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5/1/98:BURMA TRANSITION + RECOMMEND



Subject: 5/1/98:BURMA TRANSITION + RECOMMENDATION(INCLUDED)

REPOSTED 24-OCT-99, 9:00AM

[ADDED NOTE: This report had been posted to our lists quite sometimes
ago. But this time, the RECOMMENDATION Section has been added for all to
see. Unfortunately, SPDC/SLORC has consistently rejected over the year
the offer for reconciliations and measures further down the track has to
be made. More new measuers on SPDC/SLORC leadership, which recommended
to 54th Session of UNGA with my 15-October-1999 report will be posted
shortly. -- U Ne Oo.]
----------------------------------------------------------------
(X*X) RECOMMENDATIONS Section in 5/1/98 Paper on Transition

In case SPDC/SLORC accepts this proposal, the internaitonal community
may take the following measures:

(i) As a recognition of SPDC/SLORC making progress towards dialogue and
transfer of power, the European Union may allow Burma to participate in
EU-ASEAN talks;

(ii) The President of the United States of America may ease restriction
about United States Agencies cooperating with Burmese military in
illicit-drug eradication program;

(iii) The international community, including the business community,
have a certain role to play in the elected representatives reclaiming
and consolidating power. The international community can conduct with
Burma's interim administration in a way that enhances the legitimacy of
the democratically elected Lagislature [7]. The National League for
Democracy may creatively coordinate its activities with the
internaitonal community in this regard;

(iv) When the diplomats, especially from ASEAN countries, conduct
diplomatic affairs with Burma, they should show a greater tendency to
take into account the views of the elected Lagislature.

In case SPDC/SLORC rejects this proposal, the international community
can take the following measuers:

(i) The Government of Japan cancels its debt relief program to Burma,
worth about USD 17 million a year. Measuers should also be taken by the
Government of Japan to prevent Japanese private companies giving loans
to the Burmese military government (for example, last July, the Mitsui
company of japan give USD 150 million private loan to the Burmese
Government.);

(ii) The European Union should take a firm stand not to allow the
Burmese Government participating the EU-ASEAN talks;

(iii) According the the UN General Assembly's resolution 52/137 of 12
December 1997, the State Law and Order Restoration Council as well as
the new State Peace and Development Council are not legitimate
governments of Burma. Sustained attack on this point should be made by
international media, especially through the Burmese language radio
program of BBC, VOA, RFA and DVB;

(iv) The United Nationsl should prepare to expel the representative of
SPDC/SLORC at the UN and formally introduce the representative of
National League for Democracy in UN forums. A series of diplomatic
attacks should be made through the United Nations by the international
community;

(v) The United States, European Union Countries, Canada, Australia and
United Kingdom should give formal diplomatic recognition to the
representatives of the National League for Democracy in their own
countries;

(vi) The international ban on new investments should be introduced. The
possible revenue flows from the Yadana project, for example, should be
seized by the United Nations or Burma's creditors to recover the debt.
=====================================================================
Subject: 5/1/98:THE TRANSITIONAL PHASE AND PROSPECT FOR CHANGE
             IN BURMA
 Date:   Wed, 21 Apr 1999 05:07:45 +0930
 From:   Dr U Ne Oo <drunoo@xxxxxxxxxxxx>
/* Written Sat 17 Jan 11:00am 1998 by drunoo@xxxxxxxxxxxx in */
To: Our Friends on Internet
Date: 5 January 1998
**************************************************************

THE TRANSITIONAL PHASE AND PROSPECTS FOR CHANGE IN BURMA
********************************************************

I. A Proposal for Interim Administration in Burma
-------------------------------------------------
The current political climate in Burma suggests that the transition to
democracy will best be achieved by forming an interim administration
consisting of the representative-elects of the May 1990 election and the
ruling military authorities. A period of 2--3 years, for example, should
be considered as a transitional period before a complete transfer of
power to the democratically elected government of May 1990 can be made.
During this transitional period, the elected parliament of May 1990 may
operate as a form of {\ Legislature} and may focus its activities on (1)
writing a federal constitution with 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. Burma's ruling military authorities, the State
Peace and Development Council (SPDC/SLORC)[1] should retain the {\
Executive Power} in this transitional period. By separating and sharing
the governmental powers, the military  authorities and civilian
opposition will certainly overcome the current political impasse in
Burma and also lay a good ground for future democratic government[2].

