"Lack of Democracy, Lack of Equalit

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Subject: "Lack of Democracy, Lack of Equality" (Part II)

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>From the Conclusion:

"Although some changes including the release of Daw Aung San Suu Kyi have
occurred, there is no evidence can be pointed to that the Slorc is moving
towards democracy.  Hand to hand with Burmese people who are fighting for
democracy, the international community, with their concrete action, can play
in an important and critical role to deter the birth of constitutional
authoritarianism in  Burma.  To accomplish these actions, we, the Burmese
Lawyers Council, call upon the international community as follows;

- Not to recognize the outcome of the National Convention unless political
dialogue between Slorc and opposition groups led by Daw Aung San Suu Kyi has
come out to solve the political problems,

- To work alongside with democratic forces in order to solve the political
problems and create a genuine democratic constitution,

-  Not to renew the foreign investment or resume the foreign economic
assistance to Slorc which directly strengthen the perpetuity of military
rule.  As well as stop doing any new economic investment in Burma until and
unless human rights prevail.

The Burma Lawyers' Council
October, 1995

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(Part II)   
LACK OF DEMOCRACY, LACK OF EQUALITY

"Political Analysis of Constritutional Principles Laid down by
the Slorc National Convention"


4.   Type of national government

4.1 Slorc proposed national government

According to the principles laid down by the Slorc National
convention, the national government in Burma is a presidential
government with a unique electoral system for the presidency. 
There is no doubt that the option of a political institutions for a
country's political system must take into account the political
background of that country.  Before an examination of whether
the presidential type of national government is suitable or not
for Burma, it is important to note why the Slorc opted for the
presidential system.  Slorc considers that this system is, through
the electoral system they provided, easier for them to control the
formation of government which is expected to uphold the
interest of the army.  It is for this reason that the Slorc's
presidential government provides a unique electoral system
which has never been practised in other presidential
governments.

4.2 The electoral college to elect the president

The president will be elected by an electoral college.  Twenty
five percent of total members will be army- appointed members
in the electoral college.  The groups and the ratio of persons
who compose the electoral college are as follows;

- the elected representatives of the House of Nationalities, or the
upper house, which is composed of equal numbers from the
Regions and the States and the army- appointed or non- elected
members,

- the elected representatives of the House of Representatives, or
the lower house, which is composed of elected representatives
from the constituencies and the army- appointed or non- elected
members,

- the army representatives, number of the army representatives
is the same number as those who are appointed by the army
chief for each house.
Note - For the purpose of the formation of the electoral college,
Slorc categorised three groups as mentioned above.  There are
twenty five percent of army appointed representatives in each
house.  Thus, the percentage of army representatives in the
electoral college is twenty five percent.

4.3 What is wrong in the formation of electoral college

There are three major faults in the Slorc's proposal for electing a
president by an electoral college.  Slorc has chosen the electoral
college with no care as to whether that electoral system is
suitable or not for a presidential government.  Providing the
indirect election, while direct election is appropriate for the
presidency of a presidential government, is the first mistake of
the Slorc.  Secondly, the army involvement in the proposed
electoral college is clearly undemocratic.  The army
representatives appear in the college in order to secure the
election result which the army desires.  The civilian electoral
college members come from different ethnic groups and
political parties while army appointed members represent only
one Organisation, the army.  It may be difficult to get a
consensus among the civilian college members to elect a
president because of their background of political differences, as
it will be easy for army representatives to elect the army
appointed nominee to be president.  Thirdly, there is unequal
participation of different ethnic groups in the electoral college
because the composition of each house in the national
legislature is ethnically unbalanced.  Thus, the composition of
the electoral college is also ethnically unbalanced. (see below
composition of legislature)

4.4 Presidential nomination

The presidential nomination according to the Slorc principles is
also unique and totally unacceptable.  The three categories of
electoral college members can propose one presidential nominee
for each category concerned.  Thus, the army can propose one
presidential nominee, who becomes vice- president even he is
not elected to be president.  Among the Slorc's principles of
eligibility for the president there are two important
undemocratic principles, meant surely to prohibit Aung San
Suu Kyi's role in politics.  First, presidential candidates must
have knowledge in the affairs of politics, military, economics
and administration.  Secondly, nobody who has married a
foreigner, or has any close relatives with foreign citizenship is
allowed to be nominated for the presidential election.

