LEGAL ISSUES ON BURMA JOURNAL No. 3, MAY 1999 
BURMA LAWYERS' COUNCIL

Convening the People's Assembly:
A Legal Analysis

By Burma Lawyers' Council


According to Burma's two supposedly superseded constitutions, that of 1947 and 1974, the Pyithu Hluttaw (the People's Assembly) is the body charged with exercising State power. The 1989 Pyithu Hluttaw Election Law (called the Election Law), under which the 1990 elections were conducted, also provides that the duty of representatives elected in accordance with the Election Law is to form the Pyithu Hluttaw (Section 3).

The ruling military junta, the people of Burma and the international community acknowledged without qualification that the May 1990 general election was free, fair and lawful. It then follows that those representatives elected by the people in the 1990 election have the lawful right to form a Pyithu Hluttaw that exercises legislative power and appoints a government in accordance with the legal norms of Burma.


Order No. 1/90 entitled “Convening the People's Assembly"

Before the elections, the ruling military junta gave public undertakings, verbal and written, that they would transfer power to the elected representatives who would also prepare a new constitution. The military junta said unequivocally that this was not the business of the military junta. The ruling military understood that the People's Assembly had to be convened without a constitution. All the military junta had to do was to transfer power to the elected representatives. In an attempt to delay the transfer of power, the SLORC military junta issued Order No. 1/90 that defined the duty of the elected people's representatives as being to draft a constitution. The SLORC provided in paragraph 12 of Order No.1/90 that the People's Assembly would be convened in accordance with Section 3 of the Election Law. There were no grounds for the SLORC/SPDC to deny the convening of the People's Assembly.


People's Assembly needed to draft and adopt constitution

Some work has been done in the proceedings of the National Convention. But those proceedings were themselves flawed by the unrepresentative character of the Convention and its other features relating to its mandate and restrictive procedures. Judge Rajsoomer Lallah

The National Convention's stated aim was to lay down basic principles, not detailed provisions, for the new constitution that will be drafted and adopted by the Pyithu Hluttaw or People's Assembly. The National Convention itself has no right either to draft or to adopt the constitution. Judge Rajsoomer Lallah, UN Special Rapporteur on Burma, in his 1996 report to the UN General Assembly, recommended that the drafting and adoption of a new constitution be left with the People's Assembly that has the people's mandate. He also stated that making detailed provisions is outside the power of the National Convention, as its duty is to lay down only basic guidelines for the constitution. His comments reinforce the fact that only the People's Assembly has this power. Only 15 of the 485 elected people's representatives continue to participate in the National Convention. SLORC/SPDC can continue to obfuscate, but the fact that it is the right of the elected people's representatives to draft a constitution, restated in SLORC Order No. 1/90, is unalterable.


Actions taken to prevent the convening of the People's Assembly: Question of legality

On several occasions SLORC/SPDC has made it clear that they exercise state power under martial law. This was explicitly stated in Order No. 1/90, where the SLORC declared that the military junta alone exercises all state powers - specifically legislative, executive and judicial.

In early August 1998, the military junta forbade many elected people's representatives, mostly NLD members, from travelling. They invoked the 1961 Restriction and Bond Act in an attempt to deter the MPs from participating in the People's Assembly. This law has been misappropriated by the SPDC for their own political purposes. Restriction of travel of the people's representatives is unlawful. In a report issued in late May 1998, the All Burma Student's Democratic Front (ABSDF) reported that up to 66 people's representatives have been dismissed, up to 42 were under detention and more than 46 had been forced to resign. Almost all are NLD members.

SLORC/SPDC allege that the action taken against the elected MPs results from their criminal activity, but all the matters arise out of the members' lawful participation in the political process.

In August-September of 1998 when the NLD challenged the SPDC to facilitate the convening of the People's Assembly, the SPDC responded with threats and the detention of over two hundred elected representatives. Many were arrested without charge, or trial. Some went to gaol and others were held at 'guest houses'.

The above actions were also based on laws that imported retrospectivity. One such law is the Law Amending the Pyithu Hluttaw Election Law (Amending Election Law). Although promulgated on 10 July 1991 (26 months after the original Election Law was adopted) its stated purpose is to give retrospective effect to the changes. Section 2 states "This law shall be deemed to have come into force with effect from 31 May, 1989, the date on which the Pyithu Hluttaw Election Law was enacted". It was conceived as a way of the military junta appearing to do things legally and designed "lawfully" to force elected MPs to resign their elected positions. Many of those who have been the target of such action are banned from standing in any election in future. Such action is totally against the UN recognised human rights standards that guarantee political rights of everybody especially the 1976 International Covenant on Civil and Political Rights.

It is the legal right of those elected as people's representatives to convene the People's Assembly as mandated by the people in the 1990 elections. Those who prevent the people's representatives from carrying out the wishes of the people thus condemn themselves in the eyes of the world.

Despite the lapse of nine years since the 1990 elections, the terms of office of the Members of Parliament (MPs) have not yet commenced. Their terms will only commence when the first session of the People's Assembly is convened according to Burmese legal norms. Burma's MPs remain "MPs-elect" who have the responsibility of implementing the people's mandate including the drafting and approving of a State constitution.


Authority by coercion and authority by recognition of the people

Authority by coercion exists in Burma under the military rulers. Authority by coercion cannot constitute a legitimate authority and it will cease to exist when the people denounce it as illegitimate. A good illustration of this can be found in the Philippines during the People Power movement of 1986. The Filipino people refused to recognise the claim of Ferdinand Marcos, who used coercive means to rule the country as President. The Filipino people shifted their recognition to Mrs. Corazon C. Aquino who led a provisional government. The people of the Philippines recognised Mrs. Aquino's provisional government as their government. Mrs. Aquino enjoyed legitimate authority in Philippines as the people recognised it as legitimate. Marcos and his administration were accordingly overthrown.

Burmese people must similarly make the decision about which authority - the SPDC or an emergency session of the People's Assembly - is legitimate.