The BurmaNet News: June 11, 1998

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The BurmaNet News: June 11, 1998
Issue #1024

Noted in Passing: "[I]f you look at comparative levels of suffering, the
hill people of the Burmese nations have suffered more injury from opium
production than anyone else." - Gen. Barry McCaffrey (see BKK POST: STILL
NO PROGRESS IN BURMA) 

HEADLINES:
==========
BKK POST: STILL NO PROGRESS IN BURMA 
RADIO AUSTRALIA: JUNTA CALLS FOR BUY OUT 
THE BANGKOK POST: TOWARD A DEMOCRATIC CHARTER 
AP: INDONESIAN LESSON MAY BE HARD FOR GENERALS 
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The Bangkok Post: Still No Progress in Burma 
10 June, 1998  

Drug-control efforts have made no real headway in reducing heroin
production in Burma, which accounts for about 60 percent of the world's
supply of heroin, the top US drug control officer said on Monday.

Gen Barry McCaffrey, director of the White House Office of National Drug
Control Policy, said the United States supported UN efforts to reduce opium
production in Burma.

"But I would agree, there has not been any real progress in lowering the
rates of drug production, nor are we satisfied with the democratic issue or
the human rights issue," Gen McCaffrey said at the UN special session on
drugs.

Last month, the head of the UN, drug control programme, Pino Arlacchi,
expressed hope opium poppy cultivation could be eradicated within 10 years
with the proper international support.

But Gen McCaffrey was less optimistic. "I have also suggested, in the
international community we have lost sight of the fact that if you look at
comparative levels of suffering, the hill people of the Burmese nations
have suffered more injury from opium production than anyone else," Gen
McCaffrey said. 

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Radio Australia: Burma's Junta Calls For World to Buy Out Its Opium Poppy
Farmers
10 June, 1998  

One of the world's major Opium producing nations, Burma, claims the
international community has a moral imperative to fund moves to help poppy
farmers plant alternative crops.

The representative of Rangoon's Junta at the United Nations drugs summit
made the call, saying the donor community must commit more funds to
alternative projects in areas under illicit crops.

Over the last ten years the Junta claims its troops have seized and
destroyed more than 3,880 kilos of heroin, over 24,800 of opium.

Burma and Afghanistan are the world's major opium growers and the United
Nations plans to launch programs in both countries to help farmers find
alternative crops.

The top American drug control officer, General Barry McCaffrey, told the
conference that control efforts have made no real progress in reducing
heroin production in Burma which accounts for about 60 percent of the
world's supply. 

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The Bangkok Post: Toward a Democratic Charter
10 June, 1998 by Vitit Muntabhorn 

ASIA'S ECONOMIC CRISIS HAS IN MANY CASES HELPED TO PROMOTE POLITICAL
REFORM, BUT CERTAINLY NOT IN BURMA- ALTHOUGH THERE ARE SOME EFFORTS BEING
INITIATED

In 1997 the destinies of Burma and other Southeast Asian countries became
intertwined when Burma became a member of the Association of Southeast
Asian Nations (Asean). In terms of inter-state solidarity, this was
welcomed by the governments of the region. However, in terms of democracy,
human rights and the constitutional process, it was a decidedly paradoxical
affair.

The paradox emanates from the fact that Burma is still governed by junta
rule, a direct contradiction with the aspirations of democracy. It is rife
with human rights violations, a shameful travesty of international norms.
It is replete with oppression and a manipulative process whereby the junta
is seeking to finalise a new so-called national constitution which flies in
the face of popular participation in the constitution-drafting process.

The world may need to be reminded that the junta stole the elections from
the people in 1990. It was the democratic groups that won those elections,
yet they saw themselves deprived of the fruit of their labour. The
elections themselves were preceded by massive persecution of the proponents
of democracy with widespread repression in 1988.

To this may be added the longstanding armed conflict between the junta and
ethnic groups in Burma; such groups have been seeking self-determination
since the end of World War Two. As a result, there are hundreds of
thousands of internally displaced people in Burma and a multitude [...] who
have crossed borders in search of safe refuge elsewhere. Thailand itself is
a temporary home to over 100,000 Burmese refugees.

Face to face with Southeast Asia, one of the most intriguing developments
is the economic mess which has gained momentum since 1997. The economic
growl of the so-called tigers has become the anemic mew of the Siamese cat.
Millions of people are now out of work, poverty is on the rise, the real
sector is in the doldrums, migrants are being expelled and the debt
situation is gargantuan.

