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BURMA HUMAN RIGHTS REPORTS #5c (Par
Subject: BURMA HUMAN RIGHTS REPORTS #5c (Part 1 of 2).
/* posted 16 Jan 6:00am 1995 by DRUNOO@xxxxxxxxxxxx on igc:soc.culture.burma */
/* -------------------" HRSUB: ICJ AND OBLF "---------------------- */
[Subject: To inquire into and report on the human rights situation
and lack of progress towards democracy in Myanmar(Burma) by the
Human Rights Sub-Committee of the parliament of Australia.
Submissions made to this enquiry by various people and
organisations are re-posted here.-- U Ne Oo]
# SUBMISSION NO. 5c.
PART 1 OF 2.
HUMAN RIGHTS SUB-COMMITTEE OF THE
JOINT STANDING COMMITTEE ON FOREIGN AFFAIRS,
DEFENCE AND TRADE
JOINT SUBMISSION ON BEHALF OF
THE INTERNATIONAL COMMISSION OF JURISTS AND
THE OVERSEAS BURMA LIBERATION FRONT
HISTORICAL INTRODUCTION
-----------------------
Panlong Agreement: February 1947
--------------------------------
To overcome the last obstacle to independence from Britain, the Burmese
National Leader Aung San (father of Daw Aung San Suu Kyi) arranged a
conference at Panlong on 12 February 1947 for the purpose of forming an
alliance between the Burmese and the leaders of the ethnic minorities. The
ethnic minorities agreed to form a union with the Burmese in which the
ethnic states would acquire equal status based on the principles of the
right to self determination and political autonomy and social equality with
the Burmese majority. All signatories to the Panlong Agreement demanded
independence from Britain. The Panlong Agreement formed the basis of a
unified federal Burmese state.
24 September 1947
-----------------
On 19 July 1947 General Aung San was assassinated along with six of the
country's Executive Councillors. Following the death of Aung San, the
proposed Constitution was amended to establish a unitary system of
Government thereby abolishing the federal system which had formed the basis
of the Panlong Agreement. The Constitution was hastily adopted on 24
September 1947.
4 January 1948
--------------
On 4 January 1948 Burma became and independent nation formerly known as the
Federal Union of Burma. The Constitution contained Article X which granted
the right of succession to the Shan and Karenni states at the end of a
period of ten years from the date of the adoption of the Constitution.
1948 to 1960
------------
After 1948 Burma experienced a brief period of parliamentary democracy. The
first post independence general elections were held in 1951. This period
was characterised by unresolved constitutional crises including the
question of whether the Karenni and Shan minorities were entitled to secede
from the Union in accordance with Ariticle X of the Constitution.
Conference of the Ethnics States Unity and Solidarity Organisation in 1961
--------------------------------------------------------------------------
At a conference of the Ethnic States Unity and Solidarity Organisation in
1961 the ethnic minorities expressed their concern at the ineffectiveness
of the 1947 Constitution and reasserted their adherence to the principles
underlying the Panlong Agreement, namely federalism and the right to
self-determination for ethnic minorities. The conference delegates
supported the Karenni and Shan's decision not to secede from the Union.
2 March 1962
------------
The army headed by General Ne Win seized power from the Burmese civilian
government. The military regime subsequently instituted a campaign of
systematic human rights violations and arrested all of the constitutionally
elected Burmese national and ethnic leaders. Although the 1947 Constitution
was never formally repealed it was replaced by the 1974 Constitution in an
attempt to underpin the power base of the socialist government of General
Ne Win.
8 August 1988
-------------
Pro-democracy uprisings were violently suppressed on the orders of the
Burmese military. Thousands of pro-democracy demonstrators were massacred
or imprisoned.
18 September 1988
-----------------
General Saw Maung issued Declaration 1/88 which announced the abolition of
all civilian government institutions and the establishment of a nineteen
member junta known as the State Law and Order Restoration Council (SLORC).
