Yesterday, Burma’s Supreme Court heard an appeal against Aung San Suu Kyi’s continued detention. I don’t think there’s any doubt over the outcome. In fact, it is fairly common for authoritarian regimes to permit courts to hear and dismiss the appeals of political dissidents. This allows them shift the blame for unpopular decisions onto judges, justifying political oppression as obedience to the rule of law. However, what I do find interesting is that both sides are using constitutional arguments, despite the fact that Burma hasn’t had a constitution since 1988. As described in the Irrawaddy, Suu Kyi’s lawyers claim the junta has based its prosecution on the defunct 1974 Constitution. The government’s lawyers claim that it can still cite laws based on the constitution because it was merely suspended, not abolished, in 1988. Unfortunately, most media reports about the case have not explained the legal arguments in enough detail to allow an objective assessment. Furthermore, with the new 2008 Constitution, the constitutional ramifications of the decision will soon become moot. Nonetheless, it will be interesting to see whether the Supreme Court decides the 1974 Constitution has in fact had some applicability throughout the SLORC/SPDC period. It might also provide a hint about how the courts will treat the new constitution (assuming some of the current Supreme Court justices move to the Constitutional Tribunal).