Daw Aung San Suu Kyi’s words at the genocide hearings at the International Court of Justice were always unlikely to convince the global human rights community. But one element of her defence had even her most ardent critics sputtering out their tea.
This was her invocation of the “military justice system” and courts martial that are either underway or will stem from the findings of the Independent Commission of Enquiry. These, she said, “must be allowed to run their course”.
“Where a country has a military justice system, neutralising this system by externalising justice in effect surgically removes a critical limb from the body – the limb that helps armed forces to self-correct, to improve, to better perform their functions within the constitutional order,” she told the court on December 12.
Myanmar’s judicial organs, the argument seemed to go, are deeply flawed and mired in the bad legacies of decades of military dictatorship, but they are slowly improving and must be given a chance to grow. Rash steps to “externalise justice” by “impatient international actors”, as she called them, would stymie the development of institutions that are taking baby-steps towards accountability.
This argument is a familiar echo of Aung San Suu Kyi’s response last year to the trial, imprisonment and eventual release of Reuters journalists Ko Wa Lone and Ko Kyaw Soe Oo under the Official Secrets Act. While the trial was a farce that played out before the world’s media, Aung San Suu Kyi publicly defended the process. Though certain statements appeared to presume their guilt, her most consistent line was that criminal procedure, however flawed, must go on; for the government to interfere would only delay the advent of an independent, competent judiciary.
It is a line consistent with her policy of gradual legal and institutional reform, premised on trust-building with the military and a commitment to the “rule of law”, as distinct from the arbitrary exercise of power. Her government has a definite mandate for reforming criminal justice, despite a popular belief that it remains within the military’s purview. Criminal prosecutions are managed under the Office of the Attorney General and the courts themselves are administered by the Office of the Supreme Court. Both offices are led by appointees of the civilian president.
Military justice, however, remains a purely military matter. In the rare instances that the Tatmadaw is called to answer for abuses, soldiers are largely tried, imprisoned – and released – in secret. The general impunity that this shadow justice system enables made Aung San Suu Kyi’s mention of courts martial before the ICJ seem peculiar. However, here too, she can claim to have a plan, in the form of proposals before parliament to change the 2008 Constitution, which provides for the military’s autonomy, and whose inadequacy she also referenced before the ICJ.
At the core of these proposals is a phased withdrawal of the military from government and law-making over a period of more than 15 years. As with Aung San Suu Kyi’s broader mission, these proposals demand not only patience from Myanmar’s people, but also trust. Trust, that is, not only in the viability of the mission – at a time when the pronouncements of the military, which can veto constitutional change, are growing ever more truculent – but also its democratic bona fides.
The outpouring of support as Aung San Suu Kyi went to address the ICJ – the centres of cities and towns filling up with crowds of thousands chanting “mother” – suggest that a broad swathe of the public has both the required patience and the trust.
However, there are other communities who cannot afford to patiently go on with their lives, but whose lands, wellbeing and very existence face imminent threats from actions, laws and policies devised and implemented in the name of the Myanmar state. They include not only the Rohingya who remain in Myanmar, but also displaced Kachin families to whom the government has blocked international aid, and farmers throughout Myanmar who must compete with private companies to use their ancestral land under laws that fail to protect customary tenure.
It is this state that was on trial at The Hague – not Myanmar’s 52 million people. The communities being ground down by the Myanmar state don’t expect overnight change, but they are entitled to solidarity and an acknowledgement of their plight on a global stage, rather than denials and calls for patience.