Daw Aung San Suu Kyi and the 2010 Elections

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_ By Derek Tonkin

[Derek Tonkin is a former British Ambassador in South East Asian countries.]

On 19 February 2008 the Singapore Foreign Minister George Yeo is reported to have told the media in Singapore that his Burmese colleague Nyan Win had informed ASEAN colleagues that Daw Aung San Suu Kyi would not be able to stand in the 2010 Elections because she had been married to a British husband and had two children who were not Burmese citizens, but British. This was greeted with dismay around the world, and especially by the National League for Democracy whose Spokesman, also called Nyan Win, said that any such announcement was “unlawful” as there was no Constitution or Election Law yet in force and so any announcement at this time was “inappropriate”. In any case, I would imagine that only the Electoral Commission for the 2010 Elections, which has yet to be appointed, could make any such ruling.

Foreign Minister Nyan Win’s informal comments only reported at second hand

I would note that FM Nyan Win’s “announcement” was made “during a dinner cruise off Singapore’s waters” according to Agence France Presse. At all events, FM Nyan Win’s opinion seems to have been given on an informal occasion, and I don’t imagine for a moment that he expected George Yeo to tell the media what he had said. Nor is it clear to me what words FM Nyan Win actually used, because the way it was reported suggested that he had indicated that the new Constitution included specific provisions about spouses and children, when it is unlikely that it will. FM Nyan Win has not sought to clarify his remarks, which is understandable as the Elections are not due for at least another 21 months and he may well see little point in stirring up trouble further.

I personally do not see anything wrong with FM Nyan Win expressing a personal view in an informal context at the present time. All he might have said was that in 1990 Daw Aung San Suu Kyi was not eligible to stand for election because it was held that her British connections were so strong that she did not meet the letter and spirit of the Election Law, and the same would be likely to be the case in 2010. I do however recall that a few years ago in Jakarta the then Foreign Minister Win Aung told his ASEAN colleagues that Daw Suu Kyi would indeed be able to stand in the next Elections. So one Foreign Minister has said yes, and another Foreign Minister has said no. Win Aung, though, has fallen from grace, and Nyan Win is the present Foreign Minister, though no Foreign Minister would normally express a definitive view on an issue which is not within his ministerial remit. Nyan Win’s expressed opinion was clearly not definitive, but it could be a warning.

To add to the confusion, the media reported that FM Nyan Win had said that the same had been true in 1974. I think he might have said “last time” meaning 1990 or he might have said “1947”. But if he said 1974, he made a mistake, because the 1974 “Socialist” Constitution has no comparable clause. Personally, I doubt that he made a mistake. I think he was simply misreported.

The facts: what the 1947, 1989 and 2007 documents actually say

The 1947 Constitution (Article 74.1(i)), the 1989 Election Law (Chapter V.10(e)) and the 2007 Detailed Basic Principles (Chapter IV.33(e) and (f) - the text split into two subclauses - all contain the same provision, in almost identical wording, disqualifying from candidacy to the Burmese Pyithu Hluttaw (National Assembly) any person “who is under any acknowledgement of allegiance or adherence to a foreign power, or is a subject or citizen or entitled to the rights and privileges of a subject or citizen of a foreign Power.” [unofficial translation of the version in the 1947 Constitution]. The text of the new draft Constitution has not yet been released, but it is assumed that the essence of the Principles will remain unchanged in the draft when published.

In 1990 the military government argued on the basis of the relevant clause of the 1989 Election Law that, as Daw Aung San Suu Kyi enjoyed the rights and privileges of a British citizen because of her marriage in 1972 to a British citizen, she was ineligible to stand for election. This was one of three grounds adduced for her inability. Col Hla Min put it in these words in his booklet “Political Situation of Myanmar and its Role in the Region” 28th Edition April 2004:

“Ms Suu Kyi resided abroad for 28 years and married an Englishman (giving her the rights to UK citizenship) and has two children both holding British citizenship…….It is quite understandable that Government do not wish to have someone in office who could be unduly influenced by another nation or power.”

”However, although it is true that Ms Suu Kyi was entitled to, and would almost certainly have been granted British citizenship, at no time did she in fact make such an application and accordingly at no time did she enjoy any rights or privileges in this context. The only permission granted to her was “leave to remain indefinitely in the UK”, known in the Home Office as “ILR” which means that she had no “right of abode” in the UK, but was free to take up employment and to study. The issue is complex. Any precise statement about her position in 1990 or in 2008/2010 would have to come from the Home Office whose website www.homeoffice.gov.uk is a mine of information about ILR, for those who have the time.

