MYANMARS celebrated democracy campaigner Aung San Suu Kyi is the only Nobel Peace laureate to languish in detention now. While this is a widely discussed fact, not equally known is the reality that she often turns to Mahatma Gandhi for inspiration. It is not as if her peaceful struggle is not known. It is just that the international community does not readily see Gandhiji as her primary hero in politics. It was, all the same, ironic that Suu Kyis appeal to end her house arrest was turned down by a Yangon court on Gandhi Jayanti day, October 2. As this is written, the planned revision petition against this verdict of a divisional court has not been formally moved.
The current phase of her house arrest was ordered on August 11 by an executive fiat that superseded a Yangon trial courts verdict against her on the same day. And thereby hangs an intricate tale of unexplored possibilities. In a sense, these possibilities have little to do with her overall detention for over 14 years so far mainly house arrest and also a brief spell in prison. Nor do the new possibilities have much to do with the so-called facts of the current case against her. The American national who she was accused of sheltering for a few days in violation of the terms of the previous phase of her house arrest has already been deported after being convicted for a parallel offence of seeking her out undetected by the security forces.
Another material fact in the maze of details about her current status is that Myanmars military rulers have eased her penalty but not revoked the trial courts guilty verdict against her. While that court sentenced her to a three-year rigorous imprisonment, the junta altered the punishment to a new round of house arrest for a reduced period at her Yangon lakeside residence.
At the legal level, Suu Kyis close political associates in her National League for Democracy (NLD), who also serve as her counsel, are determined to get the guilty verdict overturned through the remaining avenues of appeal. However, the legal process in Myanmar, overshadowed overwhelmingly by martial law, is not as clear-cut as in a democracy. This is especially so at this time on two counts.
One, it is for the first time that the junta has accessed the judicial process in a bid to keep Suu Kyi out of the political domain. Before the present case, the first against her, the junta had promoted the same objective through a naked exercise of political prerogatives.
More importantly, the second factor, now in focus behind the scenes, is the possibility of a three-way engagement between Myanmars junta, Suu Kyi, and the United States. In a larger sense, the juntas leader, Senior General Than Shwe, so used to arbitrary rule as in the cases of martial law in other countries, may decide the future status of Suu Kyi on the basis of such a three-way engagement.
Significantly, in this context, Aung Kyi, a Minister designated by the junta to liaise with Suu Kyi even as it crushed a recent uprising by Buddhist monks, met her twice in quick succession after her judicial appeal for freedom was turned down on October 2. With the junta releasing no details of these conversations, her close associates, who were not privy to this sudden dialogue, could only speculate about the nature and scope of the new engagement. Although her associates were denied access to her in this context, they were aware of the possibility of a qualitatively different kind of dialogue between her and the junta.
Nyan Win, Suu Kyis long-time lieutenant and NLD spokesman, told this correspondent from Yangon in the first week of October that the junta was possibly trying to figure out how she might help secure an end to the existing international sanctions on Myanmar. The reasoning was that these talks took place soon after she categorically offered to cooperate with the junta in getting the economic embargo lifted for the benefit of Myanmars people.
Another subject of actual or potential interest to the junta in engaging Suu Kyi was its own possible dialogue with the U.S. The Barack Obama administration has surprised many observers in East Asia by offering to hold direct talks with not only North Korea but also Myanmars military rulers. One of the reasons cited by the U.S. for these parallel moves is the suspicion of emerging links on arms-related issues between Kim Jong-ils North Korea and Than Shwes Myanmar. The suspicion in the West extends to the possibility of Kim helping Than Shwe develop nuclear weapons.
On a different but related front, the latest U.S. move for separate bilateral talks with North Korea and Myanmar does not bristle with open overtones of seeking a regime change in any of these countries. On the contrary, the U.S. has packaged the move as some kind of realpolitik of dealing with these two leaders in their own right because of their critical relevance to the local situations.
For Suu Kyis NLD associates, the relevant issue is not really centred on the tactical or strategic logic that drove Washington to initiate its new move. In their view, any dialogue between the U.S. and Myanmars junta would be pointless without a parallel or overlapping conversation between the NLD and the Obama administration. In fact, shortly after the new U.S. gesture to the junta became known, Suu Kyi let a word out, through her now-free NLD lieutenants, that she would like the U.S. to engage not just Myanmars junta but also the countrys opposition camp, especially her own party.
Unsurprisingly, therefore, Than Shwes decision to depute a Minister for urgent talks with Suu Kyi, even as the ink on a judicial order against her appeal for freedom had not yet become dry, acquired the proportions of a new political game plan. From the NLD standpoint, the juntas talks with her in early October offered the prospects of some form of a three-way engagement that could involve the U.S. as well. With Washington yet to firm up its own ideas on how to engage the junta, the NLDs position, as of October 9, was that the three sides could talk not only about ending the Myanmar-specific sanctions but also about the countrys long-term political question itself.
The notion of the three sides sitting together for talks was, of course, just that a notion. However, it was not an idle pastime to imagine that some criss-crossing or even parallel contacts between the three sides could occur. For that to happen, the junta should, of course, be willing either to free Suu Kyi or at least to let her talk to the U.S. or the West.
For long, the junta had accused Suu Kyi of being a devilish advocate of the international sanctions that only hurt the interests of ordinary Myanmarese. While this was not true, she also had not, until early October, offered proactive cooperation with the junta to get these sanctions lifted, NLD sources said.
The junta, no doubt, remains wary of going the extra mile to engage Suu Kyi and the U.S., lest that should inexorably lead to the beginning of the end of military rule in Myanmar. An idea of striking a bargain for some form of controlled democracy is, therefore, seen to be driving the junta in denying her freedom even while engaging her.
Will the NLD lawyers be able to bring about a game-changer now by pursuing further judicial appeals for Suu Kyis freedom? The juntas track record should rule out this possibility. But the lawyers are in no mood to give up, especially after winning a crucial legal point in the Yangon divisional court on October 2.
When this is written, she is yet to review the situation following the divisional courts verdict against her first-stage appeal.
Dismissing that appeal, the court ruled that the 1974 Constitution, which the prosecution had cited as the overarching framework for her trial, is not valid in law. However, the divisional judge upheld the validity of the 1975 State Protection Law, which was invoked to set the terms for her previous house arrest, which she was accused of violating.
The NLD lawyers saw this as a very controversial ruling that could be challenged judicially. Their reasoning was that the invalidation of the 1974 Constitution, which they demanded during the hearings, would imply a constitutional vacuum.
This should strengthen the case against any state protection law, however enacted or promulgated. The hope of the NLD lawyers was that a successful appeal in the form of a revision petition before the apex court would not only exonerate her of any wrongdoing but also undermine the basis of the executive order on her current detention.
Such legal niceties under a martial-law regime and the emerging political possibilities call for some problem-solving creativity, which those outside Myanmar have rarely, if at all, credited the junta with.
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