Twice a month for the past two years, a journalist named Swe Win packed up his laptop and a change of clothes, and said goodbye to his wife and young daughter, at home in Yangon, Myanmar’s largest city. He then got in a taxi or boarded a flight to Mandalay, four hundred miles north, to appear in a courtroom where nothing ever seemed to happen. “Most of my court hearings last only five minutes,” he told me. But he had to stay in town overnight, to make two separate appearances before the judge assigned to his case. On Swe Win’s modest salary, the cost of transportation and a motel room, not to mention lawyers’ fees, was impoverishing. Myanmar Now, the bilingual investigative-news website he edits, chipped in—though it, too, could hardly afford the expense.
Swe Win, who is 41 years old and has a round, boyish face framed by thinning hair, stood accused of defamation, an offense that could have landed him in prison. His legal problems began in February 2017, when a hitman murdered Ko Ni, a lawyer and adviser to Aung San Suu Kyi, Myanmar’s de facto head of state. Ko Ni was an outspoken reformer and perhaps the highest-profile Muslim in Myanmar. Many people hated him; he called for a new constitution and a complete end to military rule—a stance widely viewed as a threat to Buddhist Bamars, the country’s ruling majority. After Ko Ni’s death, a Buddhist monk named Wirathu, a nationalist extremist who openly incites violence against Muslims, praised the accused assassins. In short order, Myanmar Now published a story about Wirathu’s reaction to the murder, and Swe Win posted it to his Facebook account, adding that the monk’s response had broken Buddhist rules. “I usually avoid confronting these nationalist forces, but at the time I thought we should,” Swe Win recalled.
Based on the Facebook post, a follower of Wirathu’s named Kyaw Myo Shwe filed a complaint for defamation. On July 30, 2017, police arrested Swe Win. The act of doing journalism, of circulating a story whose veracity no one disputes, had made him a victim of section 66(d) of Myanmar’s Telecommunications Law, which restricts online speech by prohibiting anyone from “blackmailing, bullying, making wrongful restraint on, defaming, disturbing, exerting undue influence on or threatening a person using a telecommunication network.”
Swe Win’s arrest wasn’t his first, or worst, encounter with Myanmar’s judicial system. In 1998, when he was a college student—he studied English literature and became fluent by reading translations of Fyodor Dostoevsky and Leo Tolstoy—he was apprehended for opposing the military dictatorship, led by Than Shwe. Swe Win spent seven years in three different prisons. He remembers feeling powerless. “I did not know anyone in those days outside of my country,” he said. “I came from a poor family in Yangon.” In those days, before 2010, the Tatmadaw, the national military, controlled everything and detained hundreds of dissidents; there was no free speech or free press. But life was supposed to be different now, under the new government—the Tatmadaw has a civilian counterweight, led by Suu Kyi, also known as The Lady.
Swe Win’s defamation case thus felt like a dreadful remnant of the bad old days. He was being targeted not only by a follower of Wirathu’s but also by the courts and police, which are still under military control. Suu Kyi had promised to advance the rule of law and human rights, but Swe Win was now the latest among many examples to the contrary.
The most obvious had been the government’s escalating crackdown on the Rohingya, a Muslim minority group in the rural state of Rakhine, on the western border with Bangladesh. Since 2013, many observers had been calling the situation there a genocide. And then, in the government’s attempt to contain the story, it took the extraordinary step of imprisoning two reporters for a Western news outlet.
In December 2017, Wa Lone, a Myanmar national with the Reuters bureau in Yangon, was investigating a massacre in the Rakhine village of Inn Din. Despite the danger and cost involved—Wa Lone and his wife pawned their wedding rings to finance a reporting trip—he stayed on the story. When a Buddhist elder passed him photographs depicting a grisly execution and mass burial of eight Rohingya men and two teenage boys, Wa Lone zoomed in on a picture that showed a gunman in the background: the butt of the man’s weapon appeared to be marked with the number 8, a possible reference to the 8th Security Police Battalion. Wa Lone wondered, Were the murderers civilians or government agents? Soon, a member of the 8th Battalion asked him to meet; Wa Lone agreed, and he brought along a fellow Reuters reporter, a Rakhine native named Kyaw Soe Oo. They spoke briefly inside the 8th Battalion compound, then followed the source to a beer garden, where they were handed a sheaf of documents rolled up in a newspaper. But it was a trap: before the reporters could glance at the papers, a group of plain clothed officers arrested them for violating the Official Secrets Act, which dates back to the British colonial era.
