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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.\