From The Burma Lawyers' Council --

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Subject: From The Burma Lawyers' Council --  Lack of Democacy, Lack of Equality

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(Part I)   
LACK OF DEMOCRACY, LACK OF EQUALITY

"Political Analysis of Constritutional Principles Laid down by
the Slorc National Convention"

The Burma Lawyers' Council

Preface 
The State Law and Order Restoration Council (Slorc), ruling
junta of Burma has convened a so-called National Convention
since early 1993 aiming to lay down the basic principles for
state constitution.  All the analysis show that the junta is
attempting to gain the right to legally prolong its rule by
framing up a state constitution.  In order to do so, the military
junta manipulated both convening process of the National
Convention and its outcomes.

In Burma, in aftermath of military coup of 1962, the ruling
military junta has manipulated the laws as an instrument to
oppress the people in order to prolong their power.  Most
Burmese people no longer believe in the laws and the concept
of the rule of law as- a shield protecting their fundamental
rights and freedom.  As a result, common Burmese people are
not interested in laws and law making processes as they have
been convinced the laws as a tool of oppression.

The Slorc is taking advantage upon the lack of people's
awareness on constitution making process.  At the same time
they are deterring the politically - conscious dissidents from
taking part in the constitution making process.  By putting up
in jails or forcing them to live in exile, their voices are unheard
in the National Convention that Slorc is working on to
complete a state constitution.  Despite the Slorc strictly deters
the people from taking part in constitution making, it is the
right and duty of all citizens of Burma to prevent the creation
of Slorc proposed constitution which will surely not uphold the
aspiration of the people.

Very few people's representatives in the ongoing National
Convention want to work out for the interest of Burmese
people and get aware of the people's aspiration.  Unfortunately
they hold very small percentage of the representatives and can
not be able to convert the constitutional principles set up by
Slorc.  The Burma Lawyers' Council sincerely feels that it is
the responsibility of those who have better chance than those
who are under total control of the Slorc to examine what are
wrong in Slorc constitution making process and its
constitutional principles.  For this reason, the Burma Lawyers'
Council, as an independent organisation, takes responsibility
for examining on the constitutional principles laid down by
Slorc's "National Convention."

The Burma Lawyers' Council
October 1995

LACK OF DEMOCRACY, LACK OF EQUALITY 

1. Background

1. 1 The 1990 general election

Holding a general election and transferring power to the
elected representatives of the people was their final duty, the
State Law and Order Restoration Council (Slorc), declared the
same day they seized state power on 18 September of 1988.  It
became known world - wide that the Slorc would conduct four
main duties during their hold on power.  Gen.  Saw Maung,
the first chairman of the Slorc, promised that the Slorc would
transfer state power to the elected representatives soon after the
Elections.  Drawing up a constitution is not the business of the
Slorc or army - it is the responsibility of elected representatives
according to Slorc's official announcements before the elec-
tions including Gen.  Saw Maung's speeches.  There is no
reason for Slorc to continue to hold state power after general
elections were held, he repeatedly said.  Unfortunately, the
outcome of the elections was unpredictable for Slorc.  The
overwhelming victory of the National League for Democracy
led by Daw Aung San Suu Kyi is the main reason they refused
to honour the election results.  Had the National Unity Party,
(the Slorc backed party which was transformed from the
Burmese Socialist Program party), won in the elections, the
Slorc would have transferred power.  Following their loss the
elections, the military junta immediately planned to
manipulate state power by convening a National Convention
through which Slorc will create a political system to secure
their continuing control of politics.

1.2 The National Convention

The first Slorc's move was issuing its declaration No. 1/90
which stated that the duty of the elected representatives was
not to take over power from the Slorc but to draw up a
constitution.  Secondly, the Slorc announced the schedule for
convening the National Convention in the middle of 1992 after
they failed to occupy Manerplaw, the main Headquarters of
the opposition, by military means.

Even according to Slorc electoral law, the 1990 elections were
elections for a People's Assembly which normally exercises
state power according to Burmese political traditions, not a
Constituent Assembly which normally draws up a constitution. 
Despite the fact that there is no firm state constitution, it is the
right of people representatives elected in 1990 elections to
assume state power.  The People's Assembly, a unicameral
legislature, which had been created in Burma under the 1974
constitution, was supreme in state power.  Slorc did not allow
the people's representatives to assemble, and the elected
representatives were labelled as those who have responsibilities
only for drafting a constitution.

