Kyaw Soe Oo and Wa Lone: Wrongful Conviction

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Table of Contents

Introduction
Problems with the Case
Problems with the Judgment
Why It Is a Wrongful Conviction
Impact of Wrongful Conviction on the Justice Concept and Systems
Conclusion
References

Introduction

Wrongful convictions occur in many countries because the development of a perfect justice system is difficult to achieve. The most common reasons for unjust conviction are the incorrect application of law and the emergence of new evidence after trial (Hellqvist, 2021). Therefore, to reduce the number of unlawfully imprisoned individuals, the justice systems in many countries vest people with the right to a post-conviction reexamination of the case.

Yet, sometimes, the appeal does not lead to the withdrawal of charges, even if there is a legal basis for it. This situation happened to Kyaw Soe Oo and Wa Lone, two journalists working for Reuters, who were wrongfully accused and imprisoned in Myanmar. This paper will review the case and argue that the journalists should not have been convicted based on the Evidence Act. Next, the essay will show that wrongful convictions of the innocent, particularly journalists, undermine the concept of justice, break individuals’ trust in the justice system, and violate human rights.

Problems with the Case

The main problem with the case is that it has been fabricated by the Myanmar police. Wa Lone and Kyaw Soe Oo were examining an alleged killing of ten Rohingya men in western Myanmar in the September of 2017. Rohingya is the Muslim population of Myanmar, and the country’s military was involved in the ethnic cleansing of this group (Klafter, 2020). Yet, the Myanmar government denied that the killing occurred, and Wa Lone and Kyaw Soe Oo undertook an investigation to shed light on this incident. After the journalists discovered the proof that the Myanmar military executed the men, they were invited to a Yangon restaurant by the police (Klafter, 2020).

At the restaurant, the police gave the journalists an envelope with documents, and as soon as they accepted the envelope, they were arrested (Klafter, 2020). In 2018, the journalists stood trial for violating the Burma Official Secrets Act, which prohibits the possession of classified documents and stipulates the penalty of up to 14 years in prison (Klafter, 2020). The court found the two men guilty and sentenced them to seven years in prison.

Given the described circumstances, it becomes evident that the Myanmar police framed the case. The possible purpose of their actions was to prevent the publication of materials revealing the government’s involvement in the massacre. Moreover, during the trial, further evidence emerged, demonstrating that the documents received by Wa Lone and Kyaw Soe Oo were not classified as they were already publicly available before the journalists accepted them (Pen America, 2018). Thus, there seem to be no legal grounds for convicting and imprisoning the two Reuters employees.

Problems with the Judgment

One problem with the judgment is that the judge used a strict interpretation of the law that has not been revised despite strong criticism. The Burma Official Secrets Act, on which the charges against the journalists were brought, is based on the British Official Secrets Act of 1911 (Klafter, 2020). The British law was strongly criticized for being too broad and was revised in 1939 to narrow its coverage (Klafter, 2020). However, the Burma law was not revised accordingly, which is why the miscarriage of justice occurred in Myanmar, as shown by the case of Wa Lone and Kyaw Soe Oo.

The judges interpreted the outdated law strictly, which led to the wrongful conviction. According to the Official Secrets Act, any person who “obtains, collects, records or publishes or communicates … any official … document or information” with the purpose harmful to the state “shall be punishable with imprisonment” (Klafter, 2020, p. 127). Based on the strict interpretation of this law, the information that the documents were planted by the police was irrelevant. All that mattered to the judges was that the journalists possessed these documents. Hence, since the judges strictly enforced the statute, the problem was in the law itself, pointing to the need to revise it.

However, there is also a problem with the judgment that is not related to the drawbacks of the law. The judge ignored evidence that pointed to the defendants’ innocence. First of all, the court omitted the police witness’s testimony claiming that the documents received by journalists were already published in newspapers before they came into possession of the defendants (Pen America, 2018). The judge ignored this evidence and refused to release them on bail. Second, the prosecution witness Yu Naing, Police Lieutenant Colonel, could not provide any evidence proving that Reuters employees worked for the enemy (Pen America, 2018).

As a result, the application of the Burma Official Secrets Act to the case seems questionable. This is because, according to this act, punishment should be inflicted on those using classified documents for prejudicial purposes and aiding the enemy directly or indirectly. Hence, the law seems to be applied incorrectly, but the judge did not dismiss the initial court decision even after the appeal, and the seven-year sentence of imprisonment remained in force.