Wa Lone and Kyaw Soe Oo were interrogated and locked up at Insein prison, in Yangon, a vast circular compound known for its human-rights abuses. Swe Win served part of his long sentence there, two decades ago, as did Suu Kyi. But unlike Swe Win, whose legal proceedings never drew much attention, the Reuters reporters became the center of a global campaign for press freedom, involving countless acts of public and private diplomacy. Amal Clooney, the superstar human-rights lawyer, signed on to represent the men, and Vice President Mike Pence called for their release. The Pulitzer Prize Board honored them with the 2019 award for international reporting.
Finally, this past May, after more than 500 days in custody, Wa Lone and Kyaw Soe Oo were set free. Myanmar President U Win Myint, who essentially serves at Suu Kyi’s pleasure, pardoned them as part of an annual mass amnesty of 6,520 prisoners. Immediately after the reporters’ release, world leaders and human-rights advocates broadcast their relief and acclaim for the decision. But the cheers came with a heavy asterisk. It wasn’t clear whether the military or Suu Kyi had driven the prosecution of the journalists—or, for that matter, the routing of more than 730,000 Rohingya, one of the largest stateless groups in the world. These chilling unknowns spooked everyone in Myanmar’s press.
The Reuters case was, in many ways, exceptional, and drew wide attention: it became a model campaign for journalists’ rights. It also bore dreary witness to Myanmar’s democratic transition, and to the larger project of advancing free speech when, across the globe, cynical leaders wield “fake news” as a scythe. Behind the story of Wa Lone and Kyaw Soe Oo, however, are dozens of other prosecutions that, like Swe Win’s, relate to the assault on the Rohingya and go largely unseen. One highly visible victory may have served to mask dozens of defeats. “There are many bizarre cases that have been going on,” Swe Win told me. “My case is not an isolated case.”
How one interprets current events in Myanmar—the treatment of journalists and activists, and what’s happened to the Rohingya—depends almost entirely on one’s view of Aung San Suu Kyi, who is now 74 years old. Before the election, in 2015, that gave her control of the country, Suu Kyi was seen as an ethereal revolutionary: the daughter of General Aung San—who helped win Myanmar’s independence from Britain—and an Oxford graduate who returned home to oust the military dictatorship, only to be placed under house arrest. Suu Kyi won the 1991 Nobel Peace Prize and became a symbol of democratic aspiration all over the world. She emerged from house arrest in 2010, when the junta relaxed its grip and installed a civilian president. Suu Kyi could not become president—the constitution barred her, because she’d been married to a foreigner—so she ran for parliament instead and, in 2012, won one of many seats for her National League for Democracy (NLD) party. In 2016, she assumed the role of state counsellor, the civilian head of government, a position created specifically for her. Since then, as observers have watched her put power above human rights, her aura has dimmed.
Long before the NLD’s rise, conflict along the Bangladeshi border, between the minority Muslim Rohingya and the majority Buddhist Rakhine, periodically flared into violence. Regional skirmishes are not uncommon in Myanmar, which has 55 million residents and more than a hundred ethnic groups, but decades of isolation and acute poverty among the Rohingya bred the conditions for bloody rebellion. In October 2016, a militant group called the Arakan Rohingya Salvation Army (ARSA) raided multiple border posts, killing nine Rakhine police. The Tatmadaw responded brutally, and anti-Muslim sentiment intensified across Myanmar. A few months later, Ko Ni, Suu Kyi’s Muslim legal adviser, was assassinated.