The National Convention first met on the 9th January of 1993
to begin to lay down basic guide line principles for the state
constitution.  Through the National Convention, Slorc intends
to create a political system which will perpetuate army rule
and authoritarianism in Burma.  Despite the fact that most of
the principles laid down by the National Convention are
questionable, some of these principles which can be observed
as central to the political system will be examined in this
paper.  Before discussing these constitutional principles in
detail, Slorc's preparation for the unlawful National
Convention should be discussed in order to provide
information why it does not respect the aspirations of the
people.

1.3 Some of Slorc's preparations to manipulate the outcome of
the National Convention

Although it is the duty of the elected representatives, even
according to Slorc's declarations, to draft a constitution,  more
than 600 out of 702 representatives to the National
Convention have actually been selected by the Slorc itself. 
Furthermore, in order to effectively control the National
Convention's outcomes, Slorc prepared a procedural code for
the National Convention as they (the Slorc) preferred.  Slorc
unilaterally declared "the Six Aims of Convening the National
Convention" to be as follows: -

1.   Non - disintegration of the Union,
2.   Non - disintegration of National Unity,
3.   Stability of Sovereignty,
4.   Development of genuine multi - party democracy
5.   Promotion of social truth such as justness, freedom,
equality etc. in the state, and 
6.   Participation of the military 'in the leading role in
national politics in the future.

Slorc made clear that there can be no questioning of the
principle of the military's leading role in politics.  The
delegates' freedom of speech is strictly prohibited by the
procedural code for the National Convention.  Action can be
taken against a delegate at any time for matters included in
their discussions.  Thus Slorc convened the National
Convention under circumstances well prepared by the Slorc to
represent its own interest.

2.   The lack of democracy

2.1  Democracy and political equality

Democracy recognises political equality of the citizens
regardless of social status, ethnic background, religion, belief
or belonging to any Organisation or institution.  It is not a
democracy if there is no basic principles which guarantee the
political equality of the individual citizens.  Political equality
for the purpose of this paper, means that each and every citizen
has the same vote in the polls and that every vote has the same
value, and equal right and opportunity of all citizens in
political participation.  Nobody in a democracy is allowed to
enter national politics with special opportunity, as a right. 
Thus, no democratic constitution provides for any kind of
inequality of citizens in terms of political participation.

2.2 The lack of democracy; the elections of the legislature

Slorc's intention in laying down the constitutional basic
principles was to consolidate the political role of the army. 
Army - appointed representatives, who are surely from full
time army officials, must be members in each Assembly of
both national and regional legislatures with the ratio of one
army representative for every three people's representatives,
according to Slorc constitutional principles.  The army -
appointed representatives may not be removed from office
except by the army chief.  This army inclusion in the
legislatures to represent the interest of the army, not the people,
is an invasion of the rights of other citizens by the army
because while other citizens are to take part in politics on an
individual basis, the soldiers are to take part on the basis of a
powerful Organisation.  Why should soldiers receive special
political privileges when the soldiers are just the same as other
citizens serving the country in their ways?
Furthermore, the number of soldiers is not over 400,000 in the
country of Burma of which the population is 45 million.  Thus,
the actual ratio of soldiers to people is less than one to one
hundred, or one per cent of the total population.  The army's
representation should not then be over one per cent of the total
seats in each Assembly, but the ratio proposed by Slorc is
twenty five per cent.  It is obvious that this Slorc principle,
with the ratio of one to three, is to exploit the rights of other
citizens.  How can there be democracy in this situation of
inequality between soldiers and the ordinary citizens?

2.3 The lack of democracy; the presidential election

Slorc's constitutional principles seek a presidential government
with a unique electoral system for the presidency.  The
president will be elected by an electoral college of which
twenty five per cent of total members will be army appointees. 
Almost all the countries which exercise presidential
government practice direct election or processes comparable to
direct election for the presidency because the election of the
president, the most powerful person in the presidential
government, is required to be the most democratic.  Indirect
election for the presidency is exercised in countries following
parliamentary government in which the role of the president is
just a head of state.  Slorc does not dare to hold a direct
election because they are afraid of difficulties in controlling the
direct election result that they desire.  Thus, Slorc's proposed
principles regarding the presidential election are clearly
undemocratic.  Moreover, Slorc's proposed nominee for the
presidency automatically becomes vice president even he is not
elected to be president, according to basic principles laid down
by the National Convention.  It means that the army can
appoint at least a vice - president.  An army - appointed
nominee for vice -  president is also not acceptable for a
democratic government.  Every key political post should be
assumed only through the electoral process. (Further
examination on presidential government can be seen below)