Yet, behind the bane, there is the boon; there is a blessing in disguise.

It is a time for reform and restructuring. Without the economic maelstrom,
these tigers would not be reforming their financial systems which have all
too often been plagued by a lack of transparency and a pervasive presence
of cronyism. A major lesson from the crisis is that the economic maelstrom
will not subside unless there is also political reform.

Those countries which are democratic are emerging more rapidly than those
countries beset with authoritarian or undemocratic regimes. Aptly, it is
the economic chaos which is the key factor pressing for political reform.

In such a context, it is timely to take stock of existing constitutions and
the constitution-making process.

It is worth remembering that not so long ago, most Southeast Asian
countries were colonised by outside powers. The constitutions which were
born at the time of their independence after World War Two tended to be a
contract between the colonisers and elites who negotiated independence for
their countries. They were not essentially a social contract between the
state and its people whereby the state, particularly the government, would
undertake to abide by the rights of the various peoples populating the land.

Several of these constitutions failed to reflect the rights of minorities
and indigenous communities, thereby recognising a kind of "majoritarian
absolutism". Other constitutions were evolved by authoritarian regimes
seeking to perpetuate their power without a popular base, whether among the
majority or the minority. These tended to be a strangle hold exerted by
various cliques to destroy or limit people-based participation.

Burma and Thailand personify those experiences poignantly.

Burma's first constitution of 1947 failed to settle the issue of the rights
of ethnic communities and this was a key factor in the escalation of armed
conflict between those groups and the government. In 1974 another
constitution in Burma emerged after a coup d'etat staged by the military.
It was obvious that such a document would be an instrument of
authoritarianism.

By comparison, until Thailand's 1997 constitution (its 16th), most previous
constitutions had been written by military elements and their friends
responsible for over 20 coups and failed coups. Yet, the tide is turning.

Thailand's latest constitution has been generally lauded as a participatory
constitution due to the drafting process which involved many members of the
community and public hearings throughout the country prior to its adoption.
It has a concrete section on rights and freedoms, while establishing many
innovative checks and balances against undemocratic government. These
include a Constitutional Court, a National Counter Corruption Commission, a
National Electoral Commission and a National Human Rights Commission.

In addition, there are more guarantees for transparency, such as the
obligation on cabinet ministers and their families to reveal their assets
before and after taking office. The Thai public has been astounded by the
wealth so far revealed (in the billions), and one newspaper has printed
details of this wealth under the appropriate heading of "The Millionaire's
Club".

Interestingly, many politicians' spouses are twice as rich as the
politicians themselves, and often they pay no tax at all.

However, there is a bottom line underlying the process of evolving this new
constitution for Thailand. Were it not for the economic whirlpool, the new
constitution might not have been born. It was this magnetic mess which
mobilised the public to seek the passage of the new constitution as a
political cure for economic ills, granted that these ills were greatly the
consequence of the nexus between political misdeeds and economic mishaps.

Those politicians who had previously rejected this constitution ultimately
yielded to its adoption as they did not want to be seen as countering the
public sentiment or losing their credibility.

Current conditions in Burma are, of course, very different. Given the iron
rule of the junta, it is highly unlikely the junta will consult the public
genuinely about the possibility of a new constitution. Whatever new
constitution it has under wraps is likely to prolong its rule and protect
its impunity, while incorporating various obstacles to prevent the leaders
of democratic groups from gaining power.

For these reasons, one can and should welcome the draft of a new
constitution prepared by the democratic groups under the umbrella of the
National Council of the Union of Burma.

This is a constructive alternative voice based upon these tenets:
commitment to a multi-party democratic system, a guarantee of basic rights
and freedoms, direct applicability of international human rights standards~
due process of law and access to justice, federalism based on respect for
different ethnic groups, an elected people's assembly, independent courts
and a national human rights commission, and restrictions imposed on the
declaration of a state of emergency.

The Burmese scenario raises a variety of inter linked concerns for the
birth, reform and implementation of national constitutions in Southeast
Asia including:

LEGITIMACY. The legitimate entry point for the preparation of a
constitution is the involvement of the broad mass of the population and its
representatives. A junta or unelected government is evidently illegitimate
as a proponent or drafter of a national constitution. Yet, such shameless
travesties persist in Southeast Asia.

