1/2)A PLAN FOR PEACEBUILDING AND TR

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Subject: 1/2)A PLAN FOR PEACEBUILDING AND TRANSITION TO DEMOCRACY

(Part 1 of 2)
A Plan for Peacebuilding And
Transition to Democracy in Burma

15 October 1998 By Dr U Ne Oo
 Adelaide, Australia

I. Introduction
***************
In the year 1997-98,  Burma observers can notice a significant decline
of moral and  political  support bases for the ruling military junta
who seized state power in Burma in 1988. Political legitimacy of the
ruling military junta, State Peace and Development Council
(SPDC/SLORC) formerly known as State Law and Order Restoration
Council[1], has considerably eroded mainly by the relentless efforts
of the  Commission on Human Rights and the UN General Assembly. The
National League for Democracy(NLD)is the main opposition party that
won  82 per cent majority vote in the May 1990 general elections.
During this year, NLD have managed to make significant political
development  towards the restoration of democracy and rule of law in
Burma, in spite of intensifying repression by military authorities. In
September  the NLD set up a committee with the mandate to represent
the people's parliament elected in May 1990.[2]

Along with these developments, there has been increase in political
tension between the military junta and the civilian opposition in
Burma. The Burmese military junta has intensied their repression of
the civilian opposition, causing a severe deterioration of human
rights in Burma. During this year the military junta has given no
commitment to solve Burma's long and protracted refugee problems.
Forced relocation and forced labour continue to occur throughout the
country.[3] There have also been reports of the massacre of villagers
in Shan State where the Burmese army is carrying out a
counter-insurgency campaign and the forced relocation of civilians.[4]
The military authorities have also launched a campaign to restrict the
movement of the elected representatives of the May 1990 election  to
prevent a parliament being convened. In June and July this year, Daw
Aung San Suu Kyi, the General Secretary of National League for
Democracy, was not allowed to travel freely to rural and regional
parts of the country. The arrests and intimidation of opposition party
supporters by the military junta have continue throughout the year.
During August and September, the military has detained more than 967
opposition party workers, including 203 elected members of Parliament.
At the time of preparing this report these opposition party members
are still being held in detention by the military authorities.[5]

The international community's efforts to initiate dialogue between the
ruling  military council and opposition have so far been unsuccessful.
The Burmese military junta has been refusing to accept the United
Nations' offer to mediate between disputing parties. In January 1998,
the UN Special Envoy, Mr Alvaro de Soto while on a mission to Rangoon,
was told  by military authorities not to interfere in the ``internal
matters" of Burma. In July and August the Burmese military authorities
refused to accept the visit of the personal emissary of the UN
Secretary-General, Ambassador Razali Ismail. The UN Special Rapporteur
for Human Rights in Myanmar, Judge Rajsoomer Lallah, has not been
allowed to visit Burma since his appointment in July 1996.

Despite Burmese military authorities refusal to negotiate with the
opposition party, this author continue to believe that, with the
concerted efforts of the United Nations and international community,
the military junta can be brought to the negotiating table.  Burma's
democratic forces need to adopt a strategy of expanding and
consolidating the democratic space while keeping the door open for
negotiation with the ruling military authorities. With this belief, a
political roadmap for the transition towards democracy is presented in
this paper. It has been proven that the Commission on Human Rights
together  with UN General Assembly and its resolutions can be a
guiding force for political developments in Burma. This paper presents
an assessment of the current political situation in Burma together
with the recommendations to the United Nations General Assembly  and
the international community.