An even deadlier attack came in August 2017, when ARSA militants targeted two dozen police posts and an army base in Rakhine, killing twelve people. The offensive was carefully timed to drown out a new human-rights report, commissioned by Suu Kyi, that urged the government to grant citizenship rights to the Rohingya people; ARSA, unsatisfied with her overture, wanted to stoke local rage. The police and Tatmadaw, now operating under an “anti-terrorist” banner, razed Rohingya villages. In the following months, more than three-quarters of a million Rohingya women, men, and children fled to Bangladesh. On Facebook—which, to a significant proportion of Myanmar’s smartphone users stands in for the entire Web—people referred to the Rohingya as “kalar dogs” (a racist profanity) and foreign “Bengalis.”
Through all of this, Suu Kyi said very little. But her actions, and inaction, seemed to show minimal regard for the Rohingya. In 2014, in response to criticism by extremist Buddhist monks, she canceled a forum at which Ko Ni was scheduled to appear. In 2015, she did not run any Rohingya candidates for NLD parliamentary seats. In January 2017, she skipped Ko Ni’s funeral. When she finally gave a speech responding to accusations of ethnic cleansing in Rakhine state, in September 2017, she avoided the term “Rohingya,” saying, “We are concerned to hear that numbers of Muslims are fleeing across the border to Bangladesh. We want to understand why this exodus is happening.” Amnesty International accused Suu Kyi of propagating “a mix of untruths and victim-blaming,” and later revoked an award it had given her years earlier for being an “Ambassador of Conscience.”
Suu Kyi’s government also clamped down on news media that had only just begun to flourish. Under the junta, newspapers and broadcasters in Myanmar functioned as arms of the state. But after 2010, the number of independent outlets grew to include a dozen dailies and magazines, several TV and radio stations, and Yangon bureau offices for global news organizations. Media consumers learned to demand more than the military’s party line and to parse various sources of information, both in Burmese and English. That grew complicated, though, thanks to the Tatmadaw’s pogrom against the Rohingya and an accompanying maelstrom of anti-Muslim fake news produced by ultra-nationalists. In addition, the public is suspicious of how the West covers Rakhine state—in part because of Myanmar’s long colonial history—so when an American journalist cites evidence of genocide, many readers scoff. For them, an outlet’s trustworthiness hinges on its sympathy for the government, and some local media have oriented themselves accordingly: beginning in 2015, The Irrawaddy, an online newspaper founded by an activist journalist, began to shy away from topics that might be unfavorable to the NLD; in 2016, The Myanmar Times fired a reporter named Fiona MacGregor after authorities objected to her documentation of mass rapes in Rakhine; and this past May, when three reporters with the Eleven Media group were hit with criminal charges for covering municipal corruption, their employer issued a written apology to the Yangon regional government.
Journalists were the most free between 2010 and 2015, before Suu Kyi’s party replaced the interim post-junta government. “There was a lot of hope,” recalled Toe Zaw Latt, the operations director for Democratic Voice of Burma, a multimedia network funded by the governments of Norway and Sweden. Patrick Winn, a Bangkok-based correspondent with Public Radio International and the author of Hello, Shadowlands (2018), told me, “The door closed when Aung San Suu Kyi got into office.”
In recent years, the Myanmar government has held fewer and fewer press conferences; officials have often refused to take journalists’ calls. Tatmadaw agents have condemned reporters (including MacGregor) by name, and Suu Kyi has dismissed unflattering news and humanitarian reports about the Rohingya as inaccurate. Both the military and civilian wings of the government have frequently used civil and criminal laws to pursue critics: according to Athan, a human-rights group founded by Maung Saungkha (known as the “penis poet,” he was jailed in 2015 for writing profane satirical verse), the Telecommunications Law alone has been invoked more than 260 times since its passage, in 2013. Nearly all of the resulting arrests have occured since Suu Kyi became state counsellor, in 2016. Self-censorship has become rampant.
Swe Win’s defamation case originated with a citizen complaint, but it was a clear instance of the army using nationalist forces to subdue its critics. And even within the offices of Myanmar Now, his digital outlet—which, since its founding, in 2015, has focused on government accountability and human rights—he has had to guard against the creep of nationalist sentiment. When police announced that they had apprehended “twenty illegal Bengalis” at a port near Yangon, for example, Swe Win instructed his staff not to parrot the government line, but to understand the story as one of Rohingya suffering: that “they were risking their lives to escape misery,” he told me. “We cannot be influenced. We have to write what is true.”
