Thirgood, Russell --- "The State: Enemy of the People - Suppression of Human Rights in Burma" [2002] AUJlHRights 13; (2002) 8(2) Australian Journal of Human Rights 1
ABSTRACT
In 40 years of military rule, Burma remains amongst the worst violators of human rights in the world. Civil unrest and the absence of rule of law and constitutionalism have resulted in widespread torture, denial of civil liberties, abusive labour practices and discrimination against ethnic minorities and women. Russell Thirgood, President of Amnesty International Australia, argues that the present authoritarian character of Burma is rooted in its history of absolute monarchy and colonialism, culminating in the military’s refusal to honour the election of the National League for Democracy in 1988. He urges the international community to continue to speak out against the military regime, in an effort to uphold the Burmese people’s desire for democracy, rule of law and respect for human rights.
The survivors fled; one wounded made it to the RGH (Rangoon General Hospital) and related the story to the outraged nurses and doctors:The worst day was Wednesday the 10th (August 1988). Army trucks dumped both dead and wounded from all over Rangoon outside the hospital. Some kids had a bulletwound in their arms or legs – and then a bayonet gash in their throats or chests. Some were also totally disfigured by bayonet cuts. Several corpses were male and stark naked – with shaven heads. Those were the monks whom the soldiers had stripped of their robes before dumping their corpses outside the RGH. I counted 160 dead and hundreds of wounded at the RGH alone and there were many more at other hospitals throughout Rangoon. At least 1000 people were killed by the army during the period 8th-12th August.... Shortly afterwards a group of nurses emerged from the hospital ... I decided to join them, believing that it would be safe to march together with the nurses. We walked around the quarter – and saw an army truck approaching. I never thought that they’d shoot. Some enraged people climbed the fence outside the hospital and shouted abuse at the soldiers. Then I heard a single shot, and another – followed by automatic riflefire. They were firing into the column of hospital personnel! I saw dead and wounded sprawling in pools of blood outside the RGH. I helped carry them inside, where people cried at the sight of the nurses, their hospital white sullied with blood (Lintner 1990: 103-4).[2]
Introduction
A government and an army is obliged to serve and defend the people. When it hysterically and indiscriminately open fires on its own men, women, children, doctors, nurses and monks it can only be regarded as an enemy of the people. The ruling military junta in Burma is one of the world’s worst violators of human rights. It has been condemned internationally for committing serious human rights abuses including extra-judicial killings, torture, rape, disappearances and forced labour. Civil liberties such as freedom of expression and association are non existent. There is no civil society. The military dictatorship has argued that it has been necessary to curtail these ‘western’ and ‘westernised’ civil and political rights to enable economic growth. It has also failed in this respect. Burma is an impoverished nation.
Burma currently lacks the necessary legal framework to protect individual rights. When the army came into power following the 1962 coup it abandoned the 1947 Constitution.[3] This Constitution, which was drafted around the same time as the Universal Declaration for Human Rights, provided safeguards for fundamental rights. Importantly, the judiciary, the guardian of individual rights, was independent from the executive. For fourteen years civil society was allowed to flourish. However, since 1962 and the advent of military dictatorship, human rights have neither been institutionalised nor protected. The 1974 Constitution failed to afford the judiciary any independence.[4] Although there was a chapter dealing with fundamental freedoms, these freedoms were heavily qualified and contingent upon fundamental duties. In 1988, following the violent suppression of the pro-democracy uprising, the State Law and Order Restoration Council (“SLORC”), which has since renamed itself the State Peace and Development Council (“SPDC”), came to power.[5] It rules by decree. There is no rule of law. In some ways SLORC / SPDC rule resembles pre-colonial Burma where the king was an autocrat and his power was absolute. Like the Burmese king, the current military junta is lord and master of the life and property of the Burmese subjects. Throughout Burmese history there was no check on the king’s power save for his own conscience. When one examines the horrific human rights tragedies of modern day Burma, one wonders whether the military junta has a conscience.
It is important to understand the population, geographical, religious and ethnic composition of Burma. According to a 1996-1997 government estimate, Burma had a population of 46.5 million, of which only 26 percent is classified as urban. Out of the total labour force of 18.8 million, agriculture comprises 63 percent (EIU Country Profile 1997-98:288). The country is divided into 14 first-order administrative regions: seven States with a majority non-Burman population, and seven Divisions with a majority Burman population. Those States and Divisions are further divided into districts, each comprised of several townships, then village tracts and finally wards. Buddhism is practiced by around 89 percent of the population. Christianity, Animism and Islam are also prevalent. These are some 135 different national groups in Burma with different languages and cultural features. The Burmans make up about two-thirds of the population. Other major groups include the Karen, Shan, Mon, Rhakine, Rohigya, Chin, Kachin and Karenni. This diversity has ensured that it is very difficult to find unified solutions to problems. The tension and unrest that exists between some of these ethnic groupings has been exploited by the present regime and past rulers.
History – The past defines the present
Pre-Colonial Burma
According to Fernando (1999: 288) “[t]o understand the present nature of a state system it is important to understand its historical roots.” Indeed, the past often defines the present. It may be argued that the present authoritarian character of the Burmese state is rooted in its history.
For over 800 years, from 1044 to 1885, the Burmese lived under an absolute monarchy. Gyi (1983: 14-29) contends that the Burmese monarchy displayed three core characteristics: the sacrosanctity and central position of the kingship, absolutism and the undifferentiated functions of kingship. As the lineal descendant of Mahathamada, also known as Manu, the first king of the world and incarnate of Buddha, the Burmese king was the embodiment of the highest attainment on earth. Bearing titles such as “Lord of Life”, “the King of the Rising Sun”, “Lord of Earth and Water” and “Great Chief of Righteousness”, the Burmese kings asserted their superiority over all other monarchs (Gyi: 1983: 14-15). Within Burma itself, the king clearly wielded great power and was the central feature of government. The concept of legal restrictions being placed on the sovereign was alien to the Burmese. Perhaps the only exception to the absolute rule of the king was the Buddhist monks whom the king did not dare treat irreverently. However, in secular matters there was no concept of separation of powers. All legislative, executive and judicial powers were concentrated in the hands of the monarch. Justice was administered by issuing royal commands. The hluttaw, which was the chief council of state and the supreme court of the realm, assisted the king in his executive and judicial functions. However, as members of the hluttaw were liable to be flung into jail without a moment’s notice if the king was displeased, it cannot be said that the hluttaw curbed the absolute power of the king. The ruler’s conscience alone was the only controlling feature of his actions. This meant that the character of the Burmese government depended almost entirely on the personality of the king.
The authoritarian nature of the Burmese kings’ rule and the use of terror as a controlling feature would lead theorists, such as Professors Kamenka and Tay (Kamenka & Tay 1971, 1975), to place this early period of Burmese history in a domination-submission typology or paradigm. Coercive social controls and severe restrictions on civil rights and liberties are commonly justified by the need to maintain social order. The government of the Burmese kings was often a government of fear and violence. It was a government capable of transporting hundreds of common people from their native districts to a distant village for exploiting their labour. It was a government whereby the king only had to utter that he did not want to see a certain person any more for the person who had incurred the king’s displeasure to be put to death. No doubt the king (like the SPDC today) would have had a different conception of his own role in the governance of the country. It is difficult to comprehend the motivation of a king who acted with such brutality: was it prompted by aberrant notions of the good of the community, was it a raw expression of power or possibly obliviousness to the reality of the cruelty because of his remoteness from the action. Absolute monarchy was the only system of government that was known. Cruel punishments, ruthless suppression and savage reprisals were the most effective methods of upholding such a government. Accordingly, the Burmese people lived in mortal fear of the king. His spite knew no time, location or reason. It is therefore not surprising that the government was one of the evils that the Burmese in prayer sought deliverance from (Gyi 1983: 29). Domination–submission tendencies were particularly prevalent in Burma’s pre-colonial penal system. Professor Than Tun (Tun 1988) recognised that punishment for wrongdoing was often exceedingly cruel in nature.
Another feature of Burma’s penal system was the notion that the punishment should fit the person rather than the crime. Punishment for the perpetrator of a crime was not only commensurate with that person’s social status but also commensurate with the status of the victim (Aung-Thwin 1993: 33). Thus someone from the Kyawan or slave class who wronged someone from the Kshatriya (warrior) class of princes could expect very severe retribution. Justice was not indifferent to birth and rank. Social status rather than objective legal factors determined punishment. Inequality of birth was the cornerstone of Burma’s legal system. Aung-Thwin (1985: 126) asserts that the underlying principle of the justice system in ancient Burma was that “man was inherently unequal with differences in past karma.”
The status - oriented legal system had its parallel in the social sphere. The Burmese social system was based on ordered relationships. Duties flowed from relationships between a superior and an inferior, an older person and a younger person, and a person of higher status and a person of lower status. It was a highly personalised hierarchical system guided by morals, rather than an impersonal, indifferent and impartial system based on positive law. In this respect, pre-colonial Burma displayed a number of Gemeinschaft characteristics. The Gemeinschaft paradigm, found in traditional societies, emphasises hierarchy and strata. Its social cement is religion or ideology. Social relations in Burma were to a large degree shaped by Buddhism and the hierarchical rules of relationships between parents and children, teacher and pupil, husband and wife, friends and comrades and master and servant.
