Aung San Suu Kyi has reiterated that the now-disbanded NLD should sue the junta over its election laws, a strategy that she first invoked last May. The strategy is curious, given that she has spoken continually over the past two decades about the absence of the rule of law in Burma.

If there is no rule of law, why attempt to utilize legal channels to effect change? Is this a flailing attempt at relevance and voice, a way to fight the increasing marginalization of Suu Kyi's National League for Democracy (NLD) now that it has refused to re-register as a political party? Or is it a highly sophisticated strategy, highlighting the gap between the law’s ostensible claims and its actions, and therefore creating a break in the legitimacy of the junta’s order, thereby compelling some political action that would lead to (gradual) change? 

We must start by assessing the concept of law in Burma. Suu Kyi’s long-standing claim is that there is no rule of law and she is correct. Instead of a set of impersonal rules, law in Burma operates as a tool of power.

The state “illegalizes” a staggering number of actions in the political and social sphere (little association, no sententious utterances; even punitive punishments against breaking traffic rules), and thus those who would challenge the state are always operating from a position of relative instability. Law is a way of providing military-state leverage over everything, especially political threat.

While this has not been lost on Suu Kyi and the NLD in the past, in this act of suing the junta they appear to appeal to the law as if it is not a political tool, as if it has sovereignty unto itself, power that would bind the junta as well. There is a contradiction: either there is no rule of law, or the law operates autonomously, such that one could sue a ruling dictatorship.

Logically this fails, but politics operates on a separate logical plane. We must ask: what is the political worth of suing the junta over the electoral process? To whom then are they appealing? If it is to external audiences (to try to ensure the “international community” does not “recognize” these elections) then it is more of the same, as this supposed “community” of international actors lacks the will, the tools, and more importantly the legitimacy to alter the trajectory of politics inside Burma. The last two decades stand as proof.

If, on the other hand, Suu Kyi is directing this symbolic political act at her putative constituents (the Burmese people), the situation becomes more interesting. By holding the junta's “law” at its word, and saying, essentially, “We know this is all a sham, but to highlight how much of a sham it is, we will pretend that it's real, and force the junta to follow its own logic,” is this a powerful form of resistance? Do we see here an example of “using the master's tools against him?” More importantly, will the people respond?

Not likely. Sadly, there appears to be no mechanism through which suing the junta would lead to political change. First, it is likely people are under no illusions that the law is an independent device rather than an enforcer of the existing order. Second, it is likely that the energy of the dissent will get “captured” by legal processes: by risking participation in a “legal” process, the act of resistance risks getting co-opted and thereby neutered. Third, even if the people did see the act of suing the junta as transgressive, there is no attendant political message from the NLD to impel these citizens to risk participation in political action. And how should they get involved in politics? There is no answer. Read this way, the politics of suing the junta is a dead end.

But perhaps a mobilizing political maneuver is not what Suu Kyi intends from the legal suit. Indeed, I have assumed that by suing the junta Suu Kyi actually believes she can effect political change. But perhaps Suu Kyi simply wants to save face, and by doing so, maintain the NLD’s symbolic power. Such an organizational survival tactic is a savvy move.

However, the enduring question remains: won’t the NLD continue to fade from relevance without constructing resonant alternative political messages?

Opportunities do exist. The regime is powerful but also out-of-touch. It has established a sophisticated patronage scheme wherein it is the only conduit toward social mobility, but it has also been unwilling to deliver services to the people. It has crushed political opposition, but has been incapable of indoctrinating the population with its propaganda.

This system creates significant fissures between despotic state and grassroots society, allowing civil society groups to emerge and deliver social services. Therefore, opportunity may exist around (if not within) the upcoming elections. If activists can politicize the pacified civil society, for instance by blaming absent services on governance failure, explicitly political messages may reach a populace excluded from public decision-making.

Turning the prosaic struggle to survive in Burma into an active political idiom could spur the 52 million people to demand accountability for the health, education, and welfare failures that the military has perpetuated.

Start with alternative messaging: “That you don't have electricity, health care, enough money to send kids to school—this is not an accident, this is a governance issue!” Continue by getting back to the proverbial streets: using canvassing, outreach, guerrilla art, and Internet to bang that drum about these daily struggles. Radio shows can highlight the struggles of average Burmese people, and the NLD can outline what it would do differently if allowed to rule.

This phenomenon may lead to a gradual amelioration: people make gentle demands on the state, and the state responds to the multiplicity of demands with concessions in order to maintain stability. In addition, an active politics engaging the average person will result in growing relevance for the NLD, which it can deploy in future political battles.

If there is no such evolution, the risk is that the democrats will be stuck in a courtroom, while the country staggers on without them.

Elliott Prasse-Freeman is a research associate with the Carr Center Human Rights and Social Movements Program.  An honors graduate of Harvard College, he spent five years working in international development for various agencies—from the UN to international NGOs—where he directed projects in Burma, India, Thailand, and other countries in Southeast Asia.