II. Political Developments in 1997-98
*************************************
Sec.2.1. The 52nd Session of  UN General Assembly and
               the Renaming of SLORC

Since 1992,  the UN General Assembly each year has passed resolutions
regarding  the situation of human rights in Burma. Reflecting the
deteriorating human rights situation, as well as an eventual lack of
progress towards a democratic rule in Burma, these UNGA resolutions,
along with the Commission on Human Rights recommendations have
successively been strengthened to improve the situation. During the
52nd Session of UN General Assembly, the Commission on Human Rights,
with a view to promoting respect for proper rule of law and observance
of due process in Burma, in its interim report recommended that
"SLORC's orders and decrees should no longer be the basis of the law
in Burma".[6] This Commission on Human Rights recommendation,
subsequently endorsed by the 52nd session of UNGA,  has prompted
SLORC  to change  its name to SPDC on 15 November 1997.[7] This
resolution has undoubtedly enhanced the legitimacy of the National
League for Democracy in their efforts for negotiation with junta.[8]

2.2  A Roadmap for Transition to Democracy

Although the representatives elected in May 1990 general elections
have the right to form a government of Burma, this author believes the
elected representatives and ruling military authorities should firstly
form an interim administration in order to ensure a smooth transition
from military rule to democracy. It is suggested that during the
transitional period, SPDC/SLORC should retain the Executive Power. The
Parliament elected in May 1990 may operate as a Legislature and may
focus its activities on (1) writing a federal constitution with the
full participation of the entire population of Burma, especially of
the ethnic nationalities; (2)institutionalising democracy and
democratic practices within Burmese society and (3) promoting
appropriate economic and social policies for a future democratic
Burma. The proposed form of interim administration is outlined
below:[9]

(i) A period of 2-3 years should be considered as a transitional
period, and an interim administration should be formed;

(ii) The SPDC/SLORC Cabinet may retain the Executive Power, and the
current Chairman of SPDC/SLORC, General Than Shwe, may be allowed to
remain as the Head of State, in this interim period;\\

(iii) The elected parliament of May 1990 will operate as a Legislature
and the Central Executive Committee of National League for Democracy,
primarily, will run the Legislature;\\

(iv) Appropriate committees under the Legislature should be set up to
carry out various tasks, including the writing of democratic federal
constitution, during the interim period;\\

(v) To achieve coordination between the Legislature and Executive, the
delegates of military authorities may be included in various
committees of the Legislature;\\

(vi) By the end of the interim period, a referendum should be held to
approve the constitution. The decision should also be made by the
Executive and Legislature to hold by-elections to replace
missing/deceased/retired representatives. The transfer of power to the
elected representatives should be made at the end of the interim
period.}

Suggested also is that some constitutional arrangements be made to
ensure the participation of armed forces for a reasonable period
without compromising too much with the basic tenets of democratic
principles.

It need to be noted that the proposals for forming an interim
administration were put forward to SPDC/SLORC [10],  early this year.
It has become evident that the ruling military authorities will not
voluntarily engage in substantive dialogue with NLD, which warrants
more pressurs being exerted on the military junta. Never the less,
these proposals are to be considered as a basis framework for the
negotiation process in Burma.

To create an atmosphere that is conducive for dialogue,the
international community must enhance the legitimacy of the main
opposition party, the  National League for Democracy, and the
representatives-elects of the May 1990 election. Enhancing legitimacy
for democratic opposition will increase the leverage on the military
to enter negotiation in addition to improving the human rights
situation in Burma. It is also consistent with the resolutions made by
the United Nations General Assembly.

2.3  Efforts to Convene Parliament and  The Committee Representing
People's Parliament Elected by the 1990 Democratic General
Election(CRPP)

It is a customary in Burma that a Parliament must be convened within
90 days after the general elections. Clearly, it is long overdue to
convene a parliament since the general elections were held in May
1990. It has been reported that, as early as in March 1996 the
National League for Democracy requested the military authorities in
Burma to convene a parliament. As the military authorities repeatedly
ignored these requests, the elected representatives are duty-bound to
successfully convene a People's Parliament according to the wishes and
aspiration of the people of Burma. Therefore, on 23 June 1998, the
Chairman of National League for Democracy, U Aung Shwe, notified the
military authorities to convene a Parliament before 21 August 1998. As
the Parliament was not convened and no initiatives were made to
discuss the matter by the military authorities, the Central Executive
Committee of NLD  decided to form a representative committee, the
Committee Representing People's Parliament Elected in May 1990 General
Election (CRPP), while the majority of elected representatives under
detention. The CRPP  has been authorised to act on behalf of the
Parliament by the majority of elected representatives.[11]