Although it has been argued that governance under the Burmese kings was authoritarian, if not despotic, it must be noted that some scholars contend that not all episodes of Burmese legal and political history were entirely authoritarian (Huxley 1997: 16; Maung Htin Aung 1962; Zan. 2000). Myint Zan has observed that arguably there was some form of judicial independence in matters of life, crime and property which were outside the kings’ jurisdiction. At least during King Thalun’s rein, judges could issue rulings freely and independently based on the Dhammathats. However, Zan (2000 n 15: 4) nevertheless recognized that generally in pre-colonial Burmese history “[t]he concept and practice of judicial independence were neither widespread or firmly established because the governance of Burmese’s kings was generally autocratic, and there was no separation of powers or checks and balances amount the executive, legislative and judicial branches.”
Colonial Burma
The rule of the Burmese kings came to an end in 1885 when Burma became Her Majesty Queen Victoria’s possession. The colonisation process, which started in 1825 with Arakan and Tenasserim becoming subject to British rule, was from a humanitarian point of view a brutal process. The “Great Queen” was not welcomed into Burma. Resistance towards the formation of a new state was ruthlessly suppressed. In particular, the pacification process was severe in upper Burma when it was annexed in 1885 (Fernando 1999: n 7, 299). J.S. Furnival (1948) has divided the development of the colonial state into three periods. The first period was from 1826 to 1870 when a laissez-faire state was created. Although civil rights and liberties were granted, it is not clear whether or not the indigenous people benefited from them. The second period (1870-1923) was a time during which the state promoted the development of economic welfare. The Burmese were far more appreciative of the development of communication, education, health and agriculture. The final period (1923-40) witnessed the development of political democracy. Despite this progress, the colonial state was something that was imposed from above. By the 1920s, a young, radical and nationalistic leadership that was influenced by Buddhism and Marxism emerged to fight against the British. This group of Thakins, which included in its ranks men who would later shape Burma’s destiny such as Bogyoke[6] Aung San and Ne Win, left for Japan at the outset of the Second World War to receive military training. In 1942, the Thakins returned and with the help of the Japanese armies overthrew the colonial state.
The period of Japanese occupation that followed was, according to Fernando (1999: n 7, 299), “[i]n terms of national independence, law and order, continuity of the state and human rights” a disaster. Recognising this, together with the importance of liberal values, constitutional government and human rights, the Thakins formed the Anti-Fascist People’s Freedom League in 1944 and joined with the British forces to fight against the Japanese. In particular, Aung San had broken away from any semblance of fascist ideology and supported the Atlantic Charter which contained basic human rights principles that were later to be incorporated in the Universal Declaration of Human Rights. Aung San was the chief inspirer of the 1947 Constitution. His assassination just months before Burma was granted independence was a major blow to the country.[7]
Together with notions of liberal democracy and human rights, the British introduced to Burma the rule of law. The Burmese did not always appreciate or understand this western concept which was applied more stringently than the Dhammathats. The rule of law was seen to be overly technical and rigid. The importance of form and hair-splitting created legal loopholes that only benefited those who were sharp enough to take advantage of them. The emphasis on impartiality and detachment demonstrated that British administrators lacked sympathy and were soul-less (Maung Maung 1963: 24-5). Others have regarded the rule of law as a mere tool that expresses the will of the ruler and not of the ruled. Furnivall (1948: n 18, 295) enunciated:
The rule of law is a foundation stone of western freedom ... but this is true only where the law is an expression of social will; in a tropical dependency it expresses the will of the colonial power, and is an instrument of economic development. The rule of law becomes in effect, the rule of economic law ... [and] naturally expedites the disintegration of the customary social structure.
Huxley ( 1996-7: 9-10) cited with approval comments by George Orwell that the rule of law was “a Pox Brittanica” designed to benefit “the money lender and the lawyer.” For Huxley (1996-7: 9), “[i]t is difficult to argue that Burma was a better place when the British left than when they arrived.” That may well have been the case. The rule of law was most likely perverted during British rule of Burma. However, what cannot be denied is that the British left the Burmese and particularly the Thakins with a framework around which a constitution could be drafted that could afford protection to individual rights.
In order to safeguard human rights, the Thakins understood the importance of the Burmese being ruled by law rather than the arbitrary decrees of one man or through fear generated from the barrel of a gun. In his address to Parliament in 1960 U Nu, Burma’s first Prime Minister, eloquently stated:
... For democracy to work, it is necessary not only that such laws exist but also that every citizen obeys the laws freely and conscientiously and that there is no disobedience but also no evasion. It is equally necessary that those in power enforce their authority through the rule of law, and not through fear or at the point of a bayonet. For democracy to work, this sense of the rule of law must be created in the minds of both the ruler and the ruled, and there must be constant effort to develop it and strengthen it, until it becomes a part of our very life and thought.
The British introduced to Burma Gesellschaft characteristics that were to be embodied in Burma’s first constitution. In the Gesellschaft paradigm, people are stripped of their background and dealt with equally by the law.[8]
The 1947 Constitution and independence (1948-62)
The British eventually yielded to the Thakins’ hopes for self-rule and on 4 January 1948 the Union of Burma achieved independence. On 19 April 1948, Burma was admitted to the membership of the United Nations. A constitution had previously been drafted for this new sovereign independent republic by a constituent assembly and was adopted on 24 September 1947. Sections 1 and 2 of the 1947 Constitution provided that the Union of Burma was comprised of all of the territories previously governed by the British and also the Karenni states.
The drafters of the 1947 Constitution were inspired by the constitutional provisions and practices of a number of western liberal democracies. The period of colonial British rule was clearly influential. Some of the 111 members of the constituent assembly were British trained lawyers. Accordingly, the institutional structure of government followed the Westminister separation of powers model. The cabinet was headed by a prime minister who in turn was responsible to parliament. The parliament was bicameral, consisting of a Chamber of Deputies and a Chamber of Nationalities. The Chamber of Deputies was elected according to a population basis and the Chamber of Nationalities was elected on a racial basis in such a way that the Shans, Kachins, Chins, Karens, Kayah and Burmans were represented (Chapter VI, 1947 Constitution).[9] Chapter V of the 1947 Constitution which provided for a President as head of state to be elected for a five year term by the combined houses of parliament was modeled on the French system (Chapter VI, 1947 Constitution). It is noteworthy that the drafting of the 1947 Constitution coincided with and was influenced by the framing of the Universal Declaration of Human Rights. Aung San, the Thakins and the constituent assembly wanted Burma to be ruled in accordance with international human rights principles and turned to the American constitution that provided the inspiration for a statement of fundamental rights in Chapter II (Fernando 1999: n 7, 301). Economic, social and cultural rights were incorporated in Chapter IV under the “Directive Principles of State Policy” (Chapter VI, 1947 Constitution). The Irish constitution was the precedent for this.
The principles set out in Chapter IV concerning economic, social and cultural rights did not have legal force in the sense that they could be enforced in a court of law but were rather a set of guidelines for the State to follow (Section 32, 1947 Constitution). The State was to ensure that its policies promoted the improvement of public health (Section 28, 1947 Constitution), material conditions and cultural level of the Union (Sections 41 & 43, 1947 Constitution), and the welfare of youth, children, mothers, the disabled and the old (Sections 34, 35, 37 & 40, 1947 Constitution). The right to work, rest and leisure and education were also recognised (Sections 33, 34 & 39, 1947 Constitution). Many of these rights are mirrored in the Universal Declaration of Human Rights and the International Convention on Economic, Social and Cultural Rights.
Legally enforceable individual rights in relation to civil and political liberty, equality, non-discrimination and property formed the basis of Chapter II of the 1947 Constitution. The Supreme Court of Burma held in 1958 that most of the fundamental rights found in the constitution were assured to citizens and aliens alike and their full enjoyment was not restricted (V.E.R.M.N.R.M Kasi v Official Assignee & One).[10]
The human rights incorporated in Chapter II were very liberal. Importantly, the rights that were granted to individuals were not contingent upon social duties. Rather, obligations were imposed upon the State. The status-oriented legal system that was prominent in pre-colonial Burma was abolished. Everyone, irrespective of “birth, religion, sex or race” was equal before the law (Section 13, 1947 Constitution). Non-discrimination in employment with a particular focus on the right of women to be “entitled to the same pay as that received by men in respect of similar work” was constitutionally guaranteed (Sections 14 & 15, 1947 Constitution). Civil liberties including the right of citizens to “express freely their convictions and opinions”, “assemble peacefully”, “form associations and unions”, and “to reside and settle in any part of the Union, to acquire property and to follow any occupation, trade, business or profession” were specifically stated in the Constitution (Section 17, 1947 Constitution). Although the Constitution recognised the special position of Buddhism, it also recognised other religions and provided that all people were “equally entitled to freedom of conscience and the right to freely profess and practise religion” (Sections 20 & 21, 1947 Constitution). The limitation placed on these civil liberties in terms of “law, public order and morality” was merely a standard provision that also appears in the Universal Declaration of Human Rights.[11] Trafficking in human beings and forced labour were outlawed (Section 19, 1947 Constitution). The privacy of citizens with the inviolability of personal liberty, dwelling and property was guaranteed (Section 16, 1947 Constitution). Significantly, these liberal individual rights were supported by constitutional remedies. The Supreme Court was made the guardian of human rights and was given the power to preserve them through issuing directions in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari (Section 25, 1947 Constitution).
