What Happened to Aung San Suu Kyi?

By Hannah Beech, The New Yorker

26 September 17

The ethnic cleansing of the Rohingya reveals what the world didn’t understand about Aung San Suu Kyi.

hen Myanmar’s military regime released Aung San Suu Kyi from house arrest, in 2010, she had been the world’s most famous political prisoner for nearly two decades. Within a few weeks, she received a phone call of congratulation from another former political prisoner—Václav Havel, the dissident Czech playwright who, in 1989, had become his country’s first post-Communist leader. The call was the only time they ever spoke directly, but their political relationship had lasted almost as long as her captivity. In 1991, two years into his term as President of Czechoslovakia, Havel had successfully lobbied the Nobel Committee to award its Peace Prize to Suu Kyi in recognition of her leadership of the Burmese pro-democracy movement. When a book of her essays was published, soon afterward, it had an introduction by Havel, who wrote that “she speaks for all of us who search for justice.”

Havel and Suu Kyi were among the many dissidents around the world who, from the mid-eighties to the early nineties, emerged as icons of freedom, often toppling the regimes that had oppressed them. In South Africa, after nearly thirty years in prison, Nelson Mandela negotiated an end to apartheid and then assumed his country’s Presidency. In Warsaw, a shipyard worker named Lech Walesa and a movement called Solidarity swept the Communist government from power. In the Philippines, the dictatorship of Ferdinand Marcos fell after Corazon Aquino, the widow of an assassinated critic of the regime, took up her husband’s struggle. Democratic movements did not always triumph—the Chinese government’s massacre of student protesters near Tiananmen Square is the grimmest example—but, in the last three decades of the century, the number of democracies in the world increased from thirty-one to eighty-one.

Various fates awaited these reformers. Havel and Mandela weathered the inevitable compromises of office with their reputations intact, whereas Walesa, as Poland’s President, became known as an erratic and unreliable leader. But none of them has undergone the kind of unexpected and alarming metamorphosis that Aung San Suu Kyi has. Her moral clarity and graceful bearing long made her a potent symbol of human rights and nonviolence. (There was a 2011 movie based on her life.) But since she became the country’s de-facto leader, in 2016, she has remained impassive in the face of a series of human-rights abuses, most egregiously the brutal oppression of the Rohingya, a Muslim ethnic minority in the west of the country, near the Bangladesh border.

Myanmar is a patchwork of a hundred and thirty-five officially recognized ethnicities, dominated by the Bamar, from the country’s heartland, who make up sixty-eight per cent of the population and most of the ruling élite. Armed conflicts have simmered for decades between numerous ethnic groups and Bamar-led governments. In 1947, Suu Kyi’s father, Aung San, a Bamar general now regarded as the founder of the modern nation, persuaded several groups to put aside their differences in the interest of ending colonial British rule. But he was assassinated shortly before independence, which went into effect in January, 1948, and tribal conflicts soon consumed the young nation.

These civil wars gave the military an excuse to seize power, which it did, in 1962. (It later changed the country’s name from Burma to Myanmar; changed the name of the old capital from Rangoon to Yangon; and built a new capital, Naypyidaw.) The junta ruled ineptly and repressively for nearly fifty years, amid growing pressure for democratic reform. In 2015, when it allowed free elections for the first time in a generation, Suu Kyi’s popularity propelled her party, the National League for Democracy, to a landslide victory. The N.L.D. and the Army cautiously entered a power-sharing agreement and, in 2016, formed a government that is civilian-led but still substantially dominated by the military.

On taking office, Suu Kyi emulated her father by announcing talks to resolve the ethnic struggles. “Our country is thirsty for peace,” she proclaimed. But some conflicts have intensified, and the Army has broken ceasefire agreements. Journalists and activists who are critical of the government have been jailed. Most urgently, the plight of the Rohingya has developed into a humanitarian catastrophe. Attacks on Army and police posts by Rohingya militants last October, and again in August, have unleashed a ferocious crackdown. In the past month, more than four hundred thousand Rohingya refugees have fled across the border into Bangladesh, bringing with them accounts of indiscriminate slaughter and mass rape. Satellite images show that more than two hundred Rohingya villages have been incinerated.

