In search of the legal fold

[darnott@xxxxxxxxxxx]

                   THE QUEST FOR THE LEGAL FOLD
 
 
I have seen many mysterious references to the "legal fold" to
which errant insurgent groups and misguided students are
invited to "return"* in the Burmese Government English
language daily, "The New Light of Myanmar" and statements by
spokesmen of the ruling State Law and Order Restoration
Council (SLORC). The concept is seductive, and curiously
Christian --  sheep lost in the desert of illegality returning
to the safe home of the law -- no doubt under the protective
care of loving shepherds. On the eve of the 7th anniversary of
the NLD's election victory I therefore packed my laptop on my
back and set out in search of this haven.
 
 
RETURN
 
I started my exploration with "return". The term implies that
the ethnic nationalities which have "gone astray" were once,
somewhere back in history, part of a unified, "consolidated"
State from which they wandered -- under, one would suspect,
the malignant influence of the colonial dividers-and-rulers.
But it seems that before the British came along with their
colonial agenda and notions of the "Nation State" (a modern,
non-traditional idea to which such stalwart defenders of
"Asian values" as Malaysian Prime Minister Mahathir Mohamad
and the SLORC generals are paradoxically attached), most of
the ethnic groups in the area had for thousands of years been
running their own affairs, speaking their own languages and
practising their own religions. They had no idea that those
people down on the plains with whom they occasionally traded
had any political claim on them. This "return" to a place from
which they did not come appears to be another of those
projections back into history beloved of nationalist tall
story tellers of all ages and cultures.
 
 
LEGAL 
 
I then looked for SLORC's legitimacy, but failed to find it.
On the contrary, by international and national criteria, SLORC
appears to lack any legal authority to govern.
 
In its report of October 31 1990, the prestigious
International Human Rights Law Group concluded that:
 
"1. Under international law, the People's Assembly and not the
State Law and Order Restoration Council ("SLORC") is the
legitimate repository of governmental authority in Myanmar.
 
    a. The Universal Declaration of human Rights provides      
       that the will of the people, as expressed in genuine
       elections, is the basis of legitimate governmental      
       authority in Myanmar.
 
     b. In genuine elections conducted on May 27 1990, the     
        people of Myanmar clearly expressed their will to be
        governed by a People's Assembly that would replace     
        SLORC after the election.
 
     c. The SLORC Government has never been authorized by a    
        genuine election, and is not based on the will of      
        the people.
 
     d. That other countries and international organizations   
        may accord recognition to Myanmar does not imply the   
        legitimacy of the SLORC regime.
 
 
"2.  The SLORC Government is unconstitutional and illegitimate 
     under the national law of Myanmar.
 
     a. National law does not grant SLORC the right to annul
        Myanmar's 1974 Constitution.
 
     b. The 1974 Constitution requires that the declaration    
        of a state of emergency and promulgation of martial    
        law be approved by the People's Assembly; SLORC is     
        operating without such authorization and therefore     
        without legal authority to govern.
 
     c. Under the constitutional law of Myanmar, SLORC has     
        no authority to prevent the People's Assembly from     
        convening and proceeding to establish a government.
     
"3.  The people of Myanmar were exercising their               
     internationally-recognized right to self-determination    
     when, on May 27 1990, they voted to emerge from military  
     rule and to form a democratic government. International   
     law forbids SLORC from engaging in any forcible actions   
     that deprive the people of Myanmar of their right to      
     self-determination."
 
 
But perhaps we should let SLORC have the last word on its
relationship with the law: "I would like to explain about this
martial law according to records that I have studied ...
martial law is neither more nor less than the will of the
general who commands the army; in fact, martial law means no
law at all." (Major General Khin Nyunt, Secretary-1 of the
State Law and Order Restoration Council and head of Military
Intelligence, 15 May 1991)
 
 
FOLD**
 
Now how about "fold"?  The image is of a safe enclosure,
beyond the reach of tigers, wolves and other enemies. There is
also the implied image of the protective shepherd. However, we
know that sheep are bred to be fleeced and eaten, and that the
shepherd's principal concern is rarely the long-term well-
being of the sheep. Indeed, some observers would consider that
these particular "shepherds" are poorly-disguised wolves, and
that the "fold" is a concentration camp. Anyone with any doubt
about the nature of the Burmese army has only to read "A
Swampful of Lillies" and "Dacoits Inc." published by Project
Maje. These books are studiously-researched and cross-
referenced lists of acts of killing, torture, rape, forced
relocation, forced labour and other massive human rights
violations carried out by the Burmese army over several years.
The concentration camp is not just a figure of speech:
villagers from all the border regions have been forced out of
their ancestral villages and herded into "strategic hamlets"
or "relocation camps" where they serve as a forced labour
pool, and the women as entertainment for the troops. 
 
 
CONCLUSION
 
"Return to the legal fold" must thus be considered an
Orwellian term for surrender to brute force. There is no
"return", since the groups never dwelled in a unitary State in
the first place; there is no legality whatsoever in SLORC's
regime; and the "fold" most resembles a concentration camp. 
 
 
                              NOTES
 
* The majority of the groups which have "returned to the legal
fold" by agreeing cease-fires with SLORC have done so under
pressure from neighbouring countries and in an attempt
(futile, according to human rights monitors) to save their
village people from further atrocities at the hands of SLORC.
The only groups which had a modicum of free choice in the
matter were the Wa and Kokang in 1989, who agreed not to fight
SLORC, in exchange for the generals' blessing on their
traditional economic activities, i.e. the opium and heroin
business.
 
In spite of SLORC's "invitations" there are still a half dozen
or so groups which have resisted the invitation and are
currently fighting SLORC, a situation which seem likely to
continue for several years to come. The existing "cease-fires"
are exceedingly precarious.
 
 
** The Burmese word translated as "fold" has different
associations from the English. The Burmese words for "return
to the legal fold" are "pyan-le win yauk chin u. padei baun";
literally,  "again enter the legal framework".
 
"Return" is a reasonable translation of the Burmese "pyan-le
win yauk chin" meaning "again-enter-arrive". It carries the
same implications as the English, of coming back following a
departure.
 
"u.padei" = law, enacted law, (common-) law [from Pali
"upadesa" = principle]
 
"baun" is a framework, (door or window) frame, bound, limit;
due or proper limit. It does not have the protective
associations of "fold".