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ON THE QUESTION OF THE MANDATE, SUB
Subject: ON THE QUESTION OF THE MANDATE, SUBMISSION NO. 20.
As I could easily recall an article from Burma Debate by J.M. Diller of
the Human Rights Law Group, on the question of the mandate of elected
representatives, the note states that
[8] Although some argue that the four year terms of the elected
representatives passed in May 1994, of equal consideration is
the proposition that the four year mandate could not begin to
tick until the representatives are seated and bestowed authority.
Following is the submission by the Human Rights Law group to the Burma
inquiry.
With best regards, U Ne Oo.
-------------------------------------------------------------------
>From uneoo@xxxxxxxxxxxxxxxxxxxxxxx Thu May 11 15:14:25 CST 1995
Newsgroups: soc.rights.human,soc.culture.burma
Subject: BURMA HUMAN RIGHTS REPORTS # 20.
Date: 10 May 1995 05:54:16 GMT
/* posted May 10 15:13:03 CST 1995 by uneoo@xxxxxxxxxxxxxxxxxxxxxxx on igc:soc.culture.burma */
/* --------------" HRSUB: Law Group "----------------- */
[Subject: To inquire into and report on the human rights situation
and lack of progress towards democracy in Myanmar(Burma) by the
Human Rights Sub-Committee of the parliament of Australia.
Submissions made to this enquiry by various people and
organisations are re-posted here.-- U Ne Oo]
# SUBMISSION NO. 20.
INTERNATIONAL HUMAN RIGHTS LAW GROUP
------------------------------------
1601 Connecticut Avenue NW
Suite 700, Washington DC 20009 USA
Telephone(202) 232-8500 Telefax(202) 232-6731
Email: lawgroup@xxxxxxxxxxx
November 11, 1994.
Parliament of Australia
Human Rights Sub-Committee of the Joint
Standing Committee on Foreign Affairs, Defense and Trade
Parliament House
Canberra, ACT 2600
Dear Sirs/Madames:
Recently the International Human Rights Law Group (the "Law Group")
was alerted to your enquiry into the human rights situation and
lack of progress towards democracy in Myanmar(Burma). The Law Group
has been monitoring the developments in Burma for several years and
Janelle Diller, the Law Group's Legal Advisor, has authored an
article on that country's National Convention.
Please find attached a copy of "The National Convention: Analyzing
the Process," which appears in the most recent edition of the
magazine Burma Debate. The Law Group believes that the Convention
is an obstacle to progress towards democracy and that its opinion
should only be considered advisory in any final resolution ceding
military control of the government to a duly elected Parliament.
We hope that you find the article helpful. Please do not hesitate
to contact the Law Group if would like further reports or
information on issues pertaining to Burma.
Thank you for your consideration.
Sincerely,
singed. Ann M. Garrick
cc: Janelle M. Diller
Annable Anderson
**********
[BURMA DEBATE, VOL 1, NO 2; OCT/NOV 1994]
THE NATIONAL CONVENTION
Lesson from the Past and Steps to the Future
By Janelle M. Diller
(The author is Legal Advisor to the International Human Rights Law
Group in Washington, D.C)
Nearly two years after initiation an effort to gain legitimacy
through constitutional reform, Burma's ruling State Law and Order
Restoration Council(SLORC) appears to be winning the battle but not
the war. Government Proposals to entrench the role of the military
in politics are steadily adopted, oft times over the dissent of
prodemocracy proponents. In general the people of Burma themselves
reportedly view the process as a sham. The international community
remains at best, dubious and at times blisteringly critical.
Recent reports indicate that SLORC may be willing to negotiate
terms for a political transition with Aung San Suu Kyi, who marked
the anniversary of her fifth year of house arrest last july. Along
with ceasefire agreements freshly signed between SLORC and several
armed ethnic opposition groups, the prospect of talks with the
people's revered leader raises questions about the desirability,
even from SLORC's point of view, of continuing ramrod its
preconceived constitutional tenets through the Convention.
Although no outward signs confirm SLORC'S intent to donso, it is
yet possible for the junta to recast the Convention as a advisory
body and negotiate a peaceful transfer of power. All of that would
help the generals to bestow legitimacy where the United Nations has
repeatedly stressed it lies: with the elected representatives of
the national parliament.
