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Squaring the Circle

How Burma's regime tries to win legitimacy by invoking a ‘façade of legality’

It may seem absurd that a government that seized power by force would be obsessed with legal matters, but that exactly describes the state of mind of Burma's State Peace and Development Council and its predecessor, the State Law and Order Restoration Council, since the brutal suppression of the 1988 democracy movement.

That may be because the military regime knows quite well that it is an illegitimate government and therefore wants to hide behind a façade of legality, even if its interpretation of Burma's laws is, to say the least, quite imaginative. That is perhaps understandable, but it is more disturbing when academics, writers and even foreign diplomats repeat misrepresentations of what the law actually says.

Some of them have argued, for instance, that the 1990 election was not for a parliament, but a constituent assembly; hence a new government could not have been formed after the election 17 years ago. A constitution would have to be drafted first, they maintain.

Others have swallowed uncritically the junta's assertion that Burma's first constitution contained a clause prohibiting anyone married to a foreigner from taking office as the country's president—evidently meant to bar Aung San Suu Kyi because of her marriage to an Englishman, Michael Aris.

Another misinterpretation of Burmese law is found in the defense by the junta as well as some travel book writers of the use of forced labor by referring to the 1908 Villages and Towns Act.

All three assumptions are, however, completely wrong. Let's start with the first, and with the date May 31, 1989—a year before the election—when the government at that time, SLORC, promulgated a “Pyithu Hluttaw Election law,” which was published in the Working People's Daily on June 1.

A Pyithu Hluttaw in Burmese is a “people's assembly,” i.e. a parliament. According to the 1974 constitution, “The Pyithu Hluttaw is the highest Organ of state power. It exercises the sovereign powers of the State on behalf of the people.” The Pyithu Hluttaw that was elected in 1990 had the same number of seats as the one that was abolished in 1988. The only difference was that several political parties, not only one as before, could contest those seats: 492, but because of the then communist insurgency in seven constituencies in the northeast, elections were held in 485, of which the National League for Democracy won 392.

Drafting a constitution was not a major issue before the election, even if SLORC chairman Saw Maung on a couple of occasions had mentioned the need for a new charter. But he had also said: “We have spoken on the matter of state power. As soon as the election is held, form a government according to law and then take power. An election has to be held to bring forth a government. That is our responsibility. But the actual work of forming a legal government after the election is not the duty of the Tatmadaw [the armed forces]. We are saying it very clearly and candidly right now.” (SLORC Chairman's Addresses, Rangoon, 1990, p. 323.)

He had also lashed out against the pro-democracy movement for raising the issue of a constitution before the people went to the polls. In a speech on May 10—two weeks before the election—he stated: “A dignitary who once was an attorney-general talked about the importance of the constitution. As our current aim is to hold the election as scheduled we cannot as yet concern ourselves with the constitution as mentioned by that person. Furthermore, it is not our concern. A new constitution can be drafted. An old constitution can also be used after some amendments.”

“That person” was former Attorney-General Hla Aung, who was close to the NLD and, at the time, researching constitutional issues for the pro-democracy movement. I met him in Rangoon in May 1989, and he was quite dismayed at the reluctance of the military to discuss the constitution. I also met Col Ye Htut of SLORC's information committee, who told me that “as soon as the elections are over, we will return to the barracks.” When I asked him what the military would do if the NLD won, he replied: “Then we will hand over power to them and return to the barracks.”

The problem, of course, was that they had not expected the NLD to win, so the rules had to be changed. That a constituent assembly, not a parliament, had been elected was first stated by then intelligence chief Khin Nyunt in a speech on July 27, 1990—two months after the election. A constituent assembly in Burmese is not a pyuthu hluttaw but a thaing pyi pyu hluttaw, as in the Myanma naing-ngan thaing pyi pyu hluttaw, which drafted Burma's first constitution in 1947. That term was never used before the May 1990 election.

In the end, the elected assembly turned out to be not even a thaing pyi pyu hluttaw. About 100 of the 485 MPs-elect were to sit in a “national convention” together with 600 other, non-elected representatives who had been handpicked by the military. Few Burmese citizens expected that to happen when the country went to the polls in May 1990.

And the president's spouse? The 1947 constitution does not mention who the president could or could not be married to. It says: “No person shall be eligible for election to the office of President unless he is a citizen of the Union who was, or both of whose parents were, born in any of the territories included within the Union, and is qualified for election to the Union Parliament.” (Chapter V. 49) A person would not be thus qualified if he or she “is under any acknowledgement of allegiance or adherence to a foreign power, or is a subject or a citizen entitled to the rights and privileges of a subject or a citizen of a foreign power.” (Chapter VI.74)

Suu Kyi's marriage to Aris gave her the right to reside in Britain, but certainly no other special rights or privileges. Furthermore, that law was enacted in order to prevent anyone of Indian origin from becoming president; about half of Rangoon's population during the British era were Indians, and as the principal taxpayers in the 1930s they had argued for more influence over the city government. If the law were meant to prohibit the president from having a foreign spouse, the old dictator Ne Win would have had to resign when, in 1976, he married June Rose Bellamy, a British citizen.

And as for forced labor, the colonial-era Villages and Towns Act gave village councils the right to impose “compulsory service for public purposes without any discrimination on grounds of birth, race, religion and class.” This is a far cry from the massive use of forced labor, which has become a plight for people across Burma today. In fact, the use of forced labor violates the 1947 constitution, which stipulated: “Forced labor in any form and involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall be prohibited.” (Chapter II.19 ii)

It is perhaps too much to expect the Burmese military to uphold the truth, but it is important that others get the record straight and don’t repeat what is obviously pure propaganda.

This article first appeared in The Irrawaddy, June, 2007

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