Tuesday, 16 March 2010 09:47 B.K Sen (Commentary)
(Mizzima) - The new Electoral Law handed down by Burma’s military rulers is directed against the democracy icon Suu Kyi. While banning her from contesting the upcoming election, the polling itself is paradoxically being trumpeted as a transition to democracy.
The new law bars any person from contesting an election if convicted. Suu Kyi was convicted of violating her previous terms of detention for harboring an American who sought shelter in her compound after illegally gaining access to the property. As a result, she is currently serving an 18-month suspended sentence.
In some countries, such as Australia, New Zealand, India and the United States of America, there are similar laws, but not as arbitrary.
Under Burmese law as well, only a person convicted of a serious criminal offence like murder or high treason can be banned from holding public office. Suu Kyi’s conviction was minor by comparison, the reduction of the sentence itself proving the point. Moreover, the principles of criminal justice state that a person cannot be punished twice for the same offence. And while an appeal is pending in the Supreme Court, the matter is sub judice and she cannot lawfully be barred from contesting the poll.
As clearly articulated by the Inter-Parliamentary Union’s Declaration on Free and Fair Elections, every person has the right to take part in the government of their country as well as vote - the latter a further right denied Burma’s prison population.
In the United Kingdom, convicted peace activists contested in Blair’s constituency. Meanwhile in the United States, Ted Stevens contested Senate re-election in 2008 despite being indicted and eventually convicted for financial corruption.
The fundamental difference with Burma’s election is that it is coming after decades of brutal military, inclusive of sham trials. Normative conviction is different under a democratic regime - while it may still be wrong, it was yet made under the rule of law.
Whenever there is a transition from an authoritarian regime to a constitutional political structure, electoral laws should be framed so that opposing parties are not affected. The entire thing should be based on national reconciliation. In South Africa, Nelson Mandela was convicted by the apartheid regime but was still able to contest post-apartheid elections. Likewise, certain procedural norms were adopted in eastern European countries, Latin America and Indonesia, allowing for a more peaceful transition.
The draconian provisions contained in Burma’s Electoral Laws clearly establish that the election is not for a transition to democracy but a process to legitimize the junta’s rule.
Western government and ASEAN strategies to engage the junta have yielded the opposite of intended results, as the junta remains steadfast in its push to exclude Suu Kyi from politics. And this position of the junta will only gain in clarity as the election date nears.