Myanmar Now, which receives funding from the National Endowment for Democracy, prides itself on unflinching coverage of crimes against the Rohingya, dissidents, and the poor, and it is widely read by foreigners working inside the country. It is also bold in its coverage of Suu Kyi’s administration and the Tatmadaw. The real cause for Swe Win’s arrest, it appears, may have preceded his Facebook post about Wirathu: Myanmar Now had reported certain details of Ko Ni’s murder before the government wanted them public. “In our country, if the generals are angry about you, they won’t punish you for that particular reason; they will wait for another time,” Swe Win said.
Even by these standards, the case against Wa Lone and Kyaw Soe Oo marked a frightening turn. Suu Kyi, invoking the rule of law to argue deference to the courts, maintained that there was nothing she could do to help them. Under the Myanmar constitution, she insisted, only the president could issue a pardon, after all judicial remedies were exhausted. (Suu Kyi’s spokesman did not respond to calls for comment.) “Aung San Suu Kyi’s concern for the rule of law starts with the constitution,” Priscilla Clapp, the chief of mission and charge d’affaires at the US Embassy in Burma between 1999 and 2002, told me. “If she steps outside the legality, the military will pounce on her.”
Khin Zaw Win, a former political prisoner and director of the Tampadipa Institute in Yangon, said that Suu Kyi’s argument is only partly legitimate. The military can take over the country in an emergency, he explained, but technically needs the civilian government to agree. He also told me that Suu Kyi “says a lot of pious rubbish, but can pardon someone if she wants to. With those journalists she didn’t want to.”
Suu Kyi’s actions with respect to the Reuters journalists appeared to go beyond delicate management of state affairs. Shortly after Wa Lone and Kyaw Soe Oo emerged from prison, The New York Times reported that Suu Kyi, not the military, had been “the biggest obstacle” to their release. A number of diplomats, foreign-policy experts, and reporters I spoke with confirmed this assessment: “She is willing to challenge authority when it serves her interests and, one could argue, in the interest of democracy,” Aaron Connelly, a Southeast Asia researcher at the International Institute for Strategic Studies, told me. “But she’s not willing to take risks on behalf of the human rights of the Rohingya or the Rakhine, or on behalf of press freedom.” Last November, during a meeting on the sidelines of the Association of Southeast Asian Nations summit, in Singapore, Vice President Pence sat across from Suu Kyi and delivered a blunt rebuke of “the violence and persecution” against the Rohingya and the “deeply troubling” detention of Wa Lone and Kyaw Soe Oo. She responded coolly: “We can say we understand our country better than any other country does.”
Nonetheless, much of the Myanmar public gives Suu Kyi the benefit of the doubt. Moe Satt, an old acquaintance of mine who works as a performance artist in Yangon, told me that he empathized with her “very sensitive” position: “If there’s chaos, the military can come in any time.” Latt, the operations manager at the Democratic Voice of Burma, said, “The Lady or president, they don’t have power to overrule this—the spy law, the state secrets act.”
According to Swe Win’s interpretation, the military led the Reuters prosecution, and Suu Kyi “does not want to offend the military at all.” Five months before the supreme court affirmed Wa Lone and Kyaw Soe Oo’s conviction, “I knew from my source in the cabinet that Aung San Suu Kyi and the president were going to pardon them,” Swe Win added. “One thing we’re not sure about is whether Aung San Suu Kyi willingly released Wa Lone and Kyaw Soe Oo, or did that out of the belief that, ‘Okay, this case would be a constant embarrassment to me whenever I go out of the country.’ ”
In late April, hearing rumors that the Reuters journalists would soon be pardoned, reporters and camera crews based in Myanmar began to show up regularly outside Insein Prison. The morning of May 7, Wa Lone and Kyaw Soe Oo, dressed in short-sleeve button-down shirts and patterned longyi, their faces broad with toothy smiles, walked through the prison gate. Lord Ara Darzi, a surgeon at Imperial College London and a member of an international advisory board on the conflict in Rakhine State, was conspicuously on the scene. Darzi took credit for having helped persuade Suu Kyi (and, by extension, the president) to order the pardon. A fellow Brit, Jeremy Hunt, the foreign secretary, also took a bow, telling the BBC Radio 4, “I lobbied Aung San Suu Kyi personally last September.” (Neither Hunt nor Darzi agreed to be interviewed.)
