25 August – 31 August: Draconian Sentences of Unity Weekly Journalists Must at the Very Least be Drastically Reduced

September 2, 2014

On Thursday 28 August, lawyer Robert San Aung submitted to Magwe regional court the final appeal against the harsh verdicts brought against the five Unity Weekly journalists on10 July. They were sentenced to ten years’ imprisonment with hard labor following the publication of a report in January of this year that gave details of an alleged chemical weapons facility in central Burma. They were charged for trespass and for “disclosing state secrets” in violation of the 1923 Official Secrets Act (OSA). Robert San Aung submitted the appeal on the grounds that the four reporters are innocent and should therefore be released from prison, and that the sentence of the journal’s executive be reduced by half. The Magwe regional court is expected to issue a decision within a month.

While the offense under Section 3(1)(a) of the OSA is a strict liability offense – meaning that the prosecution only has to prove that the defendants were in the vicinity of the prohibited place for them to be found guilty – in order for the other convictions to stand, the burden is on the prosecution to show that the secrets alleged to have been leaked were intended to or were likely to have breached state security or assisted an enemy. The journalists must be shown to have leaked detailed and useful information, to have done more than just report that the facility was a weapons factory. It is not clear that the prosecution ever satisfied this requirement.

Even so, if the appeal submission fails to convince the court either that the journalists are not guilty of any substantive offenses, or that there are specific and legitimate defenses under the OSA that can be relied upon, then at the very least the appeal should be successful on grounds of mitigation regarding the alleged offenses, meaning that the sentences should at a minimum be drastically reduced.

Mitigation can be argued on a number of individual grounds. First, if the intention of the journalists was to monitor and document illegal land grabs and difficulties faced by farmers in the area concerned, then it can be argued that the nature of the facility that was documented and photographed was incidental to the objectives of the journalists. In other words, the actual focus of the investigation was the illegal land grabs occurring in the area, not the military facility. Second, the seriousness of the alleged offenses is in no way commensurate to the severity of the sentences. Ten years’ imprisonment with hard labor is totally disproportionate, whichever way the alleged offenses are considered. Finally, mitigation can also be argued on personal grounds: the majority of the defendants are very young, while some of them have little journalistic experience or were merely assisting in the process of gathering information.

Furthermore, aside from the disproportionality of the sentences, there are some serious human rights concerns, which are worth pointing out if Burma genuinely aspires to earn the respect of the international community and is serious about its democratic reforms.

The imposition of forced labor as a sentence is draconian and barbaric, and a throwback to the era of the pre-2011 military regime. Forced labor is a clear breach of Article 5 of the Universal Declaration of Human Rights (UDHR), which prohibits “torture [and] cruel, inhuman or degrading treatment or punishment”. The sentencing of the journalists also arguably qualifies as “arbitrary detention” – on the grounds both that their fair trial rights have been violated and that they were exercising their rights to the fundamental freedoms, specifically their rights to freedom of opinion and expression under Article 19 of both the UDHR and the International Covenant on Civil and Political Rights (ICCPR). Arbitrary detention is a breach of Article 9 of both the UDHR and the ICCPR.

If the appeal is rejected out of hand, it will be a dark day for justice in Burma. Not only will it reaffirm people’s complete lack of faith in the independence and competence of the country’s judiciary, it will also underline the fact that there is no rule of law in Burma, that the interests of the rich and powerful will always prevail over the lives and livelihoods of the people. Moreover, should there still be any doubt, it will show the world that Burma is still a serial abuser of human rights, where there is no freedom of expression and no freedom of the media, despite the so-called media reforms; where fair trial rights are not respected; where land rights abuses are endemic and occur with impunity; and where people are arbitrarily detained and subjected to cruel and degrading punishments.

We call upon all stakeholders – the international community, the political opposition, civil society and the people of Burma – to put pressure on the Burma government to respect the independence of the judiciary. And we call upon the judiciary to do the right thing and either acquit the Unity Weekly journalists or to drastically reduce their draconian sentences.