Constitutional Making Context
-----------------------------
Upon taking power in 1988, the self appointed SLORC dissolved the
national legislature, the Pyithu Hluttaw, and other organs of power
under the 1974 constitution that was created by military strongman
Ne Win in a process reminiscent of the Convention geing played out
today. SLORC declared its government extra-constitutional and
outside the law. In scrambling to regain ground lost following the
overwhelming pro-democracy election results of 1990, SLORC
announced unilaterally several months after the election that the
majority of the people wanted anew constitution. "[U]nder the
present circumstances", said SLORC,"the representatives elected by
the people are those who have the responsibility to draw up the
constitution of the future democratic State."[1] Since then, top
SLORC officials have repeatedly emphasized that there will be no
transfer of power without a constitution in place.
When the National Convention opened on January 9, 1993, SLORC
announced a pre-set framework of six objectives to 702 delegates.
The sixth objective described establishing a leading role for the
military in politics and government. Opposition came primarily from
the 156 elected representatives and political party leaders, of
which only 90 represent the NLD - the party that won more than 80
percent of the seats during the 1990 elections. Most of the 702
delegates were hand picked by SLORC and allegedly represented
various sectors of society, including defense personnel, ethnic
groups, political leaders, peasants, workers intellignetsia,
technocrats, and civil servants. After its first two days, the
Convention abruptedly halted for a month, apparently to stave off
criticism of SLORC's heavy hand. Meeting typically in two to three
month session with breaks of similar or greater length, the
Convention delegates thus far appear to have acquiesced to SLORC's
various proposals.
SLORC's program of constitutional reform accompanies other recent
efforts of the junta to divert international criticism which
maintaining power. The government signed an agreement allowing the
UN High Commissioner for Refugees a limited presence in the
Arakan State to monitor the return of some 250,000 Rohingya
refugees in Bangladesh, of which apparently more than 55,000 have
now returned. The junta also touts as progress its recent ceasefire
agreements with several armed ethnic opposition groups, including
the Kachin, despite the lack of political settlements in those
agreements.
Still, reports of atrocities continue unabated. Estimates of
refugees and persons internally displaced by military action run
into the hundreds of thousands. During military operations, men
and women alike ar forced to carry weapons and equipment for the
military. Many of them are mistreated, raped, and even left to die.
Independent credible reports reveal that thousands of people are
conscripted by the government to build railway lines, roads and
other projects, some of which are tourist attractions.
SLORC has taken severe measures to cripple the government -elect, a
body of representatives authorized by franchise in 1990 under the
SLORC created Pyithu Hluttaw Election Law to form a governing
legislature. As many as 35 elected representatives remain in
detention along with hundreds of other political prisoner,
including leaders of the National League for Democracy (NLD). In
addition, SLORC'S election Commission has disqualified more than
100 elected members of parliament, primarily those belonging to the
NLD, because of purported criminal offenses, imprisonment, or
death. According to government accounts, no more than 29 of the 235
parties registered in the 1990 elections remain following
government deregistrations.
Similar measures have restricted political debate in general . In
february of last year, in an early bid to squelch constitutional
dissent, security forces arrested 14 people allegedly responsible
for a political pamphlet disparaging the National Convention and
rounded up opposition supporters who distributed leaflets calling
for the release of Aung San Suu Kyi between the summer of 1993 and
February 1994, 60 persons were arrested for engaging in political
activities. A july 1993 rally of students at Rangoon University was
broken up by SLORC security forces and students were arrested; this
year, preventive arrests were reported. IN July 1994, a former
Burmese worker in the UN was arrested and charged with meeting with
foreign diplomats and journalists and providing information
critical of the regime, as well as providing reportedly false
information to UN Special Rapporteur on Burma, Yozo Yokota.