III. The Mandate of the Elected Representatives
***********************************************
Prior to holding the general elections in May 1990, the military
authorities, who assumed state power in 1988,had repeatedly given
assurances that they will transfer all governmental power to the
elected representatives after the election. Given the absence of a
constitution, the military authorities suggested a constitution may
have to be drawn-up or amended by the Parliament after the general
election.[12] Therefore, the Burmese people elected their
representatives in the  May 1990 elections with the expectation that
these representatives will form a government. The way in which the
Burmese military authorities continue to assume all state power after
the general election is well known to the international community.[13]
Some points of contention that surround  the transfer of power in
Burma are presented here.

3.1. Legal and juridicial continuity of administration: On 5 July
1989, the late Chairman of State  Law and Order Restoration Council
stated in public, " ... (although) as we (Burmese army) assume state
power, it would  not be the case that we do just what we want. We
shall  present to the parliament that we have done things in
accordance with the law and due process..." }[14] Therefore, the
elected parliament, when it comes  into force, is expected to review
and revise, as necessary,  all laws, orders and decrees that were
promulgated by the SLORC.

3.2.Regarding the Constitution of Burma: On 5 July 1989, the late
Chairman of SLORC also stated publicly,"... We shall transfer power
lawfully. If [the political parties] can form a government with
majority vote, we shall agree to transfer power. If [the political
parties] wish to draw up a constitution, they may do so. ....We will
have no objection......Which constitution will [the political parties]
adopt ? If there is a country there must be a constitution. Which one
shall [the political parties] recognize ? Will they make amendment to
the constitution ? These are the matters of which political parties
should decide...."}. The Secretary-1 of SLORC also clarified the role
of the Council in its 104th Press Conference as,``The State Law and
Order  Restoration Council has no intention of giving any directions
regarding the process of writing a constitution. That will be the task
of the  people's representatives to decide in parliament."}.[15] It is
therefore clear that the elected representatives of May 1990 are
expected to take charge of the framing of the Burmese constitution.

3.3. The term of the parliament and next election: Although  eight
years has elapsed since the general elections in Burma were held, the
conventional four year mandate of the parliament could not begin until
therepresentatives elected in May 1990 are seated and bestowed with
power.[16] It would also appear that the authorities have suggested
thatthe timing of the next election should be decided by the elected
government. The State Law and Order Restoration Council stated in
their publications  as  "When the next government is formed, the
position of political parties and matters relating to the election
will be as decided by the government."[17] Therefore, the elected
government is expected to set the term of parliament and the date of
the next election.

IV. Protecting Human Rights and
    Role of Democratic Institutions

Observations have shown that the major violations of human rights in
Burma, such as forced labour and forced relocation, are inflicted upon
the population in a large scale and pervasive manner. These major
violations are complex innature and linked to the fundamental lack of
democratic institutions in Burma as well as the military authorities'
disrespect for rule of law and due processes. These violations can
only be remedied by empowering the elected representatives and
strengthening the democratic institutions. Forced labour, for
instance, has taken place throughout the country in a widescale and
pervasive manner, as has been reported in the recent ILO report on
Burma.[18] Forced relocations, one of the root causes for the internal
displacement as well as the flight of refugees, have also occured
widely in Burma. In these cases, the protection to the population can
only be given by legislative measures.[19] The Special Rapporteur in
his report (E/CN.4/1997/64) on 6 February 1997 also also stated:[20]

    ".... observes that the absence of respect
    for the rights pertaining to democratic
    governance is at the root of all the major
    violations of human rights in Myanmar in
    so far as this absence implies a structure
    of power which is autocratic and accountable
    only to itself, thus inherently resting on
    the denial and repression of fundamental
    rights. The Special Rapporteur concludes
    that genuine and enduring improvements in
    the situation of human rights in Myanmar
    cannot be attained without respect for
    the rights pertaining to democratic
    governance...."

Therefore the strengthening of the democratic institutions and
empowering of the democratic legislature of May 1990 on the above
matters will help improve human rights in Burma. As the initiatives
to convene parliament have been made by the elected representatives,
and the CRPP has been formed, it is now possible for the UN General
Assembly and the international community to confer legitimacy to those

elected representatives.

