That Nyan Win's "announcement" was premature, or possibly misreported, was confirmed by comments made by Thaung Nyunt, a member of the Referendum Commission, in talks with U.N. Special Adviser Ibrahim Gambari on March 8, 2008. According to the New Light of Myanmar the following day, U Thaung Nyunt said that the right to stand for election in 2010 was not a matter for the Referendum Commission. The responsible body to be appointed, the Electoral Commission, would need to examine each case when the elections were announced, and it was expected that provision would be made for persons concerned to contest any order debarring them from standing for election, and they would have a right of appeal against any negative decision from the lowest to the highest level.
The media have also widely misunderstood the regime's refusal, in response to pressures from Gambari for greater "inclusiveness," to consider any revision of the draft Constitution, as confirming that Suu Kyi would be excluded from participation in the 2010 elections. "Myanmar Junta refuses to amend charter barring Suu Kyi from polls," is how AFP/Asia Pacific News typically reported the news.
Nyan Win's comments only reported second hand
I would note that Nyan Win's "announcement" was made "during a dinner cruise off Singapore's waters" according to Agence France Presse. Nyan Win's opinion seems to have been given on an informal occasion. Nor is it clear to me what words 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. The Foreign Minister has not sought to clarify his remarks, which is understandable as elections are not due for at least another 21 months and he may well see little point in stirring up further trouble.
I personally do not see anything wrong with Nyan Win expressing a personal view in an informal context. All he might have said was that in 1990 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 likely 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 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. Nyan Win's expressed opinion was clearly not definitive, but it could be a warning.
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)) 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." The text of the new draft Constitution has not yet been released, but it is assumed that the essence will remain unchanged.
In 1990 the military government argued on the basis of the relevant clause of the 1989 Election Law that, as 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 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" 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 2010 would have to come from the Home Office.
Fundamental differences between 1990 and 2010
Looking forward to 2010 the position of Suu Kyi has fundamentally changed. In 1990 there were ostensible, almost plausible grounds to allege that she was ineligible. But in 2008 she no longer has "leave to remain indefinitely" in the UK because such permission normally lapses after two years absence from the UK. 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.
In short, her present situation 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.
However I accept that under the new Constitutional Principles, she is not eligible to be considered for the post of President. Chapter III.4(f) of the Principles states 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. There seems to be little doubt that, sadly, this clause was deliberately inserted in order to exclude her.
Grey Area
There is however a grey area in relation to "acknowledgement of allegiance or adherence to a foreign power". Though Suu Kyi has acknowledged no allegiance to a foreign power, so far as I am aware, might it perhaps be argued that she has acknowledged "adherence" to the policies of foreign governments, for example, in supporting Western sanctions policies? The Burmese text of the Constitutional Principles speaks literally of "a person under the thumb" of a foreign country or someone subordinate to or under their control.
As the recent visit by Gambari has shown, there is a continuing stand-off between Suu Kyi and the government over whether she has ever called for sanctions. The military government is demanding that she retract her July 11, 1995, threat the day after her release from house arrest when she said that "We have to choose between dialogue or utter devastation." That threat has never been forgotten, and the government is demanding that she recant her calls for sanctions before Senior General Than Shwe would be willing to agree to a face-to-face meeting. The NLD on the other hand have indicated that Suu Kyi is unwilling to comment on allegations which she says she has never in fact made. A "Special Statement" issued by the NLD on September 15, 2005, implied that, though the NLD had not "called for" sanctions, Suu Kyi had supported them "as an action taken by a democratic country to promote democracy in another country."
It is frankly not too difficult to find statements over the years in which Suu Kyi is reported to have called unequivocally for sanctions. Campaigning groups and speakers in the UK Parliament and US Congress have had not the least hesitation in proclaiming that she has called repeatedly for sanctions.
Going back some years, the Bangkok Post of June 4, 1989, quoted her as calling on foreign countries to impose a complete economic boycott until the regime followed through on its promise to hold elections. The New York Times on July 19, 1996, reported that in a "smuggled video" shown by members of the European Parliament Suu Kyi had called for sanctions to be imposed on Burma. "What we want are the kinds of sanctions that will make it quite clear that economic change in Burma is not possible without political change." In January of the following year Suu Kyi is reported by Prospect Magazine to have "broadened her sanctions call to include NGOs stationed in Burma, who she accused of prolonging the life of the junta. 'No aid, trade or investment," went the new slogan." By February 2003, visitors to Suu Kyi came back with even stronger statements. A comment by Jody Williams, the Nobel Peace Prize Laureate, in the South African Mail & Guardian on February 4, 2007 recalled that when she and Elizabeth Bernstein visited Suu Kyi in February 2003: "The message she asked us to give to the world was clear and unambiguous: Please isolate the military regime to help force it to begin meaningful dialogue and a transition to democracy……"
However the fact remains that since May 30, 2003, no statements on sanctions have been made by Suu Kyi, and although the matter has no doubt been discussed between her and Gambari, no indication has yet been given of what her current thinking might be. Nonetheless, what Suu Kyi has said in the past would seem to provide more than adequate ammunition for the military government to debar her from standing for elections scheduled for 2010, on the basis that her calls for sanctions lay at the root of US, Canadian and EU policies towards Burma.
Importance of a British statement clarifying Suu Kyi's status
So where does that leave us? It is possible that the military authorities will seek to disqualify 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 without justification.
If ever 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 Suu Kyi's position, the more she may be damned by Naypyitaw as a puppet of Western imperialists.
