THE WILL OF THE PEOPLE; HUMAN RIGHTS AND CONSTITUTION MAKING IN BURMA

by Janelle M. Diller

Legal Director International Human Rights Law Group

December 14, 1991 Oxford, England

We find ourselves in an era of accelerated change. Many nations around the world, including Mongolia, Nepal and the countries of Eastern Europe, are thrusting themselves into the process of democratization and democratic constitution-making. Such momentum persists even though, in many cases, democracy has not been a part of the political, social, economic or legal infrastructures of the changing countries. Yet in Burma[1], nearly one and a half years after the peaceful election of a People's Assembly, the people of Burma continue to be governed by the ruling military State Law and Order Restoration Council ("SLORC"). The awarding of the Nobel Peace Prize to Aung San Suu Kyi this week has helped dispel the prevailing complacency in the international arena with regard to the current situation in Burma.[2] However, just and equitable governance continues to evade the people of Burma.

Into the SLORC-controlled environment in which an electoral mandate continues to be withheld and reports of human rights abuses appear with disturbing frequency, the SLORC has announced a plan for arriving at a national consensus which will pave the way for a new constitution to be drafted. How can the Burmese people exercise such a supreme act of popular sovereignty under these conditions? And what international legal standards govern the constitution-making process and its result?

Let me briefly review events leading up to the present scenario in order to provide insight into the complexities involved in the establishment of a constitutional culture in Burma. The term 'constitutional culture’ here refers to the capacity of political, social and legal infrastructures to cultivate and practice a respect for some sort of supreme law of the land that governs both rulers and governed. Such a culture nurtures both individual and institutional respect for the rule of law.

A. Historic Perspective

From the start of modern Burma, the underpinnings of a constitutional culture appear starkly absent. Modern Burma has been plagued by the recurrence of political turmoil. Much of the upheaval has been spawned by popular movements largely led by Burman[3] students and by ethnic nationalist movements. In the name of security and law and order, the Burmese military has not hesitated to sweep aside constitutional norms and inject itself into a governing extra-constitutional role.

The constitutions of Burma have played a tragically narrow role in the history of modern Burma. Upon independence from Britain in 1948, an election for a constituent assembly was provided for in the 'Aung San-Attlee Agreement' concluded between Burma's famous independence hero and the British Prime Minister. The Assembly was to draw up a new constitution after its election in April of 1947.

The ethnic nationalist movements played a decisive role in the constitution-making process on the eve of independence. To address the concerns of ethnic communities, the Panglong Conference was called in February 1947.[4] The Panglong Agreement laid the foundation for the Union of Burma. Under that agreement, the Shans, Kachins and Chins agreed to cooperate with the interim Burmese Government in framing the constitution on the condition that they receive full autonomy in internal administration and enjoy all the rights and privileges "regarded as fundamental in democratic countries."[5] The Kachins agreed to have the question of an autonomous Kachin state considered further by the constituent assembly.

The 1947 constituent assembly was selected in countrywide elections. The 255 seats were filled by representatives from various parties, including the racial parties of the Karens, Kachins, Chins, Shans, and Karennis. In September 1947, the assembly finally adopted the constitution.

The 1947 constitution formed a multi-party, bicameral parliamentary democracy. In recognition of Burma's disparate ethnic nationalities, the 1947 Constitution gave ethnic states a right to secede from the Union of Burma 10 years after independence, but it nevertheless emphasized a single centralized government of the Union of Burma. The document contained guarantees for the democratic rights of all citizens, irrespective of race, birth, religion and sex. Heavily influenced by socialism, the constitution also established a welfare state providing individual rights to education, employment, health care, and support for the aged. Aung San, the leader of independence, never saw the country's new constitution; he had been assassinated two months before its promulgation by a political rival.

Despite the determination to be a united country, Burma was plagued by ethnic and communist insurrections in the late 1940s and early 1950s. Under the leadership of Prime Minister U Nu from 1948 to 1958, the government asserted authority over the insurgent controlled countryside outside Rangoon. Nonetheless, U Nu's efforts to strengthen the unity of Burma through a combination of Buddhist, Socialist and democratic ideologies and programs were constantly undercut by the economic deterioration of the country in the 1950s. For a brief period between 1958 and 1960, in an atmosphere of political instability, U Nu proposed that a caretaker government rule temporarily. The Prime Ministership was assumed by General Ne Win, Armed Forces Commander, until elections for a new civilian government restored U Nu to power.