The framers of the 1947 Constitution recognised that in order to guarantee human rights, a strong and independent judiciary was required. Accordingly, Chapter VIII made provision for the establishment of the High Court and the Supreme Court. The Supreme Court was the highest court of the land and the court of final appeal (Section 136, 1947 Constitution). Initially, the fathers of the Constitution, who were young radicals and revolutionaries, did not desire judicial independence. They did not want the judiciary to be so free as to belong to a privileged class that was out of touch with the common people. Accordingly, the first draft of the Constitution provided that judges of the Supreme Court were elected by the Union Assembly in joint sitting and held office for a term of ten years (Maung Maung 1959: 148). However, this draft was opposed by the judges who pointed out to the framers the dangers of having judges elected for only a short period of time. After debate, the ideal of judicial independence was accepted. It was appreciated that it could only be safeguarded if the judiciary was given security of tenure and placed above the ebb and flow of politics. The constituent assembly had the wisdom to insert s141 into the 1947 Constitution providing that all judges would be independent in the exercise of their judicial functions and subject to the laws and the constitution (Section 141, 1947 Constitution). Section 144 further provided that neither the salary of a judge nor his rights and privileges would be varied to his disadvantage after his appointment (Section 144, 1947 Constitution).
The judiciary lived up to its constitutional mandate of judicial independence and for fourteen years was the guardian of individual rights. Whilst it had the protection of the 1947 Constitution, the Supreme Court of Burma was an independent, prestigious and powerful institution. It construed the fundamental rights in the Constitution very liberally. The rights of the citizen were protected against government interference. The Supreme Court bravely and boldly issued writs to set men free who were detained on illegal grounds and would quash orders issued by the executive that offended the Constitution (Maung Maung 1959: 157). U Nu stated in 1958:
Our Courts have always acted freely ... Oftentimes, we have wrung our hands in despair because a person whom the Government wanted to imprison is set free by the Courts, and oftentimes the Government has appealed against the decision of the Lower Courts only to have it confirmed by the Higher Court. When we have followed the case right up to the highest court of law, and find that the decision still goes against the desire of the Government, we can but fold our hands and watch the person go free (Maung Maung 1959: 157).
Comments such as these from the government itself are certainly high compliments for the judiciary and demonstrate the health and vitality of Burma’s courts during the decade post-independence.
The courts, together with the liberal human rights enshrined in the 1947 Constitution, enabled civil society to develop in Burma. The country entertained a competitive political party system and a free press. There were more than thirty newspapers. Apart from the leading ones in Burmese and in English, there were others in Chinese, Indian and Urdu (Fernando 1999: n 7, 309-10).
However, in a country that had no strong historical foundation of the rule of law, judicial independence was naturally fragile. Further, this brief period of independence was plagued by fighting and communist and ethnic insurgency in the country. Overall there was inadequate governance. The coup which was to follow was in part a misguided attempt to take unified control over the unstable situation. Writing in 1959, Maung Maung (1959: 157) in a chilling prophecy warned that “[i]f leaders should burst onto the scene schooled in totalitarian thinking and practice, then indeed the independence of the judiciary, and its role as an essential and important feature of democratic life, must wither and die.” He cautioned that the “[j]udiciary may have security of tenure under the constitution and conditions which are congenial to its independence, but it has no guns.”
Military coup and Revolutionary Council (1962 –74)
Fulfilling Maung Maung’s forewarning, the military with its guns, and led by General Ne Win staged a coup d’etat on 2 March 1962 overthrowing U Nu’s government. All of the democratic structures that had been developed since independence to protect human rights were dismantled. The parliament was denounced as bourgeois and western and dissolved on 8 March 1962. The 1947 Constitution was condemned - a creation of unscrupulous, western, legal experts. The Supreme and High Courts were criticised as standing in the way of a strong and progressive unitary state and were abolished on 30 March 1962. The independence of the judiciary was destroyed. A new set of courts and tribunals, mostly composed of military men lacking in legal training, was established. Ironically, Maung Maung himself was appointed Chief Justice in 1965. In 1972, after the advent of the People’s Judges System, Maung Maung cautioned his judges to follow the advice of the Revolutionary Council Chairman, General Ne Win (Zan 1999: 232).
After the fledgling democratic institutions of Burma had been crushed, the military moved to centralise all power in the hands of Ne Win and the Revolutionary Council. From 1962 until 1974 Burma was ruled by one man’s decree. All legislative, executive and judicial authority that had been assumed by the Revolutionary Council was conferred on Ne Win. Since the fall of the Burmese kings in 1885, no person ever entertained such control. It has even been said that Ne Win “tried to emulate and resurrect the traditions of the military administrator kings of the past” (Fernando 1999: n 7, 311-12). Robert Taylor stipulated that “Chairman Ne Win in theory possessed all state power and thus achieved a position of formal dominance within the state unprecedented since 1885” (Taylor 1987: 294). During his period of almost unquestioned rule, General Ne Win placed the army in charge of everything including commerce and industry (Khan 1991: 43). When resistance was encountered it was ruthlessly suppressed. Any semblance of the rule of law had disappeared and the domination-submission paradigm had descended once again on Burma.
Human rights were obliterated during the twelve years of military rule by decree. The immediate consequence of the military takeover was the re-establishment of ethnic Burman dominance in matters of state and the suppression of minority rights. Edith Mirante (1987: 61) notes that “[a]nti-Chinese riots (particularly in 1967 in Rangoon) were frequent, and discrimination against Chinese and Indian residents and Arkanese Moslems was rampant.” During the Revolutionary Council period, human rights were subordinated to the greater objective of state building. Ironically, at the time the coup was staged, which itself was a violation of human rights, the Secretary General of the United Nations was U Thant, a Burmese.[12] Further, Burma was one of the 48 countries that had in 1948 voted for the Universal Declaration of Human Rights (Fernando 1999: n 7, 308-9). During the years that followed Ne Win’s takeover there were thousands of arrests and detentions without charge or trial. Individuals could not turn to the Court for intercession. The Supreme and High Courts had already withered and died and could offer no assistance to Burmese citizens. The former Chief Justice of the Union was himself under detention. It was pointless turning to the new Chief Courts. The military personnel who manned the courts and tribunals had no appreciation for writs such as habeas corpus, and quo warranto. If an individual was brave enough to seek a writ of quo warranto (by what authority), the standard response would ironically had to have been “by the authority of the Revolutionary Council itself!” (Zan 1999: n 53, 228).
Like human rights, civil society was suppressed during Ne Win’s rule. In his study on civil society in Burma, David Steinberg (1999: 8-9) contends that under military rule civil society died, “or more accurately it was murdered.” In the political sphere, for the first twenty months after the coup, the Burmese Socialist Programme Party was the dominant force. It became the sole force in March 1964 when the Revolutionary Council promulgated the Protecting National Unity law which banned all other political parties and all other political activity. The press and media also attracted the military’s attention. Immediately after the takeover, a warning was issued that seditious news was not to be published. In 1963, the prestigious Nation was closed down and the military published its own propaganda in its own Working People’s Daily (Fernando 1999: n 7, 310). All private newspapers were banned by the end of 1966. The Revolutionary Council adopted an isolationist policy and disbanded all communication and education links with the west. Correspondents of Reuters and the Associated Press were expelled. Foreign educational and cultural programmes were suspended. All western influences were considered evil and consequently outlawed (Fernando 1999: 312). The private sector including private business, private schools and professional organisations were either abolished or structured along lines mandated by the state. Even the sangha came under the military’s control (Steinberg 1999: 8-9). General Ne Win succeeded in eliminating dissent. Civil and civilised society disappeared.
1974 Constitution (1974-1988)
The 1962 - 1974 Revolutionary Council era was a prelude to the 1974 Constitution era. The 1974 Constitution bore little resemblance to the 1947 Constitution and essentially was the “culmination of a long period of gestation that had its formal inception soon after the military coup of March 2, 1962” (Steinberg 1999: 75). It was a carefully drafted document that ensured that all power was firmly in the hands of the Burmese Socialist Programme Party and thus the military. Under the 1974 Constitution, the Pyithu Hluttaw replaced the Revolutionary Council as the highest organ of state power (Article 41, 1974 Constitution).[13] It had vested within it all legislative, executive and judicial power (Article 12, 1974 Constitution). While the Pyithu Hluttaw was obliged to exercise all legislative powers itself, it was permitted to delegate executive and judicial authority (Articles 13, 44 &45, 1974 Constitution). The Council of State was charged with the responsibility for giving effect to the provisions of the Constitution (Article 70, 1974 Constitution) and was responsible to the Pyithu Hluttaw (Articles 71 & 58, 1974 Constitution). Likewise, the Council of Ministers, the highest executive organ (Article 83, 1974 Constitution) was responsible to the Pyithu Hluttaw or the Council of State when the Pyithu Hluttaw was not in session (Article 84, 1974 Constitution). All central organs of state including the Council of People’s Attorneys (Article 114, 1974 Constitution), the Council of People’s Inspectors (Article 118, 1974 Constitution) and Council of People’s Judges (Article 104, 1974 Constitution) were responsible to the Pyithu Hluttaw. The Pyithu Hluttaw itself was controlled by the Burmese Socialist Programme Party whose leadership role was made explicit in the preamble of the Constitution: “We, the working people, firmly resolved that we shall faithfully follow the leadership of the Burma Socialist Programme Party”. Article 11 of the 1974 Constitution provided that the Burmese Socialist Programme Party was the sole political party in a single party system. Naturally, the Party submitted the lists of candidates for election to the Pyithu Hluttaw and the various other organs of state (Article 179, 1974 Constitution). As the backbone of the Party and the holder of the state’s coercive power, the military was able to maintain control over the Party and therefore over the Pyithu Hluttaw (Steinberg 1999: n 61, 79). Hence, the 1974 Constitution codified the perpetuation of the military’s power in running, managing and governing the state. A “monolithic political structure without checks and balances” had been constitutionalised (Steinberg 1999: n 61, 79). All alternative sources of power were prohibited and General Ne Win’s rule of Burma continued, albeit in a different form.
