Daw Aung San Suu Kyi’s remarks in context: is she defending the convictions and imprisonment of the journalists?

Q: You probably saw also, Vice President Pence yesterday appealed to you and to Myanmar to let the two Reuters journalists out of jail. I think they got a sentence of seven years. What is your response to Vice President Pence?

A: Well, I think what I want to know is whether they feel that there has been a miscarriage of justice. And you know of course, that due process allows them to appeal the sentence.

Q: But that, I guess, you also as a democratic leader don’t feel comfortable with journalists being jailed?

A: It’s not a matter of… They were not jailed because they were journalists. They were jailed because the court has…. Well, sentence has been passed on them because the court has decided that they had broken the Official Secrets Act. So, if we believe in the rule of law, they have every right to appeal the judgment and to point out why the judgment is wrong, if they consider it wrong. 

Interview of Aung San Suu Kyi, State Counsellor of Myanmar by Børge Brende, World Economic Forum in Hanoi, Vietnam

Wa Lone (l) and Kyaw Soe Oo (r)

In December 2017, Reuters journalists Wa Lone and Kyaw Soe Oo came across reliable information (eye-witness accounts and photographs) leading to the uncovering of a mass grave of ten Rohingya civilians in Inn Din, Myanmar, killed during a clearance (ethnic-cleansing) operation carried out in the Northern Rakhine State by Myanmar’s security forces (military and police) and local Buddhists in August 2017. Given the location of the burial site, the ongoing events in that area, the equipment required to dig and cover-up the mass grave, the bulldozing over and destruction of any remaining evidence, and the eye-witness accounts and photographs, it was clear that this atrocity was committed and then covered up by Myanmar’s security forces. Reuters would later write a lengthy story on this and other events (see my post), implicating Myanmar’s security forces along with its proxies – local civilians.

With the uncontroverted evidence uncovered by Wa Lone and Kyaw Soe Oo about to be published, the Myanmar security forces got ahead of the story with its own narrative: yes, the atrocities were committed, but by rogue soldiers and civilians; they were not sanctioned directly or indirectly by the Myanmar security forces, whose activities were restricted to legitimate responses to attacks by Rohingya insurgents/terrorists, namely, the Arakan Rohingya Salvation Army (ARSA) (see here and here). Shortly thereafter, on 12 December 2017, Wa Lone and Kyaw Soe Oo were arrested on charges that they had breached the Burma Official Secrets Act (Act)the Burma Official Secrets Act, Section 3(1)(c),1   The Burma Official Secrets Act, Section 3(1) provides: “If any person for any purpose prejudicial to the safety or interests of the State – …(c) obtains, collects, records or publishes or communicates to any other person any secret official code or password, or any sketch, plan, model, article or note or other document or information which is calculated to be or might be or is intended to be, directly or indirectly, useful to an enemy; shall be punishable for a term which may extend, where the offence is committed in relation to any work of … military or air force establishment … to fourteen years….” by unlawfully obtaining confidential documents of security forces in the Rakhine State (for more on the charges, evidence presented, and trial proceedings, see here, here, here, and here.)

The facts as reported

Wa Lone and Kyaw Soe Oo were contacted several times by a couple of police officers claiming to have information of interest, (presumably) concerning the events in Inn Din. Eventually, Wa Lone and Kyaw Soe Oo met the police officers at a restaurant. When Wa Lone and Kyaw Soe Oo realized that the police officers were offering nothing and got up to leave, they were handed some rolled-up papers. Neither Wa Lone nor Kyaw Soe Oo had a chance to see what these rolled-up papers were all about; they were arrested as they were leaving the restaurant. The content of the rolled-up papers remains a mystery.

Though the police officers initiated the contact and were insistent on a meeting, Wa Lone’s and Kyaw Soe Oo’s willingness to meet with the police officers, reasonably knowing that what the police officers promised to provide could be subject to the Act (hard to fathom that such experienced local journalists were not aware of the Act), shows a predisposition, and an acceptance of the risk associated with violating the Act: being caught, arrested, prosecuted, convicted, and sentenced severely (as appears to be the norm in Myanmar).

At the trial, a police captain called by the prosecution revealed that there had been discussions about “entrapping” the two journalists. The word “entrapment” has a specific meaning in law, and as an affirmative defense, there are certain elements that must be met, mainly that there is no predisposition to commit the crime at the time of inducement by the police. Thus, one must look beyond the intent of the police and focus on whether the journalists had a predisposition to commit a crime.

