Reuters reporters Kyaw Soe Oo (left) and Wa Lone were sentenced to seven years in prison on Sept. 3 in Yangon, Myanmar, after a trial that international observers condemned as a sham. (AP)
They say a picture's worth a thousand words; in the case of Reuters reporters Wa Lone and Kyaw Soe Oo, two pictures were worth a conviction and seven years in a Myanmar jail cell.
One photograph shows 10 men on their knees, with officers of Myanmar's notorious armed forces in the background. The other shows the same 10 men, all of them members of the long-persecuted Rohingya Muslim minority group, hacked to pieces in a mass grave.
Wa Lone had acquired the photos while investigating the men's deaths, believed to be casualties in a military-led campaign that has driven roughly 700,000 Rohingya across Myanmar's western border into Bangladesh. According to United Nations and U.S. investigations, soldiers have raped and killed thousands more in what many consider to be a genocide fueled by religious extremism.
But the military has denied the accusations — and when Wa Lone and his colleague Kyaw Soe Oo met with members of the battalion seen in the photographs, they ended up in handcuffs, charged with violating Myanmar's colonial-era Official Secrets Act.
What followed, according to their counsel Amal Clooney of Doughty Street Chambers, was a "show trial in which a conviction was guaranteed." At one point, prosecutors proposed dropping the charges if Reuters agreed to kill the story, suggesting the true animus behind the charges was the damning proof of military involvement in killing the Rohingya.
The news agency refused, publishing the images and details on the massacre in February. The trial continued, and in September Wa Lone and Kyaw Soe Oo were convicted and sentenced to seven years in prison.
Now both reporters languish behind bars, enmeshed in a criminal justice system that ranks 107th out of 113 surveyed countries, according to the World Justice Project's most recent Rule of Law Index.
Although Wa Lone and Kyaw Soe Oo have appealed their conviction, their Myanmar attorney Than Zaw Aung told Law360 that the outlook of their case is grim because "there is not good rule of law."
Myanmar's criminal justice system is ranked 107 out of 113 countries surveyed by the World Justice Project. It also ranks in the bottom four for fundamental rights, including due process of law. (Source: World Justice Project)
Myanmar's criminal justice system is ranked 107 out of 113 countries surveyed by the World Justice Project. It also ranks in the bottom four for fundamental rights, including due process of law. (Source: World Justice Project)
The Golden Land's justice system wasn't always so fraught, but a military coup d'etat in 1962 marked the beginning of a swift deterioration in legal infrastructure, experts say. Sam Zarifi, secretary-general of the International Commission of Jurists, told Law360 that decades of military rule "systematically" weakened the justice system in Myanmar because independence of the judiciary was "unthinkable."
Problems surrounding the judiciary and the education of lawyers in general persist to this day. Courses and exams are conducted in English, while Burmese language is primarily used in court proceedings. Graduates have described their education as a process of rote memorization "without comprehending the content of questions and answers," according to a 2014 report by the ICJ.
"Judges and lawyers were for years cut off from contact with the outside world and even kept from having full access to the country's own, once-proud judicial records," Zarifi said.
As a result, observers say Myanmar's current legal system is plagued by bribes, government influence and a lack of accountability.
After several years of documenting proceedings in the same Yangon courthouses where Wa Lone and Kyaw Soe Oo were tried, MyJusticeMyanmar, a project funded by the European Union, reported instances of clerks pocketing payments from defendants to "take the case seriously," one judge tossing a case after announcing a mysterious "new announcement from above," and jurists occasionally pressuring defendants to admit guilt. In one case, a presiding judge took a 15 minute nap.
The current government, led by Nobel Peace Prize winner Aung San Suu Kyi, was lauded for its seemingly progressive platform when it swept to power in 2015 during Myanmar's first free and fair elections in over half a century. A little over two years later, however, Aung San Suu Kyi has been lambasted for her silence in the face of the ongoing Rohingya crisis and on the reporters' conviction.
Despite her own 15-year experience under house arrest as a political dissident, she has publicly stated that the conviction was in keeping with "the rule of law" and challenged anyone who feels otherwise to "point out why the judgment was wrong."
In September, Clooney detailed multiple reasons why the judgment was actually "a miscarriage of justice" at a Committee to Protect Journalists event at the U.N.'s New York City headquarters.
The famed human rights attorney hired by Reuters described open court testimony from a police officer who appears in the photographs from the Rohingya massacre. He admitted to being instructed to plant "official secrets" on Wa Lone and Kyaw Soe Oo so that they could be arrested — and was subsequently sentenced himself to a year in prison.
Clooney said another prosecution witness "literally read notes written on his hand," and a third claimed to have burned his notes from the arrest. In addition, she said prosecutors "did not even pretend to be interested in the documents they had seized.
"Instead, they asked obsessively about who the journalists' sources were … and questioned why, as Buddhists, they would bother exposing crimes committed against Rohingyas," Clooney added.
In convicting Wa Lone and Kyaw Soe Oo, Yangon Northern District Judge Ye Lwin acknowledged that the documents they had in hand upon arrest were not state secrets, but found the journalists to be guilty because there were "opportunities" for them to violate the law, according to Clooney.
"How convenient," she noted. "instead of the prosecution having to prove guilty conduct beyond doubt, the defense has to prove that such conduct could not theoretically be possible."
Today, Wa Lone and Kyaw Soe Oo live in Insein Prison, a sprawling complex where Aung San Suu Kyi herself once did a brief stint during junta rule. Sonny Swe, a former Insein inmate on censorship violation charges and the current publisher of independent news outlet Frontier Myanmar, said the facility provides prisoners with minimal rights.
The fact that Wa Lone and Kyaw Soe Oo are behind bars under similar circumstances shows that Myanmar is "not yet in a democracy where fundamental rights are guaranteed," he told Law360.
But far from undercutting confidence in the justice system, the conviction of Wa Lone and Kyaw Soe Oo may have done the opposite for many Myanmar people. Many were actually happy with sentence, according to Swe, whose magazine has reported on the country's toxic mix of fake news on Facebook, military propaganda and anti-Muslim rhetoric.
"They even said things like they are traitors, and they should be hanged or at least never be let out of prison," Swe said.
While Wa Lone and Kyaw Soe Oo's family members have petitioned for a presidential pardon, their best shot may be the pressure that international organizations have heaped on Myanmar and its leader.
As Reuters President and Editor-in-Chief Stephen J. Adler told the United Nations, "The community of nations cannot condone this. We must stand for the rule of law, for the ideal and the practice of democracy."
--Editing by Pamela Wilkinson.
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