The Convention delegates themselves have not been spared the muzzle
of SLORC . Last year, one delegate to the National Convention was
sentenced 20 years in prison for authoring leaflets critical of the
junta's role; has assistant received more than 30 years for
distributing the leaflets. Early in 1994, reliable sources reported
that NLD chairman Aung Shwe and Shan National League for Democracy
(SNLD) Convention delegate Khun Htun Oo were under survelliance
and had been chaistised for their vocal dissent of SLORC proposals
at the convention. According to onw source, the regulations for the
Convention distributed by SLORC to all delegates at the Convention
require that anything said in debate must be submitted in writing
in advance to the Chairman of the group concerned. Nothing should
be discussed which has not been included in the written submittal.
In addition, the rules forbid "walkouts, individually or in groups,
and any other show of protest"[2], distributing leaflets, wearing
badge bringing in papers to the Convention which have not been
approved by the National Committee, and lobbying or influencing
other representatives.
Against this stark backdrop, the play on the stage of
constitutional reform has not duped the international community.
The 48th session of the General Assembly noted with concern in
December 1993 than "most of the representatives duly elected in
1990 have been excluded from participating in the meetings of the
National Convention, created to prepare basic elements for the
drafting of a new constitution,... and one of its objective is to
obtain participation of the armed forces in a leading role in the
future political life of the State." In more detail UN Special
Rapporteur Yokota reported to the UN Commission on Human Rights
last February: "[G]iven the composition of the delegates (only one
out of seven delegates was elected in the 1990 elections), given
the restrictions imposed upon the delegates (practocally no
freedoms to assemble, to pring and distribute leaflets or to make
statement freely), and given the general guidelines to be strictly
followed (including the principle regarding the leading role of
Tatmadaw), the National Convention does not appear to constitute
the necessary steps towards the restoration to democracy, fully
respecting the will of the people as expressed in the democratic
elections held in 1990"(General Assembly resolution 47/144 para 4)
The 1994 Commission on Human rights responded by strongly urging
the SLORC "to take all appropriate measures to allow all citizens
to participate freely in the political process."
Individual governments have criticized the Convention as well.
According to a Reuters report, Australian Foreign Minister Gareth
Evens accused the process of not leading toward democratic
accountability, and the US State Department's recent country report
on human rights in Burma said the SLORC dominated convention, which
has no mandate from the people is aimed at adopting " a
constitutional blueprint effectively guaranteeing the military's
continued hold on power." Nonetheless, junta chief Khin Nyunt has
insisted that the convention will pave the way for a "Burmeses"
style of democracy.
Convention Developments
-----------------------
After its fitful start in January 1993, the Convention got down to
business under the control of SLORC in February. By early April
1993, SLORC announced that the delegates had agreed to the six
fundamental objectives, including the establishment of a leading
role for the military in the future political state. The process
had seen opposition from NLD delegates but an eventual concession
from Aung Shwe, NLD Chairman. Reports indicates that the NLD
leadership is currently split on whether to remain in attendance at
the convention due to this fundamental issue. In early April, one
delegate from the Kayan National Unity Democracy Party, abandoned
the Convention as a "disgusting sham" and fled to territory held by
armed ethnic opposition groups.
IN september 1993, as the Convention proceeded, SLORC created the
Union Solidarity Development Association, a new organization to
operate at regional , state and local levels. SLORC equated the
aims of the USDA with the six fundamental principles that SLORC had
given for drafting the constitution, including a leading role for
the military in government. Top SLORC officials were appointed as
USDA leaders and diplomats interpreted the USDA as a civilian front
for the military that would later be turned into a political party,
in a process similar to indonesia's ruling mass Golkar Party.
To date, the Convention delegates have yielded to further SLORC
proposals securing the virtually unfettered discretion of the
military in leading the country [3]. One provision grants the
military ample representation in both houses of a bicameral
parliament. Another grants authority to the military to exercise
emergency powers during crises, and yet another institutes of
presidential rather than parliamentary system. Guidelines for the
presidency effectively excluded Aung San Suu Kyi. The presidents
must at least 45 years old, have political, administrative and
economic experience, have 20 years, continuous residency in the
country, and none of the presidents parents, spouse, children, or
children's spouse may citizens of foreign powers of entitled to
rights and privileges of foreign citizens. The president was to be
elected by an electoral college consisting of three groups: members
of parliament from the house equally representing state and
divisions; members of parliament from the house based on
population; and defense service members nominated by the Commander
in Chief to the two chambers of parliament. Among the presidential
qualifications specified was experience in the military.
