Written by U Ne Oo on 1998-01-05
5 January 1998
by
Dr U Ne Oo
Adelaide Australia
I. A Proposal for Interim Administration in Burma
The current political climate in Burma suggests that the transition to democracy will best be achieved by forming an interim administration consisting of the representative-elects of the May 1990 election and the ruling military authorities. A period of 2--3 years, for example, should be considered as a transitional period before a complete transfer of power to the democratically elected government of May 1990 can be made. During this transitional period, the elected parliament of May 1990 may operate as a form of Legislature an and may focus its activities on (1) writing a federal constitution with full participation of the entire population of Burma, especially of the ethnic nationalities; (2) institutionalising democracy and democratic practices within Burmese society and (3) promoting appropriate economic and social policies for a future democratic Burma. Burma's ruling military authorities, the State Peace and Development Council (SPDC/SLORC)[1] should retain the Executive Power in this transitional period. By separating and sharing theing the governmental powers, the military authorities and civilian opposition will certainly overcome the current political impasse in Burma and also lay a good ground for future democratic government[2].
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Following is the proposed form of Burma's interim administration:
(i) A period of 2--3 years should be considered as a transitional period, and an interim administration should be formed;
(ii) The SPDC/SLORC Cabinet may retain the Executive Power, and the curred the current Chairman of SPDC/SLORC, General Than Shwe, may be allowed to remain as the Head of State, in this interim period;
(iii) The elected parliament of May 1990 will operate as a Legislature and the Central Executive Committee of National League for Democracy, primarily, will run the Legislature;
(iv) Appropriate committees under the Legislature should be set up to carry out various tasks, including the writing of a democratic federal constitution, during the interim period;
(v) To achieve coordination between the Legislature and Executive, the delegates of military authorities, such as the advisory group of SPDC/SLORC (nb:there were unconfirmed reports of SPDC/SLORC dissolving the advisory group soon after the formation of SPDC.), may be included in various committees of the Legislature;
(vi) By the end of the interim period, a referendum should be held to approve the constitution. The decision should also be made by the Executive and Legislature to hold by-elections to replace missing/deceased/retired representatives.ntatives. The transfer of power to the elected representatives should be made at the end of the interim period.
II. Forces of Change on the SPDC/SLORC
There are various factors contributing towards recent internal structural changes of the ruling military junta. Following are believed to be the pressures that forced the military in Burma to change:
(A) The recommendations by Human Rights Special Rapporteur which subsequently endorsed by the United Nations General Assembly have substantially contributecontributed to the change. The Special Rapporteur, in particular, has highlighted the illegitimacy and non-constitutionality of SLORC administration in his report (see A/52/484 recom.(e)) as:
(e) Constitutionality and the rule of law should be re-established, and SLORC orders and decrees should no longer be the basis of law. All laws rendering violations of human rights legitimate should be repealed immediately, and all laws should be given due publicity. The principe principle of no-retroactivity of penal laws should be respected in all circumstances;
The UN General Assembly endorsement of these recommendations implies that SLORC can no longer remain as a `legitimate body' to make laws(decrees) and to enforce these laws. The announcement of the new ruling body, the State Peace and Development Council, can be seen as Burmese military authorities making a defensive move against this UN General Assembly resolution. It is worth noting that SLORC changed its name as SPDC on 1PDC on 15th November 1997, as soon as the Special Rapporteur's recommendations were made public. (The Special Rapporteur's report was made public on Internet on 14th November.) The internal division within SLORC that led to calls for greater cohesion among ruling generals has also been a contributing factor.
(B)Financial difficulties that the SLORC government is facing have also been a significant factor. According to a recent Economist Intelligence Unit report(3rd quarter, August 1997), SLORC's foreign exchange resernge reserve was down to USD 117 million in May 1997. Because of the current financial crisis in ASEAN region, SLORC has no prospect of securing loans and grants from its neighbours. Inflation of local currency, the Kyat, and rising prices of basic commodities within Burma have also been putting pressure on SLORC.
