The Burmese Junta's Draconian Law and Aung San Suu Kyi

The Burmese Junta’s Draconian Law and Aung San Suu Kyi

Aung Din

For the first time in 20 years, Burma’s democracy leader and Nobel Peace Prize recipient Aung San Suu Kyi has submitted a legal challenge to her jailor, the Burmese military junta, contesting her unfair detention. Her lawyers submitted an appeal to the junta’s Cabinet on October 9, 2008 and are now waiting for a response. This is the first-ever attempt to challenge Burma’s draconian law, known as “The State Protection Act”, created by the late dictator General Ne Win and inherited and widely utilized by the generals ruling Burma today. Many democracy activists have become victims of this law, which allows the authorities to detain anyone without trial. Aung San Suu Kyi is the most prominent among victims of the State Protection Act.

Similar to what we have seen today, General Ne Win seized power from a democratically-elected civilian government in 1962, and subsequently took over 12 years to draft a state constitution, which allowed his party, the Burma’s Socialist Programme Party, to rule the country through a one-party system. Under Ne Win, the first single-party election was held in 1974. The following year, in 1975, the new rubber-stamp “Pyithu Hluttaw” (Parliament) adopted “The Law to Safeguard the State against the Dangers of Those Desiring to Cause Subversive Acts”, later known as “The State Protection Act”. This law was specifically designed for taking action against anyone who would challenge single party rule. Article 10 (A) of the law provides for detention of a person for a period of up to 180 days. Article 10 (B) allows restriction of rights of a person for up to one year. Article 14 allows the authorities to continue a detention or restriction of rights for up to three years. Many people who criticized General Ne Win’s regime were arrested and imprisoned without trial.

The ruling military junta continues to utilize this law to detain and restrict the rights of democracy activists. Aung San Suu Kyi, the world’s only imprisoned Nobel Peace Prize recipient, has been detained by the junta under the law three separate times. She was first detained and put under house arrest, under Article 10 (B) of the State Protection Act, on July 20, 1989. At that time, observers hoped that she would be freed in 1992 as the law allows the junta to detain her for a maximum of three years. These observers were wrong. In August 1991, the junta issued law 11/91, which amended the State Protection Act. According to the amendment, the maximum restriction permitted by Article 14 of the law was increased to five years. Again, on January 21, 1994, when she was entering her fifth year of detention, and the whole world hoped to see her freedom, the junta announced that she could be detained for up to six years. The junta argued that the Central Board, comprised of the Ministers of Home Affairs, Defense and Foreign Affairs, could make decisions related to her first one-year detention and the Cabinet could decide further on a detention of up to five years. Finally, Aung San Suu Kyi was freed from her first detention, which lasted six years, on July 10, 1995.

Then, Aung San Suu Kyi was arrested again in 2000 under the same law and detained for 20 months from September 23, 2000 until May 6, 2002. She was put under house arrest for the third time in 2003 after she and her supporters were violently attacked by thousands of the junta’s civilian militia members while on a speaking tour in central Burma. She narrowly escaped this assassination attempt, while scores of her party members were brutally beaten to death. She was placed back under detention on May 30, 2003. By May 2008, she had served five years under detention, yet she has still not been freed. So, will she be freed on May 30, 2009?

Articles 19 and 20 of the law are provisions of appeal. Article 19 states that "any person against whom action is taken has the right to appeal while action is being taken." Article 20 states that "appeal can be made to the Cabinet regarding orders regulating restrictions, arrest, detention or denial of rights laid down by the Central Board. The Cabinet can annually alter or approve the order as may be necessary." These articles have never been tested, as no one had been allowed to appeal until now

This September, in his report to the 63^rd Session of the General Assembly, UN Special Rapporteur on the Situation of Human Rights in Burma Mr. Tomas Ojea Quintana said that he urged the junta “to provide the suspect access to the legal counsel”. He notes that “Aung San Suu Kyi was allowed to meet with her lawyer to discuss a lawsuit against her detention”. He expects that “her appeal would be examined in a transparent and impartial manner”. He also said that per his suggestion, the junta’s “office of the Attorney General is tasked with analyzing legislations, including the State Protection Act (1975), to be reviewed and amended”. Should we align our expectations with those of Mr. Ojea Quintana? History suggests otherwise.

Aung San Suu Kyi should never have been arrested in the first place. In 2003, she was the victim of an assassination attempt; she was not the attacker. The civilian thugs who attacked and killed her entourage, and those officials who orchestrated the attack, were neither arrested nor punished. Yet, she was. She should have been allowed to appeal according to Articles 19 and 20 of the law since the beginning of her detention in 2003. Additionally, Article 9 (H) of the law states that “Any person detained under this law shall, after being released, not again be arrested and imprisoned on the same charges”. Thereby, she should not have been arrested under this law since she was twice detained under it already. Clearly it is the military junta, rather than Aung San Suu Kyi, who is violating the law in Burma. The UN and others should not wait with unrealistic expectations that the law will be amended fairly or her appeal might be examined impartially. The whole world should stand up and demand that the military junta releases Aung San Suu Kyi and all 2,100 political prisoners immediately, without delay.