The Slorc's constitutional principles cut off the relationship
between the president and political parties.  In a multi - party
democracy, the key executive posts require a political
connection with political parties because the elections in a
multi- party democracy are contests for key executive posts.  To
be a meaningful multi- party democracy, all the executive
members must be held responsible to the election manifesto for
which the people voted.

4.5 Whether a presidential or parliamentary government is
suitable for Burma 

The faults in the Slorc's proposed presidential government
system have been explored.  Slorc will need to open a direct
election for the presidency, or at least processes comparable to
direct election like the one used in United States, and correct
some wrong principles in order to achieve a democratic
presidential government.  Even then, one still must consider
whether a presidential government is suitable or not for Burma. 
The major political problem to be considered when the
presidential direct election is opened is what will be
consequences in a multi- ethnic state of Burma.  Keeping in
mind that the consideration to opt for a political system for a
multi- ethnic state, or plural society, may be different from a
homogeneous society, it is important to consider whether a
direct election for president is appropriate to Burma.  Different
population numbers of different ethnic groups ensure that the
ethnic group with largest population, i.e. the ethnic Burmans in
Burma, can influence the result of direct election.  Direct
election for the presidency can not guarantee the equality of the
different ethnic groups which are different in population count. 
Therefore, the presidential government is not suitable one for
the multi- ethnic state of Burma.

Compared to the presidential government, the parliamentary
government gives more chance for the ethnic minorities in terms
of forming the national government.  The key executive posts in
the parliamentary government come from parliament in which
more representatives of minorities are members.  Burma had an
experience with the parliamentary government under the 1947
constitution.  Despite criticisms of the weakness of the 1947
constitution, such criticism does not focus on the system of
parliamentary government.

5.  Composition of the legislatures

5.1 Slorc proposed principles for composition of legislatures
The Slorc proposed principles for the composition of
legislatures for both national and regional levels are
summarised as follows;

- The Pyi Daung Su Hluttaw, the national legislature, is
comprised of the House of Representatives, the lower house,
and the House of Nationalities, the upper house.

- The House of Representatives is composed of people's
representatives who are elected from the constituencies which
are divided on the population basis.

- The House of Nationalities is composed of equal
representatives from each Region and State.

- The army- appointed representatives shall comprise in each
house of legislature by the ratio of three people representatives
to one army representative.

- The number of army representatives in the Region and State
legislature is the same as it is in the houses of national
legislature.

5.2 Lack of equality

Even though Slorc is trying to create a state structure combining
with some cosmetic federal institutions, their principles relating
to the composition of legislature are still far from the federal
institutions as needed in a multi- ethnic state.  Slorc
Constitutional principles of composition of legislature are
inequality among the different ethnic groups in Burma.  There
may be different reasons and political background concerning
bicameralism in unitary state and federal states.  For a federal
state, composition of bicameral legislature is vital to federal
principles and essential for the exercise of equal opportunity of
different constituent units.

The constitutional principles that Slorc provided might not be a
problem in a unitary state, they would be a major problem for a
federal state.  In the upper house, or the House of Nationalities,
Burman representatives, by representing seven Regions, occupy
the same number of seats as the seats of the other seven different
ethnic groups.  The lower house, or the House of
Representatives, which represents the entire people, is composed
of people's representatives who are elected from various
constituencies which are divided according to the population
inhabiting in the constituencies. Therefore, the representatives
of Burman, as largest population in the country, also are the
majority in the House of Representatives.  Both houses of
national legislature, the Pyi Daung Su Hluttaw, are to be
Burman dominated according to Slorc principles.