(C) SLORC illusion of political support from ASEAN countries has come to an end. Since 1993, SLORC in some way has been looking to ASEAN countries for solidarity against the West. However, ASEAN's position on Burma is becoming clearer since the July 1997 admission of Burma as its member. Many ASEAN countries, privately and publicly, have expressed concerns about the situation in Burma. The initiatives by Presidents Fidel Ramos and Suharto are also making SLORC clear about the necessity for change. The Australian government has also sent a special envoy to express its views. The European Union is taking a particular stand against the lack of dialogue and reconciliation in Burma. All of these actions are adding up to exerdding up to exert psychological pressure upon SLORC, leading to the recent internal change within the military junta.
(D) Mounting pressure on SLORC by the UN High Commissioner for Refugees and the Commission on Human Rights about the situation of refugees in Thailand has also been a significant factor. Because of the recent leadership change in Thailand, the Burmese military now has less reason to hope for solving the refugee problem in Thailand by means of ``bilaterally arranged forced repatriations''.
III. Win-Win Solution to the Problem
The UN General Assembly's resolution, 52/137, undoubtedly has created an environment conducive to political negotiations in Burma. The resolution enhances the legitimacy of the National League for Democracy for negotiation. The current SPDC/SLORC position of avoiding negotiation with NLD has also been weakened by this resolution.
SPDC/SLORC's principal interests are (1) to retain the current (executive) position of government and (2) to receive some form of international recognit recognition: SPDC/SLORC particularly wishes to ease tension with the United Nations. Apart from their greed for power, Burmese military authorities, nevertheless are also wishing to positively contribute to reconstruction and development of the country. These facts can be considered as the primary basis in conducting negotiation with SPDC/SLORC.
The National League for Democracy, on the other hand, is mandated to administer a democratic government and to build a democratic society. It specifically has the legitimate right to ight to govern the country in accordance with the result of May 1990 election. Only because the military junta in Burma refuses to transfer state power, the elected representatives are to carry out the next practical task of realising the democratic rights of Burmese people step by step. A balanced position of realising the democratic rights of Burmese people and the political reality should be considered.
A possible solution is to form a transitional administration with an Executive Branch from SPDC/SLORC and a and a Legislature of simplest form from elected representatives. It should also be made clear, especially to SPDC/SLORC, that such a transitional arrangement is done by the authority of elected representatives. SPDC/SLORC must also be made aware that the wellbeing of such a transitional administration depends on the cooperation of both parties---the Executive and the Legislature.
IV. The Legislature: Structure, Operation and Authority
A Legislature is an official rule-making bomaking body for a given political system. In most democratic countries, the entire body of democratically elected parliament, however, does not operate purely as a Legislature. The United States Congress, for example, also selects an additional body, such as Senate, for legislative functions.The Executive is part of the governmental system which implements decisions. In some democratic countries, e.g. UK and Australia, the executive are recruited from Parliament. In some other democratic systems, such as the h as the United States of America, the executive are appointed by the President. The Executive and the Legislature, according to the separation of powers, must be separate bodies[5].
In Burma in this interim period, the elected parliament can function as a simplest form of Legislature. Much smaller committees, consisting of representative-elects, professionals from various civil services, the deputies of ministers and, possibly, the advisory group from SPDC, may be formed to function in drafting various laws. The elected represd representatives should take charge of the duty to communicate these laws and policy proposals to their own constituent. The draft laws and policy decisions should be approved/disapproved by parliamentary majority vote. Following is not a complete list but possible areas on which the legislative body can focus its actions:
(i) To repeal various laws (i.e. decrees and orders) by SLORC that render violation of human rights legitimate; to promulgate laws that safeguard human rights of citizens, such as legislations against unaainst unacceptable forced labour, forced procurement etc;
(ii) To review and rewrite (to legalise) various business contracts signed by companies (note: business contracts that are believed to be directly linked with drug trafficking or money laundering should be left untouched.);
(iii) To make legislation regarding allocation of government revenues, and when the time is appropriate, to seek loans from IFI; to promote policies and enact new laws, with the advice of competent agencies, that may encourage investments andstments and lay foundation for a sound economic transition in the future;
(iv) The Legislature (elected parliament), in addition, must also write a democratic federal constitution.
These measures are relatively simple in comparison to the activities of modern democratic governments. However, it must be noted that the Burmese population in general does not have much experience of democracy and democratic government. Common practices in democratic societies, such as public consultation on law-making and collective decision- decision-making, are to be exercised and must be made to become routine. In other words, Burmese people must institutionalise democracy and democratic practices. The above measures, therefore, are to be considered as useful initiatives to gain momentum for future democratic administrations.
