Jailing democracy

Print edition : September 11, 2009
in Singapore

AUNG SAN SUU Kyi addressing a press conference in Yangon on November 22, 1995.-AFP

THE saga of Aung San Suu Kyis non-violent struggle for democracy in Myanmar defies known descriptions of political courage. With the countrys military rulers now deciding to use her legal status to their advantage in an unusual and clearly one-sided game of chess to restore democracy, she faces a qualitatively new challenge as well.

As this is written, the 64-year-old daughter of post-colonial Myanmars best-known founder, Aung San, has begun a new phase of house arrest. Suu Kyi was first placed under house arrest on July 20, 1989, a day after the 42nd anniversary of her fathers assassination. While under incarceration, in May 1990, she led her National League for Democracy (NLD) to a stunning victory in a rare round of democratic elections, which was watched by the military rulers themselves. In 1991, she was awarded the Nobel Peace Prize for her non-violent struggle for democracy.

In almost two decades, she has been subjected to over 14 years of house arrest at her residence in Yangon. The junta, during this period, sent her to prison, too, for a few months. Successive military rulers have invariably spun out things on one pretext or the other against her. In this milieu of relentless efforts to silence her, Suu Kyi began a new phase of house arrest on August 11 this year on the basis of an executive fiat that instantly superseded a Yangon trial courts verdict against her.

It was the first-ever trial that she was subjected to by the junta, officially called the State Peace and Development Council (SPDC). The sequence of events on that day raises a formidable question about the game plan of the martial law administrators. Do legal niceties apply at all to any form of martial law?

The Nobel laureates previous phase of house arrest was to expire on May 27. Before that, the SPDCs minions placed her under detention in a two-storey house within the premises of the high-security Insein Prison in Yangon. She was produced in court as well, marking her first-ever trial. It was alleged that she, while still under house arrest, received and hosted a male American national, John Yettaw, who is said to have swum, undetected by the authorities, to her lakeside home early in May.

The trial dragged on for nearly three months. Finally, the two-judge court found her guilty of the offences as alleged by the prosecution. The judges said she had violated the law of restrictions on individual freedom as applicable to cases of house arrest. On that basis, the court pronounced a sentence of three years rigorous imprisonment. Suu Kyi was present in court to hear the verdict. Diplomats from 25 countries were allowed into the gallery to watch the legal denouement. No politician or ordinary citizen was allowed attendance.

The verdict was followed by high drama. A graphic account of this was communicated to this correspondent in Singapore by Suu Kyis lawyers and NLD leaders, Nyan Win and Kyi Win, over the telephone from Yangon.

As soon as the two judges retired to their chambers after pronouncing the verdict, Home Minister Maung Oo, a military general, took centre stage in the courtroom, arriving there through a back door. What followed surprised, if not shocked, Suu Kyis lawyers.

A Myanmarese resident of Japan in front of the Myanmar embassy in Tokyo on August 11 during a rally demanding the release of Suu Kyi.-YOSHIKAZU TSUNO/AFP

As narrated by Kyi Win, Maung Oos appearance transformed the courtroom into a public-address room, with his aides setting the stage for his read-out of SPDC leader Than Shwes executive fiat. The Home Ministers read-out, as later spelt out by Nyan Win, was an essay in the juntas experiment with legal procedures, not to be confused for the rule of law. Maung Oo said the SPDC would now, in the first place, commute Suu Kyis punishment of a three-year imprisonment of hard labour to just 18 months. On top of this remission, the rulers would also suspend the remaining half of her sentence. With this, the Minister declared that the court order is over.

As interpreted by her counsel, the revision of the court order would have the effect of granting Suu Kyi a technical freedom. Unsurprisingly, therefore, the junta used its executive power to fill the legal vacuum created by the Home Ministers partial reversal of the trial court order. As a result, she was now being ordered by the executive to serve a new term of an 18-month house arrest at her residence.

Outwardly, this executive sleight of hand was not all about the proverbial stick. Maung Oo emphasised that the SPDC would be willing to consider an amnesty or more simply a pardon. Suu Kyi could be granted this at any time within the period of her new 18-month house arrest. The precondition was her good conduct. While an amnesty might have political implications, given her status, a pardon might be a simpler proposition, according to external observers of the Myanmar scene.

