Countdown to Freedom:

Aung San Suu Kyi Must Be Released On November 13, 2010

Washington, D.C. – Burma’s Aung San Suu Kyi, General Secretary of the National League for Democracy and the world’s only imprisoned Nobel Peace Prize Laureate, should be released immediately and unconditionally from her illegal house arrest; however, she must, under Burmese law, be released on November 13, 2010. This release will occur after the Burmese junta’s fraudulent elections, scheduled for November 7, 2010. This legal assessment is consistent with the January 2010 announcement by then Burmese Minister for Home Affairs Major-General Maung Oo that Suu Kyi “will be released this November.”

Suu Kyi has spent nearly 15 of the past 21 years in illegal detention. Her most recent series of  illegal detentions began on May 30, 2003, when the junta placed Suu Kyi in “protective custody” after an assassination attempt by thugs associated with the junta-backed Union Solidarity Development Association. The attack also left an estimated 70 of her supporters dead. Suu Kyi’s

detention was executed under Burma’s draconian State Protection Law. The United Nations Working Group on Arbitrary Detention has declared Suu Kyi’s detentions since 2003 to be arbitrary and in violation of international law on four separate occasions, including, most recently, in Opinion 12/2010 issued on June 16, 2010.

The State Protection Law under which Suu Kyi was held is unconstitutional under Burmese law as it was adopted under Article 167 of its 1974 constitution. The junta annulled the 1974 constitution when it took power in 1988 and it was later replaced by the 2008 constitution. Further, even under its own terms, the law was illegally applied to Suu Kyi in two key respects. First, the State Protection Law does not permit protective custody but rather, permits only the detention of an individual who might perform “any act endangering the sovereignty and security of the state or public peace and tranquility.” Second, the State Protection Law allows for a maximum of five years of detention without charge or trial, renewable in one-year increments. Suu Kyi, therefore, even under the junta’s illegal application of an illegal law, should have been released on May 30, 2008, five years after her initial detention. The junta, however, claimed it had the right to detain Suu Kyi under the State Protection Law for six years.

On August 11, 2009, almost three months after she was due to be freed from her illegal house arrest of six years, Suu Kyi was sentenced to three years in prison, which was then commuted to 18 months of house arrest under Section 401(5) of the Criminal Procedure Code. According to the junta, this extension was justified by Suu Kyi’s alleged violation of the terms of her house arrest when American John Yettaw swam onto her property uninvited.

This latest illegal 18-month extension of Suu Kyi’s house arrest ends on November 13, 2010. Under Burmese law, the term must be counted as beginning when she was transferred to Insein prison on May 14, 2009, and detained in prison under the new charge of violating the terms of her house arrest.

The junta cannot legally renew or extend Suu Kyi’s house arrest—not only has she served one year more than the maximum five years permitted under the now unconstitutional State Protection Law, but the junta issued the 18-month term of house arrest for violating the law under a provision which is neither renewable nor extendable.

Unfortunately, if the junta were to not follow through with her release, it would not be the first time it falsely claimed Suu Kyi would be released to alleviate the international pressure surrounding her illegal detention. In 2003-2004, then-Burmese Foreign Minister Win Aung repeatedly and publicly stated that Suu Kyi would be released. Yet, she remains under house arrest today. The international community must therefore be vigilant and ensure that the junta meets it commitment to release Aung San Suu Kyi.