5.3  One house represents the people, another one represents the
constituent units

Two houses of a bicameral legislature in a genuine federal state
have different representative formations.  The lower house, or
the House of Representatives in Burma is to represent entire
people as the whole.  Thus, the lower house is also known as the
popular house.  The upper house or the House of Nationalities
in Burma, is to represent different constituent units which are
normally formed on the lines of different ethnic groups in a
multi - ethnic federal state like Burma.  The people in a multi -
party democracy will exercise their democratic rights to elect
people's representatives in the elections of lower house.  These
elections are known as general elections.  To elect the
representatives of the upper house in a federal state is the
concern of the constituent units because the house is formed on
the basis of constituent units.  Thus, the upper house in a federal
state is to represent the various constituent units.  In a federal
system, representing the constituent units is not the only or the
ultimate political responsibility of the upper house.  To secure
the political equality among different constituent units is the
ultimate responsibility of the upper house.  The Burmans
representatives, representing large population, can occupy more
seats in lower house in accordance with the number of
population.  The upper house is crucial to give equal
representation to all different ethnic groups in order to balance
the legislation between the two houses.  By giving equal
representation to all different ethnic groups in the upper house,
the upper house can check the power of lower house when the
bills have been passed in the lower house that may be
dominated by a Burman majority.

According to Slorc's principles, in spite of the fact that the upper
house, the House of Nationalities, is composed of
representatives from the Regions and States,, that representation
is not a representation in order to secure real equality among the
constituent units.  The Burmans representatives, under the
unequal representation principles of the Slorc, can dominate the
legislation process in both houses.  This kind of unequal
representation in the upper house under the 1947 constitution
was criticised by all ethnic minorities.

Slorc proposed principles relating to the composition of
legislatures are lack of equality among different ethnic groups. 
Is it possible that Slorc tailored constitution can maintain long
lasting unity of diversity without equality among the ethnic
groups?  Unity of diversity is only possible when all the
different ethnic groups are convinced that there is equal
opportunity to enter national politics.

6.  Civil rights

6.1 Army leadership never upholds interests of the people

What ever principles concerning civil rights were laid down by
the National Convention, as long as Slorc continues to deny real
participation of the people in politics, those rights are merely in
principles.  The people should be permitted to discuss freely
what sort of rights are theirs because these rights are not the
rights of the government in power.  For this reason, the Slorc
will need to open for public participation the laying down of the
basic principles for a constitution in which civil rights of the
people are compiled.  And further more, the Slorc must first
revoke all the unlawful orders and restrictive laws in order to
achieve real public participation.  Otherwise, the principle "
army's leading role in politics" will dominate all other
constitutional principles including civil rights.  Therefore, the
principle of the army's leading role in the politics should also be
revoked.

6.2 People are forced for the reason "security"

One of the Slorc's principles concerning the army's leading role
in politics states that the army could arrange for the full
participation of the people when it is needed to maintain
security and defence of the state.  This principle enforces the
unlimited authority of the government that leads to the different
kinds of human right violations against their own people. 
Giving the fall authority to the government to do whatever they
like has allowed the human rights abuses since the first military
coup in 1962.  The army can force the people to act as porters
in the civil war which Slorc repeatedly claims to protect the
country from disintegration.  Many human rights organisations
including Amnesty International, Human Rights Watch/ Asia
have documented the human rights violations by Slorc against
the civilian during the civil war.  Many porters are tortured.,
many women are raped, many villages are burnt down and
relocated, properties of the people are destroyed or looted by the
army during the so - called counter - insurgency operations. 
Slorc, through the constitutional provisions, desires to take the
right to commit such human rights abuses.

