Democracy in dilemma

By B.K.Sen
Mizzima News (www.mizzima.com)
August 10, 2003

May 30,2003 is a land-mark event in the struggle for democracy of the people of Burma On that day the Junta masterminded the nefarious plan to eliminate Daw Aung San Suu Kyi, the icon of democracy movement along with leadership of her Party the National League for Democracy (NLD) The plan was executed at Depayin by an ambush by the vigintiles while she went out on a tour in Upper Burma to meet her supporters.

The Junta 's attempt failed and thereafter it dubbed the incident as a clash between two groups, supporters of Daw Aung San Suu Kyi and those who did not like her. The result was death of five persons and many persons injured Shamelessly Junta said that she was kept in "protective custody" and her other colleagues were taken away and kept in detention

Significance of the Depayin event

This event constitutes a major shift in the policy of the Junta. The Generals were in the midst of talks with Daw Aung San Suu Kyi regarding peaceful democratic transition to democracy. This process has been going on for over two years and several sessions had been held and that too at facilitation of Special Envoy of the UN In fact it was a political truce and another round of talks was on the agenda. All of a sudden this uncalled for attack on the democratic force is not only a gross breach of trust, it is evidence of a new policy that the Junta has designed.

It is also evidence of the fact that the Junta has been using talks as a ploy. It has no sincerity for a peaceful transition. It has cheated the people and bought time. Its main strategy has been to contain any momentum to be generated. After the withdrawal of restriction putting her under house arrest, it allowed Daw Aung San Suu Kyi some freedom of movement which she utilized to meet her Party supporters and open offices. She visited some States and met with people and leaders. The response was beyond the calculations of the Junta What the Junta did was to test the waters, to see whether the hostility of the people to its excesses which swept Suu Kyi to victory in May 1990 Election has abated. It is reasonable to suppose that it is interested in finding out whether her popularity has been affected by her long in incarceration and the talks
in process.

For her part, Suu Kyi played her card well She has done her best to contain expectations on her acknowledgement as the leader of opposition by the Junta and enter into talks with her She warned that the progress quill not be easy, calling for discipline. She has been moderate in her language about the Generals, did not reveal anything about the nature of talks as agreed between the parties. The talks have not been made public, the meetings however raised hopes that talks would be revived .The sin that she had committed was that she made no secret of her devotion to democracy and the rule of law. Suu Kyi made her position that there could not be any compromise on the core demand of the Junta that overall power is in the hands of junta and it will stick to its basic modus operands.

The military had no intention of giving up their stranglehold on the nation and its resources with courage and resolution she pulled the NLD out of wilderness. New consciousness was being infused in the ranks of her Party and fear, the main instrument of barbaric rule for decades, began to disappear though slowly but surely Generals panicked when they were given intelligence reports about the ground swell taking place slowly but surely. It left them with no other alternative but to strike and arrest this process. And the only way to do that was to arrest the key figure in the movement.

They knew arrest would lead to protest and indignation across the world but the need of the hour was to end the beleaguered peace process and the best way was to eliminate her. Depayin event is significant as it records grave breach of good faith, unilateral breaking the political cease-fire and dishonorably putting the talking Partner under detention.

Timing of the event

The question is why it was staged at the given time? The visit of UN Special Envoy Razali was soon to come and resumption of talks could not be further postponed. There has to be some cogent excuse as the most crucial factor was international pressure. This could be contained in view of the disarray of the international community US was deeply engaged in Iraq and Palestine-Israel conflict and in Africa.

There was great division between US and E.U. Further US got isolated in UN. The North Korea issue was also on US agenda .In such situation the Junta calculated that US, its prime enemy could not afford to interfere in the affairs of Burma. It was a golden opportunity for it to strike and eliminate Suu Kyi and her party leadership. There would be condemnation and resolutions. But eventually these will die and Junta will be in a position to rule for an indefinite period It made it abundantly clear that it maintains a fiercely intransigent attitude towards the peace process This also explains the politics of brinkmanship of the junta.

It thinks that lulling a nation into a spell of non-fighting is the way of securing lasting peace. The Deypain event is a turning point and a reality checks on how the talks --a negotiated settlement-- are poised. It could not have been timed better.

