Confusion in the Court

By NEIL LAWRENCE
The Irrawaddy News
JULY, 2009 - VOLUME 17 NO.4

While the case against Aung San Suu Kyi remains shrouded in deliberate obfuscation, the likely outcome seems clear

John William Yettaw had it easy.

Swimming across Inya Lake with a backpack containing a camera, two sets of Muslim women’s clothing and a veritable toolbox of other items was no doubt hard going for the 54-year-old diabetic. But it was probably a cakewalk compared to the task of trying to get to the bottom of the case against him and his famous co-defendant, Aung San Suu Kyi.

There are many hurdles to making sense of the trial against Suu Kyi, her two personal assistants and her American intruder, not the least of which is the often impenetrable prose of The New Light of Myanmar, the ruling junta’s main English-language newspaper.

Among other challenges: the Burmese regime’s tight control over access to the facts surrounding the case; constitutional issues in a country that has been ruled by diktat for more than two decades; political posturing; and a host of conspiracy theories.

Wading through the pages of The New Light of Myanmar for reliable information is never a very rewarding experience, but in this case, the crudely written propaganda broadsheet is an important point of reference for news about the proceedings at the special court in Insein Prison, where Suu Kyi, et al, are being tried, and so cannot be ignored.

Occasionally, amid the tangle of often incomprehensible sentences, something of genuine interest appears. For instance: in an account of Yettaw’s testimony on the eight day of the trial, he is reported as telling the court that when he first visited Suu Kyi’s home on November 30, 2008, “he walked along the bund [embankment] of Inya Lake through the drain.”

This intriguing, if somewhat obscure, detail adds to uncertainty about the circumstances of his intrusion, since it suggests that, at least on the occasion of his first attempt to make contact with Suu Kyi, he did not actually swim to her house, as claimed by the authorities.

But even more interesting is the fact that the newspaper did not report an encounter between Yettaw and a policeman after he left Suu Kyi’s house last November. According to a lawyer who was present when Yettaw was giving his testimony, the American said he was stopped at gunpoint as he was leaving her home, but was later released.

Nyan Win, one of the lawyers working for the defense, also told The Irrawaddy that Yettaw said several policemen threw stones at him as he was entering Suu Kyi’s residential compound for the second time on May 3—another fact that the state-run press neglected to mention.

The incompleteness of The New Light of Myanmar’s account will only serve to fuel suspicions that the regime knew more about Yettaw’s activities than it is admitting, and was complicit in allowing him access to her compound, just in time to extend her detention.

Besides the confusion surrounding the actual events that led to the trial, another baffling aspect of the whole affair is the legal basis on which the case against Suu Kyi has been allowed to proceed.

At one point, the sole defense witness, lawyer Kyi Win (not to be confused with Suu Kyi’s defense counsel of the same name), suggested that the Law Safeguarding the State from the Danger of Subversive Elements, which Suu Kyi has been charged with violating, was invalid because it was part of Burma’s 1974 constitution, which was nullified by the 1988 coup that installed the current regime in power.

This complication is not likely to deter the prosecution, however, since the State Law and Order Restoration Council that seized power in 1988 reinstated the draconian decree as Law No 11/91 on August 9, 1991, and even extended the maximum sentence from three years to five (Suu Kyi has already served six years under the law).

To deflect some of the intense international criticism it has been facing for the many irregularities of the case, the junta has launched a counteroffensive designed to further muddy the waters.

Amid persistent speculation that the regime somehow engineered Yettaw’s misadventure as a pretext to keep Suu Kyi locked up, the junta’s foreign minister came up with his own conspiracy theory. The whole episode was “timely trumped up” by dissidents “to intensify international pressure on Myanmar,” he told his Japanese counterpart, without offering any evidence.

The regime also tried to take the moral high ground by castigating Thailand for interfering in Burma’s internal affairs by issuing an expression of concern on behalf of the Association of Southeast Asian Nations, and cited a mildly worded press statement on the case by the United Nations Security Council as “proof” that its conduct of the trial was fundamentally sound.

But China and Russia, the junta’s friends in the UN Security Council, could not shield the generals from the scathing judgment of legal experts in the world body. Leandro Despouy, the UN special rapporteur on the independence of judges and lawyers, one of five UN experts who spoke out on the case, said pointedly: “The trial of Aung San Suu Kyi and her aides has been marred by flagrant violations of substantive and procedural rights.”

Although the trial was adjourned pending a decision on whether to allow more defense witnesses to appear in the court, the regime’s handling of the case leaves little doubt about how it will ultimately play out.

As Mark Canning, the outgoing British ambassador to Burma—one of the few who were briefly allowed to witness the proceedings—told The Irrawaddy: “The outcome in these sorts of trials—and don’t forget we’ve seen over 1,000 political prisoners locked away over the past 16 months—tends to be pretty predictable.”