­cu­tion un­der 66(d). Ear­lier this month, prom­i­nent NLD mem­ber U Myo Yan Naung Thein was ar­raigned for al­legedly post­ing on Facebook a call for the res­ig­na­tion of the armed forces chief.

According to lawyers, the leg­is­la­tion is vaguely and broadly worded, if nar­rowly en­forced. Sec­tion 66(d) of the Telecom­mu­ni­ca­tions Law says any­one “ex­tort­ing, co­erc­ing, re­strain­ing wrong­fully, de­fam­ing, dis­turb­ing, caus­ing un­due in­flu­ence or threat­en­ing to any per­son by us­ing any Telecom­mu­ni­ca­tions Net­work” faces pros­e­cu­tion and a pos­si­ble prison sen­tence of up to three years, plus a fine. The mea­sure ap­pears to con­tra­dict sec­tion 354 of the con­sti­tu­tion, which pro­tects the free ex­pres­sion of opin­ion un­less found to un­der­mine “law and order, com­mu­nity peace and tran­quil­lity or pub­lic order and moral­ity”.

Thura U Shwe Mann, chair of par­lia­ment’s Com­mis­sion for the As­sess­ment of Le­gal Af­fairs and Spe­cial Is­sues, weighed into the defama­tion de­bate last week by rais­ing the ques­tion of amend­ing the law. In his own Facebook post, he in­vited pub­lic in­put. Then on Novem­ber 21, he said that according to wide­spread opin­ion the law should re­main in place, but the con­tentious sec­tion amended, specif­i­cally with re­gards to bail and sen­tenc­ing.

“There has been crit­i­cism and sug­ges­tions that the law’s sec­tion is a bur­den on rec­on­cil­i­a­tion, and causes hard­ship and a waste of money, time and en­ergy,” the for­mer Speaker said.

U Thein Than Oo, vice chair of the Myan­mar Lawyers Net­work and an ad­vo­cate for hu­man rights, said the very point of sec­tion 66(d) was to pur­sue re­pres­sion of po­lit­i­cal dis­si­dents. He ques­tioned the Yan­gon Re­gion govern­ment’s re­cent move to sue Eleven Me­dia Group un­der that pro­vi­sion.

“The sec­tion is sim­ply de­signed for re­pres­sion by the for­mer rul­ing party,” he said.

The Eleven suit arose from a story ac­cus­ing the Yan­gon Re­gion chief min­is­ter of ac­cept­ing an ex­pen­sive wrist­watch and im­ply­ing it may have been a bribe. The news­pa­per’s CEO and chief editor are now be­hind bars at In­sein Prison, await­ing trial.

Prom­i­nent hu­man rights lawyer U Robert San Aung said,“It is not ap­pro­pri­ate that a cit­i­zen who crit­i­cises some­one more pow­er­ful should face le­gal ac­tion of this kind.” He has pro­posed that the law be amended, adding, “De­fen­dants sued un­der this sec­tion should at least have the right to bail.”

An­other fre­quent crit­i­cism is that the law has been in­voked de­spite the ab­sence of by­laws govern­ing its ap­pli­ca­tion, a de­par­ture from nor­mal par­lia­men­tary prac­tice.

Pa­trick Kum Ja Lee, who served a six-month jail term for de­fam­ing the Tat­madaw chief on so­cial me­dia, said the sec­tion should sim­ply be deleted from the law.

“Its only pur­pose was po­lit­i­cal re­pres­sion. Now the govern­ment we elected is us­ing it to sue us. That’s not good,” he said.

Crit­i­cism from in­ter­na­tional or­gan­i­sa­tions has been blunt.

“Myan­mar’s defama­tion laws, by be­ing ei­ther vague or overly broad, also do not con­form to the prin­ci­ple of le­gal­ity. This un­der­mines the rule of law as they are not for­mu­lated clearly and pre­cisely to en­sure that in­di­vid­u­als can reg­u­late their con­duct ac­cord­ingly,” said Daniel Aguirre, a le­gal ad­viser with the In­ter­na­tional Com­mis­sion of Jurists in Myan­mar. “No­tions such as ‘dis­turb­ing’ or ‘caus­ing un­due in­flu­ence’, as set out in the Telecom­mu­ni­ca­tions Law, are par­tic­u­larly vague and prone to ar­bi­trary and highly sub­jec­tive in­ter­pre­ta­tion and ap­pli­ca­tion.”