To use an example, think of when undercover narcotics officers lure known or suspected drug dealers to commit a crime by purchasing or selling illegal drugs. If a drug dealer has no predisposition but is pressurized, manipulated, cajoled etc., to meet with narcotics officers posing as dealers or users, this could amount to an entrapment. It can be assumed that drug dealers, because of the nature of their work, have a predisposition to selling drugs. However, this assumption is not proof that at all times and under all circumstances a particular drug dealer is predisposed to selling drugs.

The same goes with journalists. By their profession, they are predisposed to gathering evidence that establish facts to events of interest to the public, to report on it. This predisposition, however, does not lead to a conclusion that journalists are predisposed to violating laws that get in their way of obtaining information relevant to a story.

Wa Lone and Kyaw Soe Oo knowingly met with the police officers. Arguably, they were predisposed to obtaining information protected under the Act. So, was this an entrapment – assuming Myanmar’s criminal code defines entrapment as I have described? Not necessarily, though considering how (the timing) the rolled up papers were handed over, I would say this was an in flagrante delicto frame-up.

We do not know what was in the rolled-up papers handed to them. For all we know, it was news clippings. This would be tantamount to the drug dealer being handed a kilo of baby powder by the undercover narcotics officer and then charged with possession (or attempted possession) of a kilo of cocaine with the intent to distribute. So, even if the frame-up does not amount to an entrapment, it cannot be said (with what is being reported) that the Act was violated. The opacity with which this critical piece of evidence was dealt with during the entire process – from arrest to conviction – suggests a charade of trumped-up charges and perverse trial proceedings.

And what of the testimony of one the police officers who under cross-examination acknowledged that what was in the documents was already public? Assuming Myanmar’s criminal code provides for inchoate crimes, this bit of evidence may be useful for mitigating purposes, but not necessarily dispositive. In any event, this is all speculative since we do not know what was in the rolled-up papers.

Convincingly, circumstances were created to give Wa Lone’s and Kyaw Soe Oo’s arrest and trial proceedings a façade of legitimacy. By all accounts, Wa Lone and Kyaw Soe Oo, were framed up for the arrest, not afforded their full fair trial rights, subjected to a sub-standard trial, and wrongly convicted. As draconian as the seven-year imprisonment sentences may be, any unlawful conviction carrying any type of sentence – even a non-custodial one – is abhorrent and unacceptable.

However farcical the trial may have been, a court in Myanmar issued an enforceable legal judgment subject to two higher instances of judicial review. We may question (as we should) how the judgment was reached and whether it meets the basic fair trial rights criteria, but there is no denying the fact that this is a judicial decision. If this is accepted, as it must, the question of what to make of Ms. Aung San Suu Kyi’s remarks or her lack of action turns on whether, as the de facto highest member of the executive branch, she should denounce the arrest, trial and judgment, and demand the reversal of the conviction and release of Wa Lone and Kyaw Soe Oo.

Before answering this question, however, I want to focus on some of the accusations, or shall I say, misrepresentations of Ms. Aung San Suu Kyi’s words.

In her own words

Ms. Aung San Suu Kyi

Since the convictions and sentences were pronounced, there have been almost daily articles across the globe on the fate of Wa Lone and Kyaw Soe Oo. But it was Ms. Aung San Suu Kyi’s now infamous remarks at the World Economic Forum in Hanoi, Vietnam (quoted above) that have led to accusations of her support for the imprisonment of Wa Lone and Kyaw Soe Oo, and by extension, her support of the ongoing efforts by the National Defence and Security Council (NDSC), (which, under the constitution is the highest authority in Myanmar) to eliminate any vestiges of a free press. One recent example comes from Stephen J. Adler, president and editor in chief of Reuters, in his opinion piece in The New York Times, where he claims:

Last week, Myanmar’s civilian leader, Daw Aung San Suu Kyi, resolutely ignored the facts and vigorously defended the unjust convictions. … Ms. Aung San Suu Kyi claimed that the trial had nothing to do with press freedom and that the convictions were legitimate under the Official Secrets Act, a colonial-era law that bars the collection of secret documents to aid an enemy.