V. Dialogue and drafting federal constitution
Easing tensions between the military authorities and elected representatives with regard to control over state power will likely lead to a tripartite dialogue between ethnic nationalities, military authorities and elected representatives. A democratic federal constitution that is acceptable to all parties to the conflict should be drafted at the National Convention. A few points remain, at this stage, for a successful dialogue:(A) One ethnic minority rebel group, Karen National Union, still needs to enter cease-fire agreement with the Burmese military (note: the KNU so far did not sign the cease-fire agreement because of the lack of political dialogue in Burma);
(B) The group repres(B) The group representing ethnic nationalities, National Democratic Front, may wish to have a mediator or the presence of outside observers during the drafting of the constitution[6];
(C) Ethnic nationalities as well as elected representatives need more education about a federal system of government and how we may integrate 25 percent of military representatives into that federal system (my personal preference is an Australian or American style federal system of government. There are, however, many more types of federal system, includin including quasi-federal systems, that we could choose from.).
VI. The Accountability of Executive
Since the Executive in the interim period will not be selected by the Parliament, there is a potential for the Executive to become unaccountable to the Parliament (Legislature). The Executive may, for example, refuse to implement measures initiated by the Legislature. On the other hand, disputes can occur between the Executive and Legislature about the priority of issues. There is also the possibility of the Execuhe Executive (military authorities) trying to maintain its former administrative structure, i.e. various levels of Law and Order Restoration Council (LORC), and its civilian support base, the Union Solidarity and Development Association. In order to avoid potential conflicts, following facts may be useful:(A) The importance of cooperation between the Executive (military authorities) and Legislature (civilian opposition) in the operation of interim administration must be given emphasis. The representatives of ministers (thesters (the deputies, perhaps) should be allowed to participate in the committees for drafting laws and to enable the Executive to communicate with the Legislature;
(B) SLORC formed the civilian political wing, Union Solidarity Development Association, because the Burmese military is anxious to maintain its political role in the future. The allocation of 25 percent for the military representatives in future parliament may ease such anxiety;
(C) The conciliation at grassroots level may need extra efforts in order to occur. to occur. The District, Township and Ward level of Law and Order Restoration Councils (LORC) may, for example, resist the changes.
The roles of the democracy movement and international community will be important to bring the Executive under control of the authority of Legislature in the current situation.
VII. Enforcing Agreement:
Roles of the Democracy Movement and International Community
Although there are some possibilities of SPDC/SLORC agreeing to the
interim proposal, the rejection by the miliy the military cannot be ruled out. On
the other hand, if the proposal is accepted by military authorities, the
Executive must in some ways be made accountable to the Legislature. In
both scenarios, the Burma democracy movement together with the
international community can pressure/enforce the the military authorities
to conform with the agreement.
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VIII. Non-partisan Statement
Although it is somewhat superfluous, I should like to restate that the advocacy activocacy activity that has been made here does not seek to represent in favour of any particular political grouping. The suggestions here are non-partisan in nature, and are made with the beliefs that proposed action may bring peace and reconciliation to Burma---which is a vital requirement for solving Burma's refugee problem.Footnotes:
[1] Before its name change on 15th November 1997, it was known as the State Law and Order Restoration Council (SLORC). Hereafter it will be referred to as SPDC/SLORC.,
[2] In many democratic countries, the governmental power is separated into three legal powers: (1) the rule-making power ( legislature), (2) the power to apply rules and policies ( executive) and (3) the power to try alleged offenders against these rules ( judiciary). These three powers are exercised, at least in theory, by three independent bodies: The Legislature, The Executive and The Judiciary.
[5]Though most democratic systems, in practice, do allow the executive to give input to law-mak law-making; the concept of separation of executive and legislative powers in these governments seems to be introduced by having another legislative chamber within the system, such as Senate (USA, Australia) or House of Lords (UK). In addition, there are other check-and-balance mechanisms between the three powers, such as constitutional courts (Supreme Court in USA, High Court in Australia), in order to curb the excess of power of the executive.
[6] According to reports received, the National League for Democracy do not wish to have mediator in negotiation with military authorities. The ethnic freedom fighters, however, may wish to have some mediator and observers on their part in dialogue (i.e. National Convention).