He added that in order to en­sure the law serves the in­ter­ests of the peo­ple and does not pose a threat to free speech, par­lia­ment must “abol­ish or ex­ten­sively amend its crim­i­nal defama­tion laws”.

“Civil li­a­bil­ity pro­ceed­ings should be the sole form of re­dress for com­plaints of dam­age to rep­u­ta­tion,” Mr Aguirre said.

“The ca­pac­ity of peo­ple to freely im­part and re­ceive in­for­ma­tion, in­clud­ing through free po­lit­i­cal dis­course, is crit­i­cal for a func­tion­ing democ­racy,” he added.

Pyithu Hlut­taw MP Daw Khin San Hlaing (NLD; Pale) said the Na­tional League for Democ­racy would re­view the laws that are not ben­e­fi­cial to the pub­lic and amend them if nec­es­sary.

Un­less the sec­tion of the law is amended, fur­ther defama­tion suits are likely, as Myan­mar’s 10 mil­lion Facebook users grow in­creas­ingly will­ing to test the govern­ment’s com­mit­ment to free­dom of ex­pres­sion.

Vani Sathisan, an in­de­pen­dent le­gal ex­pert who spent three years work­ing in Myan­mar, said, “The puni­tive im­pulse to jail some­one, whose com­ment may be in­sult­ing but is made with­out mal­ice and is cer­tainly not defam­a­tory, is a re­flec­tion of Myan­mar’s deep in­sti­tu­tional de­cay and in­ca­pac­ity.”

“The pen­chant to turn to crim­i­nal defama­tion laws to pun­ish free ex­pres­sion, by both by the mil­i­tary govern­ment and the cur­rent ad­min­is­tra­tion, chills the ex­er­cise of free ex­pres­sion of opin­ion and sti­fles the ex­change of in­for­ma­tion. This right to free­dom of ex­pres­sion pro­tects ev­ery form of ex­pres­sion, in­clud­ing elec­tronic and in­ter­net-based,” she said.

“Free po­lit­i­cal dis­course is crit­i­cal for a func­tion­ing democ­racy un­der the rule of law. There should be no place for crim­i­nal defama­tion laws in a democ­racy. Par­lia­ment must abol­ish crim­i­nal defama­tion laws. If the NLD wants to be a le­git­i­mate, rep­re­sen­ta­tive govern­ment, then it can­not con­tinue to fail to es­tab­lish do­mes­tic stan­dards con­form­ing to in­ter­na­tional hu­man rights law,” she added.

Par­lia­ment should soon un­der­take a re­view of sec­tion 66(d) with a view to amend­ing it, said Ko Maung Saung Kha, who served time for a defama­tion charge and is now lead­ing a com­mit­tee lob­by­ing for the re­form of the Telecom­mu­ni­ca­tions Law.

“On [Novem­ber 25], we will hold an aware­ness cam­paign at the court hear­ing of U Myo Yan Naung Thein at Ka­maryut Town­ship Court,” he said.

His com­mit­tee, made up mostly of ac­tivists who were pros­e­cuted un­der the defama­tion sec­tion, is pre­par­ing a re­port to sub­mit to par­lia­ment. So far, according to their re­search, 23 law­suits have been opened un­der sec­tion 66(d) since the NLD-led govern­ment took of­fice in April. Among the 20 peo­ple fac­ing trial, 12 have been de­nied bail.

Ko Maung Saung Kha said the sec­tion of the Telecom­mu­ni­ca­tions Law should be re­placed by leg­is­la­tion that prop­erly ad­dresses cy­ber bullying, with an aim of pro­tect­ing the pub­lic.

“If par­lia­ment is not yet ready for a cy­ber law, then par­lia­ment should con­sider writ­ing by-laws which dic­tate the terms un­der which sec­tion 66(d) is to be ex­er­cised with­out harm­ing free­dom of ex­pres­sion,” the poet said.

‘The ca­pac­ity of peo­ple to freely im­part and re­ceive in­for­ma­tion, in­clud­ing through free po­lit­i­cal dis­course, is crit­i­cal for a func­tion­ing democ­racy.’

Daniel Aguirre Le­gal ad­viser at ICJ

Photo: Zarni Phyo

Prom­i­nent Na­tional League for Democ­racy mem­ber U Myo Yan Naung Thein is on trial for defama­tion un­der sec­tion 66(d) fol­low­ing a post deemed in­flam­a­tory on his Facebook page.

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