"LawKa PaLa - Legal Journal On Burma" - No. 32 (April 2009)

LawKa PaLa
Legal Journal on Burma
BURMA LAWYERS' COUNCIL
Published by the Burma Lawyers' Council

Copyright 2009
Cover and inside design & layout: Than Nai Htwe
Funded by: Friedrich Naumann Stiftung (FNS)
WISDOM IS POWER TO TRANSFORM A SOCIETY INTO

A JUST, FREE, PEACEFUL AND DEVELOPED ONE
Legal Journal on Burma is published three times a year by Burma

Lawyers’ Council. The journal contains academic articles relevant
to legal and political issues in Burma including: constitutional reform,
rule of law, federalism, refugees, judicial independence, martial law,
and religious freedom. Articles are written by practising lawyers,
academics, and experienced Burmese opposition activists. The views
expressed in the articles are those of each author and not of Burma
Lawyers’ Council. The journal also, where relevant, reproduces copies
of important documents relating to Burma, such as statements on
behalf of the Burmese parliament. The journal’s production is funded
by the Friedrich Naumann Stiftung from Germany.
Suggestions, or contribution of articles, for Legal Journal on Burma

are most welcome. Any enquiries regarding content or subscription
should be directed to the Bangkok Office of the Burma Lawyers’
Council.
Redistribution of all or part of any article in this journal is welcome,

provided acknowledgement of the source is made. Notification of
such use would be appreciated.
The BLC Publication Team

N O. 32 – A P RIL 2009 ISSN 1513–9174
Contents
Part A: Special Features PAGE

(A.1) Burma’s Judiciary: What changes will be required to create 4
a new system?
(A.2) Opening of Advanced Internship Program at Peace Law 14

Academy
(A.3) Housing, Land and Property Rights in Burma: Towards 17

New Strategies
Part B: Rule of Law

(B.1) Unlawful Imprisonment of Lawyers under Contempt of 26
Courts Act
(B.2) The Case of Ma Kay Thi Aung 29
(B.3) The Issuance of Passports to Burmese Migrant Workers 33
(B.4) Statement on the Unlawful Confiscation of Land in Burma 34
(B.5) Statement on the SPDC Government Ministries 37
(B.6) Statement on the Abolishment of the Union Solidarity and 40

Development Association
Part C: Criminal Accountability

(C.1) Call For Investigation of Human Rights Abuses after 43
Cyclone Nargis
Part D: Constitutional Issues

(D.1) Analysis of the SPDC Constitution from the Perspective 46
of Ethnic Nationalities
(D.2) Part 2: Excerpt from Paper on the National Convention’s 53

Principles for a Constitution
(D.3) The Failure of the SPDC Constitution to Protect Judicial 64

Independence
B U R M A L A W Y E R S' C O U N C I L
Part A: Special Features
(A . 1)
Burma's Judiciary
What changes will be required to create
a new system?1
Introduction
In order to promote human rights with the background of the Rule of
Law, the role of the judiciary, as a rights protection mechanism, is of pivotal
importance. During transition periods from the rule of dictators to new democ-
racies, people as well as civil society organizations usually attempt to use their
respective judiciaries to protect their own basic rights and facilitate gradual
changes in society. It was the case for the Philippines, Indonesia, Cambodia and
particularly South Korea. Currently, the judiciary in Thailand, despite its contro-
versial status, has been playing an instrumental role in checking the power of the
government while protecting the rights of individual citizens. The role of the
judiciary should not be underestimated in any effort to bring about gradual changes
in a society toward a peaceful, just, free and developed one, including in the
development and strengthening of civil society.
Currently, in Burma, the judiciary has been subservient to the ruling

military regime and it has become an instrument for brutal oppression. Burma's
judiciary is the only institution in the world, which criminalizes the peaceful ac-
tions of the people, such as peaceful gatherings, expressions and formation of
civilian organizations. The regime hands out harsh penalties to such people, ranging
from 65 to 106 years imprisonment. This paper proposes how the existing judi-
ciary in Burma should be reformed in order to facilitate and realize the establish-
ment of an effective, efficient, independent and impartial judiciary in Burma.
Part (I)
Conceptual Changes
A. Independence of the Judiciary
The doctrine of the separation of powers and the various ingredients necessary
to maintain the independence of the judiciary must be respected at all levels of
Page 4 Legal Journal on Burma

L AW K A PALA
government and not merely proclaimed in constitutional provisions and legal

pronouncements. It is essential that judicial independence be understood and
institutionalized as an enduring concept and an inherent component of Burma's
judiciary which seeks to be governed by the rule of law.
Anticipated Difficulties
It appears that the occasional rhetoric about separation of powers and
judicial independence is illusory, as can be seen in the following
analysis. For some decades, there has been a lack of knowledge of and
training in the concepts and practice of judicial independence in
Burma. The military junta has been exercising total control over the
judiciary for some decades while most armed ethnic organizations, which
are able to dominate their local areas, have not yet formally expressed
their commitments to the emergence of an independent judiciary. As
such, there will assuredly be considerable obstacles in attempting to
reintroduce judicial independence in Burma.
B. Separation of Power
Montesquieu wrote: "There is no liberty yet, if the power to judge is not
separated from the legislature and executive powers". That statement was made
in the context of a monarchical society. The king was the lawmaker as well as
the commander-in-chief. So it is today, in Burma, for Sr. General Than Shwe.
In Burma, the doctrine of separation of the judiciary must be exercised,

at least, from the executive and legislative organs of the state, which is closely
linked to the idea of the rule of law, as the foundation for judicial independence.
The whole concept is to reduce the dangers of abuse of power and bring about
more efficient governance.
One of the major problems with the military dictatorship is the desire of
the junta to exert its political dominance in all three branches of govern-
ment: the executive, legislative and judicial branches. In addition to lo-
cal mafias which are heavily armed and involved in narcotics traffick-
ing, many armed ethnic resistance organizations may be reluctant to
submit to the adjudication of an independent judiciary.
C. Fair Trial
In order for the concept of a 'fair trial' to become a reality, it must be
understood and applied as a wide concept which covers all stages of a trial. The
pre-trial, trial and post-trial procedures must be conducted 'fairly.' 'Fairness'
and 'fair trial' rights should be rendered to both victims and the accused, com-
mencing from the pre-trial stage.
No. 32 - April, 2009 Page 5

The defendants must be presumed innocent, and a detained suspect

shall have the right to legal counsel immediately after he or she is arrested, to
communicate with his or her family and the outside world, to be granted bail in
accordance with the effective laws, to receive basic needs and required mate-
rials from prison authorities, his or her family, or the outside world before he or
she is indicted in the court.
For the victims, equality before the law must be guaranteed in practice
in an institutionalized legal aid system, in addition to the existence of civil society
organizations which will provide assistance to the vulnerable sectors of society
such as women, children and disabled victims of crime.
Fair trial safeguards include the right to have adequate time and re-
sources to prepare for defense, the right to call and question witnesses, the right
not to have confessions obtained under torture admitted as evidence, the right to
an open trial, etc. Procedural protection against arbitrary arrest shall be guaran-
teed; pre-trial detainees shall have the right to challenge the legality of their
detention, not to be held incommunicado and to obtain the assistance of legal
counsel immediately after arrest. There should be judicial oversight of their ar-
rest and detention.
The judiciary shall take responsibility for unlawful detentions, which

deprive fair trial rights, legal recourse and/or compensation for victims.
D. Judicial Activism and Judicial Review
To ensure good governance, the judiciary has to act efficiently with a

vision of judicial activism. The judiciary must be involved in making new laws
based on Court rulings, and adjudicating disputes between individuals and other
organizations including the State. In the future Burma, with the emergence of a
competent judiciary, there should be a check on majority power. The Courts
must be vested with powers of judicial review and act as the guardian of citi-
zens' rights and the rights of federal units.
E. Protection of Individual Liberty and Fundamental Rights
The judicial system in Burma operates on a common law tradition, in-

herited from the British, as its basic legal system. However, a number of its
positive factors have been disappearing for several decades as the judiciary has
become more and more subservient to the executive, which exercises rigid cen-
tralization of powers under a strong state concept. The protection of fundamen-
tal human rights and of democratic processes requires a judiciary that is not only