Within Myanmar, the Rohingya are uniquely despised by almost all other ethnicities. Nearly ninety per cent of the country is Buddhist, and most people regard the Muslim Rohingya as illegal immigrants; they are not included in Myanmar’s official tally of ethnicities. Suu Kyi has done nothing to combat this prejudice. Her government has denied visas to a United Nations human-rights team charged with investigating the crisis, and international organizations have been prevented from delivering aid.

The U.N. High Commissioner for Human Rights has called the security crackdown “a textbook example of ethnic cleansing,” and several of Suu Kyi’s fellow Peace Prize laureates, including Desmond Tutu and Malala Yousafzai, have urged her to condemn the violence. Instead, she has described the Rohingya insurgents as “terrorists” and dismissed the worldwide condemnation, saying that international outlets have created “a huge iceberg of misinformation.” Her office has accused the Rohingya of setting fire to their own homes in order to provoke an outcry. In a speech last week, Suu Kyi refused to criticize the Army and offered a sustained exercise in moral equivalence. “There have been allegations and counter-allegations,” she said. “We have to listen to all of them.”

Recently, I travelled to Myanmar and interviewed dozens of people to assess what had gone wrong. Many of them pointed out that Suu Kyi’s power is sharply limited. She has no authority over the Army, while military officers still control key areas of government and have the power to reverse democratic reforms. Some believe that she has made a political calculation not to risk domestic popularity for the sake of a hated and powerless minority; others regard her as lacking political skills. There are also those who think that she shares the Army’s authoritarian reflexes and the anti-Muslim prejudices of the Buddhist Bamar majority. But almost everyone I talked to expressed surprise at the speed and the scale of her transformation. “We never expected that Aung San Suu Kyi would get us this far,” a former student activist and political prisoner who once served as her bodyguard told me. “But, at the same time, we never expected that Aung San Suu Kyi would have changed so much herself once she got into power.”

***

Aung San Suu Kyi was just two years old when, on July 19, 1947, armed men burst in on a meeting convened to oversee Burma’s transition to independence and killed her father and eight others. Growing up in the shadow of her father’s legend, she was largely shielded from the turmoil of the post-independence years. At the Methodist English High School, in Rangoon, she took classes in morality and geography. Sao Haymar Thaike, a childhood friend and the daughter of Burma’s first post-independence President, told me that Suu Kyi was a serious, bookish girl, raised by a “very strong, kindhearted” mother, Khin Kyi. In 1960, Khin Kyi was appointed Ambassador to India and took her daughter with her. Two years later, Burma’s coup installed a socialist military regime.

Suu Kyi was fifteen when she left Burma, and she did not return, apart from occasional visits, for twenty-eight years. After attending school in New Delhi, she went to Oxford and studied philosophy, politics, and economics—she was an undistinguished student—and then worked briefly for the U.N., in New York. In 1972, she married Michael Aris, a young British academic who became an expert in Tibetan Buddhism. The couple had two sons and eventually settled in Oxford, where Suu Kyi assumed a domestic role, cycling to the market and sewing name tags on the boys’ clothes. But her father’s legacy had instilled in her a sense of destiny. She researched his life and published a short biography, enumerating his accomplishments. Before she married Aris, she sent him a letter making it clear that her country came first. “I only ask one thing, that should my people need me, you would help me to do my duty by them,” she wrote. “Would you mind very much should such a situation ever arise? How probable it is I do not know, but the possibility is there.”

The moment came in 1988. In March, Suu Kyi’s mother had a stroke, and Suu Kyi rushed back to Burma to be with her. The years of military rule had caused widespread decay. A country that had once had a robust education system and some of the most fertile rice paddies in Asia had become one of the world’s poorest, thanks to the regime’s disastrous nationalization of the economy. While she was there, student protests against the junta flared up. Soldiers fired on crowds, and hundreds of people were killed in a matter of months. A group of disaffected Army officers, lawyers, students, and writers asked Suu Kyi to be the leader of a new political party, the National League for Democracy.

Suu Kyi had been out of the country for three decades and had no political experience. But the N.L.D.’s founders wanted a member of Aung San’s family to sanctify their mission, and Suu Kyi did not hesitate to accept. She made her first major speech on August 26th, at Shwedagon Pagoda, Burma’s holiest Buddhist site. In a clear, confident voice, she invoked her father’s memory and called the uprising against the military “the second struggle for national independence.”