As with all other organs of state, the judiciary was subservient to the Pyithu Hluttaw. There was, unlike the 1947 Constitution, no semblance of judicial independence. Members of the Council of People’s Judges were elected for a period of four years by the Pyithu Hluttaw from among its members (Article 95, 1974 Constitution). Similarly, at the lower level, Judges’ Committees were elected from members of the respective People’s Councils (MacDermot 1988: 6). Article 104 which stated that ‘[t]he Council of People’s Judges shall be responsible to the Pyithu Hluttaw and shall report to the Pyithu Hluttaw on the state of the administration of justice” (Article 104, 1974 Constitution), clearly demonstrated that notions of judicial impartiality, neutrality and independence were to be excluded. Guidelines for the administration of justice are set out in Article 101; the first of which is “to protect and safeguard the Socialist system” (Article 101, 1974 Constitution). The judiciary did not even have the power to interpret the laws and the Constitution (Articles 220 & 201, 1974 Constitution). There was no mention in the 1974 Constitution of legal education or judicial experience being a precondition of appointment to the Council of People’s Judges. The first chairman of the Council of People’s Judges was a former army officer and only one member was a lawyer. Rather, members were chosen for their affiliation to the Party (Khan 1991: 44-46). The writs of habeas corpus, certiorari, prohibition, mandamus and quo warranto were not mentioned. The closest remedy that citizens had in this regard was “the right to lodge complaints concerning their grievances to the competent organs of State power” (Article 164, 1974 Constitution).
The individual rights that were provided for in Chapter XI of the 1974 Constitution were severely limited and qualified. For example, Article 158 provided that:
Every citizen shall have the right freely to take part in political, social, class and mass organizations permitted by law and to enjoy freedom of association, assembly and procession. The State shall provide necessary assistance to the people to enable them to enjoy fully these rights and freedoms (Article 158, 1974 Constitution). (my emphasis)
At first glance this article appears to guarantee rights of association and assembly. However, the crucial words are “permitted by law.” Since Article 11 only allowed for a single-party system and all associations and assemblies that did not conform with the Party were prohibited, Article 158 only safeguarded the rights of citizens to attend Party sponsored mass rallies in support of the Party! Various other limitations and qualifications are used throughout Chapter XI, which deals with concepts such as equality before the law (Article 147, 1974 Constitution); women’s rights (Article 154, 1974 Constitution); freedom of thought and conscience (Article 156, 1974 Constitution); freedom of speech, expression and publication (Article 157, 1974 Constitution); and economic and social rights such as the right to employment (Article 150 (b), 1974 Constitution), education (Article 152, 1974 Constitution) and health care (Article 151, 1974 Constitution). The chapter is littered with phrases such as: “permitted by the State within the framework of the Socialist economy” (Article 148 (b), 1974 Constitution); “[t]he exercise of this right shall not, however, be to the detriment of national solidarity and the socialist social order which are the basic requirements of the entire Union” (Article 153 (b), 1974 Constitution); “[n]otwithstanding the rights enjoyed ... acts which undermine ... the socialist social order are prohibited”(Article 153 (c), 1974 Constitution); and “to the extent that the enjoyment of such freedom is not contrary to the interests of the working people and of socialism.” (Article 157, 1974 Constitution). Those qualifications and limitations were further supported by Article 167 (a) which provided the ruling military junta with a convenient mechanism to override human rights:
Laws may be enacted imposing necessary restriction on the rights and freedoms of citizens to prevent infringements of the sovereignty and security of the State, the essence of the socialist system prescribed by this Constitution, the unity and solidarity of the national races, public peace and tranquillity or public morality (Article 167 (a), 1974 Constitution).
Hence, most of the rights in the 1974 Constitution, especially those in relation to civil liberties, were rendered meaningless and were, in any event, unenforceable given that the judiciary was under the Party’s control.
Interspersed with “rights” in Chapter XI of the 1974 Constitution were parallel duties. It has been noted by a number of commentators that “this combination of rights and duties of citizens in the sphere of law has proved to be detrimental to the very nature of human rights” (Fernando 1999: n 7, 314). Human rights do not arise from the performance of duties. According to Donnelly (1989: 57), they are “inherent to the individual and independent of merit or the discharge of civic responsibilities.”
In terms of human rights protection, the 1974 Constitution compares very unfavourably with the 1947 Constitution. Firstly, individual rights are severely limited, qualified and contingent upon duties. Secondly, and perhaps more importantly, the institutional framework that is necessary to support and protect human rights is absent in the 1974 Constitution. There are no checks and balances on the power of the government. Even the judiciary is totally dependent upon the executive and the Party. It would not, or more precisely could not, stand between one citizen’s rights and the interests of the State. In a single party state, no opportunity for dissent was given. Civil society was non-existent. Essentially, the 1974 Constitution attempted to legitimise and constitutionalise the 1962 coup d’etat and the ensuing years of authoritarian military rule. Instead of ruling by decree unfettered by any legal document, Ne Win and his successors were afforded the opportunity to rule by decree with the backing of a so called “constitution”.
SLORC / SPDC (1988 – Present)
In 1988, after twenty-six years of incompetent military rule and widespread suppression, Burma experienced an uprising against one party / one man rule. The army’s ineptitude and corruption had bankrupted the economy (Strider 1995: 1-2). Burma had achieved the UN status of Least Developed Country. Accordingly, the business class along with doctors, engineers, accountants and teachers joined the students and sangha in a multi-class uprising. Demonstrations of over 20 000 people became a common site in the streets of Rangoon and the discontent quickly spread to Mandalay, Moulmein, Tavoy, Pegu, Mergui, Taunggyi, Sittwe, Minbu and Myitkyina (Fernando 1999: n 7, 321). The popular slogans were: “We want democracy” and “Down with the Military” (Fernando 1999: n 7, 321). Ne Win was obviously disturbed by the reaction against his rule and on 23 July 1988 announced his resignation as party chairman at an extraordinary congress of the Burma Socialist Programme Party to the party, congress and the nation. The months prior to his fall were bloody. He left his people with the following message:
I would like to declare to the whole country that if disturbances continue the Army will have to be called in, and if the Army shoots, it shoots to hit, it does not shoot into the air to scare. (The Guardian & The Working People’s Daily: 24 July 1988).
The democratic uprisings were ruthlessly suppressed and the military, which had reformulated itself into the State Law and Order Restoration Council (“SLORC”), regained control over Burma. The reports of the military’s swift and brutal response to the demonstrations are chilling. The series of massacres that took place in 1988 are regarded as being bloodier than the massacres of Tiananman Square and Dili. Lawasia reports that:
On August 8 and August 10, the military shot and killed several hundred people who were participating in student pro-democracy protests in Rangoon. According to an eye-witness testimony, army personnel surrounded seated demonstrators and demanded that the leaders of the movement stand up. As the students stood, they were shot by members of the 22nd Light Infantry. The troops then shot randomly into the crowd. The soldiers apparently threw the bodies of the dead and wounded into trucks and took them to the Ta Mui and Chandaw Monasteries, where they were cremated – some were burned alive (Lawasia 1988: 7).
Some have estimated that the death toll during the four days of violence from 8 to 12 August to be as high as three thousand (Associated Press: 18 April, 1997).[14] Ne Win’s successor, U Sein Lwin, who has been referred to as “the Butcher” (Lintner 1990), resigned after just 18 days on 12 August 1988 and was replaced by Maung Maung. During his brief term as President of Burma, Dr Maung Maung promised to investigate the people’s grievances, hold a referendum for a multi-party system and probe into the recent tragic events. The army looked on nervously. Perhaps fearing revenge and reprisal from the people, the hardliners within the Tatmadaw (army) reorganised themselves as the SLORC with General Saw Maung as Chairman and Brigadier General Khin Nyunt as Secretary and staged a coup d’etat on 18 September 1988. All organs of state power that operated under the 1974 Constitution were abolished (State Law and Order Restoration Council Declaration 2/88).[15] Martial law was immediately imposed with the SLORC assuming all executive, legislative and judicial authority (Khan 1991: 47). The official line was that the Tatmadaw, “in order to save the general deteriorating situation in the whole country ... for the welfare of the people, assumed responsibilities of the state organs.”(State Law and Order Restoration Council Declaration 1/88).[16] The people’s welfare did not improve. The bloody repression continued and in the first three days of SLORC rule “1 000 people including schoolgirls, monks and students were reported to have been killed” (Fernando 1999: 323). Hope however was given to the people when the SLORC promised to hold multi-party elections.