L AW K A PALA
independent from legislative and executive controls, but also neutral, objective,
competent and free of all external influences. The tradition of the common law
system, which essentially protects all individuals from arbitrary intervention of
the government, must be reinstituted in the future Burma.
F. Seeking Justice
The Burma which will emerge from the rule of dictators and the mili-
tary regime must confront the 'past', particularly in terms of human rights abuses.
The underlying question is how the judiciary will deal with heinous crimes com-
mitted by the former regime and/or its lackeys or other local non-state actors
when the victims file lawsuits against them in the future, democratic Burma. In
this case, all perpetrators who committed atrocious crimes under the command
of the former regime must be held accountable and prosecuted on the basis of
the principles of the Rule of Law. Should this happen, the society may approach
a state of chaos, as there may be elements which revolt against a democrati-
cally elected government.
On the other hand, should the perpetrators be allowed to enjoy absolute

impunity, crimes will certainly be repeated in the future without having any con-
cern for being held accountable, thereby violating victims' rights for justice. The
judiciary in the future Burma is to play a delicate role, that is, for short the term
period. Its paramount task is to seek justice for victims by any means as it will
be a daunting task to observe the genuine principles of the rule of law immedi-
ately after the democratic transition. As such, in seeking justice for victims, the
judiciary itself is required to learn multifarious remedies from the experiences of
other countries.
G. Focusing on Procedural Justice
Attorney Bo Li from the New York law firm of Davis Polk & Wardwell,
concluded that in a system emphasizing procedural justice, arbitrary govern-
mental power will be checked, liberty will be protected, and substantive justice
will be preserved in the long term. Procedural justice connotes the duty of the
legal system to exercise complete and fair procedures in taking legal action for
victims and perpetrators alike, and in all three stages of trial: pre-trial, trial and
post-trial. The future judicial system of Burma needs to sufficiently focus on
procedural justice.
H. Preserving the Traditional Judicial Value
While modern judicial concepts such as 'fair trial', 'judicial review', and
'procedural justice', etc., should be emphasized, the traditional values in the judi-

cial history of Burma should not be ignored. Instead, they should be explored
and utilized.
Since the reign of King Anawrahta (1044-77), customs based on Bud-

dhism have transcended almost every cultural practice, from birth to death, of
the majority of Burmese people, including Burman, Mon, Shan, Pa-oh, etc. For
instance, a traditional concept relevant to the judiciary was that the judges shall
have to administer justice, regardless of the four sources of bias, known as
Sanda, Dawtha, Baya and Mawha. In simple terms, these may be translated as
"subjectivity," "anger", "fear", and "delusion." The Buddhist principles for avoid-
ing these sources of bias are: "don't be subjective" (i.e. adjudicate a case only
on its facts, without favoring one more than another); "don't get angry" (i.e.
remain calm and detached from the case); "don't feel fear" (i.e. remain coura-
geous, do not be concerned with threats created by either party in a case, by
administrative officials, or by the consequences of the case); and finally, "don't
suffer from delusions" (i.e. keep a clear mind, concentrate on the case before
you). In addition, one of the duties of the judiciary is to protect the customary
laws of various ethnic nationalities which do not violate the fundamental human
rights of individual citizens.
Part (II)
Constitutional and Legal Changes
A. Constitutional Changes
The future Constitution of Burma must provide unambiguous provisions

for the creation of an impartial and independent judiciary with transparency,
accountability and autonomy.
1. In the constitution, the following provisions relevant to the judiciary

should be enshrined and guaranteed:
(a) non-interference of the executive branch and other, non-state,
actors in the independent functioning of the judicial system;
(b) provisions on the right to life and dignity, the most important
human rights and the source of all other basic rights, must be
enforceable before the courts;
(c) the formation of a Supreme Court as the highest court of the
land which has the powers of:
i. interpreting the constitution and resolving

constitutional issues and complaints;
ii. protection of individual liberty;

L AW K A PALA
(the power to issue writs such as habeas corpus,

and the power to scrutinize laws limiting the rights
of citizen)
iii. judicial review;
iv. adjudication on conflict of laws and jurisdiction
disputes between the high courts of member
states;
v. adjudication on disputes arising out of contracts
between foreign companies and domestic
companies or the Federal Union;
vi. supervision of the application of international
human rights laws in the national legal system;
vii. inherent power of the court in the event there is
no specific law to seek a remedy for a wrong,
on the principle that for every wrong there must
be a remedy.
(d) qualifications of Supreme Court judges;
(e) procedures for the appointment and removal of Supreme Court
judges, establishing their terms and grounds for disbarment;
(f) the formation of a Supreme Administrative Court and its
powers;
(g) qualifications of Supreme Administrative Court judges;
(h) procedures for appointment and removal of Supreme
Administrative Court judges, establishing their terms and
grounds for disbarment;
(i) financial independence of the Supreme Court and Supreme
Administrative Court;
(j) provisions for adequate salaries and benefits for Judges.
B. Court Powers for the Protection of Individual Liberties
The various ethnic nationalities residing in remote mountainous areas

do not usually have access to the Supreme Courts which are located in the
lowlands of Burma. With reference to the previous human rights abuses com-
mitted not only by governmental authorities but also by local non-state actors
and armed groups in those mountainous areas, the district courts in the whole
country should also be vested with the power similar to habeus corpus, as has
been the case in Thailand.
C. Judicial Tenure
Obviously, complete judicial independence from the other two arms of

government is not theoretically perfect given that most judicial appointments

and all judicial funding comes from government sources. Further protection can
be ensured by upholding the security of judicial tenure subject only to removal
for proven misconduct or incapacity and by institutionalizing the processes upon
which a contested removal from judicial office may occur. Without such safe-
guards, there can be no guarantees for an independent judiciary.
D. Payment of Adequate Salaries and Benefits
Payment of adequate salaries and benefits to judges and legal officers

can partly be ensured by guaranteeing that the judiciary is provided with appro-
priate statutory immunities and protections in the discharge of their duties as
well as by the payment of adequate salaries and benefits. Failure to ensure
suitable remuneration for judges can, alone, weaken judicial independence and
the proper functioning of the judiciary.
(1) Elected politicians may regard themselves as the ones who can
exercise supreme power over the people. As such, they may have concerns
about the rigid control of the judiciary over their legislative and administrative
activities in the event that the judiciary exercises absolute autonomy.
(2) During the long term transitional period from the rule of dictatorship
to democracy, the former judges who were trained and indoctrinated with a
strong concept of the state may continue to form a part of the judiciary in the
future Burma. In that case, if sufficient autonomy is granted, judicial tyranny
may be exercised.
E. Abrogation of Abusive Laws
The following laws that hinder the fair trial rights of people and the right
to the presumption of innocence shall be abrogated:
i. 1908 Unlawful Association Act
ii. 1950 Emergency Provision Act
iii. 1962 Printers and Publishers Law
iv. 1975 State Protection Law
v. 1988 Law Relating to Forming of Organizations
v. 1996 Law Protecting the Peaceful and Systematic Transfer of State
Responsibility and the Successful Performance of the Functions of the
National Convention against Disturbance and Oppositions.

L AW K A PALA
Part (III)
Structural Changes
A. The Role of the Supreme Court

Structural changes are to be carried out, making the Supreme Court
more transparent, accountable and value-oriented. The role of the Supreme
Court has to be enlarged enabling it to play a more proactive role.
B. Civil Justice System
The role of military tribunals must be redefined. They shall have power
to adjudicate the disputes of which both parties are military and final decisions
are subject to appeal to the Supreme Court. In an emerging democracy, the civil
justice system will be put to use.
C. The Formation of Administrative Courts
The administrative court is a new phenomenon which did not exist in

common law countries. However, with the advancement of democratic ideas,
mechanisms to restrict or check the powers of the executive branch had to be
created; one such mechanism is the administrative court. Citizens can go to
court to seek remedies for multifarious grievances, from service conditions to
facilities for good life.
D. Jury System
In cognizable criminal cases, the jury system will be introduced. It will

be composed of temporary jurors. In this way, participation and awareness of
the people will be promoted and the judiciary will also be well-grounded, taking
initiative based on grassroots dialogue and not only based on in-house, legal
jargon.
E. Judicial Service Commission
A permanent Judicial Service Commission will be set up and entrusted

with the powers of training, appointment, promotion, removal and rectification
of problems surrounding the conduct of judges. The composition of the Judicial
Service Commission shall be made up of the Chief Justice, two Supreme Court
judges, the Chief Justices of the High Courts, three practicing senior advocates,
three Members of Parliament, three deans of law schools and the
Attorney General. The judges’ profession will be made more people -oriented
and the recruitment procedure will be guided by the Commission. It shall deter-
mine the budget for the judicial administration.
No. 32 - April, 2009 Page 11

F. Ministry of Justice
The Ministry of Justice will be instituted and primarily will take respon-
sibility as the research and operations arm of the judiciary.
G. Police
Today, in Burma, the placement of military intelligence and other civil-

ians who are lackeys of the ruling regime in positions as police officers who
have the power to arrest people, fabricate criminal cases, and frame innocent
people within the existing criminal justice system has become a common prac-
tice that hinders the functioning of the judiciary.
A neutral, independent and collaborative police force is necessary for a

peaceful, safe and just society. The police must be vested with the authority and
independence to take action against any person who breaks the law, regardless
of that person’s identity, whether a lawyer, farmer, or government official. The
police should not be biased towards any armed institution, non-state actors, or
ruling political party in a democratic society and should be accountable only to
the law. The "neutrality of the police" shall be exercised as an important factor
that facilitates the proper functioning of the criminal justice system.
H. Statutory Body for Legal Aid
The right to legal aid shall be guaranteed and there must be a statutory
body for the provision of legal aid so that all people in the country can have
access to justice.
I. Independent Existence and Functioning of a Bar Council and Law-

yers' Associations
There is a saying that a strong bar makes a strong bench. The Bar
Council must facilitate changes on the bench. The Bar Council has to be cre-
ated as a body run by independent lawyers. The chair of the Bar Council must
not be the Attorney General. Instead, the chair of the Bar Council and other
leaders shall be elected by its lawyer members. The Bar Council and Bar Asso-
ciations should insist on proactive participation by their members in bringing
about reform of the judiciary and the reduction of corruption.
In most countries, the judiciary plays a critical role in promoting a clean