2.4 Sovereignty derives from the people

Slorc's constitutional principles include the principle of  "the
sovereignty shall be derived from the people" as in other
democratic constitutions.  The philosophy of the right to
exercise sovereignty by the people is central to democratic
theory.  In the case of Burma, the exercise of sovereignty by
the people, of course, must include a determination by the
people of what sort of political system shall be in the country. 
What sort of political system do the people need in Burma? 
Who has the responsibility to choose a political system - the
government that appointed itself or the people?  The clear
answer is that it is the people who must determine the political
system.  Now only the ruling junta, the Slorc, is about to
choose a political system for Burma.  It is not acceptable for
the entire Burmese people.  If Slorc, as they mentioned in their
principles, recognises the principle of "sovereignty shall be
derived from the people", why are they refusing participation
of the people in the constitution making process which
determines what sort of political system for Burma?

2.5 What Slorc will have to do?

Slorc's principles aim to secure the army's leading role in
politics.  Even though one of the stated aims of convening the
National Convention was the "development of genuine multi -
party democracy", the Slorc principles are totally lacking in
democracy.  As long as the Slorc's demand of the "army's
leading role in politics" remains among the constitutional
principles, whatever other principles Slorc laid down will be
subordinate to that one.  Slorc will always try to implement
that principle over and above other constitutional provisions. 
This examination does not reject the possibility of participation
by soldiers in politics on an individual basis.  Democracy can
not coexist with the principle of the "army's leading role in
politics".  Either of the two - democracy or the army's leading
role in the politics - must be taken away from the constitutional
principles for the creation of a long lasting constitution.  Which
one should be removed?

3.  State Structure

3.1 The State Structure is 

The issue of what kind of state structure should be chosen for
Burma is a critical political issue.  While many political
scientists refer terminology "form of national government", the
terminology "state structure" is accustomed with Burmese
political traditions.  In the 1974 constitution, the word "state
structure" appeared and Slorc's National Convention also uses
it.  For Burmese, state structure refers to the basis - Unitary,
Federal or Confederation - on which the state will be
organised.

3.2  The State Structure Slorc provided

The Slorc principles concerning state structure are summarized
below, 

(a)  The Village Tract and the Ward- the Villages are
integrated parts of the Village Tract.  The Village Tract and
the Ward are the same and the lowest level of the constituent
units.

(b)  The Township- Villages, Wards and Towns are integrated
parts of the Township.

(c)  The District- the Townships are integrated parts of the
District.

(d)  The Region, and the State- the Districts are integrated
parts of the Region or the State, the Region and the State being
the same level of constituent units and the highest level
integrating the country. 

The above four are the series of levels of constituent units. 
There are still some constituent units bearing special characters
as summarized below;

Self Administered zone- the Townships of an ethnic group may
be integrated as a Self Administered Zone.  In this Zone there
may be other ethnic groups, but the ethnic group who gained
the Zone must be the majority.

Self Administered Division- the Districts of an ethnic group
may be integrated as a Self Administered Division.  There may
be other ethnic groups in the Districts of a Division, but the
ethnic group who gained the Division must be majority in
every District.

These two specially characterized constituent units are
integrated in a Region or State together with the other
Districts.

The State structure Store provided in the constitutional
principles is a unitary basic system with some federal features
for cosmetic reasons.  It is important to note that the political
terminology used by Slorc has different meanings in Burmese
than it does in its English translation.  Slorc can strategically
manipulate these nuances in meanings in order to pretend that
it will exist federal system, when in reality, according to the
Burmese definitions, it will not.  If the Burmese word "Pyi
Daung Su" is translated into English, it means "Federal", but
Slorc does not dare to use the word "federal"; instead uses the
word "Union".  That word "Union" is the main gesture by the
Slorc in the defying of federalism.

"Union" in Slorc's meaning is that the country must be united
as one.  Slorc refuses to accept a federal structure because the
military governments in Burma including Slorc have being
propagating that federalism means the disintegration of the
country. While all the political opposition groups are seeking a
federal system as they see that as the cure to the civil war,
Slorc can not totally deny federalism.  In order to promote their
artificial federalism, "Union" comes into Slorc's constitutional
principles.