The promise of multi-party elections gave rise to a second democratic mobilisation which was less revolutionary but more organised than the first. More than ninety political parties were born with the National League for Democracy (“NLD”) emerging as the leading opposition to SLORC’s National Unity Party (“NUP”). The NLD was led by Tin U, a former general, and Daw Aung San Suu Kyi, daughter of independence hero Bogyoke Aung San. Despite SLORC orders that public gatherings be limited to four people, the charismatic and brave Suu Kyi traveled widely and attracted large sympathetic crowds. More than anyone else, Suu Kyi brought the issue of human rights to the forefront. In a letter to the UN Human Rights Commission she stated that “[t]he chief aim of the National League for Democracy ... is to bring about social and political change which will guarantee a peaceful, stable and progressive society where human rights, as outlined in the Universal Declaration for Human Rights, are protected by the rule of law” ( Kyi 1991: 222). SLORC’s tactics were simple. It engaged in a campaign of harassment and intimidation. On 20 July 1989, Suu Kyi was placed under house arrest and cut off from political activity. Later, she was even denied a place on her party’s list of candidates. Other political leaders suffered the same fate and were jailed prior to the elections. Arbitrary decrees ensured that freedom of speech and assembly were forbidden. Despite this atmosphere of intimidation and repression, the 27 May 1990 elections were fair largely due to the international attention that had been focused on Burma and SLORC’s confidence that the restrictions that it had placed on its opponents would ensure that it would easily win. However, the military which contested the elections under the auspices of the “National Unity Party” was overwhelmingly rejected, winning only 11 seats out of the 478 that were contested. The NLD’s campaign for democracy and human rights had proved to be very successful. The NLD secured 392 seats.
Tragically and in spite of international condemnation, the SLORC refused to relinquish its power and honour the election results. Despite having previously stated on a number of times that “we will transfer power to the political party that wins and return to the barracks”, General Saw Maung quickly changed his tune after the results were announced (Zan 1999: n 44, 255).[17] The excuse given for the delay in handing over power was that a constitution first needed to be drafted. In the meantime, the SLORC decided to intensify its campaign against anti-government activities and systematically eliminate its opponents. On 27 July 1990, still stinging from defeat, it issued Declaration 1/90 which clarified that “it is not an organisation that observes any constitution; it is an organisation that is governing the nation by Martial Law”. Curiously, it further noted that it was accepted by the UN and the nations of the world (Declaration 1/90).[18]
Since 1991, the UN has annually adopted by consensus a resolution on Burma that the SLORC among other things abide by the results of the May 1990 elections (UN GA Res 54/186).[19] In a letter to Aung San Suu Kyi dated 15 February 1994, President Clinton expressed the United States’ view as to who should legitimately rule Burma:
I also want to assure you of the United States’ continuing support for the struggle to promote freedom in Burma. The 1990 elections handed your party an overwhelming mandate from Burma’s people and firmly rejected military rule. Obviously, the path to democratic change must be worked out by the Burmese themselves who have assigned you a key role in bringing about such a democratic transition. We strongly condemn the effort to deny you the right to participate freely in the political life of Burma. (US Department of State Dispatch). Clinton (1994)
Not surprisingly, the SLORC has not hastened to draft a new constitution. On 9 January 1993, a National Convention was formed for the purpose of drafting the constitution. Of the 700 delegates to the National Convention as at 28 November 1995, when the NLD withdrew its 86 representatives, nearly 600 were handpicked by the SLORC (Zan 1999: n 53, 258). Although aspects of a draft constitution has now been formulated, Burma is still ruled by decree. In the last decade the SLORC has renamed itself the State Peace and Development Council (“SPDC”) and has changed the name of the country to Myanmar (Myan = quick; Mar = strong). What has not changed however is the pattern of human rights abuses.
The present - Human rights abuses in Burma
Burma is currently one of the world’s worst violators of human rights. The ruling SPDC continually attracts deep criticism from the United Nations, many countries of the world and international non-government organisations (“INGOs”). In its 29 February 2000 report on the situation of human rights in Myanmar, the General Assembly of the UN deplored “the continuing violations of human rights in Myanmar, including extrajudical, summary or arbitrary executions, enforced disappearances, rape, torture, inhuman treatment, mass arrests, forced labour, including the use of children, forced relocation and denial of freedom of assembly, association, expression and movement” (UN GA Res 54/186 para 5).[20] Further, it expressed its grave concern at the “increased repression of any form of political activity and the arbitrary detention and arrest of those exercising their rights of freedom of thought, expression, assembly and association”(UN GA Res 54/186 para 6). Special mention was given to those members and supporters of the NLD who had suffered harsh long-term prison sentences (UN GA Res 54/186 para 8).[21] The United States’ Department of State has also documented the Tatmadaw’s “longstanding and severe repression of human rights”, noting in its 1998 report that the Burmese citizens “continued to live subject at any time and without appeal to the arbitrary and sometimes brutal dictates of the military dictatorship.”[22] INGOs such as Amnesty International and Human Rights Watch have regularly reported the consistent abuses.[23]
On 7 December 2001 Amnesty International issued a press release noting that despite the release of some 200 political prisoners in 2001 that there were still another 1,600 political prisoners behind bars. One of them is U Win Tin, a 71 year old writer and NLD leader arrested in July 1989 and sentenced for a total of 20 years’ imprisonment. Despite his poor health he is still being held in Insein Prison. In 1995 he was punished for writing a letter to the UN Special Rapporteur about poor prison conditions and torture. Notably as more than 30 Nobel Peace Prize laureates gathered in Oslo to commemorate the 100th anniversary of the Nobel Prize on 8 December 2001 there was an important absence. Daw Aung San Suu Kyi could not attend. She has been held under de facto house arrest since September 2000.[24]
Not surprisingly, Burma is not a party to many of the major international human rights conventions including the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Burma has however a ratified the Convention on the Elimination of All Forms of Discrimination Against Women and the Convention on the Rights of the Child.[25] Despite the fact that the military is the major actor in all arms of government and there is no independent and impartial judiciary, the Hon U Aung Toe, Chief Justice of the Supreme Court of the Union of Myanmar, is a signatory of the Beijing Statement of Principles of the Independence of the Judiciary in the Lawasia Region. These Principles inter alia provide that only persons of competence, integrity and independence are to be appointed as judges (Beijing Statement of Principles of the Independence of the Judiciary in the Lawasia Region: clause 12 (Beijing Statement));[26] security of tenure is to be given (Beijing Statement: clause 18); and executive powers which may affect judges in their office must not be used (Beijing Statement: clause 38). Regrettably, the absence of the infrastructure needed to support the protection of individual rights including a liberal democratic constitution, the rule of law, an independent judiciary and enforceable international human rights instruments has led to widespread violations.
Civil liberties
Civil liberties have been severely restricted in Burma. In particular, key aspects of Burma’s legislation and military decrees / orders are in breach of Article 19 of the Universal Declaration of Human Rights which guarantees freedom of expression and opinion. The most notorious and widely used law to limit freedom of expression is the Emergency Provisions Act 1950 under which many have been imprisoned for as little as singing pro-democracy songs or writing critical remarks about the government in letters to friends abroad (Liddell 1999: 58). This Act is reinforced by other pieces of repressive legislation including s109 of the Burma Penal Code, the Printers and Publishers Registration Law (1962), the Official Secrets Act (1948), the Television and Video Act (1999), the Computer Science Development Law (1999) and Order 5/96. Under Order 5/96 anyone verbally criticising the National Convention is liable for detention for up to 20 years. Similarly, freedom of association is retarded by laws such as the Unlawful Associations Act and Order 2/88. Section (b) of Order 2/88 prohibits “gathering, marching in processions, chanting slogans, delivering speeches, agitating, and creating disturbances on the streets by a group of five or more persons.” Freedom of movement is controlled and restricted through the issue of personal identity cards. The SPDC has even cast its web to hinder the ability of its citizens to move to other countries. Passports, when issued, are for limited periods with a maximum of two years. The involvement of political activity abroad results in the refusal to renew passports. Should a Burmese citizen have his or her passport cancelled and his or her host country refuses political asylum, he or she would be forced to return to Burma and face the inevitable consequences. Although Burma’s laws provide for freedom of religion, a number of commentators have noted the tendency of the military to use Buddhism to enhance its legitimacy. In order to gain military advantage in border regions dissension between Buddhist, Christian and Muslim groups has been encouraged which has led to incidents of religious persecution including the destruction of churches and mosques (A Report on Human Rights and the Lack of Progress Towards Democracy in Burma: 20).[27] As civil society depends upon citizens being able to enjoy fundamental freedoms of thought, opinion, expression, belief, association, assembly and movement, it is not surprising that it is virtually non-existent in Burma today. Further, Liddell contends that the prospects for its development are grim (Liddell: 1999: 67).
