A court in Myanmar on Friday rejected the appeal of two Reuters reporters sentenced to seven years in prison for possessing classified government documents in violation of the Official Secrets Act, drawing widespread condemnation from the international community, rights groups and media watchdogs.
Wa Lone, 32, and Kyaw Soe Oo, 28, were arrested on Dec. 12, 2017, after two police officers handed them papers about security forces in northern Rakhine state, where a military crackdown targeting Rohingya Muslims was underway. The campaign of violence prompted an exodus of more than 720,000 Rohingya across the border and into Bangladesh.
After months of court hearings in Yangon, the reporters were convicted in September last year of violating Myanmar's colonial-era Officials Secrets Act while reporting on the extrajudicial killings of 10 Rohingya by soldiers in a Rakhine village.
On Friday, during proceedings attended by international diplomats, members of the media, and friends and family, the Yangon Regional High Court threw out their appeal, saying their defense team had failed to provide sufficient evidence of their innocence.
Reuters quoted High Court Judge Aung Naing as calling the seven-year sentence suitable because the reporters' behavior showed they intended to harm the country, and citing a notebook found at Wa Lone's home that contained the phone number of a member of the Arakan Army (AA)�an armed ethnic rebel group he had reported on several years earlier.
The reporters, neither of whom were present at the hearing, maintain that they were set-up by police, and an officer has testified that he was instructed by higher-level authorities to plant documents on the men.
Than Zaw Aung, a lawyer representing the reporters, said his clients are innocent and noted that prosecutors cannot prove that the [telephone] numbers are the numbers of AA members.
Wa Lone's wife Pan Ei Mon said after the hearing that her family is devastated by the decision.
We expected they would be freed today, and planned to pick them up at the jail to go home together, she said.
Still, we believe they will be freed soon.
The defense has the right to request a further appeal from Myanmar's Supreme Court, which is based in the country's capital Naypyidaw.
In a statement, Reuters Editor-in-Chief Stephen J. Adler called Friday's ruling yet another injustice among many inflicted upon the two reporters.
They remain behind bars for one reason: those in power sought to silence the truth, Adler said.
Reporting is not a crime, and until Myanmar rights this terrible wrong, the press in Myanmar is not free, and Myanmar's commitment to rule of law and democracy remains in doubt.
Government weighs in
Myo Nyunt, a spokesman for the ruling National League for Democracy (NLD), told RFA's Myanmar Service that the country's judiciary is independent, and that no one should view the Justice Department's actions as a reflection of government policy, despite the sensitive nature of the reporting work by Wa Lone and Kyaw Soe Oo.
We believe that [the judiciary] has adhered to a due legal process so far, and we will step in if legal experts point out anything that is not in accordance with the law. Otherwise, the administration has no say in the judiciary process.
But Ye Htut, Myanmar's former Information Minister, suggested that the government had a hand in steering the High Court's decision.
I'm sorry to hear that their appeal was rejected by the upper court, and I think this could harm relations between the domestic media and the government, and damage the image of media reform as a whole, he said.
In my view, there were so many inconsistencies in the case since the very beginning, when the police first opened it. That's why I believed from the start that the case should be reviewed.
Myint Kyaw, the secretary of Myanmar's Press Council, went further, saying the government had orchestrated the case against Wa Lone and Kyaw Soe Oo.
We now have doubts about whether the regional level [courts] can make decisions independently or have the authority to do so, he said.
I don't think that even regional level courts have the ability or courage to make their own decisions on cases, so this could only be a political decision I believe decisions are just handed down with a political point of view.
Ye Mon Tun, a reporter from Frontier Myanmar, said that judges from both the original ruling and the appeal hearing spoke of respecting journalistic ethics when explaining why Wa Lone and Kyaw Soe Oo should be convicted, but believes neither reporter acted unethically.
All judges should read carefully about journalistic ethics, he said. Wa Lone and Kyaw Soe Oo were just doing their jobs and they never violated ethics.
Thiha Thwe, a locally based foreign correspondent, said he was frustrated that the Higher Court parroted the earlier decision against the reporters without considering arguments presented by the defense.
It's very depressing to learn that the case wasn't thoroughly reviewed from a different perspective and the court just repeated the original ruling, he said.
I think the judge didn't want to be accountable for the consequences [of reversing the conviction].
Friday's decision drew concern from the international community, with the U.S. State Department issuing a statement that said Washington is deeply disappointed that the convictions were upheld.
Today's ruling casts doubt not only on freedom of expression in [Myanmar], but also raises questions about [Myanmar's] commitment to the rule of law, the statement said, adding that the U.S. will continue to advocate for the release of the two reporters.
British Foreign Secretary Jeremy Hunt told the BBC that his government is very worried about due process in this case and calling on Myanmar's defacto leader Aung San Suu Kyi to investigate.
As someone who fought for democracy in [Myanmar], she should be taking a personal interest in the future of these two brave journalists, he said of the former opposition leader who spent decades under house arrest during the rule of the country's military junta.
Rights groups and media watchdogs also decried the decision, with New York-based Human Rights Watch saying the case should never have proceeded, much less resulted in a conviction.
The appeals court process looks like it was just a rerun of the previous injustice done to these two reporters who dared investigate what the military wanted to keep hidden, Phil Robertson, the deputy Asia director for Human Rights Watch, said in a statement made available to the news media.
Paris-based Reporters Without Borders (RSF) said in a statement that it was appalled by the decision to uphold the sentences of Wa Lone and Kyaw Soe Oo and called on the government to end their nightmare.
Everything about this case, both the substance and its conduct, called for their convictions to be overturned, but Myanmar's justice system has shown its determination until the very end to punish Wa Lone and Kyaw Soe Oo although they just did their job as reporters, said Daniel Bastard, the head of RSF's Asia-Pacific desk.
This decision constitutes yet further evidence, if any were needed, of the judicial system's unacceptable manipulation by the executive and dramatically signifies the end of Myanmar's democratic transition. We now call on its highest political officials to pardon these journalists as quickly as possible so that they can be reunited with their families.
RSF ranked Myanmar 137th out of 180 countries in its annual World Press Freedom Index last year and said in October that the country's position is at risk of falling even further in 2018.
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