government and facilitating good governance. However, in Burma, the judiciary

L AW K A PALA
is as corrupt as the administration. A number of judges as well as court officials

regularly take bribes and rule in favor of those who can bribe them. The concept
and practice of independence of the judiciary alone may not be beneficial for the
individual citizens as well as for the whole society if a checks and balances
system for the judiciary is not in place. As a negative result, the judiciary will be
independently corrupt. When the judiciary itself is corrupt, taking legal action
against public officials for corruption is pointless. Lawyers should initiate a fight
against corruption, participate in the reformation of the judiciary and revitalize
the role of the Bar Council and Lawyers' Associations, in addition to the exist-
ence of an independent media.
Currently, in Burma, common practices of corruption largely impact the
whole judicial system, particularly in the investigation processes performed by
the police and in all trial processes administered by the courts. A number of
lawyers who are earning high salaries themselves are involved in corrupt prac-
tices with judges, public prosecutors, police and other court officials.
(1) If the military regime remains in power, it will certainly attempt to
place the judiciary under the control of the executive, ignoring the concept and
practices of independence of the judiciary.
(2) Even if the military regime falls, the reformation of the judicial system
will still encounter hardships as corrupt practices within the judiciary will continue
to exist. In addition to creating structural changes within the judiciary, fostering
the betterment of the economic status of people must coincide with injecting a
new value system into society.
J. Judicial Reform Commission
During the transition period from the rule of dictatorship to democracy

in Burma, a Judicial Reform Commission is to be created to advise the Legisla-
ture on the reformation of the existing judiciary. It should be comprised of legal
academicians, former judges, leading lawyers and those who are experienced in
judicial service. The term of the commission should be terminated after the
Legislature has adopted its recommendations with necessary revisions.
(Footnotes)
1
Aung Htoo: General Secretary, Burma Lawyers' Council
*********
No. 32 - April, 2009 Page 13

(A . 2)
Opening Ceremony of Advanced Internship Program

in Human Rights and Law
-- Peace Law Academy --
2009 – 2010
Burma Lawyers' Council
On 12 February 2009, the Burma Lawyers’ Council held an Opening Ceremony

for its second batch of students in the Advanced Internship Program in Human
Rights and Law. The Advanced Internship Program is a two-year program
focused on edu-
cating activist
youth in law and
related subjects.
It is part of the
BLC’s Peace
Law Academy,
established in
2005.
There are
twenty-five stu-
dents in this
year’s class, thir-
teen women and
twelve men.
They represent
eleven different
ethnic groups and are affiliated with several democratic organizations, both in-
side Burma and in exile.
Brief Description of the Advanced Internship Program
The courses at the Peace Law Academy give a broad understanding of the
legal history, concepts, statutes, case law, conventions, treaties and other impor-
tant materials relevant to an understanding of the relationship between law and
change in Burma. Lectures are given by experienced lawyers and professors
from Burma and other countries. Students also participate in a number of prac-
tical activities such as internships at Burmese democratic organizations, law
workshops, legal research, and networking, among others.
L AW K A PALA
The Advanced Internship Program has four primary objectives:
To increase to the legal capacity of Burmese activist youth so that they

become capable advocates, qualified civil servants and competent
leaders of civilian institutions who will practice good governance;
To capacitate the interns to teach and train others in human rights, rule
of law, civil society and other subjects essential to a future democratic
Burma;
To teach the interns how to conduct research, critically analyze laws
and write academic papers of a high quality; and
To promote the interns’ understanding of civilian institution building and
networking.
The aim is that, upon completion of the two-year learning period, the interns will
be capable advocates ready to facilitate democratic governance in Burma.
The 2009-2010 Program has received partial funding by Foundation Open Soci-
ety Institute (Zug), Human Rights Now and other individual donors.
Activities of the Opening Ceremony
The BLC Executive Board Members, political leaders, ethnic leaders, family
members and other key members of the community attended the Opening Cer-
emony. The Board Members and several leaders were invited to address the
students. They encouraged the students to take advantage of this unique oppor-
tunity to become the next generation’s leaders in the democratic transition for
No. 32 - April, 2009 Page 15

Burma. Following are some of the ceremony’s highlights.
(1) BLC Chairman U Thein Oo and General Secretary U Aung Htoo expressed
their hopes and gave advice to the new interns. U Thein Oo told them that
nothing is impossible in the world. If the students maximize their ability and
quality, they will affect Burma in the future. He encouraged them to maintain
their discipline throughout the entire two-year period and accept their duties
with good will while maintaining good relations with the other interns. U Aung
Htoo advised the students to improve their capacity and utilize what they have
learned by working in their mother organizations after graduation.
(2) National Coalition for the Union of Burma (NCUB) General Secretary U
Maung Maung told the students, “We are trying to be a democratic society
under the rule of law in a federal system. You are coming to do a big job and you
are not done after you graduate. You have to go back to your mother organiza-
tions to spread your knowledge in your society for the future Burma.”
(3) National Democratic Front (NDF) Vice-Chairman U Khaing Soe Naing

Aung said, “This Peace Law Academy was formed by the idea from the lead-
ers of the movement and this school will benefit the future federal state of
Burma. There is less rule of law under the military regime in Burma. If the
civilian institutions are strong we can change the military in some ways. I hope
the students will study very hard about the rule of law to increase the strength of
the civilian institutions.”
(4) National League for Democracy – Liberated Area (NLD-LA) Secretary U

Myint Soe told the new students that “sometimes it is difficult to decide what is
good, bad and right. We the NLD are willing to support you whenever you need
help and hold hands together with you.”
(5) Former AIP student Myat Myat Aung encouraged the new students. She
said, “After the graduation of the first batch, many former students went back
to work with their mother organizations and in others places, such as refugee
camps. So I would like to suggest that you study very hard to improve your legal
and political knowledge within the next two years to be able to work as the
former students did after they graduated.”
(6) Members of Parliament Union (MPU) Minister of Labor U Khun Myint

Htun shared his experience when he had a chance to participate in the SPDC's
National Convention to write a constitution. He said that “a political leader should
have political and legal knowledge to be able to write a constitution.” He ex-
plained that the Academy was opened in the democratic movement to prepare
weapons of legal knowledge for the young people.
*********

L AW K A PALA
(A . 3)
Housing, Land and Property Rights in Burma:

Towards New Strategies
By Scott Leckie1
One day, the much maligned military machine in Burma will give way to
new ways of governing this truly extraordinary country. In a nation where good
news is rarely forthcoming, there is at least some solace in knowing that per-
haps that most quintessential of all Buddhist truths - impermanence - applies as
much to dominant political regimes as it does to everything else. No government
lasts forever, and clearly there will come a time when the Generals now ruling
Burma will no longer be in power, and when more open forms of governance
will begin to take root in this nation of over 50 million rights-holders. Of this we
can be certain. What remains unknown, of course, are the questions of when
and even more vitally, how? What might have appeared to have been the when
moment in September 2007, quickly became yet another Oh no, not again
refrain as it became clear that Than Shwe and his backers were as far as ever
from relinquishing power. The human tragedies and gross ineptitude shown fol-
lowing Cyclone Nargis provided a stage for additional expectations that struc-
tural change might be near, but this too failed to materialise.
Thus, with the regime quite firmly in place at the moment, those who
care about human rights in Burma are forced yet again to consider what to do to
assist in improving the human rights situation in the country. If we examine
purely the question of the housing, land and property (HLP) rights challenges
facing the people of Burma, we are left with several possible routes of action.
We can support the continuation of the excellent and courageous work done by
so many in identifying and monitoring forced displacement in lengthy and pro-
fessional reports, with ever more detailed and disturbing accounts, documented
in increasingly articulate ways. Conversely, we might consider expanding at-
tempts to prevent planned, often publicly announced HLP abuses such as those
caused by ill-planned dams on the Salween and other rivers by attempting to
organise the victims and assisting them to speak ever more loudly about their
plight. Some may even wish to shift their attentions completely, and simply seek
to assist resettling refugees from Burma who have given up hoping for change
and who are happy enough to settle in Iowa City, Berlin or Lausanne.
And yet, as vital and well-intentioned as these and other efforts are
(and there are a great many others), it is clear that to date these valuable
No. 32 - April, 2009 Page 17

endeavours have yet to truly bring substantial results within the HLP sector in
the country; displacement has clearly not declined in either scale or degree, dam
construction and related loss of lands and homes has only increased, the return
of refugees and IDPs to their original homes and lands is as far off as ever, and
overall housing and living conditions throughout the country continue to decline,
alongside growing impoverishment and lack of economic possibilities. Might it
then be time to consider new strategies for addressing the HLP rights crisis in
Burma? Might, in fact, organising around the broader themes associated with
the full array of HLP rights and not solely forced displacement as such, bring
more concrete, sustained results?
Towards a 'Displacement Plus' Strategy Grounded in HLP Rights
Moving from displacement-specific strategies to broader 'displacement-

plus' approaches which focus on all HLP rights, would firstly require its propo-
nents to understand that as bad as displacement may be in Burma, whether
caused by conflict, disaster or poorly planned development projects, the practice
remains but one of many forms of HLP abuse and deprivation prevailing in the
country today. Comprehending the broader HLP crisis, of course, may begin
with displacement, but it should not end there. Indeed, the displacement and
HLP dynamics found in Burma today need to be analysed from the perspective
of literally hundreds of years of repeated conquest, the recurring emergence of
political/military fiefdoms of all sizes, and the central role that the domination of
the housing, land and property sectors has played and continues to play in how
the nation is governed. Burma's past and present are so dominated by forced
displacement that one would be hard pressed to find very many other nations
where the practice of removing people against their will from their homes and
lands had such an extensive role in shaping the historical fabric of the nation,
and where land issues were more at the centre of both political domination and
eventual liberation. This lengthy history of displacement, combined with the par-
ticularly large-scale displacement in the east of the country, have both surely
contributed to making this particular HLP rights abuse so central to the various
strategies of the political opposition and human rights advocates.
Forced displacement is but one of a series of serious housing, land and

property challenges facing the country, and yet it is this practice that receives
the overwhelming proportion of attention by those concerned with human rights
in the country today. To properly grasp the HLP crisis in Burma, forced dis-
placement needs to be analysed together with HLP issues such as almost uni-
versal tenure insecurity, increasingly inadequate housing and living conditions
including the inability of tens of millions of citizens to access basic services such
as water, electricity, telecommunications and others, the minimal protection of
tenant's rights, the physical demise of historical urban centres, including residen-
tial areas, a dysfunctional and ineffective system of land administration and