Right to choose own government and right to a fair trial
The SLORC / SPDC have almost no regard for democracy. According to Article 21 of the Universal Declaration of Human Rights, the will of the people is to be the basis of the authority of government. Despite the overwhelming desire that the Burmese people demonstrated at the 1990 elections for the restoration of democracy, they have continually been deprived of the right to change their government. Despite the mandate that was handed to the National League for Democracy, its leadership has been decimated through outright killings, detentions and the imposition of long prison sentences and intense and systematic harassment (Khan 1991: 63). Other opposition parties including the Party for National Democracy which has set up a parallel government in Thailand (Weller 1993), the Anti-Fascist People’s Freedom League, U Nu’s League for Democracy and Peace and the National Politics Front for Youth have been banned or deregistered. It is the view of Judge Rajsoomer Lallah, Special Rapporteur to the UN Commission on Human Rights that “the absence of respect for the rights pertaining to democratic governance, as exemplified by the absence of meaningful measures towards the establishment of a democratic order, is at the root of all the major violations of human rights in Myanmar ” (Report of the Special Rapporteur: HR Res 1996/80: 9).[28]
Burmese citizens, in particular those charged with political offences, have been denied the right to a fair trial. According to Articles 9 and 10 of the Universal Declaration of Human Rights, no one is to be subject to arbitrary arrest, detention and exile and everyone is entitled to a fair and public hearing by an independent and impartial court or tribunal. Despite this, over the last decade thousands of Burmese have been detained without trial or charge or on political charges under vague laws. The most famous political prisoner has been Aung San Suu Kyi who had her prison term arbitrarily increased from three to five and then to six years under the Law for Safeguarding the State from Dangerous Subversive Elements. Section 10(b) of that law justifies the detention of a person if “there is reason to believe that he has committed, or is committing, or is about to commit, any act which infringes the sovereignty and security of the state or public peace and tranquility.” (my emphasis) Clearly detention on the basis of some possible future act does not accord with international standards of justice (A Report on Human Rights and the Lack of Progress Towards Democracy in Burma: 22).[29] There are many other deficiencies in the legal process including the speed with which cases are dealt with, bribery, sentences being disproportionate to the offence, political trials being held in secrecy and denial of legal representation to certain political offenders. In an account of her farcical trial in Burma for crimes such as “instigating violence amongst the peace loving and tranquil people of Myanmar”, Alison Vicary (1998) who works in the School of Economic and Financial Studies at Macquarie University, recalled that the evidence against her consisted solely of the government’s own propaganda newspapers and forged statements. At the end of the trial, despite being asked whether she pleaded guilty or not guilty, her legal counsel without instructions, promptly replied “guilty” thereby earning her client five years in Insein Prison. Such denial of fundamental rights is commonplace in systems where the government rules by decree unfettered by any constitutional provisions and where the judiciary lacks any semblance of independence.
Integrity of the person
The SLORC / SPDC during the past decade has demonstrated a complete lack of respect for the integrity of the person. Article 5 of the Universal Declaration of Human Rights provides that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” The prohibition against torture is now considered to be part of international customary law of a jus cogens character binding on all States under all circumstances. Despite this, the allegations of torture in prisons, particularly during investigations are persistent. Authorities routinely subject detainees to harsh interrogation techniques designed to intimidate and disorient, such as sleep and food deprivation and forcing prisoners to squat or assume other stressful positions for lengthy periods. Many reports have been given as to the deplorable sanitary conditions of Burmese prisons. There is also credible evidence concerning political and extrajudicial killings of civilians by soldiers and instances of private citizens and political activists “disappearing” for periods ranging from several hours to several weeks.
Rights of Special / vulnerable groups – women, children and minorities
When Gandhi was in England in 1930, he was asked by a journalist, “Mr Gandhi, what do you think of civilised society?” Gandhi answered, “That would be a good idea.”
Justice Fitzgerald has hinted that the measure for a civilised society is the way it treats its most vulnerable members.[30] If that is the yardstick then the only conclusion that can be drawn for Burma under SLORC/SPDC rule is that it is “uncivilised” or more appropriately, the actions of SLORC/SPDC are not civil at all. There are two main problems. Firstly, the government is not bound by any constitutional provisions regarding discrimination. Consequently, there is nothing preventing women receiving unequal pay for equal work. Similarly, there is nothing stopping wide-ranging government and societal discrimination against ethnic minorities such as denying Muslims, Indians and Chinese full citizenship (since only people who can prove long familial links to Burma are accorded full citizenship) and excluding them from government positions. Unlike the political system established under the 1947 Constitution, there is no Chamber of Nationalities to represent the minority ethnic groups. (It must be noted that under the SLORC’s National Convention Draft Principles there is a proposal to establish a ‘House of Nationalities’ with fourteen states and divisions electing an equal number of representatives in an ‘Upper House’. However, like in the ‘Lower House’ or ‘House of Representatives’, one quarter of the members will be appointed by the Commander-in-Chief.) There are no laws mandating accessibility to buildings, public transport or government facilities for the disabled (US Dep State: Burma Country Rep on Human Rights Practices for 1998: 13).[31] Secondly, the civil war that has raged, mainly in the border areas, has had a devastating impact on the welfare of the vulnerable.
For fifty years, the army has battled diverse ethnic insurgent groups who have sought greater autonomy, or in some cases, independence from the dominant Burman ethnic majority. The pattern of human rights abuses by the Burmese army are well documented by INGOs such as Amnesty International and Human Rights Watch together with other organisations such as the Karen Human Rights Group (Interview Annex: Beyond All Endurance 1999)[32] and the Chin Human Rights Organization (Introduction to Chinland & CHRO).[33] Women have suffered considerably. Burmese military operations are carried out with continuous reports of beatings and rape. The systematic use of rape as a weapon of war and tool of ethnic cleansing causes horrific physical and psychological damage including unwanted pregnancies, complications arising out of abortions, shame and loss of marriage prospects due to the high value placed on virginity. There are even reports of women being used as human mine-sweepers and human shields. Those who escape this nightmare by being lured to Thailand are generally forced into the sex industry and are subjected to HIV / AIDS and terrible work conditions. These women leave with the intention of helping their families. If they return many are made outcasts (Coakley 1997). Children are not spared. The rising incidence of AIDS has increased the demand for younger and “safer” prostitutes. Children as young as 14, especially orphans and street children, are also conscripted by the army.
Labour rights
Burma has attracted widespread criticism for breaching its international labour obligations. In particular, Burma is in breach of the Forced Labour Convention, 1930 (No.29), which it ratified in 1955. Since the SLORC seized power, hundreds of thousands of people on a daily basis have been affected by forced labour. Villagers have been compelled to perform military camp work and other work in support of the military, portering, work on agricultural and other production projects and work on public infrastructure projects such as the construction and maintenance of roads, railways and bridges. Forced labourers generally receive no form of payment including food. No medical assistance is provided which has ensured that sickness, injury and death are commonplace. There are numerous reports of other physical abuses accompanying forced labour such as beatings, rape and executions (Fenwick 1999).
In March 1997, a Commission of Inquiry was established under the auspices of the International Labour Office (“ILO”) to investigate complaints that had been made against Burma. In its report, the Commission of Inquiry recommended that:
(a) laws such as s8(1)(g), (n) and (o) of the Village Act and s9(b) of the Towns Act which give authorities wide powers to requisition labour and services be amended;
(b) concrete action be taken to stop the actual practice of forced or compulsory labour; and
(c) those responsible for forced labour be punished.[34]
Sadly, little if any remedial action has been taken by Burma. At the direction of members of the Governing Body, the Director-General of the ILO reported on 25 February 2000, that since the Commission of Inquiry report there was still “the continued brutal imposition of forced labour on the civilian population by military officers in conditions of apparent impunity; the failure by the Government to implement the three recommendations of the Commission of Inquiry; and persistent failure of Myanmar to observe the Forced Labour Convention, 1930 (No.29)” (Int Labour Office: Second Rep of Director- General 2000: 26).[35]
The ILO has continued to pursue the implementation of the recommendations of the Commission of Inquiry. In June 2000 at the 8th Session of the International Labour Conference, a resolution was adopted by an overwhelming majority of 257 members in favour, 41 against and 31 abstentions, under the previously unused Article 33 of the ILO Constitution. The terms of the resolution included a series of sanctions which would take effect on 30 November 2000 unless before that date the Governing Body was satisfied that the intentions expressed by the Minister of Labour of Myanmar in a letter of 27 May 2000 were translated into a framework of legislative executive and administrative measures that are “sufficient concrete and detailed to demonstrate that the recommendations of the Commission of Inquiry have been satisfied.” It is important to monitor the Burmese military’s reaction to the ILO sanctions and increased international condemnation. Perhaps there will be change. However, under the present regime, those changes are unlikely to be dramatic or speedy. The junta has at least reached the stage where it has effectively conceded that forced labour exists (which it had previously rigorously denied). Directives have been issued. However, more importantly, they must be promulgated and implemented.
