The Burmese Foreign Minister Nyan Win is reported to have told ASEAN Foreign Ministers in Singapore on 18 February that Daw Aung San Suu Kyi would not be eligible to stand as a parliamentary candidate in the 2010 elections because she was once married to a British Citizen, Michael Aris who died in 1999, and that this only reflected what was in the 1974 Constitution.
Unless the final version of the draft Constitution has considerably tightened up the provisions for candidacy to the Pyithu Hluttaw (National Assembly) contained in the Detailed Basic Principles, and made them similar to the restrictions for the Presidency, then what Nyan Win told his ASEAN colleagues may only have served to generally confuse them and the world.
There is nothing in the 1974 Constitution remotely resembling the alleged restriction. I think Nyan Win might have been referring to the 1947 Constitution, which in Article 74 (1) (i) included a restriction against 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." This restriction was, I understand, introduced out of concern for the large number of persons of non-Burmese nationality living in Burma at the time of Independence, notably persons of Indian origin whose own nationality was linked to Indian Independence.
This clause was however taken over into the Election Law of 31 May 1989 which governed the 1990 Elections and appears as Article 10 (e), and it also appears in two sub-clauses of Chapter IV Paragraph 33 of the Detailed Basic Principles completed on 3 September 2007. The likelihood that these two sub-clauses have been tightened up to reflect the same restrictions on candidates for the Presidency – which provides in Chapter III Article 4 (f) that: "The President of the Union himself, parents, spouse, children and their spouses shall not owe allegiance to a foreign power, shall not be the subject of a foreign power or citizen of a foreign country. They shall not be persons entitled to the rights and privileges of a subject or citizen of a foreign country" – I regard as highly unlikely, as the draft Constitution has been based on the Detailed Basic Principles.
It is reported that at the time of the 1990 Elections Daw Aung San Suu Kyi's candidacy was rejected on three grounds, one of which was reportedly that as a result of her marriage to Michael Aris she "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." [Col. Hla Min, Page 53 "Political Situation of the Union of Myanmar and its Role in the Region" 28th Edition April 1994]. However, if UK authorities had been consulted at the time they would have provided a long list of rights and privileges which Daw Aung San Suu Kyi as a Burmese citizen permanently residing in the UK would not have enjoyed in addition to the inability to vote in local, national and EU elections, including her inability to stand as a candidate in such elections, or to take a permanent position in any local or national government office, or to join the Armed Forces, intelligence or security agencies, or to benefit from British consular protection and support when overseas, or to travel to any country in Europe without a visa in her Burmese passport. In addition, there are a wide range of restrictions on "aliens" resident in the UK in connection with social welfare, medical, pension and other related State facilities, not to mention the additional requirements often placed on "aliens" in connection with opening bank accounts and making investments, notably through State "National Savings".
Indeed, only UK authorities could provide a definitive statement in this respect, and if there is any doubt about the rights and privileges which Daw Aung San Suu Kyi would not enjoy, if ever she were to return to the UK, then the Burmese authorities should ask the UK authorities to provide such a statement.
I understand that Daw Aung San Suu Kyi at no time applied for British nationality but at all times retained her Burmese nationality and her Burmese passport. As regards her residential status in the UK in 2008, again only the UK authorities could define this. She has been resident in Burma ever since March 1988 and I have no idea whether her leave to remain indefinitely in the UK still exists. My expectation is that she would be most welcome to return to live in the UK at any time, but that she might need to complete the necessary formalities, which in her case would likely take less than 60 seconds.
As Daw Aung San Suu Kyi has been widowed since 1999 and has shown no interest at all in returning to the UK, it would border on the absurd to allege that she enjoys the rights and privileges of a British citizen, which of course she never did.
The two other reasons why Daw Aung San Suu Kyi was denied the right to stand as a candidate for the 1990 Elections was that she was alleged to have collaborated with and harbored a terrorist arrested at her compound on 54 University Avenue, Rangoon, in contravention of Article 10 (h) of the 1989 Election Law, and that she gave 15 Park Town, Oxford, as her permanent address, instead of an address in Burma, in contravention of Article 8 (b) of the Election Law which requires a permanent address in Burma. Today, at least, there can be no doubt about her permanent, enforced, residence at 54 University Avenue where I think it highly unlikely that any "terrorists" would again be unmasked.
In 1990 Daw Aung San Suu Kyi was not debarred from voting in the General
Elections, and there would seem to be no reason to suppose that she would be debarred from voting in the 2008 Referendum and the 2010 General Elections.
It would however seem that a new Election Law will be needed in order to define the qualifications for candidacy to the Pyithu Hluttaw, because only the Hluttaw can promulgate the new Constitution if and when it has received a majority vote in the forthcoming national referendum. I would assume that the Election Law will decree the same qualifications as those found in the draft Constitution, though the Constitution itself will not be in force when elections are held.
My conclusion is that the Burmese Foreign Minister may have unwittingly misled his ASEAN colleagues, or they may not have understood what he was saying. At all events, the actual draft of the new Constitution, when published, should resolve the issue.
(The author, Derek Tonkin, is the former British Ambassador to Thailand and now the Chairman of Network Myanmar www.networkmyanmar.org)