DEMOCRATIC RULE OF LAW.  This implies the need for multi-party systems,
free and fair elections, government by means of the people's elected
representatives, equality before the law, and constitutional guarantees for
the protection of individuals and groups.

PROCESS ORIENTATION. The process of drafting a constitution should be very
open and participatory. The process of bringing together people from all
walks of life is often as important as the ultimate written text of the
constitution as it is a means of empowering and mobilising the community to
feel that the constitution belongs to them rather than being an instrument
superimposed from the top.

HUMAN RIGHTS. Most constitutions have a section on rights. However, many
constitutions in the Southeast Asian region refer to the rights of citizens
or nationals rather than the rights of all people on their territory. From
the angle of human rights, it is important to reinforce the principle of
non-discrimination advocating the rights of all people rather than only the
rights of citizens or nationals. In terms of human rights, it is
international standards which must prevail over lower national standards.

FAIR CONSTRAINTS ON RIGHTS. The constraints imposed on human rights are
often in the form of duties or restrictions on the basis of national
security or public order. Although in international law some constraints
are acceptable, they need to be fair and they are to be measured from the
angle of whether they are permissible in a democratic society. The
criterion has to be what is allowed or restricted in a democracy rather
than in an autocracy.

PLURALISM. This calls into play the concerns of the plurality of people and
communities in the country. It counters the "majoritarian absolution" noted
earlier and requires the consultation and inclusion of minorities,
indigenous peoples and other groups on the territory, coupled with
guarantees for their rights.

JUSTICIABILITY. This implies that individuals and groups should be able to
invoke directly in the courts the various rights and freedoms stated in the
constitution -- to test the validity of laws, policies and programmes
linked with the government and to seek their nullification if necessary.

GOOD GOVERNANCE.  This is rapidly becoming a key principle for measuring
how power is exercised, whether in the public or private sphere. It is
inherently linked with the need for transparency and accountability (at
least) of the machinery and personnel of government, with remedies against
dishonesty and redress for grievances.

CHECK AND BALANCES. Most constitutions refer to the various organs of
government and administration such as the executive, parliamentary and
judicial branches. They need to be based upon checks and balances against
the abuse of power. On one front, it is important to keep the military in
the barracks. On another front, although there is usually a call for
independence of the judiciary, this is incomplete; an honest and
transparent judiciary is still an aspiration rather than a reality in many
countries.

Other mechanisms should be evolved to be more accessible to the people.
These include national human rights commissions, ombudsmen and
administrative courts. These formal entities also should be balanced with
non-formal entities such as nongovernment organisations, community leaders
and the media so that they can act as watchdogs to monitor the formal
instruments of government.

SUBSIDIARITY WITH RESPONSIBILITY. This refers, in particular, to the need
to provide for decentralisation with responsibility. Many matters are best
planned and implemented at the local level, and localities thus should
enjoy the subsidiary power to control and manage local resources. However,
the localities also should be under the responsibility to be open and
accountable to the electorate.

COMPLEMENTARY LEGISLATION. Inevitably, the constitution in most countries
tends to provide a broad framework which needs to be supported by
subsequent laws providing more details for operations. In some countries,
the latter are known as organic laws. They also may be linked with
delegated legislation giving powers to various authorities to evolve a
subset of rules and regulations particularly for the administration of
government.

It is imperative that these subsequent laws be consistent with the spirit
of the constitution and the community should be on guard against the
powers-that-be who some time seek to dilute the substance of the
constitution by means of other laws.

However, by contrast, one may note that in those cases where the
constitution is itself undemocratic, the saving grace may be to bypass the
constitution by evolving other laws such as a criminal code or a criminal
procedure code  which/are more in keeping with international standards than
the constitution intends to be. The ultimate test is complementarity of the
national constitution and other laws when tested against international
standards.

POPULAR PARTICIPATION. This is axiomatic and needs to be integrated and
main streamed into all laws, policies, programmes and practices. While very
related to national elections and government, it also pertains to other
walks of life, including the localities, communities and families. It
demands more public hearings prior to decision-making concerning actions
which may affect the livelihood of communities. It calls for more public
inquiries and remedies if there are infringements of people's interest. It
is interrelated with particular attention for vulnerable groups, including
women, children, the elderly and those with disabilities.