L AW K A PALA
registration, severe inequities in terms women's HLP rights including inherit-

ance and access, drastic restrictions on individual property ownership, forced
evictions due to infrastructure projects and urban gentrification and re-develop-
ment processes, destructive and non-participatory urban master planning pro-
cesses, complete inaction on the special HLP needs of particularly vulnerable
groups (elderly, disabled, children, etc.) and many other HLP concerns.
What are we to make of this long history of displacement then, when

we examine the more complex and more widespread HLP crisis in contempo-
rary Burma? How does the history of displacement and the essential presump-
tion by the authorities (whether colonial powers, warlords, ethnic armies or the
State as a whole) that those governing invariably hold all power over the land,
and the fact that the citizenry effectively possesses no real rights over the land
and homes they call their own, affect the entire gamut of HLP rights of people
throughout the country today? And how does this same history influence the
actions and behaviour of the Tatmadaw-led regime? These queries are complex
and require equally complex answers, but to a degree, they can be answered by
simply pointing to the crucial and strategic fact that displacement needs to be
understood in Burma not as an issue separate or distinct from other HLP con-
cerns, but rather as a slice of much larger HLP practices and realities that
systematically, day-by-day, result in the erosion of the rights of virtually all popu-
lation sectors in the country.
The prevalence of HLP problems points to a severe and complex na-

tional HLP crisis rivaling the worst systematic abuses of HLP rights in any
country. To date, however, these issues have not been addressed in a compre-
hensive manner; whether by the UN agencies and others operating within the
country, or by human rights and other monitoring groups based outside the coun-
try. There are a plethora of high-quality published resources outlining the pre-
cise scale and modalities of forced displacement in the country, most of which
focus on the ethnic areas, in particular where such displacement forms a part of
either counter-insurgency efforts by the SPDC, military-led land expropriation
(often in the form of outright land grabbing) or both. A slightly less extensive, but
no less high-quality, array of reports is regularly released outlining the negative
consequences of development-based displacement, led in particular by surveys
of forced displacement resulting from the various dam systems that are under
construction throughout the Salween area. These and related efforts are vital,
but what is missing are efforts to bring together initiatives which focus compre-
hensively on HLP concerns within the country. Other than an unexpectedly
impressive and remarkably detailed and insightful 1991 UN Habitat report on
human settlements in the country2, reports and data on slum formation, slum
conditions, housing poverty, land confiscation outside the conflict areas on the
Thai-Burma border, urban forced evictions, service availability and many other
critical HLP sectors are rarely addressed, despite the fact that these affect far
No. 32 - April, 2009 Page 19

more people than those affected by forced displacement. Doing so, together
with expanded work on specific displacement themes, however, could provide a
basis for building new movements for change which have as their foundation
the daily struggles for HLP dignity that virtually every family in Burma is forced
by circumstance to face.
Popular HLP movements are not always widely seen by those not work-
ing within the human rights or political arenas as necessarily an obvious basis for
the type of organising that can lead to longer-term political change. But more
often than commonly assumed, HLP abuses quite often turn out to be the cata-
lyst in what become large-scale initiatives that lead ultimately to structural politi-
cal transition. While South African apartheid was surely not overthrown solely
in response to racially-motivated displacement, land grabs and forced reloca-
tions, it is clear that HLP abuses in South Africa formed a key rallying cry of the
democratic movement that led to the end of white-only rule. Nelson Mandela
himself cut his political teeth during anti-relocation struggles in the 1950s in
places such as Sophiatown, Alexandra and Lady Selborne. The daily HLP frus-
trations faced by millions in Eastern Europe and the Soviet Union surely played
a role, albeit perhaps a smaller one, in the change that spread like wildfire there
in the late 1980s and early 1990s. The growing rural unrest (and creeping urban
discontent, as well) in China in recent years has everything to do with HLP
rights abuses and a growing sense of social exclusion combined with massive
land confiscation and expropriation. The conflicts in the Balkans centred around
a series of HLP issues, none more so than ethnic cleansing and its eventual
reversal. And the housing distress suffered by so many tens of thousands of
New Orleans residents, coupled with the outright failings of the Bush adminis-
tration to adequately redress the billions of dollars in damage caused by hurri-
cane Katrina are widely seen, together with the Iraq debacle (which itself has
much to do with HLP rights abuses), as key reasons for Bush leaving office as
one of the most unpopular Presidents of all time.
Similarly, many ongoing conflicts and unresolved political struggles

throughout the world have at their core, difficult to solve HLP disputes and
widespread HLP abuses. The Cyprus Problem remains unresolved for many
reasons, but none are as prominent as the HLP issues that continue to thwart
agreement. HLP issues lie at the deep core of the Palestinian-Israeli conflict,
and it is well-known that since 1948 Israel has used its control within the HLP
sector – through the calculated destruction of villages, illegal confiscation of
refugee land and housing and implantation of settlers – as a means of subjuga-
tion and oppression against the Palestinian people. HLP issues are fundamental
to the conflict in Darfur, just as they are in a spate of longstanding refugee
situations including ethnic Nepalis from Bhutan, Western Sahara, Serbia, Demo-
cratic Republic of the Congo and beyond.

L AW K A PALA
What these and other cases reveal is simultaneously the central importance of
the HLP sector within the political resolution process where structural changes
have already occurred, and the manner by which unresolved HLP issues con-
tinue to prevent just and satisfactory conclusions to a range of unresolved con-
flicts throughout the world.
Arguably, thus, it is at the very least possible that the slow and gradual
rise of a national HLP movement, largely domestic in nature but supported by
the good will of the international community, will facilitate the emergence of
new political dynamics in Burma. These in turn could lead to new ways of
engaging portions of the population that have to date been unwilling to involve
themselves in the forms of either covert or overt opposition used in the past, as
well as the emergence of new perspectives and understandings of the proper
role of the State, of government and of the basic HLP rights of every man,
woman and child, and how indispensable these are for living a full life.
There is certainly no shortage of HLP issues which could form the

initial basis for the emergence of such a movement. As noted, forced displace-
ment is one. Millions have faced this practice over the past several decades and
millions more remain under possible threat that they too will lose their lands if
the Tatmadaw senses a more profitable use for land now under private posses-
sion. A movement and accompanying campaign or initiative that engaged the
displaced themselves, together with their advocates, could be the beginning of a
longer-term process that leads eventually to a mass HLP movement that facili-
tates deep political change. This could be an important way of proceeding, but
arguably the ground is even riper in Burma for a wider HLP movement to emerge;
one based on the full spectrum of HLP concerns.
When viewed through the lens of HLP rights, Burma is surely one of
the world's poorest performers. Seen through the eyes of an ordinary citizen of
Burma, the daily, even minute-by-minute, HLP challenges (and accompanying
denial of rights) they are forced to endure are staggering, perpetual and cruel.
Tenure security is virtually non-existent in either towns or rural areas. Basic
services - water, electricity, sanitation, drainage, phone lines - are unavailable to
millions of households. Credit for the poor is inaccessible with the exception of
special programmes sponsored by the international community. Privacy rights
and rights to respect for the home are routinely infringed by military intelligence
and other actors. Tenants possess few rights against arbitrary eviction. De-
crepit slums, both old and new (and in far worse conditions than slums in many
neighbouring countries) have grown steadily on the outskirts of most of the
larger cities and towns in the country as the countryside is no longer able to
provide sufficient livelihood to many within the agricultural sector. And the list
goes on. HLP problems, in fact, are so ubiquitous that few if any families -
No. 32 - April, 2009 Page 21

including even sectors of the elite and most of the small middle class - live out
their lives free of any HLP abuses or insecurities. Virtually everyone in Burma
stands to benefit from an approach to HLP problems that treats these issues as
rights of everyone and that understands in tackling HLP concerns one invariably
improves overall macro-economic vitality, human security and social stability. A
new HLP future in Burma could just mean the eventual onset of a new political
culture, a new way of improving economic performance and a new way of
raising the standard of living of all throughout the country. If fuel price hikes can
spark movements such as those of August and September 2007, one can only
wonder what an HLP movement might achieve.
Starting Now to Build a Better HLP Future
If those within Burma came to increasingly see the value in organising

