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June 9, 2009 (DVB), The trial of Aung San Suu Kyi has made transparent the ease with which the ruling junta has sculpted Burmese law into a framework in which war crimes are legal and dissent is the most heinous of offenses.
If any positive can come of current events, it is that the hermit state has been pitched onto the world stage, the full extent of its corrupt system plain to see and, we hope, ever vulnerable to mounting pressure. Even prior to the trial the country ranked at the tail-end of virtually every political freedom barometer in circulation, its media environment suffocated by some of the world's strictest censorship laws and its citizens placed under the crippling watch of a Soviet-style surveillance system. Perhaps most frighteningly, its courts of law, the very institution in which citizen and state crimes are supposedly scrutinized and punished, are under the direct control of the country's paranoid generals.
Despite regular statements from the government suggesting otherwise, the Burmese courtroom is little more than the junta's legal wing, with judges usually handpicked by the generals. Those who aren't are regularly subject to intimidation by higher authorities: in March the brother-in-law of the All Burma Monks Alliance (ABMA) leader, U Gambira, was sentenced to five years imprisonment with hard labour under immigration laws after marking the anniversary of the founding of ABMA. The judge had told his sister there wasn't enough evidence to sentence him, but was forced by Burma's chief judge to hand down the guilty verdict.
Trials, particularly those of would-be political prisoners, are often held inside closed prison courts, with no access granted to media. Lawyers who present an articulate case in defence of pro-democracy individuals have been threatened with allegations of contempt of court – indeed, 16 of the country's 2,100 political prisoners are lawyers. In March a renowned activist lawyer, Pho Phyu, was sentenced to four years after helping farmers file complaints of land confiscation by the army to the International Labour Organisation (ILO). He was charged under the Unlawful Associations Act, despite belonging to no organization.
Such spurious charges are common under Burmese law. Earlier this year six students were sentenced under charges of sedition for collecting and burying the rotting corpses of victims of last year's cyclone Nargis. Numerous aid workers and journalists who reported on the disaster were imprisoned in a wave of sentencing following the cyclone.
It is in this context that we once again find ourselves penning the verdict of Aung San Suu Kyi's trial even before the courts announce their decision, so foregone is the conclusion. That in the same breath they will sentence John Yettaw for trespassing and Suu Kyi for sheltering a foreigner, two 'crimes' that, despite their obvious ridiculousness, surely anyway contradict one another, shows the extent to which Burmese law is itself unlawful.
Even before Suu Kyi was brought to the courtroom, the government had broken both international law and its own stated law by keeping her in detention beyond five years. There is little else they can do with the lady, her stubborn non-violent ideology stumping a regime whose method of governance only works when dialogue is reduced to the level of thuggery. In the face of Suu Kyi the generals have proved themselves almost impotent, forced to rewrite their own words in a desperate snatch at retaining power.
Yet they do this all too easily. The constitution, the bedrock of the country's legal system, was ratified last May barely two weeks after the cyclone, one of Asia's worst recorded natural disasters. With 140,000 people dead, and the southern region of the country in tatters, the government rejected a call from the UN to postpone the referendum. Somehow, despite being scathed by international leaders for its antipathy towards victims of the cyclone, the government claimed 92.4 per cent approval of the constitution, with a 99 per cent voter turnout.
But it is in this forest of legal jargon that the discrepancies between what is supposedly right and wrong in Burma come flooding out. The authors make no bones about the fact that what is essentially deemed a legal activity is one that props up authoritarianism, while a 'crime' attempts to counter, or even merely question, it.
Thus, what is 'illegal' is for the daughter of Burma's founding father, whose party won a landslide victory in the 1990 elections, to run for government office because she was married to a foreigner. Paradoxically, the ILO last week voiced concern about a clause in the constitution that makes use of forced labour legal when the government deems it necessary. Cases of forced labour documented by the ILO include recruitment of child soldiers and recruitment of civilians to walk in front of army patrols as 'minesweepers', ensuring that it is not government troops who take the full force of a mine exploding at their feet. International jurists, British MPs and exiled Burmese lawyers have all said in recent months that such cases amount to war crimes.
Corruption, absence of judicial independence, and state-sanctioned human rights abuses are perhaps all-too predictable byproducts of military rule left to fester behind closed doors. One silver-lining Suu Kyi's trial has generated is that Burma has been brought out of reclusivity, dragging behind it the entrails of its pitiful legal system for all the world to see. While the generals will no doubt breeze into the next decade on the back of a fraudulent election victory, their behaviour is being recognized as quite shocking, even by its hardened Asian neighbours, and they are showing increasing signs of unease.
The head of the regime, Than Shwe, is well-known to be fearful of being indicted by the International Criminal Court, and his minor concessions, such as allowing journalists sporadic entry to the Suu Kyi trial, are seen by some observers as a tactic to placate his demons. There are few methods of intimidation that have made headway in Burma – sanctions have achieved little, while engagement has proved futile – but it is with this tool, with this threat that he will be brought to a court whose rule of law is unfamiliar to him, that the international community could start to influence change in Burma.