6.3 No citizen can be arrested without permission of a court

Slorc, in one of its constitutional principles, protects the citizens
from being arrested without permission from a court.  This
principle should be examined whether it is workable or not.  It
is an obvious example of Daw Aung San Suu Kyi who was
detained for six years under house arrest without any trial and
court permission or decision.  Many prisoners inside the country
are held without charge or trial under administrative detention
provisions.  All civilians are liable to arrest, interrogation and
detention in accordance with the law "Law to Safeguard the
State Against the Dangers of Those Desiring to Cause
Subversive Acts".  In the arrests relating to political activities,
the courts or judges do not have any prior knowledge of arrest
since it was totally done by the military government.  Laws, in
this sense, have become inferior to the government officials who
exercise coercive power in order to restrict the rights of the
people.  As long as the government itself interprets the laws in
this way, no citizen is secured under the principle "no citizen is
arrested without permission of a court".  No citizen is secured in
a society where the rule of law is not respected.

7. Judicial

7.1  Rule of law in Burma

Democracy can not exist in a society where there is no respect
for the "rule of law".  In Burma, since the first military coup in
1962 until the present era, the rule of law has never been
respected.  All judges in all levels of courts have come from the
ruling Burmese Socialist Program Party (BSPP) according to
the 1974 constitution, which was a totalitarian constitution. 
Under this system, the executive branch, which was undertaken
by the BSPP, could influence the decision of the judicial
branch.  The judges were elected in the elections held at the
same time as the elections of "People assembly", the unicameral
legislature under the 1974 constitution.  Nobody could be
elected for any branch including judicial branch unless he or she
was a member of the BSPP.  Thus to become a judge one did
not need any legal knowledge but he or she needed only to be
member of the BSPP.  To operate the legal system, there were
other legal officers who were experienced persons in the field of
legal affairs.  But the decisions were in the hands of the judges
who upheld the instruction of the executive branch and the
BSPP rather than their own opinion.  Under the 1974
constitution, the whole judicial system was totally controlled by
the government and the BSPP.  In this situation, the rule of law
was located outside of Burmese society and within the
government.

7.2 Slorc and the rule of law

Now in the era of the Slorc, the legal system has deteriorated
further.  The refusal to honour the results of the 1990 elections
is an obvious violation of  the rule of law.  All new laws are
created by the Slorc.  There is no legislature at all.  Once, Gen. 
Saw Maung, first chairman of the Slorc said that martial law
means no law at all.  Some principles relating to judicial affairs
laid down by the National Convention seem to be simple
principles which always appear in other constitutional laws, but
those can not be interpreted as perfect.  There will need to wait
and see whether those are workable or not as the constitution
develops in Burma.  The Slorc, are not likely to respect the rule
of law judging by their behaviour until now.  Slorc has not said
anything about constitutional disputes or who shall judge them.

8. The political system Slorc desired

8.1 Slorc follows Asian ideology

Slorc admires the political system of lndonesia. The army
involvement in politics is the main character of the political
system of both Indonesia and Burma.  Many Asian nations are
extending their ideology, or the Asian way to democracy, by
advocating economic development before political
liberalisation.  This has been criticised as the ideology has been
applied to perpetuate a long hold on power by the ruling
regimes.  The Slorc, for this reason, aims to follow this
ideology.  Whether or not this ideology could be successful in
the region in long term, a look at the different political
background can answer that this ideology will not be successful
in Burma.  Burma's political background is unique in the
region.  No other nation has the complex ethnic diversity like
Burma despite the fact that there are some ethnic differences in
the countries which advocate the Asian way to democracy And
no government of those countries is similar to that in Burma
where the government not only has no knowledge about
running a market economy but also has no arrangement for the
participation of intellectuals to develop the economy.  Most of
the countries which advocate Asian way to democracy have had
sufficient plan to develop their economy on the market basis. 
For those countries, the Asian way to democracy, or economic
development before political liberalisation, is probably possible
because of their success in economic development.

