Friday, April 9, 2010
Burma's election law and the least successful lawsuit in history
According to Irrawaddy, a couple of days ago, several National League for Democracy officials, including Nyan Win, Tin Oo and Aung Shwe, filed a lawsuit against Senior General Than Shwe in the Burmese Supreme Court. They complained that the SPDC had promulgated an "unjust and unfair" election law. The suit probably would have been dismissed had the court heard it. However, the Supreme Court simply handed the litigation documents back, saying it had no jurisdiction to handle the case.
First of all, "unjust and unfair" seems like an odd and unlikely basis for any lawsuit in Burma. Or elsewhere frankly. Unless the election law violates a superior law, there doesn't seem to be any legal basis for dismissing the law. The "unjust and unfair" complaint seems more like a request for equity (or "justice" more broadly) than a request for a legal remedy.
Another issue is the election law itself. I haven't commented on this, but I think a lot of the criticism is misguided. The main criticism of the election law is that it prohibits anybody with a criminal conviction (e.g., imprisoned) from running in the elections. This means that Suu Kyi, who is currently under house arrest, would be banned from running. I would obviously love for Suu Kyi and NLD to be able to contest the elections. However, at least as a legal requirement, this doesn't seem so bizarre at all. Many countries prohibit felons from running or even voting in elections. In the U.S., prisoners and ex-cons lose other constitutional rights. In some sense, this makes sense - in most countries, somebody in prison probably committed a crime that makes then unqualified for public office.
As such, it seems to me the real issue in Burma isn't the election law, but rather the broad scope of "crimes" under Burmese law. The State Protection Law is but one example of legislation (often from the colonial era) that is so broadly drafted as to allow the SPDC to criminalize almost anything. This is what allowed the SPDC to "criminalize" Suu Kyi's "violation" of her house arrest last year.
Of course, this problem goes beyond the election law. Many of the Fundamental Rights provisions in Burma's 2008 Constitution allow the government to limit rights based upon "law." The Constitutional Tribunal can enforce the constitution, but will probably defer to the governemnt on politically sensitive issues (for more, here's an article I wrote for Irrawaddy). As long as Burma keeps its overly broad laws and expansive definitions of criminal activity on the books, there seems little room for civil and political rights under the new constitution.