When Burma’s opposition figurehead Aung San Suu Kyi was released from house arrest on 13 November last year, one of the first things she called for at her National League for Democracy party (NLD) headquarters was the “rule of law”.
For once, the government in Burma and main rival the NLD appear to be in agreement – at least on the surface – given the government and its mouthpiece the New Light of Myanmar has been full of allusions to “the law” in recent weeks. What remains however is the wildly different interpretation of what constitutes the rule of law in Burma these days. Having initiated a series of new laws under the sham 2008 constitution and its subsequent election last year, the Burmese government is suddenly all about playing by the book – which of course it wrote – in trying to contain the actions of Suu Kyi and her party. Meanwhile, the NLD continues to dismiss recently passed laws in relation to the new constitution, the election law and political party registration law, deeming them illegitimate and undemocratic.
However, as we are starting to see now, these new laws will almost certainly determine the parameters within which Suu Kyi is able to operate in Burma, whether just or not. The problem for the NLD is that by trying to tackle the issue of its very own legality through legal argument, it is fighting a battle the government has itself created and which it has bolstered through the very laws it has passed to attempt to draw a line under the NLD’s 1990 election win.
The NLD’s recent challenge over its legality at the Naypyidaw Supreme Court is a case in point: in making an appeal based on the Specific Relief Act, as it did at the end of last year and has repeatedly done for years, NLD lawyers effectively called on the court to abide by the 1990 election result and to stop the authorities from preventing the NLD from fulfilling its mandate as the winners of that election. “The objective is that if the Supreme Court asserted the right of NLD under the Specific Relief Act, it may proceed [with the] convening of parliament and it may also prevent the regime to not declare the NLD as illegal,” said Aung Htoo, director general of the Sweden-based Burma Lawyer’s Council.
The problem is that the authorities need only refer to the more recent March 2010 election law in dismissing the case, which retroactively annulled the 1990 election landslide by the NLD. So although Suu Kyi’s release in November came with no explicit limits on what ‘The Lady’ can or cannot do – despite reported discussions just beforehand in which a government representative is understood to have tried to impose restrictions on movement outside of Rangoon and political activity – in practice Burma’s new laws are hugely restrictive. And whether just or not, the NLD is entangled in a legal mess right now that only plays further into the hands of the government.
To become a legal party, the NLD would have to apply with the Union Election Commission in line with the Political Parties Registration Law under which it must agree to safeguard the new constitution, which in turn bars the spouse of a foreigner from becoming president or vice president. In addition, the party would have to follow the letter of the 2010 Election Law during future elections which retroactively annuls 1990 election results. In other words, the NLD would have to let go of its 1990 election win, accept a constitution which says the military automatically gets 25 percent of seats in parliament, among other undemocratic requirements, and party leader Suu Kyi would not be permitted as a national ruler in the unlikely event the NLD won a future ballot.
Given these unacceptable requirements, the NLD has therefore chosen the difficult path of illegality under current laws, which puts it at the mercy of the government’s supposed “rule of law”; or, in the words of Mark Farmaner, director of Burma Campaign UK: “The dictatorship is trying to hide behind an illegitimate constitution to curtail the actions of the NLD, but they make up and interpret laws how they like.”
In recent weeks, the government has increasingly referenced these new laws to remind the NLD of what it can or cannot do, which unsurprisingly has coincided with Suu Kyi’s first trip outside of Rangoon since her release – this month’s four-day trip to Bagan and Mount Popa. Clearly Suu Kyi is treading carefully, given that she did not make a speech but referred to the trip as personal, and did not talk to journalists on the last day before heading back to Rangoon. Indeed, it has taken Suu Kyi nearly eight months since her release to leave Rangoon at all. In terms of “political” activities, the NLD is therefore being careful.
With respect to social and cultural activities, however, Suu Kyi and her party have been more aggressive in testing the parameters of what the authorities will allow in light of a recent government warning that the NLD would have to register as a social organisation to carry out social activities. Having carried out a number of social programs in Rangoon, including on HIV/AIDS, Suu Kyi took the provocative step of announcing the creation of a group called the ‘Friends of Bagan’ following her trip there this month, which would attempt to establish ties with UNESCO to help preserve the temples.
Aside from the government’s obvious dislike for UNESCO (it previously withdrew the possibility of support in the case of Bagan due to the junta’s gaudy plans for the temples), if there is one thing dictatorships despise it is political opponents seeking legitimacy through the UN – just ask China. Having been shunned by the UN for years after the Communist Party took power in 1949, China has actively stopped the UN from affording any recognition to Taiwan, realising that to do so increases the legitimacy of the island within the international community.
Similarly in Burma the government will likely despise the prospect of Suu Kyi liaising with UNESCO over the future of the country’s prized tourism asset. Expect a predictable government response. It will surely reference a law related to social or cultural registration and dictate that the NLD is not legally empowered to carry out such activities – if it feels sufficiently threatened.
And that’s the point. Given the Burmese government’s new fondness for the “rule of law” is anything but, in reality its use of new tailor-made legislation won’t be determined by the extent to which Suu Kyi violates these laws, but by the level of perceived political threat she poses in her actions.
As ever, the government will gauge Suu Kyi in terms of her perceived level of popularity and engagement with the general public, the international community, opponents of the regime and indeed anyone else the government considers a threat. So although the military may have altered the rules to its own advantage during Suu Kyi’s recent seven and a half years of unjust detention, ultimately the game is still the same in terms of ‘The Lady’ versus the dictatorship. The key issue, therefore, is how well Suu Kyi can play this increasingly difficult and one-sided game.