Remarks from Amal Clooney, Barrister and Counsel to Reuters, Wa Lone and Kyaw Soe Oo at CPJ’s “Press Behind Bars: Undermining Justice and Democracy” Event at UN
September 28, 2018
Good morning, everyone.
As we are gathered here today, two innocent men are in prison in Myanmar for doing nothing more than tell the truth. Wa Lone and Kyaw Soe Oo, for almost a year, have been separated from their young families and paraded into a courtroom for a sham trial. Their conviction and draconian 7-year sentence are a travesty of justice, and it is up to the government to set them free.
The prosecutors’ story – accepted wholesale by the court – is not only fabricated but totally implausible. They ask you to believe that Wa Lone and Kyaw Soe Oo happened to be walking down the road one evening last December carrying top-secret documents in their hands, when they were stopped at a vehicle checkpoint for looking suspicious. According to this account, police were shocked to find these documents on Wa Lone and Kyaw Soe Oo, and in the spur-of-the-moment decided to arrest them for being spies. It was simply a coincidence, we are told, that right at this time, Wa Lone and Kyaw Soe Oo were working on a story about the brutual execution of ten Rohingya men in Rakhine state, where the UN says Myanmar’s security forces are committing the gravest crimes under international law.
Of course, what really happened is that officials found about the story and did not want it to come out. So police planted government documents on the journalists while other officers lay in wait outside to arrest them. The journalists were arrested and were then prosecuted in a subjective show trial in which their conviction was guaranteed.
Let me highlight just three reasons why their trial was a miscarriage of justice.
First, the prosecution’s own witnesses have contradicted their case. A senior police officer who was expected to repeat the prosecution’s lies shocked observers when in a packed courtroom, he announced he felt compelled to preserve the “integrity” of his profession and tell the truth. He gave explosive testimony in open court, confirming that he heard a Brigadier-General from the police tell his subordinates to plant official documents on Wa Lone and then arrest him – or face jail time themselves if they refused. After his heroic testimony, he was himself sentenced to a year in prison, and he is still imprisoned today.
Other prosecution witnesses fell apart one by one on the stand. One witness literally read notes written on his hand to try and remember what he was supposed to say. Another was asked to provide his notes from the arrest but said he had burned them. Prosecutors claimed they could not locate a key witness – even though he was in detention at the time. And during police questioning, the officers didn’t even pretend to be interested in the documents they had seized. Instead, they asked obsessively about who the journalists’ sources were in Rakhine, and why they, as Buddhists, would even bother exposing crimes against Rohingyas. They even proposed to drop the charges if Reuters agreed to drop the story. Their offer was declined; but their own words made clear that their goal was always to bury the story.
Second, there was a conviction without proof of a crime. A conviction under the Official Secrets Act requires that someone collected or shared secret material with intent to prejudice the state. But the documents that were in the journalists’ hands when they were arrested were not state secrets; they were actually not even secret. And the journalists did not seek to harm the state: they were simply doing their job. But the judge entered a conviction anyway because Wa Lone’s old notebook included the phone number of a member of the Arakan Army, an armed group that Wa Lone was reporting on when he was writing for the Myanmar Times. The judge could not point to any contact with this phone number, but found that the journalists were still guilty because “the number was evidence that ‘there are opportunities for the defendants to transmit security information to anti-Government groups.’” Opportunities, well, how convenient: instead of the prosecution having to prove guilty conduct beyond doubt, the defence has to prove that such conduct is not theoretically possible. That makes this a conviction without a crime.
Third, the trial violated every meaningful right to due process. The court was clearly not independent or impartial – how could a fair-minded judge convict on this evidence? The journalists were not given sufficient information about the charges, they were denied access to key evidence, they were questioned for weeks without their lawyers present. They were brought to a secret interrogation center, they were held incommunicado, they were hooded, forced to kneel, dragged on the floor, and denied sleep, and pressured to sign statements against their will. Exculpatory evidence was hidden or destroyed. Most fundamentally: there was no presumption of innocence; rather, a predetermination of guilt.
And you don’t need to take my word for it. Every single observer of this trial has agreed that it was a farce. In Myanmar, young people took to the streets to protest the conviction, the press council and 83 civil society groups criticized the judgment, senior members of the governing party called the prosecution unfair and local media published blacked-out front pages in solidarity with the two journalists. Across the region, press associations and parliamentarians from Singapore, Thailand, Malaysia, Cambodia, The Philippines and Indonesia all condemned the verdict. And around the world, officials from the United Nations, the United States, the United Kingdom, the EU, Canada, Australia and Bangladesh, newspapers including the Washington Post, The New York Times, The Economist and Le Monde as well as every major free-press NGO in the world agree that this conviction is a travesty of justice.
So, what can now be done? For months, Myanmar’s government has been asked this question and they replied: “well, the case is in the courts, there’s nothing we can do to intervene.” Well, now it’s not in the courts, and they can intervene. Under Article 204 of Myanmar’s Constitution, the President can grant a pardon at any time after a conviction. He does so following consultation with Myanmar’s leader Aung San Suu Kyi, who said on her first day in office that it was her priority to release prisoners of conscience. The journalists’ families have already submitted a pardon-request, and in previous cases, a pardon has been granted as soon as 4 days following a conviction. This case began with authorization from the government, at the highest level, all the way up to the President’s office – and the government can, if it wants to, end it today.
But earlier this month, Aung San Suu Kyi defended this prosecution and challenged anyone who has read the judgment to explain what was wrong with it. In her words: “If anybody feels there has been a miscarriage of justice, I would like them to point it out”. Well, my remarks today are intended to answer Aung San Suu Kyi’s call. And indeed, as legal counsel for Reuters and the two journalists, it is my duty to do so.
But Aung San Suu Kyi has herself spoken of the need for a free press if Myanmar is to transition to a full democracy. She has praised the value of journalism in revealing wrongdoing and said that freedom begins with freedom of speech. She knows that mass murder is not a state secret and that exposing it doesn’t turn journalists into a spy.
She is the Nobel Peace Prize winner whose name was whispered in the halls of St Hugh’s College, Oxford, where she and I both studied. When I was a student, she was a hero to me, as she has been to so many human rights advocates around the world and to so many of the 50 million people in Myanmar whose lives she promised to change. She allowed young people to hope for a free Myanmar that respected the rule of law – and her own life story made them believe that it was possible.
Aung San Suu Kyi knows better than anyone what it is like to be a political prisoner in Myanmar. She has slept in a cell at the prison where Wa Lone and Kyaw Soe Oo now sleep. But, today, she holds the key. The key to their liberty. The key to reuniting them with their young children. The key to freedom of the press. The key to truth and accountability. And the key to a more democratic and prosperous Myanmar. History will judge her on her response.