Why It Is a Wrongful Conviction

Kyaw Soe Oo and Wa Lone should not have been imprisoned based on the Evidence Act of 1872. This act regulates all questions related to evidence in Myanmar courts, including such issues as the types of acceptable evidence, how the evidence can be admitted, and who is responsible for providing evidence in the first place. Regarding the case at hand, the Evidence Act (1872) stipulates that “the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side” (p. 448). In other words, in Myanmar, defendants are guaranteed the presumption of innocence until their guilt is proven. Therefore, under Myanmar law, the burden of proof lies on the prosecution. Yet, the judge deciding the case of Wa Lone and Kyaw Soe Oo shifted the burden of proof to the defendants, which contradicts the Evidence Act.

Several facts from the case support the argument that the judge violated the Evidence Act. To convict the journalists according to the Burma Official Secrets Act, the prosecution had to prove that the documents possessed by the journalists were classified and that their actions were intended to assist the enemy. However, the prosecution shifted this burden of proof to the journalists. Wa Lone and Kyaw Soe Oo managed to provide evidence that the documents were not classified but publicly available. As for the purpose of the journalists, the prosecution failed to prove journalists’ intentions to harm the state (Pen America, 2018).

Moreover, Police Captain Moe Yan Naing testified that the police framed the journalists’ arrest, and Judge Ye Lwin regarded this testimony as credible (Pen America, 2018). Yet, despite all this evidence, on September 3, 2018, the court found the journalists guilty and sentenced them to seven years in prison. Thus, the judge not only shifted the burden of proof to the defendants but also disregarded provided evidence pointing to the journalists’ innocence, which is why the described case is a wrongful conviction.

Impact of Wrongful Conviction on the Justice Concept and Systems

Wrongful convictions negatively affect the concept of justice and justice systems. The imprisonment of the innocent represents “the difference between the promise of justice inherent in our formally democratic, legal institutions and the actual delivery of justice in these institutions on the ground” (Hellqvist, 2021, p. 323). Hence, wrongful convictions reflect the justice system’s broken promise to conduct fair trials and undermine people’s trust in courts. For this reason, many countries, including Canada, the US, the UK, and Norway, have taken measures to address this problem. For example, in Canada and Norway, independent or quasi-independent commissions are established to review wrongful conviction claims (Hellqvist, 2021). Addressing the problem of unjust imprisonments is vital to mitigate its negative impact and ensure that the human right to a fair trial is realized.

Speaking of wrongful convictions of journalists, they are harmful not only to the justice system but also to the overall political environment in a specific country. For example, courts in Southeast Asian countries, such as Malaysia and Thailand, employ Official Secrets Acts similar to the one used in the case of Wa Lone and Kyaw Soe Oo, leading to the unjust imprisonment of journalists (Vatikiotis, 2018). As a result, journalists in these countries become convinced that they cannot fight the system, and they either find ways to report the truth by skirting the law or choose not to tackle sensitive issues (Vatikiotis, 2018). Consequently, wrongful convictions of journalists break public trust in the justice system and restrict the freedom of expression, which hinders the establishment of civil society and the elimination of injustice and inequality.

Conclusion

This paper analyzed the case of Wa Lone and Kyaw Soe Oo, two Reuters journalists who were wrongfully convicted in Myanmar. Their imprisonment was unjust because the judge shifted the burden of proof to the defendants contrary to the Evidence Act and ignored the compelling evidence pointing to the journalists’ innocence. Wrongful convictions have an adverse impact on justice systems because they undermine public trust in courts and violate human rights.

References

The Evidence Act, No. 1 (1872). Web.

Hellqvist, S. (2021). Access to justice for wrongful conviction claimants in Sweden: The final legal safeguard and levels of (in)accessibility. Nordic Journal of Human Rights, 39(3), 320-338. Web.

Klafter, C. E. (2020). Myanmar, rule of law, and an imperfect inheritance. The Fletcher Forum of World Affairs, 44(1), 121-136.

Pen America. (2018). Wa Lone and Kyaw Soe Oo. Pen America. Web.

Vatikiotis, M. (2018). The muzzled truth: The media in south-east Asia face threats from many different angles. It’s hard to report openly, though some try against the odds. Index on Censorship, 47(1), 92-95. Web.

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