Majority support for the opposition party NLD does not automatically
lead to the NLD gaining governmental power. In much the same way,
promulgation of a law by the parliament will not necessarily lead to
the observance of that law by all political actors in Burma. Having a
democratic institution, such as parliament, to promulgate appropriate
legislation to protect these human rights abuses is only the first
step. To  translate these laws into the protection of the Burmese
public will require external support. The effectiveness of such
protection will also depend on factors, such as the strength of
democratic institutions and political space available. In this
respect, international support in the form of peacekeeping and human
rights monitoring will be most valuable.

END OF PART 1 OF 2.
FOOTNOTES:
**********
[1] Hereafter will be refarred to as SPDC/SLORC.

[2] Appendix II: Committee Representing the
People's Parliament Elected by the 1990 Multiparty
Democratic General Elections, Statement No(1)
17 September 1998.

[3] International Labour Organization, "Report of the
Commission of Inquiry to examine the observance by
Myanmar of the Forced Labour Convention, 1930(No.29),
2 July 1998.

[4] Amnesty International, "Myanmar:Atrocities in the
Shan State", AI Index: ASA 16/05/98, 15 April 1998.

[5] National League for Democracy, Press release
No 82(10/98), 3 October 1998.

[6] Special Rapporteur for Human Rights, Interm
Report to 52nd UN General Assembly, A/52/484,
16 October 1997. Recommendation (e):
"Constitutionality and the rule of law should
be re-established, and SLORC orders and decrees
should no longer be the basis of law. All laws
rendering violations of human rights legitimate
should be repealed immediately, and all laws
should be given due publicity. The principle of
non-retroactivity of penal laws should be
respected in all circumstances;

[7] Appendix III: Transitional Phase and Prospect
for Change in Burma, 5 January 1998.

[8] Enhancing legitimacy for civilian opposition
NLD is known by the conflict resolution researchers
as "creating problem solving space". See Dr Mikio
Oishi,"Nonviolent Sturggel fo the Burmese people
for Democracy", IPRA Conference- South Africa,
23 June 1998.

[9] Appendix III: Transitional Phase and Prospects
for Change in Burma, 5 January 1998.

[10]<http://www.physics.adelaide.edu.au/~uneoo>
28/07/98: Letters to Senior General Than Shwe on
28th and 15th of July 1998.

[11] Appendix I: Committee Representing People's
Parliament, Notification No(1), 17 September 1998.

[12] National League for Democracy, Press release
No 52(9/98), 11 September 1998.

[13] Special Rapporteur for Human Rights in Burma,
A/51/466, 8 October 1996, Paras 21-33.

[14] National League for Democracy, Press release
No 52(9/98), 11 September 1998.

[15] National League for Democracy, Press release
No 52(9/98), 11 September 1998.

[16] J.M. Diller, "The National Convention, Lessons
from the past and Steps to the Future", International
Human Rights Law Group, Burma Debate Oct/Nov 1994.

[17] National League for Democracy, Press release
No 52(9/98), 11 September 1998.

[18]International Labour Organization, Inquiry on
Myanmar, 2 July 1998: Para.528.
"There is abundant evidence before the commission
showing the pervasive use of forced labour imposed
on the civilian population throughout Myanmar by
the authorities and the military for portering,
the construftion, maintenance and servicing of
military camps, other work in support of the
military, work on agriculture, logging and other
production projects undertaken by the authorities
of the military, sometimes for the profit of
private individuals, the construction and
maintenance of roads, railways and bridges, other
infrastructure work and a range of other tasks,
none of which comes under any of the exceptions
listed in Article 2(2) of the Convention.

[19]<http://www.physics.adelaide.edu.au/~uneoo>
"28/10/96: Towards Political Solution to the
Burma's Refugee Problem", 1 October 1996.

[20] See also concluding observations in the
report by ILO Commission of Inquiry on forced
labour in Myanmar, Paras.541-543, 2 July 1998.

/END OF PART 1 OF 2.
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