Two cases that form the basis of Petitions to the UN Working Group on Arbitrary Detention, submitted by the freedom of expression law clinic in Zagreb last week, shine a spotlight on the vague and overbroad national security laws that are all too often used to suppress the free press. The first case is of a newspaper’s CEO, Tin San, who has been wrongly prosecuted under official secrecy laws in Myanmar. The second is of a 26 year-old photojournalist, Minh Man, who was unjustly prosecuted on the basis of fabricated charges of attempting to “overthrow” the Government of Vietnam. In both cases the laws that have been used are imprecise and can, therefore, be used at the whim of their respective governments. These laws by their very existence threaten freedom of expression in Myanmar and Vietnam, and it is of vital importance that there is a push for reform and that those detained under these laws be released.
Tin San was convicted for authorising his journalists to access and take photographs of a military weapons factory in Myanmar for an investigative report. He was sentenced to seven years imprisonment with labour on 28 August 2014. He remains detained in Pokkuku Prison. Perhaps the most surprising element of his case is the legislation that has been relied on by the authorities to prosecute him. Tin San was prosecuted under a law that Myanmar had inherited from when it was a British colony. As Myanmar strives towards democratisation, it still relies on such colonial laws to suppress free speech.
In Tin San’s case it was section 3 of the Burma Official Secrets Act 1923 that was relied on in order to prosecute him. This is an ambiguous piece of legislation that was drafted under circumstances that are no longer relevant to Myanmar. In fact, at the time of Tin San’s prosecution the law had still not yet been translated from its original English language version to Burmese. The provision is modelled on section 1 of the British Official Secrets Act 1911, which is aimed at spies in the employ of foreign powers. On one occasion, in 1977, when British journalists were charged under this provision, the trial judge in their case insisted that the charges be dropped as they were “oppressive.” In Tin San’s case the law is similarly being in used oppressively to silence the valuable work of investigative journalists in the country.
Tin San was prosecuted for publishing an investigative report that exposed the Government of Myanmar. The report alleged that a military weapons factory in Pauk Township was actually a chemical weapons factory built on land that had been confiscated from local farmers. The report was of particular public interest in light of the fact that Myanmar is a signatory to the Chemical Weapons Convention (CWC) but has not yet ratified it. If Myanmar were to ratify the CWC its enforcement body, the Organisation for the Prohibition of Chemical Weapons, would have the authority to investigate and conduct verification activities on the factory site, and Myanmar would have 60 days in which to declare all chemical assets within its territory. The actions of the journalists behind the story have been deemed by the State to be tantamount to espionage. However, this is merely a mechanism under which the government has silenced a piece of vital investigative journalism which has laid the Government of Myanmar open to public scrutiny.
Minh Man was arrested on 31 July 2011, and remains detained in Camp No 5, Yen Dinh, in Thanh Hoa Province where she is serving a nine year prison sentence. She was one of 14 defendants prosecuted by the People’s Court of Nghe An Province on 9 January 2013 in a trial that was reported to have been the “largest subversion case” to be brought in Vietnam for a number of years.
She was convicted of being an “active participant” in criminal activities aimed at overthrowing the Government of Vietnam under their Penal Code. However, Minh Man was simply a photo-journalist who took photographs of civil unrest and political protest. She would then post these photographs online as an alternative news source to the state-run media in Vietnam which did not want to run such stories. It is evident that by detaining Minh Man, the Vietnamese authorities have sought to silence her and prevent her from practicing this kind of photo-journalism. To achieve this, the Government of Vietnam has relied on an ill-defined provision in their Penal Code which could effectively be used to prosecute anyone who wishes to speak out against the State.
Minh Man continues to serve a nine year prison sentence, and is often forced to perform physical labour. On 16 November 2014, she was subjected to solitary confinement for unknown reasons. She then went into hunger strike on 28 November 2014 in protest against this unfair treatment. Minh Man’s condition remains fraught and it is of utmost importance that the UNWGAD take action in her case.
These cases form the basis of Petitions that have been filed on behalf of both Tin San (which can be accessed here), and Minh Man (which can be accessed here). Myanmar and Vietnam have imprisoned these Petitioners under circumstances that clearly violate their right to freedom of expression as recognised by international law.
By filing Petitions to the UNWGAD, there will be greater international awareness of the arbitrary application of national security laws to suppress freedom of expression in Myanmar and Vietnam. Furthermore, it is anticipated that the UNWGAD will deliver an Opinion that not only secures the release of Tin San and Minh Man, but will ultimately put pressure on the respective governments to bring their laws in line with internationally recognised human rights law on freedom of expression.
Jonathan McCully studied law at Trinity College, Dublin (LL.B), and is a recent graduate of the London School of Economics and Political Science (LL.M) where he specialised in Information Technology, Media and Communications Law. He is a frequent contributor to Inforrm’s Blog, and is currently volunteering at the Media Legal Defence Initiative (MLDI).
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