The United States has made similar findings as the ILO. The US Department of Labour has stated that “worker abuses in Burma are symptomatic of the current regime’s gross disregard for human rights”[36] Further, a US Federal Court judge, in a landmark decision for human rights law, has opened the way for US companies who participate and benefit from human rights abuses, such as forced labour, when doing business with regimes such as the SLORC / SPDC to be prosecuted (John Doe et al v Unocal Corp et al 1997: 885). The allegation in this case against the US-based petroleum giant Unocal was that when agreeing to build the Yandana pipeline in conjunction with the SLORC, it knew or ought to have known of SLORC’s history of human rights abuses and in particular the use of forced labour for that project. Judge Paez had to determine whether or not there was jurisdiction to proceed against the Defendant. He held:
“The allegations of forced labour in this case are sufficient to constitute an allegation of participation in slave trading. Although there is no allegation that SLORC is physically selling Burmese citizens to the private defendants, plaintiffs allege that, despite their knowledge of SLORC’s practice of forced labour, both in general and with respect to the pipeline project, the private defendants have paid and continue to pay SLORC to provide labour and security for pipeline, essentially treating SLORC as an overseer, accepting and approving the use of forced labour. These allegations are sufficient to establish ... jurisdiction under the ATCA (Alien Tort Claims Act)”( John Doe et al v Unocal Corp et al 1997: 892).[37]
Not surprisingly, Unocal appealed Judge Paez’s decision. On 31 August 2000, Judge Ronald Lew overturned the decision at first instance and dismissed the case finding that UNOCAL could not be held liable. This decision itself has been appealed by the lawyers for the Plaintiffs and is likely to be heard in early 2002. Further proceedings have been brought by the Plaintiffs against UNOCAL in the California Supreme Court where it is alleged that UNOCAL violated California’s constitution and unfair business practice law. Regardless of the end result, groups such as Earthrights International who are co-counsel in this matter, have claimed a moral victory in that the “‘victims’ voices have finally been heard, and Unocal is forever shamed”.[38] Amongst other things Judge Lew found that “Unocal did in fact know of and benefit from atrocities committed by Burma’s army in connection with the building of the Yandana gas pipeline” and that “Unocal had forewarning about the horrific practices of Burma’s army”.[39]
Economic growth and human rights
The ruling military junta has argued that it has been necessary to curtail ’western’ civil and political rights in order to provide basic rights such as food, health and shelter. The people need rice and not vague notions such as the rule of law, independence of the judiciary and civil society. Political and civil rights hamper economic growth. This general theory is not new and has been espoused by others such as Lee Kuan Yew. However, civil and political rights may actually help safeguard economic security. For instance, the exercise of political rights such as voting, criticising and protesting draws and focuses a government’s attention on problem areas and enables it to address the needs and sufferings of its people. Amartya Sen (1995) has noted that “one of the remarkable facts in the terrible history of famines in the world is that no substantial famine has ever occurred in any country with a democratic form of government and a relatively free press.” For an economy to grow, economists must be afforded the opportunity to freely conduct research and freely express their recommendations without fear of reprisal. Business people must be given the liberty to travel about the country without government interference collecting information and conducting negotiations as they like. Essentially political and civil rights such as freedom of movement, expression, opinion and association provide the framework for economic development.
The SLORC / SPDC have decided that the best way to achieve economic growth is through a strong, unified and authoritarian state where the group’s interests are placed above the individual’s interest. More than a decade has passed since SLORC seized power. Since the 1947 Constitution was discarded, there has been almost forty years of strong military rule. However, the ruling elite’s economic strategies have been a total failure. In 1987, the United Nations designated Burma as a Least Developed Country (LDC). In recent years, the Governor of the Bank for Myanmar has attended International Monetary Fund meetings and has groveled for international economic assistance. At the 1999 meeting the Hon U Khin Maung Thein, Governor for the Bank for Myanmar complained:
“[o]ne year has lapsed and we do not have significant progress toward normal relationships between us. Myanmar has been a legitimate member of the Bank and Fund since 1952. As a legitimate member, Myanmar is fully eligible for the Bank’s development assistance. However, the Bank has neglected Myanmar’s development efforts and it has failed to assist Myanmar for the past 12 years.”[40]
The government has failed to provide its citizens with the most basic rights such as food and health. Food scarcity is a major problem in Burma. The Asian Human Rights Commission has noted that the military itself is a major cause of this problem and alleges that “Burma’s military government has incorporated denial of food into the policies, structure and routine operations of state.” Burning food, houses and fields has been a tactic that the army has employed when dealing with insurgents. Soldiers are free to roam about the country and demand rice and livestock, either without paying for it or paying very little (Asian Human Rights Commission).[41] Cesar Chelala (1992) has pointed to Burma’s nationwide health indices as being poor. The problems are particularly acute along the border areas. The current most critical public health threat is the spread of AIDS which is magnified by prostitution, the drug problem and the population’s almost complete lack of knowledge about the disease. This lack of knowledge would not have existed if basic civil and political rights were afforded and the government had not adopted such an isolationist policy.
Concluding remarks – A solution?
The current human rights situation in Burma is particularly grim. There appears to be no “quick-fix” solution. A step in the right direction, however, would be for the Tatmadaw to honour its pre 1990 election promise and return to the barracks. The people of Burma have spoken. They desire a multi-party democratic political system. They have listened to Daw Aung San Suu Kyi, daughter of independence hero and father of the 1947 Constitution Bogyoke Aung San, and have loudly declared that they want democracy, rule of law and respect for human rights. Institutions and structures will need to be built to ensure that such rights are safeguarded as they were during the 1947 Constitution era. Burma needs a constitution that contains provisions regarding fundamental rights that are not qualified or contingent on any duties. The Constitution must provide for an independent and strong judiciary which must act bravely to defend the rights of every citizen. Once this framework is established, a thorough review of legislation must take place to ensure that laws which are inconsistent with basic human rights norms and the Constitution are either repealed or amended. Attitudes and practices need to change. In this regard, education is vital. The world must open its arms and teach Burma’s young leaders about democratic institutions. However, caution must be taken. Progress in protecting human rights is best made by building procedures and institutions out of traditional values. Human rights advocates and those who want change in Burma must understand her history, religion, culture and societal dynamics. Should these measures be introduced, then in time civil society will return and Burma will cease to be ruled by the arbitrary decrees of the military junta but rather by law.
The changes that have been espoused in the previous paragraph may sound idealistic and optimistic. They are. Much work needs to be done. It is unlikely that those who currently rule by force will quietly slip into the background. It is essential that the torch of truth, hope and human rights is constantly shone on Burma. We must never forget. We must not stop criticising and asking the hard questions. We must never legitimise what should shock the world’s conscience. It is with regret that such legitimisation has to some extent already taken place[42]. Recently, the Australian government has undertaken a program in Rangoon to train middle ranking Burmese civil servants in international law and human rights. Whilst the Australian Department of Foreign Affairs has reported positively on its initiative and hinted at further “workshops” being held with various other Burmese ministries one could view this well intentioned exercise as short sighted. Firstly, this project hands to the junta some sort of legitimacy which it desperately seeks. Secondly, members of the elected NLD were not involved in the process. Burma is still a country where thousands of political activist are in prison or house arrest and political parties struggle to operate under severe restrictions and military intimidation. This should not be forgotten by the Australian government. Burma’s past and the injustices that have been perpetrated must not be allowed to quietly fade from memory. We must seek the truth. Finally, as most of us in liberal democratic countries like Australia enjoy the benefits of freedom of expression, we must speak out for those who cannot speak for themselves. The words of Pastor Niemoller are particularly apt:
The Last Voice
First they came for the Jews
And I did not speak out
Because I was not a Jew.
Then they came for the Communists
And I did not speak out
Because I was not a Communist.
Then they came for the Trade Unionists
And I did not speak out
Because I was not a Trade Unionist.
Then they came for me
And there was no one left
To speak for me.
This paper is dedicated to Aung San Suu Kyi, winner Nobel Peace Prize 1991 and the elected leader of the people of Burma. May her struggle for democracy and human rights not be forgotten.
References
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The Parliament of the Commonwealth of Australia, The Joint Standing Committee on Foreign Affairs, Defence and Trade, A Report on Human Rights and the Lack of Progress Towards Democracy in Burma (Myanmar) (Australian Government Publishing Service, Canberra, October 1995).
EIU Country Profile 1997-98.
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http://www.imf.org/external/country/MMR/index.htm.
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The Guardian and The Working People’s Daily (24 July 1988).
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Declaration 1/90 quoted in Weller, Marc, Democracy and Politics in Burma: A Collection of Documents (Government Printing Office of the National Coalition Government of the Union of Burma, Thailand, 1993).
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Amnesty International
Amnesty International Annual Report 1999; Amnesty International, “Myanmar Atrocities in the Shan State”, 15 April 1998.
Amnesty International, “Myanmar Aftermath: Three years of Dislocation in the Kayah State”, June 1999.
Amnesty International, “Myanmar: The Kayin (Karen) State Militarization and Human Rights”, June 1999.
Amnesty International, “Myanmar Update on the Shan State”, June 1999.
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Amnesty International Report - ASA 16/37/96, September 1996, “Myanmar: Appeal Cases”.
Amnesty International Report - ASA 16/20/97, 22 July 1997, “Myanmar: Ethnic Minority Rights Under Attack”.
Amnesty International Report - ASA 16/38/96, 8 August 1996, “Myanmar: Human Rights Violations Against Ethnic Minorities”.
Amnesty International Report - ASA 16/42/96, September 1996, “Myanmar: Portering & Forced Labour - Amnesty International’s Concerns”.
Amnesty International Report - ASA 16/30/96, July 1996, “Myanmar Renewed Repression”.
