LEGAL ISSUES ON BURMA JOURNAL No. 7, DECEMBER 2000
BURMA LAWYERS' COUNCIL
DUE PROCESS OF LAW
Shadow over Daw Aung San Suu Kyi's inheritance case
B. K Sen and Khin Maung Win*
The lawsuit against Daw Aung San Suu Kyi filed by her brother Aung San Oo is for half ownership of the house where she now lives. As with most property disputes, and particularly in the very difficult situation Daw Aung San Suu Kyi is presently in, a private settlement would clearly have been preferred and would have been a more appropriate course of action for Aung San Oo to take. There would have been many options available, including negotiating a money equivalent of the half share or establishing a trust in which both interests could be held. However, he decided to file a suit against his sister without even affording her prior notice of his intentions. This approach reeks of a sinister attempt to publicly humiliate the acclaimed leader of the National League for Democracy (NLD), which overwhelmingly won the one and only democratic general election conducted by the military junta.
Legal background to the suit
According to Burmese Buddhist customary law, on the death of the parents, all surviving children inherit the parents' property equally, irrespective of sex or seniority. Burmese Buddhist customary law is not a codified law. It is the sum total of the body of law made, constituting legal principles and judicial decisions. The procedure for civil actions is governed by the Burma Civil Procedure Code, and the rules of evidence by the Burma Evidence Act. The suit has to be filed in the Rangoon Divisional Court as the property is situated in Rangoon.
The mother of Daw Aung San Suu Kyi and Aung San Oo, Daw Khin Kyi, who became a widow when her husband General Aung San was assassinated on July 19, 1947, died in December 1988. Aung San Oo's legal move comes a month before the 12th anniversary of his mother's death. When co-heirs to an estate cannot settle their claims amicably, any one of the heirs can file a civil action for partition in court. The twelve year period of limitation begin running only when the dispute between the co-heirs starts, rather than at the last living parent's death. As the issue of sharing or partition of the property had apparently never been discussed between Aung San Oo and Aung San Suu Kyi until this civil suit was filed, there is no dispute between the two co-heirs yet, and so the twelveyear limitation period has not yet commenced.
Several probabilities arise from this case. Firstly, could it be that the property has been gifted by the mother or has been bequeathed under a will to Daw Aung San Suu Kyi? Under Burmese Buddhist customary law, a will is not valid. Similarly, any wish that property be sold and the proceeds distributed to charity is not legally enforceable.
A preliminary decree may be passed declaring the respective entitlements of the parties. A final decree must subsequently be passed. Thereafter the plaintiff has to execute the decree. In this case it would be possession of a half share of the property, and, if it cannot be divided into two equal parts, then division can be made by metres and boundaries. The defendant, Daw Aung San Suu Kyi in this case, can offer to buy the other half share, paying the market price as determined by the court, and thereafter become the full owner.
On refusal by her brother, a problem may arise as he may plead that he wants possession of one half of the property for his residence. The court must not entertain this plea because, as a foreign citizen and non-resident, he has no right of residence, far less possession, of the property in question. He could also plead that, given that he has no right to acquire ownership of the property, he may elect to make a gift to the State of his unrealised interest in the property. Whichever plea he may make, his sibling cannot legally be evicted from the property.
A pertinent issue raised by these proceedings is whether non-resident foreigners can sustain a claim to inheritance which is inclusive of possession when the claim offends the statutory law- the Transfer of Immovable Property (Restriction) Act as amended in 1987. Whether the Act attracts cases of inheritance is a moot point. However, there are several restrictions upon foreigners owning immoveable property under the statute, generally relating to the sale, mortgage or lease of such property. The amended Act stipulates that when a foreigner is in absentia, his or her property devolves to the state. On that view, the half share of the property of Aung San Oo, who is not a citizen, devolves to the government, now SPDC. On conclusion of the suit, the junta will most probably take the position that, in deference to the wishes of Daw Khin Kyi, the owner of the property should vacate the property and give its proceeds away to charity.