I get the argument that Wa Lone and Kyaw Soe Oo were falsely arrested, prosecuted, convicted, and harshly sentenced to prevent them from reporting on the truth. But just how accurate are Mr. Adler’s representation of Ms. Aung San Suu Kyi’s words?

In the past, Ms. Aung San Suu Kyi acknowledged that Myanmar’s judicial system needs improvement. This could mean a variety of things. Having witnessed and experienced injustices, trumped-up charges, a perverse application of the laws and procedures, unsound judicial judgments, harsh sentences, wrongful imprisonments and so on, Ms. Aung San Suu Kyi is well placed to know an injustice when she sees one. She harbors no illusions about Myanmar’s judicial system or of the thumb-on-the-scale justice rendered in cases such as this one where the security forces are being exposed by journalists for committing and covering up mass atrocities.

Ms. Aung San Suu Kyi knows that the critical actors in the criminal justice chain in Myanmar are beholden to or under the control of the NDSC, which dictates the manner, extent, and outcome of the work performed by the police, prosecutors, and judges. Machiavellian as she may be, she must, at a minimum, suspect that Wa Lone and Kyaw Soe Oo were charged, convicted, and cruelly sentenced under questionable circumstances and specious evidence. She may have done a deal with the devil, but she’s no devil. This may be worse: by lending legitimacy to the devil’s handiwork, Ms. Aung San Suu Kyi essentially aids and abets by reciting lies packaged as truths, justifying and minimizing illicit actions and conduct by the security forces / NDSC.

Ms. Aung San Suu Kyi inarguably knows better than to claim that the convictions and sentences rendered in this case were well founded on the rule of law. Which is why she has not made that claim. Her reference to the “rule of law” was related to the due process and procedural mechanisms that Wa Lone and Kyaw Soe Oo have yet to exhaust.

Her remarks may be unsatisfying, particularly knowing that she, above all, appreciates the indignity and inequity of being on the receiving end of a farcical judicial process. Yet, before clouding our objectivity by yielding to our passions and prejudices, our sense of righteousness, our profound disappointment in Ms. Aung San Suu Kyi, let’s step back and examine her remarks.

Is it possible that too much is being read into what she said? Objectively, is she defending and supporting the convictions and imprisonment of the journalists? When her words are viewed in context, they do not lend to this conclusion, and may, in fact, explain or justify her inaction. This may be an unpopular position to stake out, but in regard to her remarks at the World Economic Forum, Ms. Aung San Suu Kyi, in my view, is being unfairly accused of defending the convictions, which, impliedly, also translates into an endorsement of the outcome of this case. Her words must be assessed in context – which also includes the realities of her actual authority.

Improbable expectations

Ms. Aung San Suu Kyi has been a disappointment to many who thought once freed and in power, she would champion the ideals she aspired for all peoples in Myanmar and that she would live by and promote the ideas she so eloquently wrote about, giving hope to the millions in Myanmar and beyond. Sadly, she has not risen to the occasion; doubtful she can or ever will.

Was it hubris or naiveté that drove her to think she could? Was it that she simply miscalculated the risks involved in incrementally dispensing with the virtues of her idealism for the vices of political pragmatism by indulging in seemingly benign situation-ethics that, in time, have transmuted to malignant patterns of abject denial of appreciable truths? Was it that she believed that she had no choice but to participate in the political process and thus engage with and potentially be perceived as having been co-opted by the NDSC? Or was it that too much was assumed or expected of her by supporters at home and abroad, failing to recognize the reality that exists in Myanmar with all its complications?

Ms. Aung San Suu Kyi may know the answers to these questions, although it is questionable whether she has the capacity to genuinely reflect. Now that the lines between morality and expediency have been blurred, unavoidably, her ability and willingness to grasp, let alone acknowledge, the unvarnished truth have been compromised.

I suspect that Ms. Aung San Suu Kyi was (and perhaps remains) convinced that she had no other choice but to adopt a see no evil, hear no evil, and speak no evil posture if she was to advance her agenda, which, presumably (we can no longer rely on her eloquent voice of the past), is to turn Myanmar into a liberal democracy led by a freely and fairly elected government, with separation of powers, a military subordinate to the elected civilian head of state, an independent and well-functioning judiciary, free press, etc., founded on a constitution that gives voice and real participatory rights to all citizens, including those who have been illegitimately disenfranchised.

