5/1/98:THE TRANSITIONAL PHASE AND P

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REPOSTED 21 APR 99, 5:00AM.

/* Written Sat 17 Jan 11:00am 1998 by drunoo@xxxxxxxxxxxx in
To: Our Friends on Internet
Date: 5 January 1998
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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.

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

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).};

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