Suu Kyi threw herself into activism. In May, 1989, giving in to public pressure, the junta announced that general elections would be held the next year. But soon afterward Suu Kyi was placed under house arrest, without trial, for “endangering the state,” and most of the N.L.D.’s leadership was imprisoned. It still won an overwhelming majority, but the regime refused to hand over power. Suu Kyi spent fifteen of the next twenty-one years confined to her family’s lakeside villa in Yangon; the military released her twice, only to confine her again. Hoping to neutralize her as a politician, the generals inadvertently turned her into an emblem of the struggle against them.

In 1999, Suu Kyi was faced with an agonizing decision. Her husband had received a diagnosis of terminal cancer and asked the regime to let him visit her. Repeated requests were denied, but the generals offered to release Suu Kyi, so that she could visit him, in Oxford. She and Aris knew that, if she left the country, she would never be allowed back. She chose to stay in Myanmar and never saw him again.

***

In January, 2012, a little more than a year after Aung San Suu Kyi’s final release from house arrest, another female prisoner of conscience was freed. Her name was Wai Wai Nu, and she, too, was from a political family. Her father, a former headmaster, had won a seat in parliament in the thwarted 1990 elections. In 2005, when she was an eighteen-year-old law student, Wai Wai Nu was convicted of various trumped-up charges—the judge didn’t even bother to take any notes—and sentenced to seventeen years. Along with her sister, brother, mother, and father, she was held in Yangon’s notorious Insein Prison. To wash, she was given three cups of water, which was later upped to five, for good behavior.

But, whereas Suu Kyi is a patrician Bamar, Wai Wai Nu is a Rohingya. I first met her three years ago, in Yangon, at the office of an N.G.O. she had set up, Women Peace Network Arakan. (Arakan is the old name for Rakhine State, a low-lying coastal area in western Myanmar that is home to the Rohingya.) I climbed five flights of stairs, each shabbier than the last, and saw, through an opening in the stairwell, an empty basket being lowered down the side of the building on a long rope. A minute later, the basket went back up, filled with onions, ginger, and other ingredients for a curry—an improvised dumbwaiter in a city whose tropical swelter makes stairs a trial.

At the entrance to the office was a scattering of sandals, rhinestone-studded wedges, and frayed straw slippers. The workplace hummed with a kind of righteous energy. In careful cursive, young women covered a whiteboard with snippets of N.G.O.-speak English: “capacity building,” “women’s empowerment,” “vocational training.” Wai Wai Nu, who is thirty, and has an effervescent smile and animated eyes, told me that she grew up steeped in politics—“a little girl listening to old guys talk.” Her earliest role model was Aung San Suu Kyi. “My father used to show me her picture, hidden in his diary,” she said. In the mid-nineties, it was still possible to think that Suu Kyi’s fight for human rights included rights for the Rohingya. It had been decades since Rohingya had imagined that any national political figure would do anything other than oppress them.

Evidence of the presence of Rohingya in Rakhine State—and of Muslims generally—stretches back centuries. But Myanmar’s other groups regard them instead as a vestige of the colonial era, when the country was incorporated into British India and the British brought non-Buddhists from elsewhere in the colony to work in Burma. The Myanmar government forbids the use of the name Rohingya and most people call them Bengali. Generally South Asian in appearance, they are easily identifiable to other ethnic groups. They have a long-standing conflict with the Buddhist Rakhine people, who have themselves been marginalized and oppressed by the Bamar élite.

At the time of independence, in 1948, the Rohingya could still, by and large, consider themselves just one of many ethnic groups scrambling to find their place in the new nation. Rohingya served in parliament, and the ethnicity was included in a 1961 census. But the military junta espoused a xenophobic, Bamar-supremacist ideology, and, in the following decades, the Rohingya were systematically demonized, many of them stripped of basic rights. In 1982, a new citizenship law began to recategorize them as Bengali aliens. Although Rohingya politicians like Wai Wai Nu’s father could still run for parliament, institutional discrimination became more overt. Rohingya could no longer attend the best schools, and those who could not afford to pay off local officials found their freedom to move around the country curtailed. Desperate for work and increasingly stateless, the Rohingya began turning to traffickers to smuggle them out of the country. They boarded barely seaworthy boats to Thailand, Malaysia, and Indonesia; hundreds died along the way. In recent years, the government has confined around a hundred thousand displaced Rohingya to internment camps, where they have little access to food or medicine.