Thereafter, SLORC outlawed all public demonstrations and arrested thousands
of Burmese citizens, ethnic minorities and opposition political party
members.
20 July 1989
------------
On 20 July 1989 following a further campaign of suppression, Daw Aung San
Suu Kyi, the Secretary General of the National League for Democracy (NLD)
was placed under house arrest without trial. She presently remains under
house arrest.
27 May 1990
-----------
National elections for Burma's Parliamentary Assembly were held on 27 May
1990. The opposition NLD party secured 392 of the 485 seats in the National
Assembly. The National UNity Party (the former Burmese Socialist Program
Party) supported by SLORC won only ten seats. SLORC refused to recognise
the election and transfer power to the elected NLD civilian government and
refused to allow the National Assembly to convene. SLORC imprisoned the
NLD's main party leaders. SLORC issued Declaration 1/90 in self
justification of its refusal to relinquish power.
First Session of National Convention 9 January 1993 to 11 January 1993
----------------------------------------------------------------------
The National Convention Commission was formed by SLORC in 1992 with the
objective of convening a National Convention of delegates to discuss and
formulate a new federal and democratic constitution. The National
Convention first met in January 1993 and continues to meet in session for
the purpose of finalising a new federal constitution. Despite SLORC's
apparent desire to create a constitutional foundation for a genuine
multi-party democratic system in Burma, its insistence that the military
participate in the political leadership of Burma illustrates that SLORC's
pronouncements of constitutional reforms are a mere "sham".
******************************
SLORC'S ATTEMPT TO ESTABLISH A CONSTITUTIONAL AND LEGAL
REGIME AS A BASIS FOR ITS SEIZURE OF POWER IN 1988.
After seizing power on 18 (September) 1988, SLORC has progressively issued
laws, declarations and martial law orders in an attempt to justify its
abolition of the civilian government institutions and to secure power unto
itself. The principle declarations and laws are briefly set out hereunder.
Declaration Number 1/88
-----------------------
Declaration Number 1/88 was issued upon the violent assumption of power by
SLORC on 18 September 1988 "in order to save the general deteriorating
situation in the whole country". The military assumed the responsibilities
of all state organs purportedly "for the welfare of the people". SLORC
outlined four objectives in accordance with its "basic duty to save the
Union of Burma from the dangers of disintegration", namely:
"(a) maintenance of law and order, prevailing peace and tranquility in
the country;
(b) providing secure and smooth transportation;
(c) ... better conditions of food, clothing and shelter of the people
and to render necessary assistance to the private sector and the
co-operatives to do so;
(d) to hold multi-party democratic general elections when the above
measures are completed."
Law Number 1/88
---------------
On 21 September 1988 SLORC promulgated Law Number 1/88 for the purpose of
"holding multi party democracy general elections successfully in the Union
of Burma."
Law Number 4/88
---------------
On 27 September 1988 Law Number 4/88 was issued for the purpose of
registering all political parties. Daw Aung San Suu Kyi's National League
for Democracy Party ("NLD") was registered pursuant to that law.
Declaration Number 6/88
-----------------------
On 24 September 1988 Declaration Number 6/88 was issued. That Declaration
stated that:
".... all laws existing on the 18 September 1988, the date on which the
state Law and Order Restoration Council took charge of the soverreign
powers of the State, shall remain in force until and unless repealed."
Pursuant to Declaration Number 6/88 SLORC continued to rely upon a regime
of oppressive laws previously enacted by the U Nu Government. For instance,
the Emergency Provisions Act 1950 had prohibited a wide range of activities
such as those allegedly aimed at the "disintegration of the moral
character of the people and methods causing harm to the security, the law
and order and rehabilitation of the State". That Act had been passed in
1950 to contain communist and ethnic rebellions following the promulgation
of Burma's independence in 1948.