/*--**--**--**--**--**--**--**--**--**--**--*/

Following is the proposed form of Burma's interim administration:

(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 a democratic federal
constitution, during the interim period;

(v) To achieve coordination between the Legislature and Executive, the
delegates of military authorities, such as the advisory group of
SPDC/SLORC (nb:there were unconfirmed reports of SPDC/SLORC dissolving
the advisory group soon after the formation of SPDC.), 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.

II. Forces of Change on the SPDC/SLORC
-------------------------------------
There are various factors contributing towards recent internal
structural changes of the ruling military junta. Following are believed
to be the pressures that forced the military in Burma to change:

(A) The recommendations by Human Rights Special Rapporteur which
subsequently endorsed by the United Nations General Assembly have
substantially contributed to the change.} The Special Rapporteur, in
particular, has highlighted the illegitimacy and non-constitutionality
of SLORC administration in his report (see A/52/484 recom.(e)) as:

        (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 no-retroactivity of penal laws should
        be respected in all circumstances;

The UN General Assembly endorsement of these recommendations implies
that SLORC can no longer remain as a `legitimate body' to make
laws(decrees) and to enforce these laws. The  announcement of the new
ruling body, the State Peace and Development Council, can be seen as
Burmese military authorities making a defensive move against this UN
General Assembly resolution. It is worth noting that SLORC changed its
name as SPDC on 15th November 1997, as soon as the Special Rapporteur's
recommendations were made public. (The Special Rapporteur's report was
made public on Internet on 14th November.) The internal division within
SLORC that led to calls for greater cohesion among ruling generals has
also been a contributing factor.

(B)Financial difficulties that the SLORC government is facing have also
been a significant factor.} According to a recent Economist Intelligence
Unit report(3rd quarter, August 1997), SLORC's foreign exchange reserve
was down to USD 117 million in May 1997. Because of the current
financial crisis in ASEAN region, SLORC has no prospect of securing
loans and grants from its neighbours. Inflation of local currency, {\
the Kyat}, and rising prices of basic commodities within Burma have also
been putting pressure on SLORC.

(C) SLORC illusion of political support from ASEAN countries has come to
an end.} Since 1993, SLORC in some way has been looking to ASEAN
countries for solidarity against the West. However, ASEAN's position on
Burma is becoming clearer since the July 1997 admission of Burma as its
member. Many ASEAN countries, privately and publicly, have expressed
concerns about the situation in Burma. The initiatives by Presidents
Fidel Ramos and Suharto are also making SLORC clear about the necessity
for change. The Australian government has also sent a special envoy to
express its views. The European Union is taking a particular stand
against the lack of dialogue and reconciliation in Burma. All of these
actions are adding up to exert psychological pressure upon SLORC,
leading to the recent internal change within the military junta.

(D) Mounting pressure on SLORC by the UN High Commissioner for Refugees
and the Commission on Human Rights about the situation of refugees in
Thailand has also been a significant factor.} Because of the recent
leadership change in Thailand, the Burmese military now has less reason
to hope for solving the refugee problem in Thailand by means of
``bilaterally arranged forced repatriations''.

III. Win-Win Solution to the Problem
------------------------------------
The UN General Assembly's resolution, 52/137, undoubtedly has created an
environment conducive to political negotiations in Burma. The resolution
enhances the legitimacy of the National League for Democracy for
negotiation. The current SPDC/SLORC position of avoiding negotiation
with NLD has also been weakened by this resolution.

SPDC/SLORC's principal interests are (1) to retain the current
(executive) position of government and (2) to receive some form of
international recognition: SPDC/SLORC particularly wishes to ease
tension with the United Nations. Apart from their greed for power,
Burmese military authorities, nevertheless are also wishing to
positively contribute to reconstruction and development of the country.
These facts can be considered as the primary basis in conducting
negotiation with SPDC/SLORC.
 