What was the reason the junta cited for reading the trial courts sentence upside down, tearing it up, as it were, and also coming up with an alternative punishment? Maung Oos read-out emphasised Suu Kyis status as the daughter of Myanmars independence-struggle hero. Aung San was a formidable military leader in his own right when he was assassinated at the age of 32.

The read-out, in effect an outwardly conciliatory gesture of modest proportions towards Suu Kyi, left the junta with a window of mischief. This aspect of speculation was obviously not on the minds of her lawyers, as they began weighing the possible grounds for lodging an appeal against the guilty verdict. As of August 14, no decisive move was made in this direction, with the lawyers still trying to get an authenticated copy of the trial courts verdict. Three layers of appeal would be available in the normal course to a divisional court in Yangon and to the high court and thereafter, if necessary, to a full bench of that apex judicial forum.

In announcing an SPDC order of house arrest, in line with the executive fiats against her in the past, Maung Oo did emphasise that a period of 18 months of hard labour, out of the courts sentence of three years, was being suspended. At the same time, a remission of the remaining half of the sentence, namely another 18 months of hard labour, was now ordered by the executive.

In all, the sentence by the trial court was not revoked completely. So, the sentence, if not overturned in an appeal, could still be invoked by the junta for mischievous intentions. It could insist that she undergo 18 months of rigorous imprisonment even after being pardoned for good conduct at any point during her latest house arrest.

John Yettaw, who is said to have swum, undetected by the authorities, to Suu Kyis lakeside home in May. A 2005 photograph.-AP

Nyan Win, who was allowed to meet Suu Kyi at her house on August 12, later quoted her as saying that the trial courts verdict was not fair at all. It also lacked logic altogether, she felt. Earlier, during the three-month-long trial, her counsel had submitted her plea that the rule of law should be the norm in Myanmar. She also called for a balance among the executive, the legislature and the judiciary in the country. And now, as if answering her call for genuine democratic checks and balances, the junta intervened in a selective or spurious fashion to virtually rewrite the sentence given by the trial court.

In doing this, the junta has not at all overturned the guilty verdict as such, especially when the security forces did not prevent an intruder from barging into her house despite closely guarding it all the time. However, the limited mitigation of the sentence against her is seen by external observers as a reluctant response by the junta to appear accommodative of international concerns about her. She herself felt happier to be back at her residence, though still under house arrest, from a prison-site building where she was detained during the trial.

On balance, however, United Nations Secretary-General Ban Ki-moons visit to Myanmar, at the height of the Suu Kyi trial, did not produce a positive impact such as the termination of what was widely seen as a sham legal process against her. Aware of that, Ban had said then itself that his visit should not be judged by the sole benchmark of her trial. In any case, all five permanent members of the U.N. Security Council the United States, Russia, China, the United Kingdom and France have never been on the same wavelength in assessing the Myanmar junta.

The U.S.-led West has often projected the Myanmar issue as a normative concern about the absence of representative democracy. China and Russia, on the other hand, have tended to argue that Myanmars internal political situation has so far not posed a threat to peace and security in the countrys neighbourhood. This argument is reinforced by the view that the Security Councils mandate is related to peace and security, not the norm of democracy as such.

The Security Council issued on August 13 what independent observers saw as a compromise statement on the Myanmar challenge. China and Russia did not give in on the principle of national sovereignty, including every states judicial autonomy vis-a-vis the larger international community. The West, by contrast, comforted itself with the thought that there was serious international concern over the case.

Conventional wisdom has it that the Myanmar juntas latest moves against Suu Kyi are designed to keep her out of the public domain altogether during the promised democracy-restoring election next year. However, it is too early to predict the course the generals will take, especially when they see a ghost in every shadow. Suu Kyi has already demonstrated her capabilities, even as a figurehead of democracy, in or out of detention. Her long shadow apart, it remains to be seen when and how the SPDC will seek to use Myanmars Buddhist monks as a potential force multiplier in the cause of democracy.

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