around HLP themes, the 2008 Constitution might be a good place to start. As
flawed as it may be and as unpopular as many of its provisions clearly are,
nevertheless the new Constitution provides a legal basis for building momentum
required for enhanced attention to HLP issues. The new Constitution, for in-
stance, requires the Union to “strive to improve the living standards of the people”,
“permit citizens the right of private property”, “protect according to law mov-
able and immovable properties of every citizen” and “protect the privacy and
security of home and property”. Each of these is a central element in the bundle
of entitlements that comprise HLP rights. The Constitution equally confers the
right to ownership and affords citizens rights to “settle and reside in any place
within the Republic”. It is true that these provisions fall short of protecting, in
full, the entire range of housing, land and property rights conferred under inter-
national human rights law, but nonetheless for the regime to have constitution-
ally recognised these rights and duties under law are significant steps in the right
direction that must be taken advantage of by human rights advocates working
for justice in Burma. These rights can be used as the basis for a broad series of
activities to strengthen HLP rights in Burma, and with constitutional law as the
platform for expanded attention to these themes, those engaging in their en-
hancement may be protected to a degree previously not available. These rights
can be tested, monitored and rallied in support of in ways not necessarily pos-
sible in the recent past.
Given the scale of the HLP crisis in the country, any number of initia-
tives might be undertaken, but five particular issues might be considered priority
areas for action and attention. If backed by the international community, activi-
ties in support of these HLP objectives grounded in the new Constitution and
existing HLP laws, as well as the human rights treaties already ratified by the
Government, could form the basis for building the type of groundswell of sup-
port for change that will be required for a new Burma to emerge.

L AW K A PALA
1. Slum Upgrading - Although they receive virtually no attention from the

humanitarian or human rights communities, Burma's slums are bad and getting
worse. Those working in the HLP field know what measures are most likely to
bring about the positive change required to improve slum conditions and this
knowledge needs to be deployed and acted upon in Burma today. City-specific
and national programmes, as well as projects supported by the international
community towards this end can bring real results, often in short-term time-
frames. Specifically, building enhanced capacity within the important Develop-
ment Committees that manage urban affairs in Rangoon and Mandalay would
be one concrete step in the right direction that could assist in improving slum
conditions in the country.
2. Security of Tenure - The situation of tenure insecurity in the country is

equally in need of attention. Most of Burma's citizens do not possess even rudi-
mentary forms of secure tenure and as a result are perpetually under possible
threat of eviction, forced displacement and land confiscation. Again, HLP ex-
pertise is available to assist the people of Burma to improve the overall security
of tenure situation through a combination of law, policy and programmes which
match the prevailing needs of the country and which can take into account the
best practice of countries around the world. Improving land administration pro-
cesses, the conferral of title and security of tenure rights and related measures
are achievable aims that can be initiated today.
3. Service Provision - As noted, most of Burma's population does not have

regular and affordable access to water, electricity, drainage, refuse disposal,
telephones or other basis services. Targeted measures to improve the provision
of public services such as these are also possible to design and consider now. In
some areas implementation will be easier than in others, but there is little reason
not to expand attention to these services as a matter of HLP policy.
4. HLP Reform - The Burmese HLP legal code - the full body of some 57 laws
currently in force in Burma that address and regulate housing, land and property
matters (and recently compiled by the author) - does address many key HLP
rights recognised under human rights law. To effectively assist the citizens in
Burma to achieve their HLP rights, however, it is clear that the HLP Code
requires new forms of attention, including extensive reform and amendment.
HLP experts are in place today ready to assist in improving the HLP Code,
modernising it in appropriate ways and thus improving the institutions and poli-
cies responsible for HLP concerns within the country. If four new laws were
adopted the HLP code in Burma would be dramatically improved. This process
could begin with initiatives to draft a Housing Act, a Land Act, an Urban Re-
form Act and an Act on Refugee and IDP Restitution.
No. 32 - April, 2009 Page 23

5. Historical Town Preservation - Many of Burma's cities and towns pos-

sess buildings and neighbourhoods of great architectural and historical signifi-
cance. Expanding attention to the preservation of those urban areas that are of
particular importance may be another way of slowly building awareness of HLP
issues within the country today. Taking the lead from Luang Prabang in
neighbouring Laos, Burma could surely select, say, five historic neighbourhoods
throughout the country that it might wish to preserve for future generations.
***
Could an emphasis on the HLP sector and greater attention to HLP

issues become a new organising tool that results in change? Could the 'develop-
mental' dimension of HLP issues, grounded in the new provisions of the 2008
Constitution, prove to be sufficiently opaque as a means of improving the lives
of people now, that it would not necessarily provoke the ire of the authorities,
and perhaps even inspire them to achieve better results? Alternatively, of course,
we can wait for what leading Burma analyst Richard Horsey has referred to as
the "Deng Xiao Ping moment", wherein someone within the military finally grasps
the efficacy of instituting market-based economic reforms and open up the
economy - and thus the country as a whole - to investment, social development
and ideas, but not in a way that undermines the authority of the present regime.
Or we can wait for another attempted mass revolt with all too predictable re-
sults. We can also begin now, without waiting any longer, to broaden thinking on
how a new focus on HLP rights might just constitute a broad enough bundle of
concerns, affecting such a huge majority of the population of the country, that it
proves to be an initiative that makes a real difference.
Burma’s citizens and their international friends need to move beyond

the advocacy efforts relied upon during the past decades and identify new and
refreshing ways of promoting positive change that starts with the people in Burma.
An increasing reliance on HLP rights as a foundation for change, grounded
deeply in the daily experience of their denial by the vast majority of those living
in the country, and the clear range of concrete actions that can be carried out
beginning today to improve the HLP situation in the country, could provide a
whole new way of transforming the landscape of the country. A novel vision of
Burma is required; a vision where all are adequately housed, where all have
secure tenure to their land, where displacement as a policy tool is relegated to
history, where basic services are enjoyed by all and where Burma's towns and
cities become the bustling, modern, vibrant pride and joy of all the peoples within
Burma as they go about living lives of dignity, prosperity, equality and security.
HLP strategies could provide the basis for transforming this vision into reality,
and the time to commence this work is now.

L AW K A PALA
(Endnotes)
1 Director, Displacement Solutions (www.displacementsolutions.org) and Founder of
the Centre on Housing Rights and Evictions (COHRE). He can be contacted at:
director@displacementsolutions.org.
2 United Nations Centre for Human Settlements (Habitat), Human Settlements Sector
Review - Union of Myanmar, May 1990, Nairobi, 1991.
*********
No. 32 - April, 2009 Page 25

Part B: Rule of Law
(B . 1)
P.O. Box 144, Mae Sod Post Office, Tak Province 63110, Thailand; Tel/Fax (66) 055-542910
E-mail: blcburma@blc-burma.org; blcsan@ksc.th.com; Website: www.blc-burma.org
Statement on Unlawful Imprisonment of Lawyers

Sentenced under 1926 Contempt of Courts Act
Experienced lawyers U Aung Thein and U Khin Maung Shein were sentenced
to four months imprisonment, and junior lawyers U Nyi Nyi Htway and U Saw
Kyaw Kyaw Min to six months imprisonment under the antiquated 1926 Con-
tempt of Courts Act, Section 3 (India Act XII, 1926)1 for fulfilling their duties as
lawyers. Their convictions were clearly politically motivated to intimidate other
lawyers from defending political activists and as revenge for the lawyers’ dedi-
cation to seeking justice for their political activist clients.
The Contempt of Courts Act, Section 3 (India Act XII, 1926) has only been
applied once in the past 22 years. During the case of Daw Aye Kyi v. U Win
Thaung, et al., Criminal General Applicant No. 122 (1986), a reporter wrote
and published an article regarding the facts, allegations, and likely decision of
the case. As this article was published before the judge had rendered a verdict,
it influenced public opinion, and in the judge’s opinion, disturbed the judicial pro-
cess. Because the damage to public opinion could not be retracted, the judge
charged the reporter under Section 3 of the Contempt of Courts Act and or-
dered him to pay a fine of 500 Kyats or serve one month in prison without hard
labor.
The actions of U Aung Thein, U Khin Maung Shein, U Nyi Nyi Htway, and U
Saw Kyaw Kyaw Min are very different from the actions of the reporter in the
1986 case. In the case of U Aung Thein and U Khin Maung Shein, their alleged
disturbance was abiding by their clients’ wishes to revoke their power of attor-
ney. Similarly in the case of U Nyi Nyi Htway and U Saw Kyaw Kyaw Min,
the judge convicted the lawyers of contempt of court for following their clients’
instructions to put SPDC officials on their witness list. None of these acts