U Nu's brief second tenure was riddled with economic instability and internal political division. In March 1962, upon U Nu's announcement that all foreign trade would be nationalized, the military intervened and General Ne Win seized power. Since 1962, Burma has been a repressed country cut off from the rest of the world. Ne Win introduced a policy of extreme isolationism and expanded the policy of non-alignment. He rejected investments by Western and other foreign governments, and nationalized industry, banks, the import/export trade and retail businesses. In the course of his harsh military reign, the economy collapsed. Once the 'rice bowl of Asia,' Burma became a United Nations 'Least Developed Country' in 1987. Ne Win controlled and oppressed the Burmese people through fear, disappearances, murders, arrests and torture. Political demonstrations were met with immediate deadly force by military troops.

In 1974, during Ne Win's rule, a new constitution was promulgated ('1974 Constitution') creating the Socialist Republic of the Union of Burma. The 1974 constitution created a single-party unitary state with a unicameral legislature controlled by a singular Council of State. The military-supported political party, the Burma Socialist Program Party (BSPP), became the official party of Ne Win's government. The Pyithu Hluttaw (Peoples' Assembly), a unicameral body, was brought into being to govern affairs of state. However, real power was centered in the Council of State, a small group of Pyithu Hluttaw representatives. Ne Win was chosen by the Council as its chairman and thereby became the first President of the New Socialist Republic under the new constitution. Despite Ne Win resigning from his position in the military in 1974 and becoming a civilian, the military continued to play a dominant role in the political scene.

While ostensibly guaranteeing the rights and freedoms of individual citizens, the 1974 Constitution set so many qualifications on those guarantees that they were in effect nullified by the state. The 1974 Constitution, unlike its 1947 predecessor, did not acknowledge ethnic distinctions between the Burmese people and instead characterized the population as homogeneous. This caused yet more consternation and bitterness among Burma's ethnic minorities with the situation reaching dangerous proportions.

The 1974 Constitution was adopted in a national referendum that same year. Later in 1974 the government held an election in which only BSPP candidates were allowed to run. Similar elections followed in 1978, 1981, and 1985. Fraud and other irregularities reportedly marked the administration of the 1974 constitutional referendum and the elections during the Ne Win period. Reliable reports indicate that ballots cast into the ballot box for votes against the proposed constitution or the sole candidate were routinely transferred by election administrators into the ballot box supporting the constitution or proposed candidate.[6]

In 1988, long suppressed political and economic tensions led to large, mostly non-violent demonstrations that resulted in the resignation of Ne Win and emergence of two successive replacement* within a period of two months. As demonstrators continued to call for democracy, Ne Win's secret police kept account of the identity of those involved. Then, on September 18, 1988, General Saw Maung, Defence Minister and Army Chief of Staff, announced on the state radio that the military had taken over and the SLORC would run the country until order had been restored. Soon afterward, the newly established SLORC government dissolved the Pyithu Hluttaw. the Council of State, and other organs of power under the 1974 Constitution and declared martial law.

Brutal suppression by the military government ensued which left thousands of people dead. Many other activists fled the country for fear of reprisals and most of those who chose to remain are being held as political prisoners. The military regime of SLORC has since been running a government which, by their own terms, is extra-constitutional and outside the law.[7]

However, the SLORC agreed to hold general elections on May 27, 1990. Despite the government's attempts to control the election results by, inter alia, imposing severe restrictions on political campaigning, the National League for Democracy (NLD), under the leadership of Aung San Suu Kyi, won 392 of the 485 seats in the Assembly. In blatant disregard for these results, the military regime, led by General Saw Maung, has refused to relinquish power to this duly elected new government. Instead the repression continues and worsens, unchecked.[8]

Though Gen. Saw Maung is the nominal head of state under SLORC, no one doubts that Ne Win still wields considerable power. SLORC continues to hold the people in its grip. Almost all members of the NLD, including Aung San Suu Kyi, remain in detention—either jailed or under house arrest. Confirmed reports indicate frequent use of torture in detention; some have died in jail. Some political prisoners are tried summarily before military tribunals and have received harsh sentences, including hard labor, which, in some cases, have been arbitrarily increased or doubled later. Secondary schools and universities which had been closed for extended periods of time have been reopened only on the condition that they will not become politically active. Especially in the ethnic states, people are kidnapped by the military and used as human mine sweepers and porters; many subjected to this treatment die of exhaustion or starvation.

