Myanmar’s military using defamation laws to stifle criticism ahead of elections

Call it the courtroom war of the colonels. More than two dozen Myanmar army colonels have bypassed the battlefield to fight their adversaries in civilian courts, using criminal defamation cases to stifle criticism of its authority ahead of parliamentary elections next year.

The military's spokesman, Brig Gen Zaw Min Tun, says the officers are simply defending the "dignity" of the military, known as the Tatmadaw. Since 2016, 25 officers – all of them colonels – have filed defamation cases with the police against 78 people, mainly over comments they posted on Facebook, according to Athan, a group that advocates freedom of expression and tracks such cases.

The number of defamation complaints brought by the military has surged this year, with the colonels filing 12 of their 25 cases since April 1st, said the group, which is based in Yangon (formerly Rangoon), the largest city in Myanmar (formerly Burma).

Three dozen of the accused have been sentenced to prison or are behind bars awaiting trial. Among them is prominent filmmaker and human rights activist Min Htin Ko Ko Gyi, who recently underwent surgery for liver cancer but has been denied bail. He is now on trial.

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“The cases are increasing as the 2020 election gets closer,” said Athan’s research manager, Ye Wai Phyo Aung. “The military is facing political pressure, like calls to amend the constitution.”

Brutal ethnic cleansing

The Tatmadaw is known around the world for its brutal ethnic cleansing of Rohingya people, including murder, rape and arson, which drove more than 700,000 across the border into Bangladesh two years ago. The United States imposed sanctions last month barring Myanmar's commander-in-chief, Gen Min Aung Hlaing, and three top generals from entering the US because of their role in the atrocities.

But for now, the military appears most concerned about shoring up its reputation at home and defending the extraordinary powers it granted itself when it unilaterally adopted the country’s constitution in 2008.

Founded as an army of independence during the second World War, the Tatmadaw ruled the country from 1962 until 2011, when it began ceding some power to civilians. Today, under the constitution’s system of divided government, the military is autonomous and avoids civilian scrutiny in part by financing its operations with revenue from two secretive conglomerates it owns that are among Myanmar’s largest companies.

The constitution gives the commander-in-chief the power to appoint a quarter of parliament's members, enough to block any constitutional amendment and giving it a head start in selecting the country's president, who is chosen by parliament. The National League for Democracy, led by Nobel peace laureate Aung San Suu Kyi, swept the 2015 parliamentary elections in a landslide, giving it control of parliament and the presidency. But that feat may be difficult to repeat in 2020.

Slow pace of progress

Suu Kyi’s domestic standing has been diminished by the slow pace of progress in lifting the country out of poverty, and some analysts fear that the military could gain control of the civilian side of government in the next election.

Over the past three years, the National League for Democracy, commonly known as the NLD, has squandered opportunities to pass legislation to protect citizens’ rights, such as repealing criminal defamation laws.

Perhaps that is because, until earlier this year, NLD operatives used defamation laws themselves to stifle criticism of Suu Kyi and the party, sending three dozen critics to prison. “Freedom of expression is a fundamental of democracy,” said Khin Sandar Tun, a rights activist in Yangon. “If they can’t protect the people, then why do they want to be in government?”

All they have to do is find a random colonel, send him down to the police station with a couple of computer printouts, and presto

The Tatmadaw spokesman, Brig Gen Zaw Min Tun, said the colonels’ legal complaints were a matter of the military defending itself and that the growing number of cases was unrelated to the coming election. “We wouldn’t have a reason to file complaints if they weren’t insulting the military,” he said. “As an institution, the military has its own right to defend its dignity. If someone harms it, we need to take action against them.”

Most of the colonels’ defamation complaints focus on people who criticise the military’s power to block constitutional amendments or say that top officers hoarded much of the country’s wealth.

"All they have to do is find a random colonel, send him down to the police station with a couple of computer printouts, and presto – they turn their critic's life into a living hell of pretrial detention, court appearances and lawyer fees in Myanmar's ever-so-slow and hardly impartial judicial system," said Phil Robertson, the deputy Asia director at Human Rights Watch.

Liver cancer surgery

One case receiving international attention is the trial of Min Htin Ko Ko Gyi, the filmmaker who is recovering from liver cancer surgery. The founder of the Human Dignity Film Institute and its festival, he is accused of insulting and defaming the military in Facebook posts critical of the constitution and the military's role in politics. He faces up to two years in prison.

After a court hearing earlier this month, Ko Ko Gyi said that loosening the military’s grip on power was critical. “The most important thing right now is amending the constitution,” he told reporters on Thursday after he testified as the sole witness in his defence. “My case is not important. I’m not important.”

Among those facing defamation charges brought by the colonels are seven students who performed satirical skits

His lawyer, Robert San Aung, said half of Ko Ko Gyi’s liver was removed during surgery last year and that he suffers from heart and kidney disease. They decided not to appeal the judge’s ruling denying bail for fear of prolonging the proceedings.

A verdict is expected on August 29th. "Min Htin Ko Ko Gyi should be celebrated for his human rights work, not wallowing in prison without appropriate care," said Nicholas Bequelin, Amnesty International's director for East and Southeast Asia.

Among those facing defamation charges brought by the colonels are seven students who performed satirical skits mocking the military and a journalist, Ye Ni, editor of the Irrawaddy, a news outlet. Yanghee Lee, the United Nations special rapporteur on human rights in Myanmar, has urged the government to drop these cases.

Buddhist monks

Buddhist monks in Myanmar are generally accorded deference and respect. But the colonels went after two monks for their Facebook posts. In one case, the monk Sein Di Ta was charged with defaming the military for criticising its constitutional hold on 25 per cent of parliament.

That charge was thrown out last month by a judge in the city of Mandalay, where the judiciary has a reputation for greater independence. It is the only case among the 25 filed by the colonels to be tossed out, according to Athan.

Another monk, Thawbita, was not as fortunate. He is on trial for criticising Gen Min Aung Hlaing and for saying that the military was more destructive than a natural disaster.

Lt Col Aung Myo Kyaw, who filed the complaint against him, told reporters after a court hearing that the monk's Facebook posts were extreme and that by defaming members of the military, he was defaming the state. "We just filed a complaint according to our feelings," the colonel said. "The court will decide the charge, not me."

– New York Times