Defending jailed journalists in Myanmar, with no guarantee of due process

May 22, 2018

At the end of May—more than six months after they were first arrested—Reuters journalists Wa Lone and Kyaw Soe Oo expect the judge in their case to decide whether or not to charge them with violating Myanmar’s colonial-era Official Secrets Act. If ultimately convicted, they face up to 14 years in prison.

The Burmese authorities—including the country’s state counsellor, Aung San Suu Kyi—want the world to believe their trial is a deliberative and independent process in which both sides are given the opportunity to present evidence. But the Reuters legal team knows what it’s up against. On March 29, Reuters brought on renowned international human rights lawyer Amal Clooney. “Wa Lone and Kyaw Soe Oo are being prosecuted simply because they reported the news,” Clooney said in a statement, referring to their groundbreaking reporting on violence against Burma’s Rohingya Muslim minority.

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Around the world, journalists are being imprisoned in record numbers. Reporters working for international media organizations in places like Iran, Egypt, Turkey, and Azerbaijan have jailed by governments seeking to suppress international coverage of corruption and human rights violations.

These imprisonments put news organizations and their advocates in a tough spot. They can’t win on merit in a politicized legal system that is stacked against them. And they can’t apply political pressure too directly because it’s easy for a country’s president or prime minister (or state counsellor) to claim that the judiciary is independent and that they can’t interfere. They must thread a needle between legal argumentation and public pressure to change the political calculation. Once they do that, they must give the government a face-saving way out, which often involves pardoning the journalist or releasing them on parole.

Clooney is expert at this, judging by two other cases of imprisoned journalists. She first became involved in defending imprisoned journalists when she took up the case of Mohamed Fahmy, an Al Jazeera producer imprisoned in Egypt in 2013. And in early 2016, she joined the team defending journalist Khadija Ismayilova, who was jailed in Azerbaijan in reprisal for her reporting on corruption.

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Fahmy is an experienced war correspondent who has covered the Middle East for a variety of media outlets, including CNN. He was arrested in December 2013 along with two colleagues, Peter Greste and Baher Mohamed, soon after taking up a new position with Al Jazeera English in Cairo. All three were initially charged with “distorting the country’s image abroad” and “fabricating news to aid the Muslim Brotherhood,” which the Egyptian government had branded a terrorist group. Fahmy, who split with co-defendants in alleging that his employer Al Jazeera had acted negligently, brought on Clooney as his personal lawyer after being introduced by a CNN colleague.

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“I am not exaggerating when I say she was a game changer and part of the reason why I am a free man today,” said Fahmy, who is a dual Egyptian-Canadian citizen and now lives in Vancouver. He points to the combined impact of Clooney’s “exemplary” legal work, the media attention she was able to generate, and her outreach to Egyptian officials.

Part of Clooney’s approach was to highlight the unfairness—and in some cases the absurdity—of Egypt’s legal process. Her presence in the courtroom and her outreach with the diplomatic community in Cairo brought a new level of global attention to the proceedings, during which defendants were presented in cages.

In a Huffington Post op-ed, Clooney noted that Fahmy’s trial was “presided over by a judge known as the ‘executioner’ whose verdict was that the journalists ‘were joined by the devil to exploit [their] profession. . . to harm this country.’” While the judge’s pronouncements may have played well domestically, they made the Egyptian judiciary a global laughingstock. Eventually, the Egyptian government offered Fahmy a pardon in exchange for his agreement to leave the country.

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When Clooney took on the case of journalist Khadija Ismayilova, imprisoned in Azerbaijan, she applied a similar approach. Ismayilova, a leading investigative journalist who at the time hosted a program on Radio Free Europe/Radio Liberty (RFE/RL) had exposed corruption linked to the ruling Aliyev family. She was sentenced to seven and a half years in prison on trumped up charges of tax evasion and embezzlement.   

Clooney was brought on by Nani Jansen, then legal director for the London-based Media Legal Defence Initiative, which had been handling Ismayilova’s case before the European Court of Human Rights. As with the Fahmy case, Clooney shone a spotlight on the anomalies in Azerbaijan’s legal process, making it more difficult for the government to claim the judiciary was acting independently.  

In their 150-page filing with the European Court of Human Rights, Clooney and Jansen presented evidence of a sham trial whose real purpose was to silence Ismayilova and censor her reporting on corruption. Ismayilova, who was released on probation in May 2016 after her sentence was reduced, told me the meticulous documentation and argumentation (based on input from her local lawyer Yalchin Imanov) made the difference. “It should be taught in universities” she said.  

Gail Gove, the chief counsel at Reuters, told me she brought on Clooney for her expertise in international law. In addition to her human rights advocacy, Clooney, a barrister at Doughty Street Chambers in London, has represented a diverse roster of clients from Julian Assange, to former Ukrainian Prime Minister Yulia Tymoshenko, and Abdullah al-Senussi, the Libyan intelligence chief under Muammar Qaddafi. Clooney’s presence on the Reuters legal team is a warning that the case could end up before an international tribunal, with implications for Burma’s leadership.

But Clooney also has the ability to generate additional attention, not just in the media but through her relationships with officials and policy makers. On April 16, the US ambassador to the UN, Nikki Haley, tweeted a picture of her meeting with Clooney, calling for the release of the Reuters journalists and proclaiming, “Free press & rule of law are the bases that democracies are built on.”

Meanwhile, back in the Yangon courtroom, a key prosecution witness, police Captain Moe Yan Naing, acknowledged that he had been ordered to entrap the journalists by handing them incriminating documents and then immediately arresting them. “It is now clear to any impartial observer that this case is a bungled attempt to entrap two innocent young men,” Clooney said in response.

But rather than withdrawing the charges after seeing their legal case collapse, prosecutors are doubling down, applying pressure on the witness and his family and putting forward a more senior police official to discredit his testimony.

Using a pliant judiciary to punish critical journalists provides a convenient smokescreen for autocratic governments seeking to hide their repression. Sadly, governments get away with it with it all the time. But they sometimes find that the glare on the legal process can grow too hot, especially when it’s being documented by an international news organization like Reuters.

The global focus on the Yangon courtroom is exposing the ways in which Burma’s leadership is corrupting the legal system and undermining the legitimacy of the country’s democratic transition. What Burma’s generals and its political leadership need to recognize is that it’s not Wa Lone and Kyaw Soe Oo who are on trial before the world. It’s them.

Thumb image via Wikimedia Commons.

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Joel Simon is the founding director of the Journalism Protection Initiative at the Craig Newmark Graduate School of Journalism.