The National League for Democracy, on the other hand, is mandated to
administer a democratic government and to build a democratic society. It
specifically has the legitimate right to govern the country in
accordance with the result of May 1990 election. Only because the
military junta in Burma refuses to transfer state power, the elected
representatives are to carry out the next practical task of realising
the democratic rights of Burmese people step by step.  A balanced
position of realising the democratic rights of Burmese people and the
political reality should be considered.

A possible solution is to form a transitional administration with an
{\Executive Branch} from SPDC/SLORC and a {\ Legislature } of simplest
form from elected representatives. It should also be made clear,
especially to SPDC/SLORC, that such a transitional arrangement is done
by the authority of elected representatives. SPDC/SLORC must also be
made aware that the wellbeing of such a transitional administration
depends on the cooperation of both parties---the {\ Executive} and the
{\Legislature}.

IV. The Legislature: Structure, Operation and Authority
-------------------------------------------------------
{\ A Legislature} is an official rule-making body for a given political
system. In most democratic countries, the entire body of democratically
elected parliament, however, does not operate purely as a
{\Legislature}. The United States Congress, for example, also selects an
additional body, such as Senate, for legislative functions. 

{\ The Executive} is part of the governmental system which implements
decisions. In some democratic countries, e.g. UK and Australia, the
executive are recruited from Parliament. In some other democratic
systems, such as the United States of America, the executive are
appointed by the President. The Executive and the Legislature, according
to the separation of powers, must be separate bodies[5].

In Burma in this interim period, the elected parliament can function as
a simplest form of Legislature. Much smaller committees, consisting of
representative-elects, professionals from various civil services, the
deputies of ministers and, possibly, the advisory group from SPDC, may
be formed to function in drafting various laws. The elected
representatives should take charge of the duty to communicate these laws
and policy proposals to their own  constituent. The draft laws and
policy decisions should be approved/disapproved by parliamentary
majority vote. Following is not a complete list but possible areas on
which the legislative body can focus its actions:

(i) To repeal various laws (i.e. decrees and orders) by SLORC that
render violation of human rights legitimate; to promulgate laws that
safeguard human rights of citizens, such as legislations against
unacceptable forced labour, forced procurement etc;

(ii) To review and rewrite (to legalise) various business contracts
signed by companies (note: business contracts that are believed to be
directly linked with drug trafficking or money laundering should be left
untouched.);

(iii) To make legislation regarding allocation of government revenues,
and when the time is appropriate, to seek loans from IFI; to promote
policies and enact new laws, with the advice of competent agencies, that
may encourage investments and lay foundation for a sound economic
transition in the future;

(iv) The Legislature (elected parliament), in addition, must also write
a democratic federal constitution.

These measures are relatively simple in comparison to the activities of
modern democratic governments. However, it must be noted that the
Burmese population in general does not have much experience of democracy
and democratic government. Common practices in democratic societies,
such as public consultation on law-making and collective
decision-making, are to be exercised and must be made to become routine.
In other words, Burmese people must institutionalise democracy and
democratic practices. The above measures, therefore, are to be
considered as useful initiatives to gain momentum for future democratic
administrations.

V. Dialogue and drafting federal constitution
---------------------------------------------
Easing tensions between the military authorities and elected
representatives with regard to control over state power will likely lead
to a tripartite dialogue between ethnic nationalities, military
authorities and elected representatives. A democratic federal
constitution that is acceptable to all parties to the conflict should be
drafted at the National Convention. A few points remain, at this stage,
for a successful dialogue:

(A) One ethnic minority rebel group, Karen National Union, still needs
to enter cease-fire agreement with the Burmese military (note: the KNU
so far did not sign the cease-fire agreement because of the lack of
political dialogue in Burma);

(B) The group representing ethnic nationalities, National Democratic
Front, may wish to have a mediator or the presence of outside observers
during the drafting of the constitution[6];

(C) Ethnic nationalities as well as elected representatives need more
education about a federal system of government and how we may integrate
25 percent of military representatives into that federal system (my
personal preference is an Australian or American style federal system of
government. There are, however, many more types of federal system,
including quasi-federal systems, that we could choose from.).