All forms of communication, including domestic and foreign books and periodicals, stage plays, movies, and musical recordings, are subject to governmental control and censorship. All previously existing newspapers have disappeared, except for the government run Working People’s Daily published in Burmese and English which is now the only daily newspaper in Burma.

The slump in Burma's economy has induced SLORC to solicit foreign investment into the country in order to fund its expensive war against the Burmans and the ethnic minorities. It is selling its vast resources of oil, fish, teak, opium, tin, and gems in order to purchase arms in the world market.

The traditional respect and veneration for Buddhism that led to the independence slogan 'to be Burmese is to be Buddhist' is being rebuked by SLORC. Induced by the active role Buddhist monks have played in the call for democracy since 1988, SLORC has responded by discrediting the monastic order, forcing many monks to disrobe[9] and closing monasteries. Three hundred monks have reportedly joined other dissidents at the Thai-Burma border and have organized themselves into the All Burma Young Monks Union (ABYMU),[10] In September 1990, in response to a non-violent protest by monks in Mandalay who refused to participate in religious rituals for senior military personnel, SLORC again responded swiftly by replacing senior monks in those monasteries which remain open with others more sympathetic to SLORC.

All this paints a very grim picture indeed. Despite the solid foundation provided by the 1947 Constitution, that constitution could not address the non-constitutional realities of economic and political life in Burma. Constitutional safeguards entrenched in a culture of constitutionalism which would have prevented the emergence of military regimes like that of Ne Win were weak if not lacking. The subsequent 1974 Constitution proved to be merely an instrument used by Ne Win's government to remain in power. That constitution not only lacked democratic ideals but it failed to recognize fully the different ethnic minorities in Burma, thus perpetuating the central government's failure to respect the principles agreed upon at the Panglong Conference. SLORC's extraconstitutional usurpation of power followed by suspension of constitutional governance has further destroyed the foundation necessary for building stable political and legal infrastructures rooted in a constitutional culture.

B. SLORC's Directives for Constitution-Making

Despite the fact that its very existence challenges respect for constitutional rule of law, SLORC has created a plan for making a new constitution in the constitutional vacuum it has created. On October 4, 1991, in an address by Foreign Minister U Ohn Gyaw to

the U.N. General Assembly. SLORC revealed plainly what it had been intimating since the May 1990 elections: SLORC intends to direct a constitution-making process and govern the country until a new government is established, perhaps elected, under a new constitution which meets SLORC's approval. U Ohn Gyaw announced that, after the final report of the Election Commission was accepted by SLORC,[11] SLORC would call a national convention to be attended by elected representatives (from the May 1990 elections), political party leaders, leaders and representatives of "national races" and "respected veteran politicians". Based upon the consensus arrived in the convention, the elected representatives will then draft a new constitution for the country with "all necessary assistance" and "suggestions" from the SLORC "in the best traditions of the Myanmar Defence Services". SLORC will continue to govern the country until "a strong and stable government" is formed in accordance with the new constitution.

As to the fundamental issue of whether the people of Burma want a new constitution at this time, SLORC unilaterally announced on July 27, 1990 in Declaration 1/90 that "[i]t can be seen that the wish of the majority of political parties that contested in the multiparty democratic general elections is to draw up a new constitution."[12] In his October 4, 1991 speech, U Ohn Gyaw stated that "all political parties have agreed to abide by" the post-election program set forth in SLORC's Declaration 1/90. Neither SLORC statement was accompanied by any supporting evidence or explanation.