Wai Wai Nu is not a typical Rohingya. She is well-educated and cosmopolitan, lighter-skinned, and does not wear the veil. When we first met, she was still fairly hopeful about what might happen if Suu Kyi and the N.L.D. came to power. She could overlook Suu Kyi’s refusal to use the word “Rohingya” and her evasiveness about the status of Muslims, assuming that she was simply tailoring her campaign tactics to an electorate in the grip of growing religious tensions. “Of course, we are disappointed,” Wai Wai Nu told me. “But I believe we have no choice but to support her. Once a democratic party is in power, then we will have more chances and more hope.”

Last week, I met with Wai Wai Nu again, but outside Myanmar. She now believed that her people might be facing extinction. She told me she worried that there was a plan to drive the entire Rohingya community from the country. She had been monitoring Burmese social media, and was horrified by what she read. Burmese officials were saying that mass rape couldn’t have occurred because Rohingya women were too filthy. “Because the civilian government is saying these things, people are becoming more and more full of hate,” Wai Wai Nu said. “Before, it was a military dictatorship, so no one believed them when they said awful things. But now it’s the civilian government of Daw Aung San Suu Kyi saying these ignorant things and that legitimizes the hate.”

***

Kenneth Roth, the executive director of Human Rights Watch, thinks that it is naïve to be disappointed in Aung San Suu Kyi. He noted that, as early as 2012, she had gone out of her way to avoid meeting him, despite his organization’s decades of support for her cause. “We were already beginning to criticize her on the Rohingya issue,” he said. “I guess she didn’t want to be in the company of someone who dared to criticize her.” Roth sees Suu Kyi’s refusal to speak out against the ethnic cleansing of the Rohingya as a political calculation. “She’s thinking, It’s not worth it, these people are too unpopular for me to bother defending,” he said.

The charged atmosphere is also perilous for Myanmar’s substantial population of non-Rohingya Muslims, many of whom make up a prosperous mercantile class. Since 2012, there have been outbreaks of violence against Muslims in trading towns in central Myanmar. Islamophobia is deep-seated, and it has recently been fanned by extremist monks, who point to the eclipse of Buddhism by Islam in Afghanistan and Indonesia, and warn that Myanmar may be next. Monks command great respect, and even university-educated Burmese have told me, in complete seriousness, that the high birth rate among some Muslim groups is a form of jihad.

I met a long-standing spiritual adviser to Suu Kyi, Dhamma Piya, at a monastery in Yangon, where he is the abbot. He deplored the influence of Buddhist extremists and spoke proudly of the role that monks had played in every freedom movement since colonial times. “Young people don’t understand anything except hating Muslims,” he complained. However, he went on to say, “The truth is that many kalar”—a pejorative epithet for Muslims—“don’t know how to act well, because they don’t have good education. Their behavior can be a little aggressive.” When I asked what kind of behavior he was referring to, he said that they often blocked traffic.

Buddhist ultranationalism has eroded the center ground of Burmese politics. In the 2015 elections, the N.L.D., anxious to avoid accusations that it was a “Muslim party,” refused to field a single Muslim candidate. For the first time since independence, no Muslims currently serve in parliament. And Suu Kyi’s government has made no attempt to revoke laws that limit the number of children Muslims can have and that create obstacles for marriages between Muslim men and Buddhist women.

On a rainy day in Yangon, I visited a retired oil engineer named Tin Myint, whose father, a Muslim, had been in Aung San’s cabinet and was assassinated alongside him. It was the beginning of Ramadan, and I felt self-conscious nibbling on the toddy-palm cake his housekeeper had set out for me. But Tin Myint sipped tea with me, the need to put a guest at ease apparently outweighing strict observance of the fast. “We cannot flaunt our religion, have different dress, different foods,” he said. “I tell my community this always.” He expressed no particular concern for the Rohingya. “Muslims in Yangon have little connection with them,” he said.

We spoke about the assassination, in January, of Ko Ni, a prominent Muslim lawyer who was a friend of his. Ko Ni had been a legal adviser to the N.L.D. and, like several other Muslims in the Party, was close to Suu Kyi. The killing, which was attributed to a group of renegade ex-Army officers, horrified Yangon, and thousands of people, of many faiths, flocked to the funeral. Suu Kyi, however, did not attend. Nor did she send flowers or condolences to his family, and, for a month, she made no public comment. In the months since Ko Ni’s death, I asked more than a dozen Burmese Muslims how her silence made them feel, and they all hesitated to criticize her. Each of them said something similar to what Tin Myint said as we sat drinking tea: “She must have had her reasons.”