8.2  Slorc desired political system can not be possible; ethnic
conflict

The main examination 'in this analysis is about the
incompatibility of the Slorc's proposed political system with the
ethnic diversity of Burma.  There have been enough
experiments by successive governments and the Slorc that show
that the ethnic conflict in Burma, the prime problem of civil
war, can not be solved by military means.  Only the design of a
proper political system with the participation of the concerned
ethnic groups can end the civil war.  The Asian ideology may
not work in Burma where the ethnic diversity is deeply involved
in the political problems unless these problems are solved
properly.

8.3  Slorc desired political system can not be possible;
economically

During the Slorc's period, economic development may not be
possible as long as this problem has not been solved.  The
regular increase of inflation which happens because of increase
of the overall government expenditure is one of the most
important problems to be solved for a successful market
economy.  As it is usual in totalitarian governments, the
Burmese government prints more money without balancing the
national production to cover its expenditures, while the supply
of money depends on the national production in a market
economy.  In a market economy, the relative position of
inflation and unemployment must be balanced.  But in Burma,
the position of the inflation and unemployment is
simultaneously high.  This situation indicates that despite a
potential increase in the Gross Domestic Product (GDP), the
government expenditure is more than the increase of the GDP. 
As long as the Slorc can not solve this inflation problem, the
development of the economy is just a dream.  In addition, as
long as Slorc is trying to control the politics through coercive
agencies of the government, main tools of the military junta and
for which the government is expending a large amount of the
national income, there will be regular increase in inflation.  The
decrease of government expenditure may be possible only when
the government trusts its people, and this trust can be, obtained
when the authority of the government is based on the will of the
people.  It is why the economic development before political
liberalisation in Burma may not be possible.  The political
liberalisation must come first before economic reform.

Conclusions and recommendations

The National Convention through which the Slorc needs to
create a political system which they desired is crucial political
process for Slorc.  Even after Aung San Suu Kyi was released,
the National Convention is still playing in a crucial role. 
Despite expectation that there would be some changes concern-
ing the continuation of the National Convention which has
widely spread among the Burmese population after Daw Aung
San Suu Kyi's release, there is no sign that Slorc accepts that
change or compromise with Aung San Suu Kyi.

The Slorc's National Convention manipulated to lay down the
basic constitutional principles is nothing more than their ploy to
ensure its control in future politics, under the new name of
Slorc.  The military has given a written order to the convention
instructing it turn out a constitution that guarantees the military
the leading role in national politics in the future.  If the Slorc
has an honest desire to resolve political problems by political
means, it should completely stop the National Convention and
start dialogue to do so.  As long as the concept of solving the
political problems by peaceful political means is ignored, it is
impossible to draw up a long- lasting constitution which
maintains unity of diversity in Burma.  The desire of a political
force to manipulate the national politics can not bring out the
happiness of others in a human society.  The lack of democracy
and equality in the constitutional principles laid down by the
National Convention is a prime mistake of Slorc.

Although some changes including the release of Daw Aung San
Suu Kyi have been occurred, there is no evidence can be
pointed to that the Slorc is moving towards democracy.  Hand
to hand with Burmese people who are fighting for democracy,
the international community, with their concrete action, can
play in an important and critical role to deter the birth of
constitutional authoritarianism in  Burma.  To accomplish these
actions, we, the Burmese  Lawyers Council, call upon the
international community as follows;

- Not to recognize the outcome of the National Convention
unless political dialogue between Slorc and opposition groups
led by Daw Aung San Suu Kyi has come out to solve the
political problems,

- To work alongside with democratic forces in order to solve the
political problems and create a genuine democratic constitution,

-  Not to renew the foreign investment or resume the foreign
economic assistance to Slorc which directly strengthen the
perpetuity of military rule.  As well as stop doing any new
economic investment in Burma until and unless human rights
prevail.

The Burma Lawyers' Council
October, 1995


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