L AW K A PALA
impeded the judicial process; rather, the lawyers were merely fulfilling their duty
to vigorously defend and act on behalf of their clients.
Furthermore, even if the lawyers’ actions could be interpreted as a disturbance

of the judicial process, they were wrongly charged under the 1926 Contempt of
Courts Act. The 1926 Contempt of Courts Act details that it shall only be
applied, “save as otherwise expressly provided by any law . . .” In other
words, if another law covers the situation, the Contempt of Courts Act is inappli-
cable. Here, there is another law that applies. It is the Court Manual, “Con-
tempt of Court,” Section 501, which covers cases in which a disturbance occurs
in a courtroom under the judge’s authority (in the 1986 reporter’s case, the
disturbance occurred outside the courtroom). This Section, referring to the
Code of Criminal Procedure Section 480(1) (Procedure in certain cases of con-
tempt), provides that the court can detain those persons refusing to cooperate
with a judicial process or otherwise disrupting such a process during a criminal
or civil case. If the judge finds the action warrants punishment, he can impose
a fine not to exceed 2,000 Kyats before the end of that business day. If the
accused person cannot pay the fine, he may opt to take the alternative sentence
of one month without hard labor. Thus, the 1926 Contempt of Courts Act was
incorrectly applied and the four-month and six-month sentences exceed the one-
month limit provided for in the Court Manual.
Clearly, the lawyers were fulfilling their duty as court officials to act on behalf of
their clients. However, in the puppet judicial system of the SPDC, defending
political activists is punished as a crime. The inappropriately long prison sen-
tences for U Aung Thein, U Khin Maung Shein, U Nyi Nyi Htway, and U Saw
Kyaw Kyaw Min violate prescribed law and can only be seen as an attempt by
the SPDC to harass defenders of political activists and to manipulate the law for
their own ends.
The BLC demands the unconditional release of all imprisoned lawyers to pre-
vent further injustice and avoid the complete desecration of the rule of law.
Burma Lawyers’ Council

December 4, 2008
(Endnotes)
1. Burma Code Vol. 1, Section 138, The Contempt of Courts Act (India Act XII, 1926). (1
May 1926) Section 3: Save as otherwise expressly provided by any law for the time
being in force a contempt of court may be punished with simple imprisonment for a term
which may extend to six months, or with fine, which may extend to two thousand rupees,
or with both: Provided that the accused may be discharged or the punishment awarded
may be remitted on apology being made to the satisfaction of the Court: Provided
No. 32 - April, 2009 Page 27

further that notwithstanding anything elsewhere contained in any law the High Court
shall not impose a sentence in excess of that specified in this section for any contempt
either in respect of itself or of a Court subordinate to it.
*********

L AW K A PALA
(B . 2)
E-mail: blcburma@blc-burma.org; blcsan@ksc.th.com; Website: www.blc-burma.org
Legal Statement on the Sentencing and

Miscarriage of Ma Kay Thi Aung in Oh Bo Jail,
Mandalay Division
Case Brief
Ma Kay Thi Aung was arrested on 14 September 2008 at 1:00 p.m. The police
entered her house intending to arrest her husband, All Burma Federation of
Students Unions leader Ko Htun Htun, who had fled beforehand. When they
could not find him, the police arrested Ma Kay Thi Aung instead. At the time,
she was two-months pregnant. The police have been using her as a hostage by
conditioning her release on her husband’s surrender.
On 27 November 2008, Ma Kay Thi Aung was sentenced to 26 years’ imprison-

ment by the Special Court in Oh Bo Jail, Mandalay Division. She was convicted
for allegedly contacting opposition activists outside Burma and allegedly leaving
Burma illegally. Two 3-year sentences under Section 17(1) of the Unlawful
Association Act, two 5-year sentences under Section 17(2) of the Unlawful
Association Act and two 5-year sentences under Section 13(1) of the Immigra-
tion Act resulted in the 26 year sentence. Eleven other ABFSU students who
had been arrested at the same time were also given long-term prison sentences.
During her interrogation sessions at the jail, military intelligence officials repeat-
edly beat Ma Kay Thi Aung. They prevented her from receiving food and
medical treatment. As a result, on 29 December 2008, Ma Kay Thi Aung began
to bleed heavily and her 6-month-old fetus died.
On 7 January 2009, Ma Kay Thi Aung’s family traveled to the jail to see her.
Authorities refused a visit. They were also continuing to deny her food and
medicine.
No. 32 - April, 2009 Page 29

Currently, Ma Kay Thi Aung is in Oh Bo Hospital. Authorities will not give

information about her condition to her family. She is recovering from her mis-
carriage as well as the extreme distress and trauma resulting from the loss of
her child.
Analysis of the Special Court’s Judgment
(a) No Open Court
Burmese national laws require that trials be held in courts open to the public.
For instance, the Burma Judiciary Law 2000 (Law No. 5/2000) provides that
“the administration of justice shall be based upon … dispensing justice in open
court unless otherwise prohibited by the law.”
Code of Criminal Procedure Section 352 adds that “The place in which any
criminal Court is held for the purpose of inquiring into or trying any offence shall
be deemed an open Court, to which the public generally may have access.”
While the presiding judge has the discretion to keep the case closed, such ex-
ceptions are generally only proper for cases that involve national intelligence,
state secrets or to protect vulnerable individuals, such as children or rape vic-
tims. None of these circumstances apply to Ma Kay Thi Aung’s case.
Furthermore, there is no law authorizing a trial to be conducted or a court to be

located on prison grounds.
Finally, Burma Supreme Court Justice U Aung Toe signed the 1995 Beijing
Statement of Principles of the Independence of the Judiciary in the Lawasia
Region, which underscores the necessity of public trials (Section 2).
Ma Kay Thi Aung was tried and sentenced in an unauthorized prison court
hidden from public scrutiny. Burmese law expressly requires that cases like
hers are open to the public. In a closed secret courtroom, there is no account-
ability or safeguards to ensure a fair trial. Ma Kay Thi Aung’s trial clearly
violated applicable Burmese laws and should be denounced by government au-
thorities. Furthermore, Ma Kay Thi Aung was not given access to an attorney
and was not permitted to defend herself at trial. She was given the maximum
sentence possible without justification. It is the duty of the SPDC and Chief
Justice U Aung Toe to ensure that an independent judiciary oversees all trials
and applies relevant national and international laws and principles fairly. Based
on the case of Ma Kay Thi Aung, they are clearly ignoring this responsibility.
(b) Meeting Family in the Jail

Prisoners have the right to meet family members while they are in prison. Burma
Jail Manual (1894) Section 780 provides that the jail warden must permit prison-
ers to meet guests, family members and others at least once a month.
L AW K A PALA
In Ma Kay Thi Aung’s case, the authorities prevented all family visits for over
one month. Requests from family members for visits were denied. This mis-
treatment clearly compounded Ma Kay Thi Aung’s fragile health condition. It is
a clear violation of the Jail Manual.
(c) Miscarriage in Jail

The Burmese Jail Manual also grants prisoners the right to receive adequate
medical attention. Section 40 provides that “prisoners have the right to receive
medical treatment from the authorities” while Section 882 adds that medical
officers must meet their patients at least once a day, and when the prisoners
arrive to the prison, they must receive a medical exam. Ma Kay Thi Aung was
not allowed to see medical officers and did not receive a check-up upon arrival.
She was refused medical treatment throughout her imprisonment.
On the international level, the Standard Minimum Rules for the Treatment of
Prisoners, adopted by the UN in 1955, provides that for women prisoners “there
shall be special accommodation for all necessary pre-natal and post-natal care
and treatment” (Section 23(1)). Ma Kay Thi Aung did not receive the pre-natal
care she was entitled to.
In fact, her miscarriage was a result of SPDC violations of their own rules and
regulations. First, the beatings by government authorities during the interroga-
tion caused her baby grave injury and apparently led to its death. Second, the
authorities’ refusal to provide subsequent medical treatment, as is required by
their own Jail Manual, clearly sealed the baby’s fate.
A 6-month old fetus is a human being. Its life is protected under the “right to
life” of Article 2 of the Universal Declaration of Human Rights. All human
beings have an essential right to live, which in particular means the right not to
be killed by another human being. The SPDC military intelligence officers and
the jail authorities deprived Ma Kay Thi Aung’s child of this right.
These officers and authorities should be held accountable for their acts. There
are a host of domestic criminal laws that could be used to prosecute the offend-
ers. For instance, Section 300A(e) of the Burma Penal Code provides that the
“causing of the death of a child in a mother’s womb” may amount to culpable
homicide.1 Additionally, Section 312 provides punishment of up to seven years’
imprisonment and a fine for “whoever voluntarily causes a woman with child to
miscarry.” Assuming that authorities knew of Ma Kay Thi Aung’s pregnancy,
Section 315 could also be used to prosecute those who “prevent that child from
being born alive”.
Regardless of the applicability of criminal laws, those officials who contributed

to the death of the fetus and the extreme suffering of Ma Kay Thi Aung must be
held accountable and punished for their acts.
No. 32 - April, 2009 Page 31
(d) Length of Sentence
The length of Ma Kay Thi Aung’s prison sentence makes it obvious that her
prosecution was an act of revenge for her and her husband’s political activities.
For allegedly leaving the country twice to contact pro-democracy activists, she
was condemned to 26 years’ imprisonment. If she serves her full term, she will
leave at age 49. Her child, if it had not died, would be 26 years old at the time of
her release. Criminal punishment should be used as a deterrent against others
committing a crime and to reform the alleged convict. It must not be used as a
political weapon of retribution.
Demands of the Burma Lawyers’ Council
The BLC demands that:
1) The SPDC authorities release information on Ma Kay Thi Aung’s health

condition.
2) Ma Kay Thi Aung be allowed to meet with her family immediately.
3) The International Committee of the Red Cross be allowed to enter Oh Bo Jail

to investigate Ma Kay Thi Aung’s case and inspect jail conditions generally.
4) The military and health authorities involved in Ma Kay Thi Aung’s case be
held criminally and administratively accountable for their acts.
5) The SPDC disband all prison and jail courtrooms, and open all trials to the
public.
6) Ma Kay Thi Aung be released immediately from prison as a result of her

unfair trial conditions.
7) The SPDC implement safeguards to ensure that other prisoners are treated
humanely and their rights under the Jail Manual are honored.