***

Among the millions who cast their votes for Suu Kyi’s party in 2015 was a pale, bespectacled former general named Khin Nyunt, who used to be the most feared man in Myanmar. In the mid-eighties, he became the chief of intelligence, establishing a Stasi-like spy network and overseeing the arrests of thousands of people. He was also in charge of a forced-labor scheme, which compelled people in ethnic areas, many of them children, to work on the Army’s infrastructure projects. In 2003, he became Prime Minister and experimented with reform. He signed ceasefires with ethnic militias and business deals with neighboring countries. Whereas Than Shwe, the longtime junta chief, so loathed Suu Kyi that he forbade all mention of her name in his presence, Khin Nyunt arranged a dialogue with her.

After only a year in office, he was ousted by rival factions in the regime, and he spent more than seven years under house arrest. I met him at the compound where he had been confined. On its grounds, he runs an art gallery and handicrafts store, which sells gaudy photographs of tourist sites, chunks of petrified wood, and cheap jade bracelets. A coffee-shop venture failed for lack of customers. “People are afraid to come here,” he told me, shrugging in mock surprise. “I don’t know why.” My interpreter (a friend who is at work translating George Orwell into Burmese) understood why: as a child in Rakhine State, he had been forced to work on one of Khin Nyunt’s road crews. He told me later that sitting so close to the man made him tremble inside.

“I thought the N.L.D.’s slogan, ‘Time for Change,’ was very good,” Khin Nyunt told me, holding my hand in a fleshy grip. “Daw Aung San Suu Kyi knows the importance of discipline, so I have a lot of hope for this country.”

He saw Suu Kyi’s expediency as a positive development. “Before, she confronted the military, so it was not harmonious,” he said. “Now she is trying to be good with Min Aung Hlaing,” the head of the armed forces. “It seems like she has realized that she has to negotiate.”

He was right that Suu Kyi has little alternative but to work with the people she once campaigned against. The euphoria that surrounded her ascent obscured how extensive the military’s power remains. The Army controls the ministries for defense, home affairs, and border affairs, and a quarter of the seats in parliament are reserved for men in uniform. Even ministries that are in civilian hands, such as finance, are full of holdovers from the previous regime, and much of the country’s budget is reserved for military use. Myanmar’s constitution, written by the military in 2008, presents additional difficulties. It allows the Army to declare a state of emergency and seize power, and it also contains a clause that makes Suu Kyi ineligible for the Presidency. (Her current official title, State Counsellor, is a workaround.) Suu Kyi wants to amend the Constitution and become President, but this requires military support. Her defenders often cite the precariousness of her constitutional position as a reason for her reluctance to speak out about Army abuses. While pushing the military for constitutional reform, she must also avoid antagonism and a return to military rule.

But her failure to condemn the military is not merely a matter of pragmatism. The Party she leads was co-founded by a former commander-in-chief of the armed forces, and several of Suu Kyi’s closest advisers are ex-officers. The N.L.D. is run with a military emphasis on loyalty and hierarchy. Few members dare to publicly criticize it, let alone its leader, for fear of expulsion. One Cabinet minister proudly told me, “For the most important decisions, the most important person must decide.” The culture of deference means that there is always a backlog of vital decisions at the State Counsellor’s door.

Although the N.L.D. has recruited young talent, party leaders are notable for their age and time served in prison. “She is surrounded by people who are too high level, not grassroots,” Sao Haymar Thaike, the childhood friend, told me. “She doesn’t have many good advisers. She only has her own thoughts. People are scared to give her information.”

For all Suu Kyi’s opposition to the junta, she remains a child of the military. The armed forces of today have their origin in the Burmese Independence Army, which her father founded, in 1941, in order to rid the country of the British. In her Shwedagon Pagoda speech, Suu Kyi reminded her listeners of this history. “Let me speak frankly,” she said. “I feel strong attachment for the armed forces. Not only were they built up by my father—as a child I was cared for by his soldiers.” She retains many of the military’s values, frequently stressing the importance of discipline and unity. In 2013, a year after she first won a parliamentary seat, she surprised observers by appearing among the generals to view the military parades that mark Myanmar’s Armed Forces Day.