Another fundamental issue—whether the representatives elected in the May 1990 elections have governing authority— appears to now be foreclosed. The Election Law, promulgated May 31, 1989, did not explicitly state what authority elected representatives would exercise. Its title, "Pyithu Hluttaw Election Law,"[13] implied that the electorate was voting for the legislature known in Burmese as the Pyithu Hluttaw_, a People's Assembly provided in the 1974 Constitution. Under the 1974 Constitution, the Pyithu Hluttaw was the highest organ of state power, vested with sole legislative

powers and exercising the sovereign powers of the State on behalf of the people.[14] From June 1989 on, certain high ranking SLORC officials had intimated that the representatives elected would not form the Pyithu Hluttaw but rather a new constituent assembly responsible for the drafting of a new constitution, and SLORC would not surrender its power until the new constitution had been adopted.[15] It now appears from SLORC's October 4, 1991 speech that the elected representatives will merely play a role, among other "representatives," "veteran politicians" and "leaders", in defining a national consensus. Following that, the representatives will "draft" the new constitution subject to SLORC's "suggestions" and "necessary assistance".

Several SLORC statements issued in August 1991 provide a basis to speculate on what form of consensus will emerge from the national convention and what sort of constitution SLORC wishes to see. The statements focus on how to provide for the "autonomy" which SLORC unilaterally states "the majority of indigenous racial groups want".[16] Arguing that only autonomy for racial groups will avoid serious racial unrest in the future, SLORC proposed a "three-step-unity" to maintain ethnic harmony: "unity within unity within unity."

Although the meaning of "unity within unity within unity" is not clear, SLORC appears to contemplate a form of autonomy[17] for racial groups by creation of a theoretically decentralized unitary constitutional system.[18] Under the 1974 Constitution, the country was divided into four administrative levels: the central State, states or divisions, townships, and village-tracts or wards, respectively.[19] A recent SLORC article posited the need for an intermediate level between township and states or divisions, called a township zone or district.[20] The need was justified on the ground that an ethnic group could be better represented if township zones were created to reflect the territorial location of the group's population, rather than the current situation with many townships in one state or division. Despite the explicit justification of enhanced representation, the article announced that "the central government should directly supervise the township or district administrative bodies to which the rights and powers of former divisional-level organizations have been transferred" because "the principle of autonomy for the indigenous races may be weak in practice in states and division where there are many indigenous groups."[21]

In sum, it appears that SLORC's control of the national convention and constitutional drafting process will involve substantive directives of how a constitutional system should be created. SLORC has also made clear that it will not tolerate what it considers elements threatening to the nationalistic spirit, a statement which sounds much like the justifications SLORC has used to detain political dissidents. As stated by a military official on August 7, 1991:

It is of great importance for weak multi-racial countries like ors [sic] , that are situated between the super powers, to defend themselves from any foreign interference and influence. Therefore, safeguards must betaken to exclude people who might have foreign influence, have less patriotic spirit, and lack any idea of preserving national dignity, from any influencial [sic] positions that can determine the destiny of the country.[22]

The manner in which SLORC's constitution making process and related guidelines measure up to relevant international standards follows a discussion of those standards. The claim that international standards do not apply because constitution making is a matter of internal sovereignty is no longer acceptable. Constitution making as a process and constitutional norms as a result in large part reflect customary norms binding on all nations that fail to object to the norm as it emerges. Moreover, under international law, domestic law—including constitutional law—cannot excuse violations of treaty obligations.[23]

C. Principles of Representative Constitution Making

Essential elements of constitutionalism at this time—the end of the 20th century—include popular sovereignty, democracy, limited government, and non-derogability of the constitution itself, even in war or emergency.[24] Following an examination of these elements, we will see that SLORC's controlled constitution making process bears no legitimacy to genuine constitution making.

The notion of popular sovereignty is rooted in the premise that the ultimate source of authority of government is the will of the people. This fundamental right is expressed clearly in Article 21 of the Universal Declaration of Human Rights:[25]

The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

The right to such government, and the right to take part in the conduct of public affairs, are further recognized in Article 25 of the International Covenant on Civil and Political Rights[26], to which Myanmar is not a party. However, recent U.N. action has made explicit the application of this right to Burma in a U.N. General Assembly resolution recently passed. That resolution states in part:[27]

The General Assembly,

Reaffirming that all Member States have an obligation to promote and protect human rights and fundamental freedoms stated in the Charter of the United Nations and elaborated in the Universal Declaration of Human Rights and the International Covenants on Human Rights and other applicable human rights instruments,

Aware that, in accordance with the Charter, the Organization promotes and encourages respect for human rights and fundamental freedoms for all and that the Universal Declaration of Human Rights states that "the will of the people shall be the basis of the authority of government" . . .