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Amnesty International, Myanman: Nobel laureate still under house arrest, 07/12/2001
[1] Russell Thirgood works for McCullough Robertson in Brisbane. He is the National President of Amnesty International Australia.
[2] Witness account of democratic uprising in 1988.
[3] See Military Coup and Revolutionary Council (1962-74)”
[4] See “1974 Constitution (1974-1988)”
[5] See “SLORC/SPDC (1988- Present)”
[6] Bogyoke is simply Burmese for “General”.
[7] See generally Maung ( 1962). For an alternative view that Aung San was not a democrat see Thwin (1988), p. 157.
[8] For a fuller account of this paradim and for a summary of the Gemeinschaft, Gesellschaft, Domination-Submission, and Bureaucratic-Administrative paradims or typologies see Thirgood, (1999)
[9] 1947 Constitution of the Union of Burma, September 24 1947 in Peaslea, (1956).
[10] Maung, (1959), p.94.
[11] Article 29(2) Universal Declaration of Human Rights provides: “In the exercise of his rights and freedoms, everyone shall be subject to only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare of a democratic society.”
[12] When asked of his reaction to the military coup, U Thant stated to the effect that the coup was an “internal matter”. That response differs markedly to UN action against military regimes in Haiti (1994) and Sierra Leone (mid to late 1990s) but not Pakistan (1999). However, at the same time it must be noted that since the early 1990s the UN has adopted a tougher stance against the ruling junta in Burma.
[13] 1974 Constitution in Blaustein and Gisbert (1990).
[14] Rebel Students Fighting Burmese Army, Associated Press, 18 April 1997 quoted in Dhooge, (1998) at p.12.
[15] Blaustein, and Gisbert (1990) p.12.
[16] Blaustein, and Gisbert (1990) p.11
[17] Saw Maung’s address to a rally of soldiers at Armed Forces Day on 27 March 1989 which can be found in the publication Loketharpyithuneyzin dated 28 March 1989.
[18] Declaration 1/90 quoted in Weller (1993) p.6.
[19] Situation of human rights in Myanmar dated 29 February 2000.
[20] Situation of human rights in Myanmar dated 29 February 2000 paragraph 5.
[21] See also United Nations Economic and Social Council Commission on Human Rights, Fifty-third Session, Item 10 of the provisional agenda, 22 January 1999; United Nations Economic and Social Council Commission on Human Rights, Fifty-fifth Session, Item 9 of the provisional agenda, 22 January 1999; United Nations High Commissioner For Human Rights, Statement by Mr R Lallah, Special Rapporteur of the Commission on Human Rights on the situation of human rights in Myanmar, 1 April 1999.
[22] US Department of State, “Burma Country Report on Human Rights Practices for 1998”, released by the Bureau of Democracy, Human Rights and Labor, 26 February 1999, Page 2 of 16.
[23]Amnesty International Annual Report 1999; Amnesty International, “Myanmar Atrocities in the Shan State”, 15 April 1998; Amnesty International, “Myanmar Aftermath: Three years of Dislocation in the Kayah State”, June 1999; Amnesty International, “Myanmar: The Kayin (Karen) State Militarization and Human Rights”, June 1999; Amnesty International, “Myanmar Update on the Shan State”, June 1999; Amnesty International Report - ASA 16/15/99, 30 June 1999, “Military keeps ethnic minorities “like chickens in a basket”; Amnesty International Report - ASA 16/28/97, October 1997, “Myanmar: A Challenge For The International Community”; Amnesty International Report - ASA 16/37/96, September 1996, “Myanmar: Appeal Cases”; Amnesty International Report - ASA 16/20/97, 22 July 1997, “Myanmar: Ethnic Minority Rights Under Attack”; Amnesty International Report - ASA 16/38/96, 8 August 1996, “Myanmar: Human Rights Violations Against Ethnic Minorities”; Amnesty International Report - ASA 16/42/96, September 1996, “Myanmar: Portering & Forced Labour - Amnesty International’s Concerns”; Amnesty International Report - ASA 16/30/96, July 1996, “Myanmar Renewed Repression”; and Amnesty International Report - ASA 16/46/96, September 1996, “Myanmar Update on Political Arrests and Trials”; Human Rights Watch, “Burma”, http://www.hrw.org/hrw/wr2k/Asia-01.htm.
[24] Amnesty International, Myanman: Nobel laureate still under house arrest, 07/12/2001.
[25] Office of the United Nations High Commissioner for Human Rights, Status of Ratifications of the Principal Human Rights Treaties as of 8 January 2002.
[26] Beijing Statement of Principles of the Independence of the Judiciary in the Lawasia Region (as amended at Manila 28 August 1997) (Lawasia: The Law Association for Asia and the Pacific, 1997) clause 12.
[27] The Parliament of the Commonwealth of Australia, The Joint Standing Committee on Foreign Affairs, Defence and Trade, A Report on Human Rights and the Lack of Progress Towards Democracy in Burma (Myanmar) (Australian Government Publishing Service, Canberra, October 1995) p.20.
[28] Report of the Special Rapporteur, Judge Rajsoomer Lallah, submitted in accordance with the Commission on Human Rights resolution 1996/80 p.9 of 16.
[29] The Parliament of the Commonwealth of Australia, The Joint Standing Committee on Foreign Affairs, Defence and Trade, A Report on Human Rights and the Lack of Progress Towards Democracy in Burma (Myanmar) (Australian Government Publishing Service, Canberra, October 1995) p.22.
[30] Mr Justice Tony Fitzgerald, Transcript of speech on file with author, “QAI: A civilising influence”, Queensland Advocacy Incorporated, Annual Fund Breakfast 1999, Friday 12 November 1999.
[31] US Department of State, “Burma Country Report on Human Rights Practices for 1998”, released by the Bureau of Democracy, Human Rights and Labor, 26 February 1999, p..13 of 16.
[32] Karen Human Rights Group, Interview Annex: Beyond All Endurance, The Breakup of Karen Villages in Southeastern Pa’an District, Full Text of Interviews #1-45, 20 December 1999/KHRG #99-08, http://metalab.unc.edu/freeburma/humanrights/khrg/archive/khrg99/khrg9908a.html.
Karen Human Rights Group, Latest Reports, http://metalab.unc.edu/freeburma/humanrights/khrg/archive/, 19 February 2000.
[33] Chin Human Rights Organization, “Introduction to Chinland & CHRO”, http://www.angelfire.com/nf/chokhlei/0002.html.
[34] The Commission in its concluding remarks stated:
“This report reveals a saga of untold misery and suffering, oppression and exploitation of large sections of the population inhabiting Myanmar by the Government, military and other public officers. It is a story of gross denial of human rights to which the people of Myanmar have been subjected particularly since 1988 and from which they find no escape except fleeing from the country. History shows that where human rights are denied or violated in any part of the world, it is bound to have a chain effect on other parts of the world and it is therefore of vital interest to the international community that such denial and violation of human rights must be effaced from wherever it occurs....The Commission hopes and trust that in the near future the old order will change, yielding place to the new...This can happen only if there is restoration of democracy where people as a whole can wield power for their common good.”
[35] International Labour Office, Second Report of the Director-General to the members of the Governing Body on measures taken by the Government of Myanmar following the recommendations of the Commission of Inquiry established to examine its observance of the Forced Labour Convention, 1930 (No. 29), Geneva, 25 February 2000. P.26
[36] US Department of Labor, “New Labor Department Report Shows No Improvement in Worker Rights in Burma”, http://biz.yahoo.com/prnews/000313/dc_dol_bur_1.html.
[37] For a general commentary on this decision see: Greer (1998); Danitz (1997); Energy Intelligence Group, (1997); and Strider (1995).
[38] The Nation, “From Denial to Undeniability: Unocal and Atrocities in Burma” 28 September 2000 recorded on Earthrights International website http://www.earthrights.org/news/lew_oped.html.
[39] Ibid, pp. 1 and 4 of 6.
[40] International Monetary Fund, Statement by the Hon U Khin Maung Thein, Government of the Bank for Myanmar, at the Joint Annual Discussion; Statement by H E U Khin Maung Thein, Minister for Finance and Revenue, Myanmar, at the 1998 IMF-IBRD Annual Meetings; Statement by the Hon Win Tin, Governor of Bank for Myanmar, at Joint Annual Discussion; http://www.imf.org/external/country/MMR/index.htm.
[41] Asian Human Rights Commission, People’s Tribunal on Food Scarcity and Militarization in Burma, Voice of the Hungry Nation, http://www.hrschool.org/tribunal/report/index.htm.
[42] In the CCH guide for Doing Business in Asia it is stated the head of state is Senior General Than Shwe and that “[s]ince late 1988 the Government of the Union of Myanmar has made significant economic reforms and introduced liberal trade policies to promote the development of the Myanmar economy.” There is no mention of Aung San Suu Kyi, the 1990 elections and the National League for Democracy. There is no mention of the thousands that died in the streets of Rangoon when the SLORC seized power. The “guide” is silent about the civil war that is raging and the women and children that are being used as human mine-sweepers and human shields. Significantly, the Unocal Case and the potential consequences for corporations who choose to do deals with the SLORC is not referred to. As a final insult to the thousands of political prisoners, some of which have received no trial, it is stated that “[t]he courts in Myanmar operate independently.”