But Reuters had played an essential role in the reporters’ release. Stephen Adler, the editor in chief (and the chairman of CJR’s Board of Overseers), and Gail Gove, the general counsel, were in frequent contact with various activist groups and government agencies, especially in the US and Britain, where Reuters is headquartered. Few news organizations other than Reuters, on account of its size and international presence, would have been able to take on this level of advocacy, which included publishing an in-depth investigation into the circumstances of Wa Lone and Kyaw Soe Oo’s arrest. (Reuters declined my requests to interview Adler, Wa Lone, and others, but confirmed my reporting and wrote: “There are a great many details that we can’t discuss publicly, but Reuters explored every possible avenue to secure their release, with the support of a wide range of individuals and organizations from around the world.”)
Gestures on the ground, by foreign representatives inside Myanmar, carried significant weight. A number of Western embassies in Yangon sent staff members to observe, and be seen at, Wa Lone and Kyaw Soe Oo’s court hearings, and ambassadors and deputy chiefs of mission repeatedly brought up the Reuters case in their meetings with Myanmar counterparts. According to a US Embassy spokesperson, Scot Marciel—a well-respected career diplomat whom President Barack Obama appointed ambassador to Myanmar, and who has remained in place under President Donald Trump—reached out to senior Myanmar officials within 12 hours of Wa Lone and Kyaw Soe Oo’s arrest. In Washington, where the Trump administration has neglected to fill State Department vacancies pertinent to Southeast Asia and human rights, a few interested parties have helped pick up the slack: Matt Pottinger, the National Security Council’s senior director for Asian affairs, and Brenan Richards, until recently the agency’s director for Southeast Asia, were in close touch with Reuters and human-rights groups throughout the ordeal. Pottinger, who raised concerns about Wa Lone and Kyaw Soe Oo in a meeting with Suu Kyi last summer, was once a reporter for Reuters and The Wall Street Journal.
When the men were freed, diplomats responded with calculated moderation—aiming to praise Myanmar without appearing too jubilant, as one American foreign-service worker explained, given that so many reporters, activists, and artists in the country are still locked up. Foreign representatives have also made an effort to distinguish the matter of press freedom from the welfare of the Rohingya. “In coordination with Reuters and to best help the reporters, we agreed to avoid calling out Aung San Suu Kyi directly, when she had already been called out for the Rohingya and other issues,” a senior administration official told me. (Pence did not respect this separation, either in person, with Suu Kyi, or on social media. “Wa Lone and Kyaw Soe Oo should be commended—not imprisoned—for their work exposing human rights violations and mass killings,” he said in a tweet.)
It was the “age-old question of how best to support human rights when you’re the US government: Does it help more to do it loudly or quietly?” said Mike Fuchs, a senior fellow at the Center for American Progress and the deputy assistant secretary of state for East Asian and Pacific Affairs under President Obama. The difference now is that “we have gone, over the period of two-plus years and two secretaries of state, to a place of more or less unilateral disarmament when it comes to US diplomacy in the world,” Fuchs said.
Over the past few months, Myanmar’s government has targeted journalists and other perceived critics with historic enthusiasm. The Tatmadaw has pulled from an expansive shelf of laws to pursue a diverse group of people: editors of The Irrawaddy news website and the Development Media Group, a well-known movie director, members of a performance troupe, a Buddhist monk, and an ex-army official. The state also arrested a group of farmers who were protesting the confiscation of their land in Kayah, an eastern state, as well as the reporters on the scene—from the Democratic Voice of Burma, Eleven Media Group, and Kantarawaddy Times. And in late June, the Myanmar government cut off Internet service to parts of Rakhine, citing violent clashes with regional rebel forces (not the Rohingya); the United Nations warned that the blackout could “be a cover for committing gross human rights violations against the civilian population.”
