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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 */