Secret Detention ---- violation of all norms

It is "torture' within the meaning of crimes against humanity Keeping a prisoner without allowing his/her relatives to interview, without permitting to intermix with co prisoners, literally cut off from the world amounts to solitary confinement. It is now over two months that Suu Kyi I has been thrown into that state It not only violates basic human rights and fundamental law of nature, right to life, it is a barbaric criminal act which civilized nations do not tolerate Previous detentions which Suu Kyi underwent were under action 10(b) of the notorious State Protection Law resulting house arrest .The present detention is under Section 10 (a_) of the law which mandates detention only in prison for 5 years. The question is where is the prison? An unknown and undisclosed destination cannot be designated as prison. This question leads to another question. If she could have been kept under house arrest on previous occasions, why this time the same has not been done? Has she become such a security threat? It is evidence of change in the mind set of the Junta Talks, dialogue, national reconciliation, the buzz words were only for public consumption

Reaction and response to the event

International community has responded strongly. US has given strong condemnation. Besides it has imposed further sanction and its Congress has passed the Burma Freedom & Democracy Act 2003/UN Secretary General has demanded immediate release. The Asean Conference in Cambodia passed a Resolution calling upon the Junta to release her. The Malaysian Prime Minister erstwhile friend of Junta also joined in condemning the highhanded action. Bangkok has come out with a road map for national reconciliation and political reforms in Burma. EU, Japan, India and a host of countries, dignatories and Institutions have joined.

There is a change in the international mind set Domestic reaction although did not take a militant outburst did show that it was not quiet Daw San San& 70 MPs inside Burma gave a letter to the SPDC to release Suu Kyi immediately Leaders of seven Cease-fire groups have addressed the authorities for the release The Generals in panic closed down the educational Institutions although they have been reopened

The lawless nature of the event

Protective custody and State Protection Law Section 10(a) The Junta initially said that Suu Kyi was kept under protective custody, as there was a threat of her assasination. If that were so who were the suspects? Have they been arrested and charges brought against them? As this cock and bull story will not stand scrutiny, Junta changed its position and said that the youth section of her Party posed security threats .She has therefore been kept under detention by an administrative order under State Protection Law Section 10(b).

No charge of conspiracy or otherwise which the domestic laws allow has been framed against her. There is no legal remedy against such detention. The judiciary cannot intervene. The arresting authority is law unto itself the junta has come out with a theory of Police inquest. Everybody knows that a Police inquiry is a departmental affair, which is not public. It is a simple case of judicial Inquiry, which is open to the public and where the relatives of the victims can participate and make legal representation. The Judiciary is under complete control of the Junta and yet it did not dare to take that step the event is of national importance. The very fact that Suu Kyi, the opposition leader with whom it was engaged in talks has to be taken into custody is evidence of the importance of the event Time will only reveal how diabolical is the game of the junta. There has to be a F.I.R, investigation and then prosecution.

If the junta wants to justify its action List of persons dead, injured and arrested will have to be disclosed. There will not be a fair trial but it will provide an opportunity to evaluate the mind set of the junta The Press conference that SPDC gave will be a constraining factor in holding a sham trial. Trial in the context of law enforcing authority/s subordination and spineless Judiciary will not be fair trial. Nevertheless some facts will emerge from which we can draw right conclusions.

The big question s are: How far will the demand for release of Suu Kyi, the NLD leaders and other political prisoners meet the needs of the hour? Will the call for renewal of talks be realistic? The central strategy of dialogue and national reconciliation is under cloud and is being dismissed as not pragmatic.

Will not this result in walking into the trap of Junta's policy of attrition?

Is it not a scenario of vicious cycle namely Su Kyi is arrested, call for her release, Generals defy international pressure, then give in, then there is great applause that Junta has bent to world opinion, then there is release of selected political prisoners, allowing NLD to open offices eventually there is a clamp down and all activists are in prison. Whenever activities give signs of potential change in the equation of the forces, a show off is engineered and situation is brought to square one. The paramount consideration is that the status quo must be maintained. That is the one and only way to hold on to power Question what then? How to deal with the Junta?

It is not a regime change in Burma. The entire system has been emasculated with disappearance of all institutions the military has been ruling for nearly four decades. International pressure or domestic dies-satisfaction has not been able to loosen its grip.

They have become more arrogant and aggressive U.S Secretary of State Colin Powell has characterized the generals as thugs and has given a call "turn the tables on Burma's thugs". He has also commented to reassess its policy. Thailand also has come out with Road Map. Asean constructive engagement has dented. It appears that it is regional efforts, which have to be built up, UN has its weaknesses. The era of quiet diplomacy on the part of some countries has to be ended.

U S has to talk to China, its greatest trading partner and engage China in coalition of nations to force Junta step down and facilitate the democratic transition" On any sensible reading, Article 21 of the Universal Declaration and the Charter principle of "self-determination of peoples invalidate all remaining military regimes run by savage soldiers in places like Burma, where the patient courage of Aung San Suu Kyi, an elected leader detained by military despots for most of the time much since her election in 1988, has elicited much sympathy but not much action ( Geoffrey Robertson ).

Burma faces many challenges in its struggle for restoration of Rule of Law. But it has opportunities to enrich the research in democratic transition, innovate and make real contribution to international law while delivering its people from the strangle hold of military dictatorial rule of three decades

( B.K.Sen, a Senior Advocate, Supreme Court Burma, contributed this article to the Mizzima.)