3. Urges the Government of Myanmar to allow all citizens to participate freely in the political process in accordance with the principles of the Universal Declaration of Human Rights . . .

The principle of popular sovereignty dates much farther back than 20th century U.N. pronouncements. The 1789 French Declaration of the Rights of Man and the Citizen recognized that sovereignty lay in the nation, not the Crown.[28] Moreover, the Buddhist legal tradition established in pre-colonial Burma, provided to some extent that legitimate government and lawmaking authority was based upon principles of democracy and the consent of the governed.[29]Under Buddhist law, known as dhamma, individual legal disputes were resolved by majority or consensus of a jury of elders of the community.[30] Furthermore, the first recorded king in Burma was called Mahasammata, which means "chosen by the people".[31] Under dhamma, a ruler attains legitimacy after being crowned in a ceremony at which large numbers of subjects representing various classes of society acclaim the ruler's legitimacy.[32]

Along with popular sovereignty as the source of ultimate authority and legitimate government, democracy provides another key element to current genuine constitution making.[33] At the root of democracy is the authentic representation of every citizen in society equally. The notions of universal suffrage and periodic accountability, intrinsic to democracy, are set forth above. Democracy also implies a system in which those vested with government power, particularly law enforcement officials, are subject to the rule of law.[34] In addition, democracy requires civilian control of the military and respect for individual rights.

The principle of limited government emanates from that of popular sovereignty and democracy. The government has only that power given it by the people. Devices to prevent overreaching of power include systems for separation of powers and such checks and balances as ombudsmen. The mechanisms are merely a practical means of enforcement but are not themselves required for a genuine constitution making process.

Finally, the non-derogability of the constitution itself is an absolute norm in a constitutional culture. Although certain rights within the constitution may be abrogated if so provided within the constitution and in keeping with universally-recognized principles,[35] the constitution itself should never be suspended, not even in case of war or emergency. Likewise, the functioning of fundamental organs of government such as the legislature and the courts, ought never to be suspended.

The preceding principles establish that, for a constitution to be legitimate, it must be drafted in some form that includes participation by the people—by a representative body or a representative process, including receiving the ultimate approval of the people.[36] The modality for constitution-making may very well determine the substantive constitutional system[37] and is therefore a significant choice. Although constitutional practice has included the use of expert commissions and direct parliamentary enactments, the culmination of constitution thinking in the Age of Enlightenment is the use of a constituent assembly.[38] A constituent assembly elected by a direct popular vote obviously has a direct political mandate and therefore a compelling claim to political and constitutional legitimation.

D. SLORC's Violation of Genuine Constitution Making Process

The requirement of a process in which the people or their representatives freely express their will regarding a new constitution is conspicuously absent from the current process SLORC has announced for Burma. Indeed, the very first requirement is missing: the people did not knowingly elect a constituent assembly but more likely intended to elect a governing Pyithu Hluttaw. That

People's Assembly itself, upon convening, would chart the constitutional and political course of the country, including the decision whether, when and how to draft a new constitution.

SLORC's unilateral announcement in Declaration 1/90 (quoted above) that the majority of political parties wish to have a new constitution carries no convincing authority. The SLORC Foreign Minister's recent statement that "all political parties have agreed to abide by" the post-election program in Declaration 1/90 appears specious in light of the elected parliamentarians' efforts since mid-1990 to convene the assembly and the forming of a provisional government by some elected members in December 1990.

Even were the elected representatives to convene as a constituent assembly rather than a governing body, the assembly would be incomplete due to the sharply increasing number of detentions of duly elected representatives on political grounds.[39]There are already at least 64 representatives who have been arrested; many have been summarily tried and given harsh sentences, in some cases, had their sentences doubled or increased since last July. Five parliamentarians have reportedly died in prison. SLORC's August 7, 1991 announcement against those who lack any idea of preserving national unity or have less patriotic spirit illustrates the vague and subjective basis upon which SLORC could continue to obstruct the gathering of a full constituent assembly with the diversity of thought among its members representative of their constituents.

The very presence of SLORC is abhorrent to a genuine constitution making process and the growth of a constitutional culture. SLORC has declared itself to be above the law, suspended the constitution, and instituted martial law.[40] It thus exists and governs in contradiction to all the essential elements of genuine constitution making: popular sovereignty, democracy including civilian control of military, limited government, and absolute non-derogability of the constitution.