Martial Law Order Number 1/88
-----------------------------
Military tribunals were esta lished on 17 July 1988 by Martial Law Order
Number 1/88 which empowered the military to conduct "summary trials" of
civilians. Martial Law Order Number 1/88 Allowed no right of appeal from a
conviction and provided only three form of sentences, namely:
(a) three years imprisonment with hard labour;
(b) life imprisonment;
(c) death sentence.
Law Number 2/88
---------------
Law Number 2/88 known as the "Judicial Law" was issued on 26 September
1988. Pursuant to the Judicial Law, SLORC constituted the Supreme Court.
The Judicial Law was purportedly based upon the following principles and
goals:
(a) to administer justice independently according to law;
(b) to protect and safeguard the interests of the people and to aid in
the restoration of law and order and peace and tranquility;
(c) to educate the people to understand and abide by the law and
cultivate in the people the habit of abiding by the law;
(d) to work within the framework of law for the settlement of cases;
(e) to dispense justice in open court unless otherwise prohibited by
law;
(f) to guarantee in all cases the right of defence and the right of
appeal under law;
(g) to aim at reforming moral character in meeting out punishment to
offenders.
Martial Law Order Number 2/89
-----------------------------
Despite the passing of the Judicial Law, SLORC ocntinued to rule by decree
and military tribunals exercised jurisdiction over all criminal matters. In
1989 Martial Law Order 2/89 established the following procedures to be
observed by the military tribunals:
(a) the waving of unnecessary witnesses;
(b) conviction without hearing prosecution witnesses;
(c) all decisions to be final.
Persons tried by the military tribunals were commonly charged pursuant to
Section 5(j) of the Emergency Provision Act 1950 which prescribed an
offence for anyone who:
"Causes or intends to disrupt the military or the behaviour of a group
of people or the general public ... or to disrupt the security or
reconstruction of stability of the Union."
Another commonly applied offence was Section 10 of the State Protection Law
1975. When SLORC arrested more than forty members of the NLD including Daw
Aung San Suu Kyi on 20 July 1989, they were initially held and sentenced
under Section 10(b) of the State Protection Law 1975 which provided:
"The Government may order up to three years detention or house arrest
without charge or trial for anyone the authorities believe, will do, or
is doing, an act which endangers the peace of most citizens or the
security and sovereignty of the State".
In September 1992, the military tribunals were abolished. Since that time,
the civil courts have dealt with all criminals as well as political trials.
Almost all political cases are tried in court rooms in prison compounds and
are not open to the public. Reports from Burma indicate that due process is
largely ignored and verdicts are manipulated in political trials. In other
cases, although defendants may have access to a defence attorney, a
defendant's counsel serves little real purpose other than to provide a
pretence of justice. Although defence attorneys are permitted to call and
cross examine witnesses, their primary purpose is to "bargain" with the
judge to obtain the shortest possible sentence for thier clients.
*******************************************
SLORC'S CLAIM FOR LEGITIMACY AS A MILITARY GOVERNMENT
Declaration 1/90
----------------
On 20 July 1989 Daw Aung San Suu Kyi was placed under house arrest and
excluded from participating in the forthcoming multi-party elections. Those
elections were eventually held on 27 May 1990 which resulted in a
resounding victory for the NLD Party. The NLD secured 392 of the 485
contested seats in the National Assembly.
On 27 July 1990 SLORC issued Declaration 1/90 in an attempt to legitimise
its refusal to transfer power to the democratically elected NLD party.
SLORC continually cites Declaration 1/90 as self justification for its
continued legitimacy as a military government and its governming of the
country by martial law.
Clause 2 of Declaration 1/90 refers to the four basis duties outlined in
Declaration 1/88 following the assumption of power by the military in
September 1988.
Declaration 1/90 blatantly admits the SLORC is not bound by any
constitutional or legal imperatives other than those laws, orders and
directives which SLORC has itself issued. Clause 6 states:
"The State Law and Order Restoration Council (Tatmadaw) is not an
organisation that observes any Constitution; it is an organisation
that is governing the nation by Martial Law. It is common knowledge
that the State Law and Order Restoration Council is governing the
nation by Martial Law. It is common knowledge that the State Law and
Order Restoration Council is governing the nation as a military
government and that it is a government that has been accepted as such
by the United Nations and the respective nations of the world."