These yardsticks are essential for the evolution of all constitutions. They
are particularly pertinent today to the constitution-making process and the
democratisation of Southeast Asia precisely because the region is still
faced with vestiges of undemocratic rule and antiquated constitutions
and/or those superimposed by vested interests.

As this year is the 50th anniversary of the Universal Declaration of Human
Rights, that great global charter of our rights adopted by the United
Nations, it is time to turn over a new leaf. The tree of life ultimately
depends upon democracy, human rights, people-based sustainable development,
the peaceful prevention and settlement of disputes, and environmental
protection. The greener pastures will grow only with the cross
fertilisation of people-based solidarity.

** Vitit Muntarbhorn is a professor with the Faculty of Law, Chulalongkorn
University. He was formerly a UN special rapporteur on the sale of
children. This article is based on a keynote speech he delivered at the
seminar on Democratisation, Peace and Economic Development and Burma's
Future, held in Bangkok from June 5-7. 

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Associated Press: Indonesian Lesson May Be Hard for Myanmar's Generals  
10 June, 1998  

BANGKOK, Thailand (AP) On the other side of Southeast Asia from Indonesia,
the downfall of President Suharto sent a message to another military
regime, one that considered his rule a model of how to be authoritarian yet
retain international acceptance.

Since 1962, generals have ruled Myanmar, also known as Burma, with few
concessions to democracy activists such as Aung San Suu Kyi, the 1991 Nobel
peace laureate. The massacre of anti-government protesters a decade ago
made Myanmar a pariah state.

For the past eight years, the generals have been looking for a new
constitutional formula that would cloak their rule with enough democratic
trappings to gain international legitimacy.

Indonesia was their model. In the political system erected by Suharto, a
former general, the military's involvement in politics and defense was
constitutionally enshrined with the concept of "dwifungsi" or dual role. It
provided governance that seemed eternally stable.

The Myanmar junta has sought to formalize and legitimize a similar system
since the 1990 election victory of Suu Kyi's party. The victory should have
enabled her National League for Democracy to take control of Parliament,
but the military refused to recognize the result.

Suharto's system allowed Indonesia's military to keep power away from any
organized opposition. By providing rapid economic growth that, until
recently, allowed reasonable prosperity for most Indonesians, Suharto also
was able to mute criticism of the military's role in political affairs.

Suu Kyi, however, walked out of a 1995 convention aimed at producing an
Indonesian-style constitution in Myanmar, deeming the process a sham. The
country has been politically deadlocked since.

Now, the appeal of the Indonesian model may be less. Certainly, the
economic development and political stability Myanmar's rulers so admired
has been diminished by Indonesia's financial collapse and the anarchic
final days under Suharto's leadership.

These days, there is a new Indonesian model in the making, one ordinary
Myanmar citizens will only have heard about on foreign radio: Student-led
protesters brought down Asia's longest-serving ruler and how the military
appears to be supporting democratic changes.

But Myanmar is highly unlikely to follow the same path. Universities closed
since 1996 protests likely will stay that way for some time.

The military has no desire to see Myanmar's students, historically at the
forefront of the country's democracy movements, become as politically
active as their Indonesian counterparts.

Student unrest coupled with economic problems sparked a nationwide
democracy uprising in 1988. The military responded by gunning down more
than 3,000 unarmed protesters. The response to 1996 protests was less
violent, but dozens of students received long prison terms.

In what may be a sign of nervousness, high school teachers have been warned
to look out for subversives, meaning Suu Kyi supporters.

Myanmar's generals hoped that gaining membership in the Association of
Southeast Asian Nations last year would bolster their legitimacy and result
in new investment that would alleviate economic hardship. The 1997 Asian
financial crisis dried up investments.

Suharto's family, coincidentally, had extensive holdings in Myanmar. His
government, pilloried for its human-rights abuses, shielded Myanmar within
ASEAN from mild reproaches by more democratic members. Indonesia's new
government, keen to prove its reformist credentials, may be less
accommodating.

How the new leadership in Jakarta handles the post-Suharto era could impact
thinking in the Myanmar capital of Yangon depending on whether Indonesia's
leaders seek retribution or let bygones be bygones.

An approach that favors reconciliation could become a new Indonesian model,
easing anxieties among Myanmar's generals that life could go on if they,
too, one day cede some of their power.

EDITOR'S NOTE Don Pathan has covered Southeast Asian affairs for The
Associated Press since 1994.

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