Having relinquished the moral high ground, Ms. Aung San Suu Kyi is now being hoisted by her own petard. She knew that change in Myanmar could only come with constitutional changes and enforcement mechanisms that defanged the NDSC and neutralized the security forces – subordinating them to the executive civilian authority. This was never in the cards when Ms. Aung San Suu Kyi had her party concoct a special post for her as State Counsellor of Myanmar (see here and here), thus giving her the appearance and de facto authority as Myanmar’s head of state – although realistically, it is the NDSC that dictates and runs the affairs of Myanmar, leaving Ms. Aung San Suu Kyi with the trapping of power without power itself. She went into this government with eyes wide open. She made a calculated decision that has proved ruinous to her prestige, her integrity, and in no small measure, her legacy.

Having retreated from the human rights front, Ms. Aung San Suu Kyi finds herself on a damnable precipice with no quarter to spare: damned if she continues in her current path of enabling the NDSC to advance their narrative and policy of persecuting the Rohingya; damned if she lends voice to conscience if she wants to keep her position, and presumably, pursue her supposed agenda for liberalizing and democratizing Myanmar – however imperfect, inhibited, elusive, and non-inclusive it may be.

Is any of this relevant to her remarks about the arrest, conviction, and sentencing of the two Reuters journalists? Yes. Here is why.

Despite what we may think Ms. Aung San Suu Kyi should have said and should have done, we must look at what she can say and what she can do, given her position, the status of the proceedings and available legal/constitutional relief, and the separation of powers between the judiciary and the executive in Myanmar.

Ms. Aung San Suu Kyi deserves a verbal pummeling for her failures in handling the Rohingya crisis. Her demi-lies and often absurd claims, such as not knowing why “Muslims” (she dare not refer to them as Rohingya) in some areas were fleeing across the border (see her disappointing national address about the Rohingya crisis in September 2017), are scandalous. A day may come when she may need to account before the ICC for her alleged role in these atrocities (see here, here, here, and here). Nonetheless, concerning her most recent comments, I think her critics got it wrong.

Ms. Aung San Suu Kyi did not endorse the propriety of the arrests, the quality of the trial, the righteousness of the verdicts, or the appropriateness of the sentences. Nor did she comment on whether the evidence and fairness of the proceedings proved the guilt of the journalists. I am neither condoning nor condemning her words and deeds; I am just looking at what she said as objectively as possible, trying not to read too much or too little into her words. To cut to the chase, her remarks were appropriate and measured. Given her official position, it is fundamentally wrong to expect her to renounce the Myanmar’s criminal justice system by attacking the integrity of the trial proceedings, or to demand that judges reverse guilty verdicts or reduce sentences.

As the head of the executive branch she should rightfully keep her opinions to herself and not interfere with the judicial branch. She is not, however, precluded from working from within to influence a more accommodating and acceptable result, though considering the Faustian bargain she entered, her influence seems (at least from the outside) exceptionally constrained. She could cajole, maybe even pressure, the President of Myanmar to issue a pardon, which has been done in the past. We do not know what, if any, efforts she had made behind the scenes from the moment she learned of Wa Lone’s and Kyaw Soe Oo’s arrests to when the verdicts and sentences were handed down. Perhaps she is doing next to nothing, thinking that it is best for the judicial process to take its course. The obvious option is for her to resign and speak out against the NDSC, the military, the security forces, the judiciary, etc., even if it means further house arrest or imprisonment. And then what? She is obviously playing the long game, which, regrettably, seems to exclude giving rights and providing security to certain national minorities, especially the Rohingya.

An aside: The Burma Official Secrets Act

This brings me to a related aside: the characterization of The Burma Official Secrets Act as an antiquated law. I raise this because of the manner in which it has been referenced in various articles; one gets the impression that the Act, which came into existence in the bygone colonial-era, is an obscure and outmoded law, calling into question its current use. Here I am referring to the Act’s substance, not its practical application.

Myanmar has its own set of laws. We may not find them to our liking – especially when looking at situations through the lens of western democracy and freedom, which, inarguably, do not translate the same in places such as Myanmar. They are what they are. One such law is the Act – a law that dates back to 1923 when Burma was a British colony. Presumably, it was drafted by and for the British colonizers to control the citizens of Burma, to ensure that any malcontents aspiring independence were kept in check, and when necessary, to help cover up any unseemly activity by the colonialist authorities. The Act seems to have been drafted with, shall we say, sufficient flexibility for constructive malleability in its interpretation and application.

