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Aung San Suu Kyi trial: how Myanmar’s judicial system is stacked against the deposed leader

Myanmar leader Aung San Suu Kyi sitting at a conference with several colleagues form the National League for Democracy.
Silenced once again? Aung San Suu Kyi and her pro-democracy colleagues from the NLD. EPA-EFE/Nyein Chan Naing/pool

Concern for the future of Myanmar’s deposed leader, Aung San Suu Kyi, is mounting after her appearance in a purpose-built courtroom in the country’s capital Naypyidaw at the start of what is expected to be a seven-week trial. Since the coup on February 1, little has been seen of Aung San Suu Kyi, and her future appears uncertain after the initial court proceedings.

Initially charged with the illegal possession of walkie-talkies, charges against the pro-democracy leader have escalated dramatically. She now stands accused of various counts of corruption that, if she is found guilty, could result in what is effectively a life sentence.

On February 1, at what should have been the opening of the new parliament, the military detained Aung San Suu Kyi alongside the leaders of her party, the National League for Democracy (NLD). The coup sparked outrage across the world – but curiously, the military claims the putsch was legal. Sections of the 2008 constitution allow the military to declare a state of emergency if there is an insurgency or an attempt at taking over power unlawfully and by force.

If the coup can be legal, questions must be raised over the fairness of Aung San Suu Kyi’s trial.

An independent judiciary?

Since 2008, Myanmar has been struggling through a transition to democracy after more than 60 years of military rule. Landslide victories for the NLD in 2015, and again in 2020, were both assessed as free and fair. But the transition has been far from linear and one of the core causes for concern has remained the issue of rule of law, which should be providing checks and balances and enshrine citizen rights at the centre of the government.

Read more: Myanmar coup: how the military has held onto power for 60 years

But the 2008 constitution in Myanmar has instead enshrined and protected the military, which remains in control of key departments and has a quota of reserved seats in all houses of parliament. As already noted, it also provides for the army to assume power legally in a sufficiently severe crisis. Crucially, the constitution leaves it for the military to be the judge of what constitutes a crisis.

The judiciary is nominally independent, but almost all of the lawyers, judges and court officials were trained under the military – and many have a military background. Corruption has remained a consistent feature at all levels of the court system. My PhD research shows that few citizens are able to access court services or progress court proceedings until the relevant bribes are paid. Meanwhile, courts are overwhelmed with the number of cases, prisoners and proceedings brought by the military.

Aung San Suu Kyi's lawyers, Khine Maung Zaw (L) and Daw Min Min Soe (R) at a press conference in the capital Naypyitaw, Myanmar, May 2021.
Preparing for trial: Aung San Suu Kyi’s lawyers, Khine Maung Zaw (L) and Daw Min Min Soe (R). EPA-EFE/Stringer

Research suggests the law is seen as an undesirable profession in Myanmar and those that do pursue it are rarely able to effectively support their clients through the court for various reasons, including a lack of funding and arbitrary practices such as prisoner transfers and random changes of trial dates. The judiciary remains highly reliant on the military, which will often outline the outcome of cases for the judges before the case is heard. It was nominally provided with independence in the 2008 constitution, but in practice, it is anything but. The murder Ko Ni is widely seen as an indication of what can happen to lawyers who defy the will of the military.

The trial of Aung San Suu Kyi

Aung San Suu Kyi faces seven separate indictments, ranging from the initial charge of illegally importing walkie-talkies to the much more serious charges of breaking the Official Secrets Act and committing corruption using her rank for allegedly accepting over US$600,000 (£430,000) and 11kg of gold in bribes, based on allegations by the detained former chief minister of Yangon.

It is these more recent charges that pose the greatest concerns, as they hold sentences of up to 14 and 15 years, respectively. The former leader turns 76 on June 19, so if found guilty on these counts she will be effectively sentenced to life in prison. Her lawyers claim such charges to be bogus and politically motivated and are aimed at keeping her out of politics and the public eye.

The pre-court proceedings – as well as the first week of the trial – suggest she is very unlikely to have a fair trial. Though she does have a legal team, she has only met with them three times since she was arrested. Public and media access has been restricted and the only attendees permitted are court officials, judges, prosecution and Aung San Suu Kyi and her defence team. The police and security presence has been increased around Naypyidaw.

Members of Myanmar military patrol the streets of Yangon, March 2021.
Crackdown: there is still a strong military presence on the streets of Myanmar’s major cities. EPA-EFE/Lynn Bo Bo

What is really concerning is the way charges against Aung San Suu Kyi have mounted over the past few weeks. It feels reminiscent of her period of incarceration between 1989 and 2012, when she was held in almost continual house arrest after her party won elections in 1990. Each time she was released, there would be a new reason to return her to detention in her Yangon home.

This suggests two things. First, that the regime has form for using the constitution to “legally” silence opposition. And, second, that while there may be nominal rule of law under Myanmar’s 2008 constitution, it exists as a tool for – rather than a limit on – the military.

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