Wide ranging lack of rights and privileges affecting non-British permanent residents

As she has never been a British citizen and, with ILR status only, there are certain professions which she would not be able to join. She could not be a civil servant, nor an elected member of the House of Commons, nor even a local Councillor, nor vote in local, national or European elections. Nor could she have joined the Armed Forces, nor the Security Service or the Secret Intelligence Service as a career officer. Furthermore, as she did not have a British passport, she would have all the trouble of having to get a visa in her Burmese passport just to go to France, and if she needed consular protection when abroad, she would have had to go to the Burmese Embassy. Those who do not have British citizenship also know that there can be problems about such matters as social welfare, opening bank accounts and State pension rights. Nor are those allowed to remain indefinitely eligible for jury service, seen by many as a right of citizenship. Some State payments are contributory, others non contributory. I do not know whether Daw Suu Kyi drew non-contributory “Child Benefit”, but I have been told that, as a matter of principle, she did not.

Col Hla Min claimed that:

“Ms Suu Kyi enjoys the right to reside in the UK indefinitely. Apart from the right to vote, she enjoys all the other privileges of a British citizen.”

Nothing could be further from the truth. Ineligibility to vote was only one of a host of disabilities affecting her in 1990.

Ms Suu Kyi was however debarred on two other grounds in 1990. According to Col. Hla Min, the first was that she had given her address in Oxford, 15 Park Town, as her permanent address, which made her ineligible to stand for election since candidates are required to be permanent residents (1989 Election Law V.8(b)). She had not secured, or sought to secure registration at her mother’s house at 54 University Avenue in Rangoon. Col. Hla Min also alleged that she consorted with and harboured terrorists at this address in Rangoon because such a person was supposedly arrested there. This would be a further reason to disbar her since the Election Law (V.10(h)) disqualified persons “having links” with organisations in armed revolt.

Fundamental differences between Daw Suu Kyi’s position in 1990 and 2010

In 2008, and looking forward to 2010, the position of Daw Suu Kyi has changed fundamentally. In 1990 there were ostensible, almost plausible grounds to allege that she was not eligible. But in 2008 she no longer has “leave to remain indefinitely” (ILR) in the UK because such permission normally lapses after two years (but this would be subject to confirmation by the Home Office). Although I am sure ILR would be granted again if she were to apply, the fact is that today she has no such right, nor even a British visa in her passport to come to Britain. Her husband died in March 1999, so she no longer has a British spouse. Her two sons, born in 1973 and 1977, are now in their mid-thirties, and I understand that they once had Burmese nationality, but this was taken away from them. Nor is there any doubt that she resides at 54 University Avenue where she has spent many years under house arrest. Nor is it likely that there are any “terrorists” still hiding there.

In short, her situation in 2008/2010 is totally different from 1990, and I do not see how anyone can claim that, just because she had a British husband in the past, she today enjoys the rights and privileges of a British citizen when quite obviously she does not (and indeed never did).

At the same time, I accept that, under the new Constitutional Principles, she is not eligible to be considered for the post of President, for Chapter III.4(f) of the Principles states (unofficial translation) that: “The President of the Union himself, parents, spouse, children and their spouses shall not owe allegiance to a foreign power, shall not be subjects of a foreign power, or citizen of a foreign power. They shall not be persons entitled to the rights and privileges of a subject or citizen of a foreign country.” With two British children, of whom one if not both are married, she is caught by the “children and their spouses” clause.

Importance of a British Government statement setting out Daw Suu Kyi’s status

So where does that leave us? It is possible that the military authorities will seek to debar Daw Suu Kyi again from standing for election, though this time their position on the basis of the Constitutional Principles is very weak and will be seen internationally as totally without justification, unless the actual Constitution when published has revised criteria. I would at some point expect the British Government to make a public statement about her status, so far as the UK authorities are concerned. There are bound to be pressures from parliamentarians. Of course, she would be most welcome to come to Britain again, but at present she would not seem to have any “right” to do so, and she would in any case first need to submit an application. But even if and when “leave to remain indefinitely” (ILR) were to be approved, she would still not enjoy any rights and privileges as though she were a British citizen, a situation which I am sure she fully understands, and welcomes.

If ever the UK authorities were to define her status under UK law, I would expect such a definition to highlight her total lack of status at the present time. On the other hand, the more interest the British Government shows in Daw Suu Kyi’s position, the more she may be damned by Nay Pyi Taw as a puppet of Western colonialists and imperialists.