Moreover, despite its claims of being apolitical, SLORC would inject an overreaching bias into procedures that should reflect the will of the people. SLORC would also surely implement safeguards to ensure the continuance of the military in a dominant role in the political future of Burma. SLORC repeatedly justifies its presence by stating concern over the resolution of the claims of ethnic groups. However, the ethnic groups already have some degree of representation in the Assembly by virtue of the representatives of ethnic political parties in the People's Assembly.[41] The appropriate mechanism for resolving such disputes consists of permitting the People's Assembly to decide, upon convening, whether a constitution is the best means to address the question and if so, what sort of commission or other method could best be used to reach a social consensus surpassing the scope and effect of the Panglong Agreement. Following a consensus reached freely, the peoples of Burma could then freely chart a constitutional course accordingly.

E. Charting The Constitutional Course: Some Suggestions

International legal standards and an analysis of Burma's previous constitutions as well as constitutions of other countries provide guidelines for pinpointing the important composites of a constitution that will endure. Any new constitution should be the supreme law of the land, expressly affirming the sovereignty of the people. The legislature should be structured so that it is responsive to the majority population but also representative of Burma's various minority groups.[42] The legislative and executive branches of government could be interdependent with a series of checks and balances in force, mutually disallowing a monopoly of governmental authority. The emergency powers of the government should be carefully defined and constrained to preserve respect for human rights. The judiciary should be independent of the other organs of government and possess the authority to determine the constitutionality of executive or legislative acts and to safeguard human rights.

In keeping with international standards, a new constitution must also provide guarantees of political participation through provisions concerning citizenship, voting rights, and freedom of association, including political parties. Affirmation of fundamental rights such as freedom of expression, religion and language should be included. The scope of any governmental restriction should be narrowly framed and in keeping with international principles. Constitutional rights should be applied without discrimination on the basis of race, religion, sex, language, political or other opinion, property, national or social origin, birth or other status. Finally, detention, punishment and other deprivations of fundamental rights should be permitted only by means of a fair legal process. Certain other rights, such as the right to be free from torture or cruel, inhuman or degrading treatment or punishment, are non-derogable, even in emergency or war.

If these critical components are included in a new constitution for Burma, a foundation would be laid for resurgence of the rule of law and human rights in a country besieged with political turbulence for all too long. Admittedly, neither the invocation of international norms nor reference to constitutional practice can ensure the development of a constitution suited to the realities of Burma. Nevertheless, principles of international law and practice of other countries could provide a framework within \_ which to construct a constitution that respects the heritage and reflects the will of all the peoples of Burma. For a 'constitutional culture' to flourish, it must be derived from such principles within a constitution. Freedom of expression, including criticism of government, is essential to the cultivation of that respect for the supreme rule of law.

F. Conclusion

Rather than an exercise in constitutional law, this presentation is intended as an effort to urge those who have the power to act to increase pressure on the SLORC Government to step aside and allow those with the people's mandate to chart the future course of the country. With such action, we may yet see a transition to democracy and the birth of a new constitution which would cherish and protect the principles mentioned above.

The U.N. has taken steps in the right direction. Independent experts were appointed in 1990 and 1991 by the Commission on Human Rights to investigate human rights abuses in Burma. Disappointingly, SLORC gave little support to the experts. Last month's approval of the Swedish sponsored resolution at the General Assembly Third Committee noted earlier marked the first time that such a resolution was adopted in the U.N. by consensus. The event reflects the worldwide concern over the situation in Burma.

The prestigious Norwegian Nobel Peace Prize has helped greatly. Several Association of Southeast Asian Nations (ASEAN) emissaries to the U.N. have expressed increasing concern at the deteriorating situation in Burma. Japan, Burma's largest aid donor which has maintained a hitherto low profile on the matter, has also publicly deplored what is taking place through its Foreign Minister. Because of the unanimity of the adoption of the U.N. Third Committee resolution it is hoped that international efforts are uniting in urging a change for the better in Burma.

[1] In June 1989, the military government changed the name of Burma to Myanmar and also changed many names of cities and other geographical sites in the country. For the sake of simplicity in this article, the historic and modern country is referred to under the name Burma.