Opposition to these proposal was expressed primarily from the
elected representatives and political parties groups, and in
particular the NLD and the SNLD. In an eloquent proposal, reprinted
in the government-produced newspaper in Burma, the SNLD openly
voiced its preference for the parliamentary system since that
system "is still better than the chief executive becoming a
dictator"[4] The SNLD and NLD insisted that only elected
representatives should exercise the three powers of government
-judicial, legislative and executive. In and unusual intervention
by a workers' representative rather than a political party leader
or elected representative, a Kachin who applauded for arguing that
the president should elected by only tow groups in the electoral
colleague without a group composed of members of defense services
since the third group effectively granted military double
representation in the college[5]. Other argued for direct election
of the President, a figure head President in a parliamentary
system, the election of all legislatory by direct and secret vote
rather than nomination of some by the military, and a Federal state
with all powers not delegated to the central reserved to the states
and regions.
IN May 1994, another Convention delegate, one of five leaders of
the group of elected representatives defected and reported that,
although the delegates can speak relatively freely, the military
chairmen of the Convention pay no attention [See page 11,
Interview] The method of electing the country's next president was
devised, he reported, to only allow the military to monopolize
executive power. Indeed, in September 1994, in a measure sure to
entrench military influence at the lowest levels of government, the
chairman of the Convention Work Committee, Chief Justice U Aung
Toe, announced that "regions, states, self-administered areas and
districts' executive bodies are to include Tatmadaw member
representatives nominated by the Commander-in chief of defense
Serices to undertake responsibilities of the defense, security,
border administration, etc."
When the Convention resumed in September 1994 at time of this
writing, attention turned to how a self-administered system for
numerically small or dispersed ethnic groups would operate.
Although the self-administration system in theory purports to grant
fuller autonomy to certain ethnic and racial groups , in practice
governments of self-administered areas are subject to the same
requirement of military representation as all other executive bodies
of the country, as noted immediately above. Moreover, even if the
system were more genuinely autonomous, the formula for deciding on
which races receive self -administration creates arbitrary
divisions. Under the formula imposed by SLORC, a self-administered
zone must have at least two townships with one distinct racial or
ethnic group holding a majority in each township and holding at
least hald of the total population of the combined townships; a
self-administered division must have at least four townships
meeting the same population criteria. No ethnic group with its own
state can qualify for self-administeration in another state. The
formula is thus inflexible as to dispersed racial population and to
future internal migration movements. No provision for elineating
further regions or states, and no multi ethnic zones are
allowed.[6] Thus, a large group like the Kayan in the Shan and
Kayah states were disallowed self administered zone because they
all live in one township. No Lahu self-administered zone was
allowed because only one of three townships proposed in the Shan
state actually had Lahu majority of population, according to
unspecified statics compiled by the Immigration and Manpower
Department. Likewise, the Kachins in Shan state were denied a
self-administered zone because the Kachins already had their own
state elsewhere.
Those ethnic groups denied so-called self-administration was advised
to represent themselves in the legislative and executive affairs of
the states in which they reside. The solution of ethnic
representation in the larger constituent unit indeed appears
appropriate to all the ethnic groups - assuming proper
representational formulas in bicameral legislatures, accountable
executive systems, and vigilant judiciaries to protect minority
rights. Central and lower level government where genuine democratic
freedoms are observed could help ensure respect for the economic,
social and cultural rights and freedoms needed to address the rich
ethnic diversity of Burma. On the other hand, SLORC's proposed
addition of a racially and ethnically-based zone/region system
promises to fan the flames of ethnic division, especially where
that system is devised on such arbitrary terms. In a final
admission to its arbitrariness, the convention decided to from a
commission to determine proper data on population, sizes and
density, even though it appeared to have made decisions on
applications for self-administration relying on unspecified
government data.
Assessment and Next Steps
-------------------------
Thus far the Convention results fulfill the prediction of
commentators on the apparent plan of SLORC: the exercise is an
opportunity for SLORC to entrench the role of the military in the
future political life of Burma. Convention delegates have been
forced to approve all of SLORC's proposals securing the military's
upper hand in the legislature, the executive and in states of
emergency. Aung San Suu Kyi has been written out of a presidential
role.