VI. The Accountability of Executive
-----------------------------------
Since the Executive in the interim period will not be selected by the
Parliament, there is a potential for the Executive to become
unaccountable to the Parliament (Legislature). The Executive may, for
example, refuse to implement measures initiated by the Legislature. On
the other hand, disputes can occur between the Executive and Legislature
about the priority of issues. There is also the possibility of the
Executive (military authorities) trying to maintain its former
administrative structure, i.e. various levels of Law and Order
Restoration Council (LORC), and its civilian support base, the Union
Solidarity and Development Association. In order to avoid potential
conflicts, following facts may be useful:

(A) The importance of cooperation between the Executive (military
authorities) and Legislature (civilian opposition) in the operation of
interim administration must be given emphasis. The representatives of
ministers (the deputies, perhaps) should be allowed to participate in
the committees for drafting laws and to enable the Executive to
communicate with the Legislature;

(B) SLORC formed the civilian political wing, Union Solidarity
Development Association, because the Burmese military is anxious to
maintain its political role in the future. The allocation of 25 percent
for the military representatives in future parliament may ease such
anxiety;

(C) The conciliation at grassroots level may need extra efforts in order
to occur. The District, Township and Ward level of Law and Order
Restoration Councils (LORC) may, for example, resist the changes.

The roles of the democracy movement and international community will be
important to bring the Executive under control of the authority of
Legislature in the current situation.

VII. Enforcing Agreement:
------------------------
Roles of the Democracy Movement and International Community
-----------------------------------------------------------
Although there are some possibilities of SPDC/SLORC agreeing to the
interim proposal, the rejection by the military cannot be ruled out. On
the other hand, if the proposal is accepted by military authorities, the
Executive must in some ways be made accountable to the Legislature. In
both scenarios, the Burma democracy movement together with the
international community can pressure/enforce the the military
authorities to conform with the agreement.

(RECOMMENDATION X*X TOP OF THIS DOCUMENT)

VIII. Non-partisan Statement
----------------------------
Although it is somewhat superfluous, I should like to restate that the
advocacy activity that has been made here does not seek to represent in
favour of any particular political grouping. The suggestions here are
non-partisan in nature, and are made with the beliefs that proposed
action may bring peace and reconciliation to Burma---which is a vital
requirement for solving Burma's refugee problem.

Footnote
********
[1] Before its name change on 15th November 1997, it was known as the
State Law and Order Restoration Council (SLORC). Hereafter it will be
referred to as SPDC/SLORC.},

[2] In many democratic countries, the governmental power is separated
into three legal powers: (1) the rule-making power ({\ legislature}),
(2) the power to apply rules and policies ({\ executive}) and (3) the
power to try alleged offenders against these rules ({\ judiciary}).
These three powers are exercised, at least in theory, by three
independent bodies: {\ The Legislature, The Executive and The
Judiciary.}}.

[5]Though most democratic systems, in practice, do allow the executive
to give input to law-making; the concept of separation of executive and
legislative powers in these governments seems to be introduced by having
another legislative chamber within the system, such as Senate (USA,
Australia) or House of Lords (UK). In addition, there are other
check-and-balance mechanisms between the three powers, such as
constitutional courts (Supreme Court in USA, High Court in Australia),
in order to curb the excess of power of the executive.}.

[6] According to reports received, the National League for Democracy do
not wish to have mediator in negotiation with military authorities. The
ethnic freedom fighters, however, may wish to have some mediator and
observers on their part in dialogue (i.e. National Convention).};

-- 
HTTP://www.physics.adelaide.edu.au/~uneoo
EMAILS: drunoo@xxxxxxxxxxxx, uneoo@xxxxxxxxxxxxxxxxxxxxxxx
POSTMAIL: Dr U Ne Oo, 18 Shannon Place, Adelaide SA 5000, AUSTRALIA
[http://freeburma.org/[http://www.angelfire.com/al/homepageas/index.htm]
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