SLORC therefore also attempts to derive legitimacy from the fact of its
recognition by other sovereign nations as well as its participation as a
member state in the United Nations General Assembly.
A full copy of Declaration Number 1/90 is attached to this Submission and
marked "A".
NATIONAL CONSTITUTIONAL CONVENTION
----------------------------------
Order Number 11/92
------------------
On 24 April 1992 Order Number 11/92 was issued for the purpose of convening
a National Convention to draft a new federal constitution. The drawing up
of such a constitution was first foreshadowed by SLORC in Clause 21 of
Declaration 1/90 referred to above.
Order Number 13/92
------------------
On 2 October 1992 SLORC issued Order Number 13/92 which established the
National Convention Commission with the following objectives:
(a) Non disintegration of the Union;
(b) Non disintegration of the national solidarity;
(c) Perpetuation of sovereignty;
(d) Flourishing of a genuine multi-party democratic system;
(e) Further burgeoning of the noblest and worthiest of worldly values,
namely justice, liberty and equality in the State;
(f) For the Tatmadaw (military) to be able to participate in the
national political leadership role of the State.
Since the convening of the first session of the National Convention from 9
January 1993 to 11 January 1993, the National Convention has continued to
meet in session up to the present time. Given the objective contained in
sub-paragraph (f) above, if the new federal constitution is ultimately
approved by the National Convention Commission, the military's domination
of Burmese politics will be formalised and legitimised for all future
governments in Burma.
The role of the military in Burma's political future was reiterated by Mr U
Aung Toe, the Chief Justice and Covening Chairman of the National
Convention's Work Committee. In a speech delivered on 16 Spetember 1993, he
referred to the military's participation in the "national political
leadership role of the State". Mr Aung Toe also proposed that the
membership of the lower and upper houses of the proposed parliament and the
state and regional assemblies include military personnel "in numbers
stipulated by the State Constitution". Such military personnel were to be
appointed by the Commander-in-Chief of the Armed Forces. The head of state
would be a president drawn from the ranks of the military and the military
would be goven the authnomy and "the right to independently administer all
affairs concerning the armed forces". In the case of state emergencies,
"the Defence Services Commander in Chief has the right to take over and
exercise State power".
The role of the military outlined by Mr Aung Toe and in particular, the
powers of the Commander in Chief in the case of a State emergency, would
legitimise any further military coup by reason of the proposed
constitutional provisions.
Shortly thereafter, the "Panel of Chairmen" of the various committees
comprising the National Convention announced that there was a "consensue"
in support of the proposals concerning the role of the military in the
Constitutional framework referred to above. Although SLORC has attempted to
create an imprimatur of legitimacy for the National Convention, the
pronounced objectives of the Convention and the membership of the
Convention and its committees, illustrates SLORC's attempt at
constitutional reform to be nothing less than a "sham". For instance, of
the approximately 690 members of the National Convention, approximately 600
delegates were selected directly by SLORC to represent groups such as "the
workers", "the peasants" and "the intellignetsia". Further, of the 392 NLD
Party members of Parliament elected in the May 1990 elections, only 15 were
allowed to participate in the Convention. Similarly, only 15 of the 23
elected members of parliament from the Shan National League for Democracy
(SNLD) were permitted to participate in the Convention. Six delegates who
attended the Convention were from parties which did not win any seats in
the 1990 elections.
Until a new constitution is drafted by SLORC which embodies its objectives
for Burma, SLORC is determined that it alone will exercise all Legislative,
Executive and Judicial power. SLORC refuses to convene the National
Assembly on the pretence that such power can only be obtained from a
constitution and it refuses to recognise the legitimacy of either the 1947
or 1974 Constitutions.
ENDOFPART 1.\