Far from reform, the constitutional exercise glares in the face of
contemporary notions of constitution making that include popular
sovereignty, representative government, and popular participation.
It also directly contradicts UN pronouncements of concern for
progress toward turning over power to the duly elected government.
The steps to come after the Convention finalizes its principles
remain unclear. It is possible that SLORC will appoint a Commission
to decide whether to hold a referendum on the Convention's
constitutional principles, in a process similar to that used by Ne
Win in 1974 to validate his Revolutionary Council-drafted
constitution. However, recent statement by SLORC indicate that the
junta may stick to its originally announced intent to create no
more than guidelines for a constitutional drafting body[6]. If so,
in light of the utter lack of credibility generally given the
convention process, the composition and independence of that
constitution drafting body is critical. The satisfactory solution
would be to convent the Pyithu Hluttaw elected in 1990 as the
representative assembly to draft the new constitution. Such a step
would be in accordance with SLORC's own Declaration 1/90 announcing
that the elected representatives to be that constituent assembly[7].
It would also be consistent with general notions of popular
representation in constitution-making.
As a matter totally within its discretion, the drafting body itself
should be left to decide whether to accept or reject the
Convention's guidelines and whether to hold a referendum to ratify
the final draft constitution. An international monitoring presence
throught the process of constitution-drafting or a transitional
governing authority apart from SLORC - as part of a larger
negotiated settlement to a transfer of power - could help ensure
that undue pressure from the military on constitution drafters does
not occur.
Transition issues such as the timing of transfer of power to an
elected government and mechanisms for accountability for past human
rights violations represent major obstacles in the road to
political progress toward peace in Burma. Comparative experience
demonstrates that such matters are at the heart of the guarantee of
human rights, human dignity, and the rule of law. They are squarely
within the "respectability to draw up the constitution of the future
democratic state" envisioned in SLORC Declaration . Were these
issues to be a matter of negotiated settlement among Aung San Suu
Kyi, SLORC and ethnic group representatives. In such a case, a
referendum or other popular ratification process to approve
proposed constitutional order would be essential. Such a process
provides the necessary popular legitimacy that could truly ensure ,
as envisioned in Universal Declaration of Human Rights, the will
of the people as the basis for the authority of government -
finally.
NOTES
-----
[1] Declaration 1/90(July 27,1990)
[2] ld. chap.4. sec 29(k)
[3] upon adjorning in April 1994, SLORC announced what appeared to
be less controversial measures that passed by consensus: creation
of a multi-party democracy and bicarmeral central legislature,
power sharing arrangements between the central government and the
constituent units, retention of the existing seven division as
regions and the existing seven states as states with their minority
names, creation of self-administered terrorities within regions or
states, and a cause prohibiting secession of any part of the
territory of the country. In addition, the new name for the country
was picked: the Republic of the Union of Myanmar.
[4] Burma Press Summary, from the New Light of Myanmar August 1993,
reprinted by the Burma Peace Foundation supra note 3.
[5] "Convention to Draft Constitution Meets" Rangoon Burma
Television Network, 24 March 1994, reported in FBIS, 25 March 1994.
[6] The ban on multi-ethnic zones led to rejection of a proposal
for a Putalo zone made by representative of Lisu, Rawan, and
Tai-hkamti.
[7] See, e.g., Armed Forces Day Speech by Senior General Than Shwe,
Rangoon Radio Burma, 27 March 1994, reprinted in FBIS 27 March
1994. ("the National Convention has laid down the basic principles
to draw up a constitutional and it is being held with momentum");
New Light of Myanmar, September 1993 reprinted in Burma Peace
Foundation, supra note 3( speech Chairman U Aung Toe at Convention
about "laying down principles to form basis in formulating State
fundamentalprinciples for the drafting of the State Constitution").
[8] Although some argue that the four year terms of the elected
representatives passed in May 1994, of equal consideration is the
proposition that the four year mandate could not begin to tick
until the representatives are seated and bestowed authority.
/* ENDREPORT */