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SUU KYI DETENTION IS UNLAWFUL



/* Written  8:47 pm  Jun 18, 1994 by maung@xxxxxxxxxxx in igc:soc.cult.burma */
/* ---------- "SUU KYI DETENTION IS UNLAWFUL" ---------- */
AUNG SAN SUU KYI
Detention in Violation of International Law
-------------------------------------------------------------

On July 20, 1989, Aung San Suu Kyi was placed under house
arrest in her family home in Rangoon. On that day, the Burmese 
government placed eleven truckloads of arms troops in front of 
her house, blocked from her leaving, and cut her telephone 
lines. In the over four years and nine months of her detention, 
Aung San Suu  Kyi has never once been permitted to leave her 
family home. During this time the government of Burma has held 
her in isolation with the outside world. However, in February 
1994, Aung San Suu Kyi was allowed to receive outside visitors 
for the first time: these were US Congressman Bill Richardson, 
a representative of the UN and a reporter from the New York 
Times. Aside from this and from infrequent visits from members 
of her immediate family permitted by the military, her only 
other human contact has consisted of visits by her maid and 
military officer who serves as her contact with the Burmese 
government.

Aung San Suu Kyi has been held under a 1975 law for 
"Safeguarding the State from Dangerous Subversive Elements,"
which seeks to prevent Acts and deeds endangering the 
sovereignty and security of the state. In August 1991, the 
military government amended this law to extend the permissible 
time period for detention without charge or trial to a maximum 
of five years, the detention order to be renewed after each 
year. Previously the limit for detention without trial was 
three years, the detention order to be renewed every six 
months. The government retroactively applied the amended law to 
Aung San Suu Kyi. As a result, she is now being held under a 
provision that did not exist in July 1989 when she was first 
placed under house arrest. In addition, Aung San Suu Kyi has 
indicated that the government has extended her house arrest 
until at least the start of 1995, which is beyond even the 
five-year limit on detention provided by the government's 
August 1991 amendment.

Customary international law norms prohibit arbitrary arrest and 
detention (*note 1). Such norms, which are binding on Burma, are
reflected in the Universal Declaration of Human Rights (the
"UDHR") and in the International Convention on Civil and Political
Rights (the "ICCPR"). An arrest or detention is arbitrary if it is
(a) on grounds or in accordance with procedures other than those
established by law, or (b) under the provisions of a law the
purpose of which is incompatible with respect for the right to
liberty and security of person (*note 2). Under both aspects of  this standard, the Burmese government's 
detention of Aung San Suu Kyi violates international law.


Violation of Due Process
------------------------

First, the Burmese Law for "Safeguarding the State from 
Dangerous Subversive Elements" is itself incompatible with 
respect for the right to liberty and security of person. A 
person detained under the law is denied fundamental elements of 
due process recognized under international law. Customary 
international law, as reflected in the ICCPR and UDHR, among 
other instruments, requires that anyone deprived of his or her 
liberty by arrest or detention is entitled to a proceeding 
before a court to determine if the detention is lawful (* note3).
Since her house arrest, Aung San Suu Kyi had no recourse to public
courts or to any form of judicial process. She has never been 
tried or charged with any crime. Her house arrest was imposed 
by the Burmese government with no judicial hearing nor any 
opportunity for Aung San Suu Kyi to appear before a court. The 
continued detention of Aung San Suu Kyi, without any form of 
judicial process, violates this norm of international law.


Retroactive Applicability of Criminal Penalties
-----------------------------------------------

Second, the detention of Aung San Suu Kyi violates customary 
international law because the law under which she is being held 
has been applied retroactively. The retroactive application of 
criminal penalties is strictly forbidden under customary 
international law norms. Article 11 of the UDHR and Articles 4 
and 15 of the ICCPR provide for the non-derogable rights to be 
free from the imposition of a heavier penality than the one that
was applicable when a criminal offense was committed (*note 4).
The government's treatment of Aung San Suu Kyi violates this norm 
by detaining her longer than three years as was permitted under 
the law in effect at the time of her arrest. The ex post facto 
application of the amended law to Aung San Suu Kyi, as well as 
the nature of the law itself, is incompatible with respect for 
the right to liberty and security of person.


Detention on Grounds Other than Established by Law 
--------------------------------------------------

Third, as noted above, Aung San Suu Kyi has indicated that the 
government has extended her house arrest until at least the 
start of 1995. This latest extension would be at least six 
months beyond even the five-year limit on detention provided by 
the governments ex post facto extension issued in August 1991. 
The Burmese government's extended detention of Aung San Suu Kyi 
underscores the arbitrariness of her detention. There are no 
grounds under Burmese law for holding Aung San Suu Kyi beyond 
the five year limit (even assuming such a limit were consistent 
with International Law). If the Burmese government follows its 
reported intention to do so, such an indefinite detention would 
violate international law because it would not be in accordance 
with procedures established by law. 


--------------------------------------------------------------

Note 1: International Convention on Civil and political Rights
Art.9 (1); Universal Declaration of Human Rights Art. 9

Note 2: Study of the Right of Everyone to be Free from 
Arbitrary Arrest, Detention and Exile, UN Doc.
E/CN.4/826/Rev.1, at 7, para 27 (1966)

Note 3: E.g., ICCPR Art. 9 (4), UDHR, Art. 9.

Note 4: Article 15 (1) of the ICCPR states:
	No one shall be held guilty of any criminal offense on account
	of any act or omission which did not constitute a criminal
	offense, under national or international law, at the time it
	was committed. NOR SHALL A HEAVIER PENALTY BE IMPOSED THAN THE
	ONE THAT WAS APPLICABLE AT THE TIME WHEN THE CRIMINAL OFFENSE
	WAS COMMITTED. (emphasis added)


((The author / organization that first published the document remains
unknown to me. Somebody suggested it was the Amnesty International.
Any input? --  SP))