Next year, Myanmar will host elections for more than a thousand local, regional, and national seats. Many worry that the integrity of the process may be undermined by assaults on free speech. The government’s muffling of reporters and activists attempting to document events in Rakhine also complicates the fate of nearly a million Rohingya, who are now living in flooded refugee camps in Bangladesh.
Journalists in Myanmar can expect little help from the US, now that the Reuters case has concluded. Though it was never perfect at protecting reporters overseas, America has been much less involved in such matters under Trump. Brad Adams, director of the Asia division at Human Rights Watch, told me that, before Trump, freedom of the press was a consistent focus, “mainstream in the State Department and even the Pentagon.” Now, Adams said, it’s all ad hoc, dependent on who in Washington or at the embassy level decides to take up a cause. In other words, the Trump era is different: his attacks on the press and disregard for run-of-the-mill diplomacy have combined to deprive journalists of a powerful watchdog against repressive governments.
Myanmar’s leaders do not need Trump’s help to vilify reporters, of course. But as Western powers—not only the US but also Germany and the European Union—increasingly curb protections on speech, they give cover to the enforcement of restrictive laws all over the world. A leader like Suu Kyi can argue hypocrisy and imperial overreach: Why shouldn’t Myanmar have the right to regulate information, just like any other state?
In mid-June, I called Swe Win at home in Yangon, while his daughter, now four, was asleep. He was preparing for yet another grueling trip to the courtroom in Mandalay, and spoke of his defamation case as a grim portent of media regulation. So I was surprised to hear that he continued to believe in the NLD government. “Suu Kyi is trying,” he said. “The key to democratic process is reforming the constitution, so she’s pushing reform in the parliament. But at the same time, she’s trying to maintain her rapprochement with the military government.”
In contrast to the noisy global campaign for Wa Lone and Kyaw Soe Oo’s release, Swe Win had chosen to lay low in order to reduce tensions with the Tatmadaw and Wirathu’s followers: “I don’t try to mobilize my own group,” he said. He attended his hearings alone, accompanied only by counsel, while his wife, a financial analyst, took their daughter to and from preschool. Over two years of hearings, a representative from the European Union’s local office had twice shown up in court to offer support; a diplomat from the Swedish embassy had come once; and an Australian envoy had tried, but been forbidden to enter the courtroom, Swe Win recalled. The US embassy kept tabs on the proceedings, but never managed to send someone all the way to Mandalay.
A few days after my call with Swe Win, Ywet Nu Aung—the third lawyer to take on his case and the first to do so pro bono—submitted a motion to dismiss, based on the other side’s repeated failure to appear. Wirathu, the Islamophobic monk, had been a named witness, but he had never shown up; recently, he had become a fugitive, facing a charge of sedition for insulting Aung San Suu Kyi.
Finally, on July 2, the judge dismissed the defamation case against Swe Win. Kyaw Myo Shwe, the Wirathu acolyte who had initiated the lawsuit, vowed to file an appeal, telling reporters, “This is not the end”—but then missed the deadline to do so.
I caught up with Swe Win again in early August. He had just received a Ramon Magsaysay Award, named after a former President of the Philippines, which celebrates “greatness of spirit and transformative leadership in Asia.” He seemed pleased by the prize, and was obviously relieved by the ruling, but told me that he did “nothing in particular” to celebrate. “My wife, she said, ‘You have to be more cautious. No more lawsuits!’” He made no promises. “This is our life,” he told her, “and this is the state of our country. If you don’t want to face this kind of situation, you have to leave.”
Swe Win did, however, relay one lesson to his colleagues at Myanmar Now: “I told them to be more cautious when they use social media. That, whatever they write on social media, no matter how true it is, it’s not journalism… Things can go crazy in a country like this, where the rulers are watching over what we do, and looking for excuses. We have to be very careful.”
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