[2] A recent example of the new international attitude toward Burma is the passage at the U.N. General Assembly of the resolution against SLORC's continued hold on power.

[3] This article refers to the ethnic majority of Burma as "Burman" and the population as a whole, including the ethnic nationalist groups, as "Burmese".

[4] The existing tensions between the ethnic hill groups and the ethnic Burmans could be attributed in part to the administrative system of British colonial rule. The British recruited many men for their colonial army from various ethnic groups within Burma such as the Karens, the Chins, and the Kachins. Those groups were believed to be more amenable to Christian or western teachings than the Buddhist influenced ethnic Burmans. This British practice deepened already existing antagonisms. See, e.g. . Bunge, Frederico M. ed. , Burma: A Country Study (1983) .

[5] The Panglong Agreement, Feb. 12, 1947, paras. 5, 7 in Maung Maung, Burma's Constitution (1961) at Appendix III.

[6] These reports were received by the author during a fact-finding investigation in Thailand and the Thai-Burma border from April 2-13, 1990.

[7] At an August 24, 1990 SLORC press conference, SLORC stated that "former state constitutions ceased to be effective . . . [a]s soon as the military government came to power." BBC Summary of World Broadcasts, August 27, 1990. In a post-election speech shortly thereafter, General Saw Maung stated: "We are a military government ruling with martial law. We are not based on a law." Press conference by General Saw Maung, Sept. 7, 1990, published in BBC, Summary of World Broadcasts, Sec. 3B, Sept. 10, 1990.

[8] As described further in the article, the people of Burma have endured ongoing disappearances, arrests, torture and killings. See, e.g.. Amnesty International Briefing

[9] Non-violence International, September 1991 issue of Dateline Telephone: (202) 244 6396.

[10] See note 6.

[11] In accordance with SLORC's post-election program, the Election Commission, which is an 'independent' body, must still submit its final report that is to scrutinize the financial returns of the candidates that contested. "Electoral Panel Explains Work on Final Report," Rangoon Radio Burma in Burmese, 16 Sept. 1991, printed in FBIS, Sept. 18, 1991, at 39. It is hoped that some indication of progress made in this procedure may be made public.

[12] 'Full Text' of SLORC Announcement No. 1/90, July 27, 1990 [hereinafter Declaration 1/90], at para. 18.

[13] Pyithu Hluttaw Election Law, State Law and Order Restoration Council Law No. 14/89, May 31, 1989 [hereinafter "Election Law"].

[14] 1974 Constitution of the Socialist Republic of the Union of Burma, articles 41 and 44. Under the 1974 Constitution, the People's Assembly appointed from its members the individuals to serve in Cabinet posts, including those in the Council of State and Council of Ministers. The President and Prime Minister were selected by the Council of State and Council of Ministers, respectively.

[15] See e.g.. Working People's Daily, April 12, 1990, at 2 (quoting SLORC Secretary Major-General Khin Nyunt); "Saw Maung Addresses National Defense College," Rangoon Domestic Service in Burmese, Nov. 15, 1989, printed in Foreign Broadcast Information Service (FBIS), Nov. 15, 1989 at 30; "Junta to Remain During Post-Election Transition," Hong Kong AFP. June 2, 1989, printed in FBIS, June 2, 1989 at 32.

[16] "Military Official on Constitution, Government," Loktha Pyeithu Nezin newspaper article entitled "What the Form of the State Should Be in the Future", 6 August 1991, printed in FBIS, August 7, 1991 at 19.

[17] SLORC defines the "essence of autonomy" as "self-administration by persons elected by the local people." Id. at 37. Its suggestions, however, do not appear to bear out this result, as described in the text, supra.

[18] Under a decentralized unitary system, the powers of government are organized under a single central authority, and powers of local units are held at the sufferance of the central authority, which exercises supreme legislative authority. E.g.. C. Palley, Constitutional Law and Minorities (Minority Rights Group, London), 1987, at 13.

[19] 1974 Constitution, chap. Ill, art. 29.

[20] "Paper on Form of State, Constitution," Loktha Pyeithu Nezin in Burmese, 7 August 1991, pp. 5, 11, printed in FBIS, August 13, 1991 at 36-38.

