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Lawyers question legal basis for journalists’ unlawful association case

DVB reporters Aye Nai, left, and Pyae Bone Naing, centre, along with The Irrawaddy's Lawi Weng, right, were detained by the military on Monday.

Legal experts have suggested that the case brought against three detained journalists who are being charged under Burma’s Unlawful Associations Act lacks a sound basis upon which to pursue prosecution, given the specifics of the colonial-era legislation’s provisions.

The 1908 Unlawful Associations Act’s section 17(1) — the provision that the three reporters are expected to be charged under — stipulates that anyone who is a member of an unlawful association, takes part in meetings of any such associations, or contributes or receives or solicits any contribution for the purpose of such associations, can be charged under the law and sentenced to up to three years in prison.

Regarding the three journalists’ conduct leading up to their arrest on 26 June, however, lawyer and ex-MP Thein Nyunt says the law simply does not apply.

“If you look at the case more carefully, the Act says ‘anyone who is a member of an unlawful association.’ None of the three journalists is a member of an unlawful association. That fact alone argues against their being prosecuted under the Act,” he told DVB.

Thein Nyunt, once a member of the National League for Democracy who now chairs the New National Democracy Party (NNDP) and formerly served as a Lower House parliamentarian, has previously proposed abolishing the Unlawful Associations Act.

“Next, it [section 17/1] says, ‘takes part in meetings of any such associations.’ The journalists did not attend a meeting. They went there to cover a drug-burning ceremony,” Thein Nyunt continued. “Also, the journalists did not contribute, receive or solicit any contribution for any unlawful associations. So, the clauses of the Unlawful Associations Act are not relevant at all to the journalists who went to the ceremony to cover the event. Instead of prosecuting the journalists under 17/1, it is best to free them.”

Fellow lawyer Thein Than Oo and the Legal Aid Network concurred, with the latter issuing a statement defending the journalists’ presence last week in territory controlled by an ethnic armed group considered “illegal” by the Burmese government.

The three journalists facing unlawful association charges are DVB’s Aye Nai and Pyae Phone Aung, and The Irrawaddy’s Lawi Weng. They were arrested in Shan State’s Namhsan Township on 26 June after attending a drug-burning ceremony organised by the Ta’ang National Liberation Army to commemorate International Day Against Drug Abuse and Illicit Trafficking.

“It is not relevant to the Act at all. … The journalists are not complicit with any of the activities stipulated by the law,” Thein Than Oo said.

The legal experts pointed to article 7 of the Media Law, which explicitly states that journalists working in war zones or other conflict-affected areas are to be afforded certain guarantees in the course of carrying out their newsgathering duties, including protections against detention or confiscation of equipment without cause.

But even as law practitioners called into question the merits of the unlawful association charges, the case against the three journalists is moving forward.

The men remain detained in Hsipaw Prison awaiting a preliminary hearing scheduled for 11 July. The case file itself, however, has been transferred from Hsipaw, where it was initially submitted, to Namhsan. Both are jurisdictions in Shan State, the latter being within the township where the three men were arrested last week.

“The case is now filed here,” said Police Major Zaw Min of the Namhsan police station. “It was transferred on Sunday. The lawsuit will be submitted to the Namhsan court. The case was transferred since the arrest did not occur in Hsipaw but in Namhsan.”

The 11 July court date for the three journalists — who are expected to appear before a judge alongside three other civilians arrested with them last week — will require the defendants to be transported by vehicle three to four hours along a route that has raised security concerns.

On Sunday, a grenade-like explosive device was lobbed into the Hsipaw police station compound. No one was injured but two vehicles were damaged in the attack, which a local police officer speculated may have been linked to the unlawful association case.

“We reported to senior officers about our concerns regarding the current security situation along the Hsipaw-Namhsan road,” Zaw Min said.

Family members of the detained journalists were allowed to meet with their loved ones in Hsipaw Prison this week. On Tuesday, the parents of DVB’s Pyae Phone Aung visited him.

“He is in good health,” Pyae Phone Aung’s father told DVB. “They live in a separate cell, not with other detainees. He told us not to worry. They can read books there, so I gave them books and journals. I want my son to be freed soon.”

Meanwhile, demonstrations against the three reporters’ arrest continued this week.

Nanda, a freelance journalist in Mandalay, staged a solo protest on Wednesday calling for their immediate release. Carrying a banner that read, “Press Freedom, free detained journalists now,” Nanda also demanded that the Tatmadaw put an end to all forms of media oppression.

“The right to information, expression and media rights are at stake. Continuous oppression of media outlets should not be happening. So I want to say to Commander-in-Chief Min Aung Hlaing, I firmly demand the immediate release of the detained journalists,” he said.

Other Mandalay-based journalists and writers echoed that sentiment, with writer Nyi Pu Lay saying, “The Tatmadaw act of arresting and filing criminal charges against journalists harms the image of the 21st Century Panglong Conference. Especially at a time of national reconciliation, I feel that such an action mocks the peace conference, which has received attention from the public and international community.”

“The criminal charges against the media are unjust. So we, the media outlets, will protest and speak out about our demands with increased momentum,” said Min Din, editor-in-chief of the Channel Mandalay news agency.