According to recent news reports, Burmese democracy leader Aung San Suu Kyi has reportedly told the court that her trial is a test of the military-run legal system. Some opposition figures and Burmese media—especially Burmese language foreign broadcasts—toe the line in making this legality issue a big deal.
They are wrong. It is by no means a test case for the rule of law in Burma, which is virtually non-existent.
Without any balance of power in the state institutions, putting faith in the rule of law and expecting justice are at best illusory. The opposition should not pick or prolong the battle within the junta's institutions, including the judicial system, which the regime effectively controls through the appointment of senior judges and direct interventions.
The legal system is one of the most corrupted institutions serving the perpetuation of the regime. As a serial liar and rule-breaker, the junta knows well how to manipulate its institutions against Suu Kyi and other opponents. Even if Suu Kyi were freed tomorrow, it would have nothing to do with judicial independence and rule of law in military-ruled Burma. It would be political calculation. This whole affair should be viewed from a political perspective, not through a legal lens.
Thus, the true test in the Suu Kyi trial is whether or not and to what extent the junta is susceptible to international pressure; in other words, whether or not the international pressure yields the intended result. If it does, a close examination should be made to understand when and how it worked.
Some influential Burma experts, foreign diplomats and even increasing numbers of journalists repeatedly claim that coercive diplomacy does not press the isolated and xenophobic Burmese military junta to make any changes. Pressure does not work. The regime is insular, claim these pundits.
The Burmese court that postponed its verdict on Suu Kyi until August 11 may tell a different story. Some sources inside Burma, however, suggest that the junta may delay the verdict again on Tuesday by citing the ill health and hospitalization of John Yettaw, the intruder who is also standing trial.
Indonesian Foreign Affairs Minister Hassan Wirajuda recently told the media that he hoped the postponement of the verdict was due to the Burmese government’s concern over international reaction, particularly from the Association of Southeast Asian Nations (Asean).
In fact, before the expected decision on July 31, UN chief Ban Ki-moon had pressed for the immediate release of Suu Kyi during a meeting with Burma's UN ambassador, a UN spokesman said. Ban Ki-moon warned that by sentencing Suu Kyi to another prison term, the Burmese junta would "miss a very important opportunity to engage with the international community, and they will be betraying the expectations and wishes of all the international community who really want to see Myanmar [Burma] fully integrated as a member of the international community."
These pressures appear to have serious effects on the calculation of Sen-Gen Than Shwe, the paramount dictator of the regime, who has shown some indecisiveness in this final episode of the show trial.
However, it is not the first time that the military shows its susceptibility to international pressure. For instance, in 2005 the junta faced mounting pressure from the West and some Asean countries to give up the Asean chairmanship in 2006. The United States and the European Union openly declared that they would boycott all Asean meetings if Burma took chairmanship. Singaporean Prime Minister Lee Hsien Loong travelled to Burma and expressed his deep concern about the possible implication of Burma's chairmanship on Asean.
The pressures then affected the regime. Despite the fact that the regime had already established a "Steering Committee for the Preparation of Holding the Asean Summit," chaired by the prime minister, to reap international PR gains, and also enjoyed China's backing to assume the chairmanship, the military eventually decided to give up its entitlement. It would be unthinkable for the presumptuous and overbearing Burmese military to give in to outside pressures and take diplomatic embarrassment. (In fact, the self-righteousness and uncompromising pride is a trait that many Burmese prone to share with the ruling generals.) Most interestingly, the generals who made such concessions were known as "hardliners," since "moderate" Gen Khin Nyunt had already been purged in 2004.
Similar observations could be made in other cases such as Burma's negotiation with the International Labor Organization (ILO) over a resolution of forced labor in Burma.
The tentative lesson could be drawn that when the pressure is employed first with focus— meaning a clear objective with single issue instead of vaguely designed "regime change"— second with coordination, especially getting regional powers such as Asean and China to get on board, and third with persistence.
However, it does not mean that the junta will clear all charges against Suu Kyi and set her free tomorrow or even postpone the verdict again. The military can still sentence Suu Kyi to up to five years. If it wants to pacify the anger of the international community, it could announce a suspended sentence or allow the opposition to make a big deal about an appeal process. At the same time, it can complicate the situation by freeing or being lenient on Yettaw as an act of clemency and a positive overture to the Unites States while anti-sanction US Sen Jim Webb is visiting in Rangoon.
If the Lady was given a prison sentence tomorrow, there will be at least two ways to look at the effectiveness of the pressure. First, the pressure failed. The only option for the international community should be to engage with Burmese junta. However, this prescription is not very convincing in resolving the crisis in Burma. Aside from providing whatever the regime wants— lifting the sanctions, giving aid without or with few conditions, endorsing the 2008 constitution and being quiet on violations of human rights and ethnic rights, and political crisis, the meaningful engagement—even the highest level of engagement from the UN secretary-general —does not seem to yield any sustainable result. In his last visit to Burma, Ban Ki-moon's request to meet Suu Kyi was rejected, and his specific proposal for the reform fell on deaf ears. It does not mean that international community should stop engaging the junta. But the engagement must be exercised with the backup of enforcement.
This leads to a second view. If Suu Kyi was given a prison sentence tomorrow, it indicates that the existing pressure is not high enough to influence the regime's behavior.
This view will argue that there are three factors shaping the focus, coordination and persistence of international pressure. They are consensus, mechanism and political will on the part of international community.
Regarding consensus, UN Security Council statements and Ban Ki-moon's specific proposal to Than Shwe such as the release of all political prisoners including Suu Kyi; resumption of dialogue between the government and opposition; and the need to create conditions conducive to credible elections planned in 2010 are the common framework. Recently, Ban announced that he won support from key nations for his proposal to the Burmese government after chairing a closed-door meeting of the Group of Friends on Myanmar that includes about 15 countries—Burmese neighbors, interested Asian and European nations, and the five permanent UN Security Council members. Ban also announced that a new summit will be held in September on the sidelines of the UN General Assembly to discuss the political crisis in Burma. These are very encouraging signs for the Burmese opposition in terms of consensus building. Of course, the priority has to be sorted out for a sharper focus and effectiveness.
A consensus itself, however, is not enough. It needs coordination. In other words, a mechanism is required to enforce consensus. This has also to do with the level of pressure. Then the question is whether or not the UNSC, the highest enforcement mechanism, is feasible in the Burma case, and when it will be achievable and how. Or, are there other mechanisms such as the Friends of Myanmar where the Burma issue could be effectively dealt with?
This leads to a third factor—the political will of international community. In fact, this could be boiled down to the issue of leadership. Who is going to take the lead in the Burma case? The United States under the Bush administration played a leading role in bringing the Burma issue into every international forum. The Obama team did not bother noting the word Burma even in the margin of his key foreign policy agenda when the president attended a US-EU summit in April, says an EU diplomat who was involved in preliminary preparation for the summit.
Ban Ki-moon's leadership is commendable. But bureaucratic leadership rarely facilitates persistency and the necessary resources for intractable conflicts unless it is backed by the political will of major powers. Otherwise, it will end up in an outsourcing and buck-passing policy.
When it comes to pressure, these are the issues (i.e. focus/consensus, coordination/mechanism and persistence/political will) that the opposition should pay attention to, strategize and advance, instead of expecting and pursuing the trial as legal test case.
Min Zin is a Burmese journalist in exile and a teaching fellow at the University of California, Berkeley, School of Journalism.