27 January 2009
(Footnotes)
1. For the act to be culpable homicide, the statute requires that some "part of that child has been
brought forth, though the child may not have breathed or been completely borm" Although it is
not perfectly clear, the language "has been brought forth" seems to imply that at the time of
death, the baby must be in some stage of partial birth.
*********

L AW K A PALA
(B . 3)
Statement on Issuance of Passports to Burmese

Migrant Workers under an Agreement between
Thailand and Burma
1. On 1 September 2008, the Thailand Department of Employment re-
leased an official statement that the Burmese government has agreed to work
with the Thai government to issue passports for Burmese migrant workers from
September 2008 until February 2009. Thai employers must submit the names of
their Burmese workers to the Thailand Ministry of Labour through the adminis-
trative offices of the applicable provinces. These lists of Burmese workers will
be forwarded to the Burmese Embassy. The Burmese government will then
determine which applicants are Burmese citizens eligible to receive a passport.
2. Burmese migrant workers who do not have proof of citizenship should

not be disqualified from being able to obtain a passport. The majority of Bur-
mese migrant workers in Thailand do not have Burmese citizenship cards. The
registration form issued by the Thai government specifically requires a citizen-
ship card number. Before issuing passports based on proof of citizenship, the
Burmese military regime first needs to conduct a citizenship card issuance pro-
gram in which all migrant workers can officially receive a number.
3. Citizenship is determined by the existing provision 4/82 of the 1982 Burma

Citizenship Act. The military regime must issue a citizenship card to those who
qualify as citizens in accordance with the Act.
4. The Burma Lawyers’ Council therefore demands that the military re-
gime promptly:
(i) Comply with the 1982 Burma Citizenship Act and issue citizenship
cards to nationals of Burma, including Burmese migrant workers in Thai-
land.
(ii) Announce the citizenship card program nationwide and ensure that
there are no bribes or corruption in the program’s implementation.
(iii) Issue legal passports based on the citizenship cards.
Date: 4 February 2009

Legal Aid Section
*********
No. 32 - April, 2009 Page 33

(B . 4)
Statement on the Unlawful Confiscation of Land

in Burma
1. In all areas of Burma, military officials, authorized persons and their
respective families forcefully occupy buildings and land used by citizens, in most
cases farmers, of Burma. In most cases, the land is confiscated and sold for a
profit with no compensation to the inhabitants who have been evicted. More-
over, those evicted are in no way assisted and are rendered homeless (Naw Say
Phaw, DVB, 28.01.09).
2. In cases of land confiscation, there is no compensation paid by the gov-

ernment for the property or any damages suffered by the evictees. When com-
pensation is made, it pales in comparison to the losses incurred. There is no
resettlement plan for those who lose their property and they must find shelter,
land and rebuild their livelihoods with no assistance whatsoever from the gov-
ernment (Yi May Aung, DVB, 16.02.09).
In some cases, the land is confiscated and the occupants are transferred to
distant locations with a much smaller plot of land in unfavorable conditions and
little or no access to communication. They essentially lose their ability to gener-
ate income and their prospects for the future are severely dampened (Hte Aung
Kyaw, 22.03.09).
3. In reference to the occurrences mentioned above, various media groups

outside Burma have urged the Burmese government to fairly compensate those
whose lands have been confiscated. It remains extremely risky for anyone
inside Burma to report injustices related to land confiscation. Anyone, including
victims, lawyers, reporters and human rights activists, who report to either the
media or the International Labor Organization, in Burma, will undoubtedly be
arrested and punished simply for seeking some semblance of justice.
Legal Analysis
1. In the Land Confiscation Act of 1953 Chapters 3 and 5, there are so
many headings, conditions and exemptions that it is nearly impossible to use the
law to obtain compensation for confiscated land. The law’s original purpose
was to redistribute and keep land out of the hands of wealthy merchants and
landowners and to provide access and a fair chance to small scale farmers.

L AW K A PALA
2. The 1963 Protection of Farmers’ Rights Law:

Section 3/1(a) states that all land, livestock, farming instruments
and land products may not be confiscated.
Section 3/1(b) states that land allocated to farmers shall not be
altered in any way without permission of the tenant.
Section 3/1(c) states that farmers have the right to freely sell
all livestock, farming instruments and land products for profit.
Section 3/1(d) states that it is the right of the farmer to engage
in any of the above activities without fear of punishment.
According to Myanmar domestic law, the military government,
authorized persons and their respective families are acting in contra-
vention to said laws.
3. Ruling: U Ba Oo vs. The Union of Burma (Mandalay Collector) 1959

(Burma Law Report, High Court 234).
This ruling was in accordance to the Land Acquisition Act Part II 5A(1), which
states:
Any person interested in any land which has been notified under Sec-
tion 4, Sub-Section (1), as being needed or likely to be needed for a public
purpose or for a company may, within 30 days after the issue of the notification,
object to the acquisition of the land or of any land in the locality, as the case may
be.
Currently the military joint venture companies and authorized persons are violat-
ing the above law and subsequent ruling. The military and all groups in associa-
tion which are confiscating land are, in most cases, giving no notification and
accepting no objections from farmers and other tenants. It must be noted that
the land on which farmers work is not owned by them and they are subject to
heavy taxes which many farmers cannot afford to pay. Heavy taxation and
lack of security have driven many farmers to suicide. More than 20 farmers
have committed suicide in Khayan Township alone. The survival of farmers in
Burma is threatened more and more, day by day.
The Burma Lawyers’ Council Demands
1. The BLC demands that the SPDC immediately cease the unlawful con-
fiscation of land.
2. The BLC demands that the SPDC fully and fairly compensate for losses
incurred by tenants from whom land has been confiscated.
3. The BLC demands the immediate and unconditional release all activists
No. 32 - April, 2009 Page 35

who have been imprisoned for assisting in the prevention and reporting of land
confiscation cases.
Legal Analysis Team

08.04.09
*********

L AW K A PALA
(B . 5)
Statement on the SPDC Government

Ministries’ Offenses Relating to Elections
1) SPDC Foreign Minister U Nyan Win traveled to villages in eastern
Zegon Township, Bago Division, where he distributed cash to villagers in ex-
change for them voting in his favor as a parliamentary representative in the
2010 elections.1
2) Rangoon Mayor Brigadier General Aung Thein Lin distributed funds to

citizens living in the countryside in exchange for their votes for him in the 2010
elections. The money with which he bribed them was taken from Rangoon
municipal funds.2
3) The military Auditor General Lwin Maung traveled to villages in Banmaw

Township, Kachin State, where he distributed money and gifts to villagers in
exchange for votes in the 2010 elections.3
4) Minister of Industry U Aung Thaung also gave money and donations to

individuals and social affairs organizations in an effort to influence them to vote
in his favor in the 2010 elections.4
5) The SPDC government has nominated merchants and owners of mili-

tary joint venture companies to stand in the 2010 elections. The SPDC provides
money for their campaigns.5
6) The SPDC government, with the 2008 constitution approved and in hand,
declared multi-party general elections for 2010. However, the SPDC has pro-
vided no new election law with the new constitution. Therefore, the SPDC
must adhere to the previous SLORC law still in effect.
Legal Analysis
SLORC Law No.14/1998 Election Law Chapter XII Election Offenses and
Penalties, Section 49(a) states:
A person’s right to stand for election and to vote shall not be violated by
force, threat, undue influence, cheating, taking or giving of bribes to any person.
No. 32 - April, 2009 Page 37

Myanmar Penal Code Chapter IXA Offences Relating to Elections Sections

171B and 171C state:
171B.(1) Whoever—
(i) gives a gratification to any person with the object of inducing
him or any other person to exercise any electoral right or of
rewarding any person for having exercised any such right: or
(ii) accepts either for himself or for any other person any
gratification as a reward for exercising any such right or for
inducing or attempting to induce any other person to exercise
any such right commits the offence of bribery;
Provided that a declaration of public policy or a promise of public action shall not
be an offense under this section.
171B.(2) A person who offers, or agrees to give, or offers or attempts to pro-

cure a gratification shall be deemed to give a gratification.
171B.(3) A person who obtains or agrees to accept or attempts to obtain a

gratification shall be deemed to accept a gratification, and a person who accepts
a gratification as a motive for doing what he does not intend to do, or as a
reward for doing what he has not done, shall be deemed to have accepted the
gratification as a reward.
171C.(1) Whoever voluntarily interferes or attempts to interfere with the free

exercise of any electoral right commits the offense of undue influence at an
election.
(2) Without prejudice to the generality of the provisions of sub-section

1), whoever—
a) threatens any candidate or voter, or any person in whom a can didate or
voter is interested, with injury of any kind or
b) induces or attempts to induce a candidate or voter to believe that he or any
person in whom he is interested will become or will be rendered an object of
Divine displeasure or of spiritual censure, shall be deemed to interfere with the
free exercise of the electoral right of such candidate or voter, within the mean-
ing of sub-section (1).
(3) A declaration of public policy or a promise of public action, or the

mere exercise of a legal right without intent to interfere with an electoral
right, shall not be deemed to be interference within the meaning of this section.
Sections 171E and F state that bribery and undue influence, respectively, are
punishable by up to one year in prison, or a fine, or both.