To be fair to the British colonizers, they were not alone in drafting such measures; other colonizers did the same. Ominously, in the spirit of fulfilling their self-proclaimed God-given white man’s burden, colonial authorities set the example for generations of strongmen and dictators on how to (mis)apply laws such as the Act – all in the name of protecting the national security of the state.

Of course, when it comes to national security, even the most advanced and sophisticated liberal democracies have laws on the books criminalizing conduct that perhaps ought not to be criminalized – especially when in some instances the criminalized conduct has the potential to expose wrongdoings of the state, violations of constitutional or human rights of citizens, or illicit activity of the state against other states and/or their nationals.

An example of a law on national security similar to the Act, albeit enacted under different circumstances and interpreted based on the US Constitution which puts a premium on free speech and a free press (often referred to as the fourth pillar, next to the executive, legislative, and judicial branches), is the Espionage Act of 1917. Passed shortly after the US entry into World War I, it is still in existence, although it has been amended several times.

So, what’s the point?

Well, if there is a law criminalizing the obtaining of certain classified information, as provided by the Act, then is it not a crime to do so, irrespective of the reasons? There may be very good reasons for a journalist to obtain classified information from someone having legitimate access to such information because of his or her position, and for that information to be published. But there is a risk: transgressing laws such as the Act yields unpleasant consequences.

And by the way, we have seen something similar before the international(ized) criminal tribunals and courts. Journalists have been threatened with prosecution by these judicial institutions for publishing documents deemed confidential and obtained by providers that have no authority to disclose this material, irrespective of the value resulting from bringing to light information that ought to be known to the public (see, for example, the case against Ivica Marijačić and Markica Rebić at the ICTY, who were found guilty of contempt for publishing confidential information about a protected witness in a Croatian newspaper Hrvatski List; see also, the case of Florence Hartmann, Le Monde journalist, who was found guilty of contempt for disclosing the contents, purported effect, and confidential nature of two Appeals Chamber’s decisions from the Milošević case in a book as well as an article authored by her in 2007 and 2008. For more contempt cases at the ICTY, see here and here).

I am not justifying the use or abuse of the Act in this instance. I am merely pointing out that laws such as this Act exist, they exist for a reason, and they exist (albeit under a different guise) beyond the state level, such as at the international(ized) criminal tribunals and courts.

Assuming laws such as the Act (or any law criminalizing conduct for that matter) are sufficiently clear to inform the public (and journalists), then, however antithetical we may find the substance of these laws, especially when compared to similar laws in our own domestic jurisdictions, the authorized officials and institutions must exercise their lawful authority as stipulated by the law. Conversely, if laws are unfair or unnecessary, or unconstitutional, or vague, or overbroad, etc., then they should be amended or abolished. Put differently, we can criticize laws for being repugnant, unjust, or what have you, and we can be outraged by their application when injustice occurs, but this does not necessarily make the judicial proceedings per se invalid or illegitimate.

Parting thoughts

Ms. Aung San Suu Kyi deserves to be criticized, but not for her comments of letting the judicial process in Myanmar run its course. I see no validation of the verdict by her, nor do I see her condemning free speech or freedom of the press.

A question that I find far more significant and more difficult to answer is:

Whether Ms. Aung San Suu Kyi through her silence and inaction aiding and abetting many of the inequities and crimes committed by the Myanmar security forces who have unbridled de facto power and are directly or indirectly involved in matters such as the massacre uncovered by Wa Lone and Kyaw Soe Oo?

Politics often requires those who seek power for the sake of making a positive difference and bring about meaningful changes to set ethical principles aside for pragmatism. Some see this as a necessary, even innocuous, evil that is part and parcel of the political process of reaching compromises to move forward and pursue higher or weightier goals. Pragmatism, however, has limits and comes with a price. By setting one’s principles aside on minor matters, incrementally, over a period of time, those principles are compromised on more substantive matters, distorting and eventually obliterating the moral high ground lines.

Sadly, Ms. Aung San Suu Kyi seems to have compromised her principles to keep her post at the expense of the Rohingya. I do not think she is necessarily prejudiced or venal. But so what? The consequences of her behavior are what matters.

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

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