I spoke to Jody Williams, who, in 2003, was the first Nobel Peace Prize laureate to be allowed to visit Suu Kyi. (Williams, the founder of the International Campaign to Ban Landmines, won the prize in 1997.) She noticed that Suu Kyi took a pragmatic view of the generals who had curtailed her freedom. “She said something to the effect of, ‘If we let the military go with big bank accounts, then that’s fine with me,’ ” Williams told me. “It’s not an uncommon way to think, but it was surprising to hear.” Williams was even more struck by what wasn’t said: “There was absolutely no discussion of human rights, of all the things that had made her into a global icon.”

Williams’s skepticism deepened when Suu Kyi visited New York, in 2012, and met with members of an N.G.O. that Williams had co-founded. “She was hostile to any question about human rights in her country,” Williams told me, recalling how a young Burmese activist had been dismayed after Suu Kyi stormed out of the meeting. “She was so excited to see her heroine,” Williams said. “When Aung San Suu Kyi displayed such hostility, the poor young woman just kept saying, ‘I can’t believe this, I can’t believe this, this is Aung San Suu Kyi?’ ”

Williams has come to think that both the earlier veneration of Suu Kyi as a secular saint of human rights and the current shock at her transformation are based on misinterpretation. “She allowed herself to be misread,” she said. Williams suspects that Suu Kyi’s aims have remained consistent since the period after 1988, when she returned to her homeland, assumed the mantle of her father, set her sights on leadership, and was robbed of victory. “Once she decided to be in the student movement, and then they won the election and it was taken from her, her mind went like a laser beam to getting into power,” Williams said. “That’s been her single ambition, other issues be damned.”

***

I once asked Aung San Suu Kyi what quality she most valued in people, and she responded, “Loyalty.” Many people attest to this. In Naypyidaw, I met the N.L.D. parliamentarian Kyaw Soe Lin. In 2003, during one of Suu Kyi’s periods of liberty, he was assigned to be her driver on a national tour. On May 30th, her convoy was attacked by well-armed assailants, in what is presumed to have been an assassination attempt ordered by a hard-line military faction. Some seventy people were killed and Suu Kyi’s neck was cut by flying glass. True to the principles of nonviolence, she ordered her guards not to fight back. Kyaw Soe Lin drove as fast as he could through several roadblocks but was eventually stopped at one.

After the incident, Suu Kyi was placed under house arrest again. Kyaw Soe Lin and seventeen others were flown, handcuffed and hooded, to a remote location near the Indian border. He was punched, kicked, and burned with cigarettes and candle wax—I could see the scars on his forearms—in an effort to force him to confess that the N.L.D. had been responsible for the violence. “I could hear the screams of others as they were tortured, but I stayed silent,” he said. He was held for months in a tiny room so water-logged that he could not lie down.

After Suu Kyi was permanently released from house arrest, Kyaw Soe Lin went to visit her. She held out a small plastic wrapper. It was from a packet of snacks he had given her on the day of the massacre. “She told me that she kept the bag of snacks to remember me by,” he said. “Every day, she would eat a little and then put it away.” Eventually, there was nothing left in the bag, but she kept it for eight years.

For her entire life, Suu Kyi has been faithful to the memory of a father she never knew and to a country that she’d seen little of between the ages of fifteen and sixty-five. The intransigence and the certitude that may now cause her to be remembered as an enemy of freedom are the same qualities that served her well in captivity. In the years alone in her house, her distance from active politics made her a perfect vessel for the hopes of her countrymen and for the idealistic projections of the wider world.

“Aung San Suu Kyi has the benefit of having become an icon without saying a whole lot,” Kenneth Roth, of Human Rights Watch, told me. “Havel came to his position by saying a lot, by being a moral voice. Aung San Suu Kyi didn’t say much at all. She was a moral symbol, and we read into that symbol certain virtues, which turned out to be wrong when she actually began speaking.” Suu Kyi was not an intellectual, like Havel, or a freedom fighter, like Mandela, or an organizer, like Walesa. And, unlike her father, she did not die before her legend could be tarnished.

In November, 2010, Suu Kyi’s younger son visited Myanmar for the first time since her release. He hadn’t seen her in a decade. Before he returned to England, he went to a pet shop in Yangon and bought her a brown-and-white puppy. Suu Kyi lavished attention on the dog, and foreign dignitaries discovered that bringing gifts for it tended to get meetings off to a good start. Since then, it has grown into an aggressive creature that growls and snaps at anyone who dares approach its owner. Suu Kyi is oblivious of the dog’s mean streak, and enjoys decking it out in sunglasses and kissing it when it sees her off at the airport. “I hate that dog,” one of her closest friends told me. “But she loves it like a child, because it’s faithful to her.”