The relevant facts
The fact of whether Aung San Oo was a foreigner on the date when Daw Khin Kyi died in December 1988 will have much impact on the case. If he was a foreigner before his mother's death, the half share of the property he inherits under Burmese Buddhist customary law upon his mother's death could not have devolved to him because the Transfer of Immovable Property (Restriction) Act as amended in 1987 debars devolution of immovable property to a foreigner. His property devolves to the State. The other half will vest in Daw Aung San Suu Kyi who has never been a foreign citizen. In such a situation SPDC will have to file a suit for partition of the half share against Daw Aung San Suu Kyi. SPDC may get the half share by possession of half the property or by sale of the property. However, Daw Aung San Suu Kyi has a right of pre-emption to be offered the half share and retain ownership of the entire property. In this scenario, there will be no role Aung San Oo can play in filing a lawsuit against his sister, as he is doing now.
If Aung San Oo took foreign citizenship sometime after Daw Khin Kyi's death, he was entitled to half of the property their mother left, under Burmese Buddhist customary law. However, his ownership became non-actionable under the amended Transfer of Immovable Property (Restriction) Act. The Act bars any foreigner from acquiring, transferring and selling immovable property. However, the time has not yet come for SPDC to claim Aung San Oo's property because it has already devolved to him, as he was a citizen at the relevant time. Aung San Oo's property will devolve to the SPDC only when he dies. These are the legal processes to come under the second scenario, which is the path the case was heading down.
However, the SPDC cannot wait until Aung San Oo's death, as they are eager to immediately interfere in Daw Aung San Suu Kyi's compound, which is also the NLD's head office. The SPDC must find a way allowing them to legally claim half ownership of the domain. The SPDC's calculation is that if there is a court verdict that Aung San Oo owns half of the property, that property will devolve to the State, not to Aung San Oo by virtue of the amended Transfer of Immovable Property (Restriction) Act. SPDC picked up a provision in the Transfer of Immovable Property (Restriction) Act to pave the way for Aung San Oo's legal move against his sister for half ownership of the property. That provision is
Notwithstanding the provisions of the Section 31, the President of the Union [the SPDC Chairman at present as there is no President] may exempt from the operation of this Act the transfer of any immovable property or of a lease of immoveable property for a term exceeding one year.
It is understood that SPDC gave an exemption to Aung San Oo in July 2000 under this section.
The question of the legality of the exemption
Another issue to focus on is the question of the legality of the exemption, which is the main legal ground upon which Aung San Oo has filed the lawsuit. The exemption does not stand the test of law in at least three points. Firstly, the test of purpose: an exemption may be given only where the use of the immovable property would be in the public interest. Secondly, the timing of the exemption: the giving of the exemption in July 2000, about four months ahead of filing the suit, indicates clearly that the exemption was not produced in advance. Under the law, an exemption could be given only when it had become clear that Aung San Oo owned half of the property and was ready to transfer it for charitable purpose. Thirdly, the mala fide nature of the exemption: the exemption was granted to enable a foreigner to file a lawsuit against a citizen. As a matter of law, an exemption can be given only for the transfer of property or a lease of a term greater than one year, not for filing a lawsuit to claim ownership of the property, as has been done in this case.
Considering the above three points, it has become apparent that the exemption lacks legal grounds. Therefore it is void and the lawsuit is dismissible.
* Authors are executive Committee Members of the Burma Lawyers' Council
1. Section 3: "Notwithstanding anything contained in any other law for the time being in force, no person shall transfer any immovable property by way of sale, gift, mortgage, or otherwise, or grant a lease for a term exceeding one year of any immovable property, in favour of a foreigner or any person on his behalf , and no foreigner shall acquire any immovable property by way of purchase, gift, mortgage, or otherwise or accept any lease of immovable property for a term exceeding one year: Provided that this section shall not apply to any transfer or lease of immovable property to a foreign government for the use of its diplomatic mission accredited to the President of the Union of Burma if the Minister for Foreign Affairs certifies that such transfer or lease should be exempted from the provisions of tis Act: Provided further that any transaction, whereby estate consisting of immovable property held jointly either by co-owners or co -heirs is divided and each one or more of such co-owners or co-heirs is or are allotted his or their shares to be held thereafter in severalty or where immovable property devolves on the death of the holder to his heir or heirs shall not be deemed to be a transfer of immovable property for the purpose of this Act.