(Apr. 13, 2009) The United Nations has stated, for the first time, that the detention of pro-democracy activist Aung San Suu Kyi by the military regime of Burma (Myanmar) was in violation of not only international but also domestic law. The statement appears in Opinion No. 46/2008 of the U.N. Working Group on Arbitrary Detention (WGAD), which is under the Human Rights Council. The legal opinion was issued on November 28, 2008, but only released on March 24, 2009. (Opinion No. 46/2008 (Union of Myanmar) [Opinion], ONLINE BURMA/MYANMAR LIBRARY, Nov. 28, 2008, available at http://www.burmalibrary.org/docs6/WGADopinion-46-2008.pdf [the text of the Opinion is not yet available on the WGAD website, http://www2.ohchr.org/english/issues/detention/annual.htm].) The Opinion bears a subheading “Communication Addressed to the Government on 29 August 2008” and contains 17 numbered points.
Although it is the fifth time since 1992 that the WGAD has declared the activist’s deprivation of liberty to be arbitrary in contravention of the Universal Declaration of Human Rights (arts. 9, 10, & 19), it is a first for the U.N. body to note that it is also illegal under Burma’s own laws. (Salai Pi Pi, Aung San Suu Kyi’s Detention Violates Burmese Law: UN, MIZZIMA NEWS (New Delhi), Mar. 24, 2009, available at http://www.mizzima.com/news/world/1884-aung-san-suu-kyis-detention-viola
tes-burmese-law-un.html.) According to the Opinion, the latest renewal of the order to place Suu Kyi under house arrest, issued on May 25, 2008, fails to comply with the 1975 State Protection Law under which it was issued, because the Law “only allows for annually renewable house arrest orders with the maximum time limit of five years in total. This five year period ended at the end of May 2008” (arts. 10 & 14, as amended). Under the Law, the Opinion states, the authorities may
order the detention or restricted residence without charge or trial of anyone the authorities believe is performing or might perform ‘any act endangering the sovereignty and security of the State or public peace and tranquility’ (see article 7 of this Law). But even according to the authorities themselves, the extended deprivation of liberty of Ms. Suu Kyi does not meet this already very low and subjective threshold. (Opinion, point 9 in part, supra.)
(See also State Protection Law, Burma Lawyers’ Council website, http://www.blc-burma.org/html/Suppressive%20Law/spl_e.html (last visited Apr. 3, 2009); P. GUTTER & B.K. SEN, BURMA’S STATE PROTECTION LAW: AN ANALYSIS OF THE BROADEST LAW IN THE WORLD (Burma Lawyers’ Council, Dec. 2001), available at http://www.burmalibrary.org/docs6/State-Protection-Act-analysis.pdf.) [NOTE: Articles 14 and 22 of the Law, as amended by Law Order 11/91 issued on August 9, 1991, increased the detention period from three years to five years and revoked the right of appeal; these revisions are not found in the two sources cited immediately above. Chronology of Burma’s Laws Restricting Freedom of Opinion, Expression and the Press, THE IRRAWADDY, May 1, 2004, available at http://www.irrawaddy.org/research_show.php?art_id=3534.]
Also on March 24, 2009, a ruling was made public in a case that was argued before the WGAD by two British barristers on behalf of four other Burmese detainees and decided in November 2008. The international tribunal of jurists found the detention of the four petitioners – the four activists Min Ko Naing, Ko Jimmy, Min Zayar, and Pyone Cho – to be “arbitrary and in contravention of a whole raft of provisions of the Universal Declaration of Human Rights” and “declared the Burmese Government’s position to be unarguable and improper as a matter of international law.” (Id.) Not only did the tribunal find the regime “to be operating entirely outside of the law,” but it also “described its violations of minimum standards of international law as ‘grotesque.'” (Id.) The four activists were arrested in August 2007 for leading a peaceful march in Rangoon (Yangon) to protest, in solidarity with the poor, a sharp hike in fuel prices. (Id.; see also Press Release, Burma Justice Committee, International Court Condemns Burma Junta for Its Illegal and “Grotesque” Record on Detention (Mar. 24, 2009), available at http://www.burmacampaign.org.uk/index.php/burma/news/international-court