In reality, Slorc's Union is nothing but Unitary state structure. 
The State is to be composed of seven Regions, which are the
renamed Divisions of the 1974 constitution, inhabited mainly
by Burmans, the major ethnic group in Burma, and seven
States inhabited by seven different ethnic groups.  That system
is the same as in the 1974 constitution.  That system was
criticised by ethnic leaders who pointed out that there are seven
Divisions for one ethnic Burman people while other ethnic
people own one State for one ethnicity.  The most suitable
form of division of constituent units of the country is to allow
one ethnicity to have only one constituent unit in the same
level.  While other ethnic people have only one State for their
ethnicity, having seven Divisions for Burmans is an obvious
example of inequality among the ethnic groups.  Principles laid
down by the National Convention provided seven States and
seven Regions again.

3.3 The state structure Burma requires

Recognising that Burma is a multi- ethnic state, the state
structure should be compatible with that fundamental reality. 
Civil war between successive juntas and the major ethnic
groups is due to the fact that the state structure has not
reflected for the multi- ethnic state, or the plural society. 
Countries having multi- ethnicity like Burma must assume that
all the different segments in the country have equal
opportunity to enter national politics.  No one group or a plural
society should receive special privileges to dominate national
politics.  Unity of diversity may be possible only when all the
different segments see there is equal opportunity among them. 
The state structure should be designed to formulate equal
opportunity for all segments.  A legal system, and most
importantly the constitution, becomes first priority to
guarantee real equality.

According to Arend Liphart, (Democracy in Plural Society), a
federal system is the most suitable one for plural society.  A
federal system is defined as a system of division of power
between national level and constituent levels with allowance
for the constituent members to protect their rights.  In the
context of Burma, the lack of an appropriate state structure is
the main cause of civil war and reform based on a genuine
federal system can lead to the end of civil war, according to
Burma experts.  Almost all the ethnic politicians ask that
Burma be transformed into a genuine federal system on the
basis of equality among the different ethnic groups.

State structure based on a federal system will surely cure or
solve the problem of civil war.  A paper presented by ethnic
Shan leaders in 1962 known as "Shan principles" and which is
considered as the most advanced paper in the federal
movements in Burma demanded the transformation of state
structure into a genuine federal one.  If Burmese politicians do
not ignore the importance of civil war in politics, they should
accept that a federal system is probably the best cure for civil
war.  All the opposition organisations including the National
League for Democracy, Daw Aung San Suu Kyi's party, could
have agreed on this political solution.

3.4 Division of constituent units

Although it is true that the constituent units needed to be re -
organised under the new constitution, it is important to
consider the principle basis upon which the units will be
divided.  This issue is one of the most complicated problems of
Burmese diversity.  Despite the fact that there is no clear cut
solution to this problem, some principles, which have been just
trained by the Slorc, should not be considered.

Almost all federal states where substantial diversity exists have
different levels of constituent units integrating the nation. 
Burma, a country of gross ethnic diversity, needs to follow the
practice of dividing the country into different levels of
constituent units. First of all, any consideration to divide or
organise the units must take into account the equality of
different ethnic groups.  No ethnic group should have more
chance than others.  Slorc principles favour more chance for
the Burmans, just one of the ethnic groups in Burma, by giving
Burmans seven divisions while other ethnic groups are granted
only one state for one ethnic group.  In order to guarantee
equality among the different ethnic groups only one state or
division should be granted for one ethnic group.  To organise
other levels of constituent units, it should be the concern of
State or Division in which those units integrate.  When the
decisions were made for the Naga Self Administered Zone,
Danu Self Administered Zone, Pa-o Self Administered Zone,
Palaung Self Administered Zone, Kokang Self Administered
Zone and Wa Self Administered Division in the last secession
of the National Convention of March of 1995 before it was
postponed, it could be understood that the Slorc made these
decisions without upholding the desire of the ethnic groups
concerned.  The ethnic groups who were granted those
constituent units are criticising the Slorc's decisions.

3.5  Political consequences when an incompatible state
structure is applied

More constituent units representing one ethnic group have
better access to national politics.  Seven Regions representing
only one ethnic group, the Burmans, posses the same rights
and opportunities as seven States which represent seven ethnic
groups.  Such a situation makes an equation of the rights of
one non - Burman ethnic group equal to one- seventh of the
rights and opportunities of the Burman group.  Although it
would not be a problem for a homogenous society to divide the
constituent units in this way, it is big problem for a plural
society.  A more detailed discussion on this matter can be
found below in the examination of the composition of the
national legislature.



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