Supreme Court Opens Its New Term With a Direct Attack on Workers' Rights

By Ian Millhiser, ThinkProgress

26 September 17

Want to keep your job? First sign away your rights.

he Supreme Court returns next Monday from its summer vacation for the first full term where Neil Gorsuch will occupy a seat at the far end of the Court’s bench. And the Court will open this term with a trio of cases that are very likely to immunize many employers from consequences for their illegal actions.

The three cases — National Labor Relations Board v. Murphy Oil USA, Ernst & Young LLP v. Morris, and Epic Systems v. Lewis — all involve employment contracts cutting off employee’s rights to sue their employer for legal violations.

In at least one case, employees were required to sign the contract as a condition of beginning work. In another, employees were forced to give up their rights as a condition of keeping their job. These contracts contained two restrictions on the employees: 1) a “forced arbitration” provision, which requires any legal disputes between the employer and the employee to be resolved in a privatized arbitration system; and 2) a provision prohibiting employees from bringing class actions or other collective suits against their employers.

Requiring private arbitration favors employers over employees. As an Economic Policy Institute study determined, employees are less likely to prevail before an arbitrator than before a court, and they typically receive less money from an arbitrator when they do prevail.

Banning class action suits, meanwhile, effectively permits employers to violate the law with impunity, so long as they do not do too much harm to any individual employee.

If an employer cheats one employee out of $300,000 worth of wages, for example, that employee is likely to be able to find a lawyer who will take his case on a contingency basis — meaning that the lawyer gets a percentage of what the employee collects from the employer if they win. If the same employer cheats 10,000 employees out of $30 each, however, no lawyer is going to represent any one of these workers on a contingency basis. Plus, few employees are likely to bother with a $30 suit. It’s too much hassle, and too expensive to hire a lawyer who won’t work on contingency. The solution to this problem is a class action suit, which allows the 10,000 employees to join together in a single case litigated by a single legal team.

Banning such class actions effectively leaves these employees without remedy. As one federal judge explained, “the realistic alternative to a class action is not 17 million individual suits, but zero individual suits, as only a lunatic or a fanatic sues for $30.”

The employer’s claim that they can combine a forced arbitration clause with a class action ban arises out of two previous Supreme Court cases that took an extraordinarily creative view of a nearly 100-year-old law.

In 1925, Congress enacted the Federal Arbitration Act to allow, as Justice Ruth Bader Ginsburg once explained, “merchants with relatively equal bargaining power” to agree to resolve their disputes through arbitration. Beginning in the 1980s, however, the Court started to read this law expansively to permit forced arbitration between businesses and relatively powerless consumers and employees.

Then, the Court got even more aggressive. By its own terms, the Federal Arbitration Act exempts “workers engaged in foreign or interstate commerce.” Nevertheless, in its 5-4 decision in Circuit City v. Adams, the Supreme Court held that the Act applies to most workers engaged in foreign or interstate commerce. Thus, forced arbitration clauses in employment contracts were given special protected status, even though the federal law governing these clauses says otherwise.

Similarly, Justice Antonin Scalia wrote for a 5-4 Court in AT&T Mobility v. Concepcion that the Federal Arbitration Act has penumbras, formed by emanations from its guarantees that give it life and substance. The right of businesses to insert class action bans, Scalia claimed, is one of these penumbras contained in the 1925 law. And so businesses gained the power to add no class action clauses to their forced arbitration agreements, even if a ban on class actions violates state law — and despite the fact that the Federal Arbitration Act says nothing about class actions.

Nevertheless, the employees in Murphy Oil and its companion cases hope that another provision of law will protect them from signing away their right to join a class action.

A provision of the National Labor Relations Act (NLRA) provides that “employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Several lower courts have held that an employee’s right to engage in “concerted activities” protects their right to join class actions, and they cite multiple previous Supreme Court decisions which lend credibility to this claim.

In a world governed by the text of the law, employees would have a strong case that they cannot be forced to give up their right to bring class action litigation. But we live in a world governed by Circuit City and Concepcion — both of which demonstrate the Supreme Court’s willingness to take liberties with the law in forced arbitration cases.