[21] Id. at 37. Although SLORC has stated that it considers a reversion to the bureaucratic government system under the 1974 Constitution to be foolish, SLORC's guidelines for the new constitution would appear to only enhance centralized power.

[22] Id. At 37.

[23] Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, entered into force 27 January 1980, U.N. Doc. A/CONF./39/27 (1969), reprinted in International legal Materials 679, 690 (1969)("Vienna Convention"), art. 27.

[24] L. Henkin, Columbia University, "Elements of Constitutionalism," delivered at New Constitution of Nepal Conference. July 27, 1990 (New York).

[25] U.N. Doc. A/810, adopted Dec. 10, 1948, G.A. Res. 217 A(III)(1948) The Universal Declaration, although not a treaty, applies to Burma because that Declaration is a part of customary international law. E.g., Parker & Neylon, Jus Cogens; Compelling the Law of Human Rights_, 12 Hastings Int'l & Comp. L. Rev. 411, 442 (1989). A customary norm is applicable to all nations except those who have objected during the evolution of the norm. The Universal Declaration is generally taken as an authoritative interpretation of the human rights Articles of the Charter which obligate Member States to promote "universal respect for, and observance of, human rights," as provided in Articles 55 and 56. Restatement of Foreign Relations Sec. 701 comment d (1987). Moreover, Burma was among those nations which voted for the adoption of the Universal Declaration in December 1948.

[26] 0pened for signature 19 December 1966, entered into force 2 March 1976, G.A. Res. 2200 A (XXI), 21 U.N. GAOR, Supp. (No. 6), U.N. Doc. A/6316 (1966).

[27] U.N. Doc. A/C.3/46/L.43, adopted Nov. 25, 1991, preamble in part, para. 3 (footnotes omitted).

[28] Declaration of the Rights of Man and the Citizen (26 August 1789), incorporated in the constitution of 1791; adopted again by the Preambles of 1946 (Fourth Republic) and 1958 (Fifth Republic).

[29] Siddhinnanda, "Conception of Law and Order in Buddhism: With Special Reference to Burma," (unpublished manuscript).

[30] Justice E. Maung, The Expansion of Burmese Law, Rangoon, The Royal Printing Works, 1951, pp. 1-21.

[31] B.G. Gokhale, "Early Buddhist Kingship", The Journal of Asian Studies, Vol. XXVI, No. 1, Nov. 1966, at 15-22.

[32] E.g., A. Kyaw, "The Institution of Kingship in Burma and Thailand," The Journal of the Burma Research Society, Vol. LXII, Pt. I & II, Dec. 1979, at 174-75; Vi Vi, "Life at the Burmese Court under the Konbaung Kings," The Journal of the Burma Research Society, Vol. XLIV^ No. 4, June 1961, at 118-125.

[33] The author is indebted to Professor Louis Henkin of Columbia
University for the discussion of "democracy" as an element of
constitutionalism. See infra at note…

[34] The concept of rule of law is not exclusive to democracy. Under the Buddhist legal tradition, a king is bound by the "unwritten" constitution against tyranny and repression and acquires the resources to govern only by the voluntary donation of taxes by the people. See supra at note 29.

[35] See, e.g., Article 4 of the International Covenant on Civil and Political Rights.

[36] Constitutional provisions for amending the constitution must likewise reflect a means of participation by the people or the people’s representatives in the amendment process.

[37] E. McWhinney, Constitution-making: Principles, Process, Practice (Univ. of Toronto, 1981) at 27.

[38] Id. at 33.

[39] The author owes the following discussion to the Report of the Committee on the Human Rights of Parliamentarians, issued 12 October 1991, Doc. No. CL/149/11(b)-R.1, at the Inter-Parliamentary Conference, Santiago, Chile, Oct. 7-12, 1991.

[40] See supra note 7.

[41] Recent and disturbing reports state that SLORC has been negotiating separate compromises with ethnic members of parliament to win support in exchange for withdrawal of military incursions into ethnic territory.

[42] A representative legislature is particularly important in Burma because of its ethnic diversity. The task of ensuring a legislature truly representative of the population of Burma involves, inter alia, structuring a bicameral or unicameral legislature, drawing single or multi-member electoral districts and providing single or proportional representation.

[43] Aung San Suu Kyi, Freedom from Fear and other Writings, (Penguin, 1991)