Thursday, October 7, 2010
Why is Burma's Supreme Court hearing the NLD's lawsuit?
As you might have noticed, Burma's Supreme Court agreed to hear a lawsuit by Aung San Suu Kyi's National League for Democracy challenging the dissolution of the party. While this has received much media attention (for a Democratic Voice of Burma article, see here), it seems to me that most observers haven't yet really explained the move. I'll give you a clue: it's not because the Supreme Court will actually rule against the ruling SPDC or the Election Commission.
Rather, it seems to me that the country's political elites are increasingly using the courts as a means to take the blame for unpopular decisions. I've noticed that the judiciary seems increasingly involved in political questions, such as Suu Kyi's trial last year (although, of course that involvement remains minimal overall). I suspect this is a deliberate decision and part of the junta's transition to civilianized rule in which the elite rules through political institutions, not the military hierarchy.
This is a fairly common rationale for courts under authoritarian regimes. In fact, it is probably more important for authoritarian elites who do not have a strong grip on power because they do not possess the legitimacy of their democratic counterparts. In Egypt and China, courts helped reformist leaders begin dismantling the social welfare state over the objections of staunch Nasserites and Maoists. Opponents often focused their wrath on the courts, relieving the politicians of some of the heat.
However, in order for this strategy to be effective, the court must be somewhat independent in order for its rulings to be credible. If it is clearly just an agent of the political elite, then citizens will still blame the government for the court's policy decisions. If I'm right about why Burma's courts have become more prominent, I also believe that the junta's tactic will fail or even backfire because the courts in Burma are notorious for their subservience to the military.
It will be interesting to see how the judiciary develops after the elections, particularly the new Constitutional Tribunal. It might also play this role of deflecting blame for unpopular policies, but unless the courts show some independence (or rule against the government occasionally) they will remain uncredible sources of policymaking.