L AW K A PALA
It is clear, given the examples above, that the commission of bribery and undue
influence directly by, or on behalf of, SPDC officials and others in cooperation,
is rampant. The practice of bribery and undue influence is so common that it
has become the norm. The SPDC is acting in contravention to domestic Myanmar
law. The rule of law is, once again, not being upheld.
We, the Burma Lawyers’ Council, demand that the SPDC and all related parties
immediately cease committing offenses relating to elections. We also demand
that the people of Burma access media from outside Burma in an effort to
understand the true nature of the government’s actions and to stand up in pro-
test against the SPDC’s blatant disregard for the law.
Legal Analysis Team

Burma Lawyer’s Council
20.04.2009
(Endnotes)
1
RFA 2009.04.03
2
New Era Bulletins 2009.03.27
3
Myit Si Ma 2009.04.06
4
New Light of Myanmar
5
RFA 2009.03.03
*********
No. 32 - April, 2009 Page 39

(B . 6)
Statement on the Abolishment of the Union

Solidarity and Development Association
We, the Burma Lawyers' Council demand that the State Peace and Develop-
ment Council immediately abolish the Union Solidarity and Development Asso-
ciation due to its ambitions to transform into a political party in contravention to
Myanmar's domestic laws.
Origins
The Union Solidarity and Development Association (USDA) was formed on

September 15, 1993 by the then governing State Law and Order Restoration
Council (SLORC). The SLORC claimed that the formation of the USDA was
legal and in accordance with SLORC Law No. 6/1988.
The stated purpose of the USDA was to perform social welfare activities and
register as an association with the Ministry of Home Affairs.
SLORC Law No. 6/1988 Relating to Forming of Organizations
In reality, the USDA contravenes the SLORC Law No. 6/1988 which states the
following:
SLORC Law No. 6/1988

Chapter III: Organizations not permitted to form
5. The following organizations shall not be formed, and if already formed

shall not function and shall not continue to exist:
(d) Organizations that are formed with the service personnel from the Tatmadaw
and the People's Police Force of the defense forces and personnel of public
service organizations, State owned economic boards, corporations and othe or-
ganizations of the State machinery or with service personnel receiving monthly
emoluments from the State budget and being either under the influence of or
associated with a political party.
The chairman of the USDA is Sr. Gen. Than Shwe, who is also the Chief of
State. USDA members include soldiers, police and government staff. The USDA
L AW K A PALA
is, by all accounts, under the direct influence of the military dictatorship. Ac-
cording to the SLORC Law No. 6/1988, mentioned above, this organization is
blatantly in breach of the country's own domestic law. This organization is
illegal and should be abolished.
Activities of the USDA
In reality, the USDA's activities are in contradiction of their stated purpose; to

perform social welfare activities. One of the main functions of the USDA
seems to be to run a defamatory campaign against Daw Aung San Suu Kyi and
viciously attack opposition associations through state media organs. Unfortu-
nately, the state media organs pump out only pro-junta propaganda making this
the only state sanctioned "official" information accessible to Burmese citizens
and the international community.
In addition to pursuing slander as a policy, the USDA has perpetrated numerous

heinous crimes against Burmese citizens. The May 30, 2003 attack on NLD
members and attempted assassination of Daw Aung San Suu Kyi in Depayin
was committed by the USDA. Also, on April 18, 2007, in Oakpon village in Hin
Sa Ta Township, human rights activists U Myin Naing and Ko Maung Maung
Lay were attacked with sticks and stones by USDA members and subsequently
sent to jail.
It must also be noted that the above information was not broadcast by any
media organizations inside Burma. It was only through outside, independent
media that such information has been made available throughout Burma and the
international community
Essentially, the USDA has considerably contributed to the deteriorating security

situation for Burmese citizens. These activities can hardly be considered a
contribution to social welfare. The USDA is terrorizing the population. They
are a puppet of the military regime and have committed a wide range of crimes.
This is in direct contravention of Myanmar's own Unlawful Associations Act of
1908 Section 15 2(a), which states that: "Unlawful association means an asso-
ciation which encourages or aids persons to commit acts of violence or intimida-
tion or of which the members habitually commit such acts."
The USDA is, therefore, defined by domestic Myanmar law to be an Unlawful

Association and should be immediately abolished.
Current Activities of the USDA

Currently the USDA is pursuing a path to becoming a political party. The USDA
Secretary General Htay Oo gave a press conference at the Association's
No. 32 - April, 2009 Page 41

Rangoon headquarters during which he explained that due to the current politi-
cal situation, the USDA will form a political party for participation in the 2010
elections. The politicization of the USDA and the fact that it is almost entirely
made up of government workers and political figures places the organization
well outside the realm of legality as defined by the SLORC Law No. 6/1988.
In addition, the Rangoon Mayor, Major General Aung Thein Lin, transferred
ownership of the City Taxi Company from Rangoon municipality to the USDA.
The USDA also, although unofficially, uses government property throughout the
country. The use of public funds by political parties is defined as illegal by
Myanmar law.
Currently, the USDA is campaigning to oppose the opposition parties including

the NLD and other associations in the 2010 elections.
Legal Analysis
1. The USDA has broken the 1908 Unlawful Association Act Section 15 2(a)
and the SLORC Law No. 6/1988 Section 5(d). If the military authorities were
to follow the rule of law and respect the people's security, they would immedi-
ately abolish the USDA.
2. SLORC Order No. 3/88 stipulates that political parties cannot use public
funds and SLORC Order No. 1/91 states that public servants may not be mem-
bers of any political party.
Therefore, the USDA is in contravention to domestic law and has committed

many crimes against the people of Burma. It is defined by Myanmar law that
the USDA as an organization cannot stand as a political party. In addition, the
USDA is an illegal organization and must immediately be abolished.
We, the Burma Lawyers' Council call for the immediate abolishment of the
Union Solidarity and Development Association as it is, by all accounts, and ille-
gal organization.
Legal Analysis Team

*********

L AW K A PALA
Part C: Criminal Accountability
(B . 1)
CENTER FOR PUBLIC HEALTH AND HUMAN RIGHTS
EMBARGOED UNTIL 27 February 2009 10.00 hrs BKK
Report Calls For Burma's Leaders to be

Investigated for Human Rights
Abuses Over Nargis Response
Bangkok, Thailand (27 February 2009) – Burma's ruling State Peace and
Development Council (SPDC) should be referred by the United Nations Secu-
rity Council for investigation by the International Criminal Court for its human
rights abuses in the wake of Cyclone Nargis last year, the first independent
report assessing the response to the disaster says.
No. 32 - April, 2009 Page 43

The report, After the Storm: Voices from the Delta, released today says the
SPDC obstructed relief to victims of the cyclone, arrested aid workers and
severely restrained accurate information in the wake of the worst natural disas-
ter to befall modern Burma.
The report charges these abuses may constitute crimes against humanity through
the creation of conditions whereby the basic survival needs of victims cannot be
adequately met, “intentionally causing great suffering, or serious injury to body
or to mental or physical health,” violating Article 7(1)(k) of the Rome Statute of
the International Criminal Court.
Professor Chris Beyrer, Director of the Center for Public Health and Human
Rights at Johns Hopkins Bloomberg School of Public Health, says the report
findings are evidence of a wide array of abuses perpetrated by the ruling State
Peace and Development Council (SPDC) in the response to a disaster which is
in violation of international humanitarian relief norms and legal frameworks for
disaster relief.
“The people of the Delta told us how the Burmese military regime hindered
cyclone relief efforts, confiscated aid supplies and land, and used forced labor,
including forced child labor, in its reconstruction efforts. However, the report
also illustrates the impressive capacity of ordinary Burmese citizens to assist
their neighbors in a timely fashion, even as their Government makes such ef-
forts more difficult," noted Dr. Beyrer.

L AW K A PALA
The May 2008 disaster was estimated to have resulted in the loss of nearly
140,000 lives and affected millions of Burmese, particularly in the Irrawaddy
Delta. Interviews with ninety private relief workers and survivors conducted
between June and November 2008 detail ongoing shortfalls in meeting basic
needs of food, water, and shelter, the misappropriation, theft, and sale of relief
supplies by Burmese authorities and human rights abuses of cyclone victims
including forced relocation.
The report was jointly released by the Center for Public Health and Human
Rights of the Johns Hopkins Bloomberg School of Public Health and the Emer-
gency Assistance Team -Burma (EAT), a border-based social organization staffed
by community aid workers from cyclone affected areas in Burma.
EAT Chairperson and renowned humanitarian Dr. Cynthia Maung appealed to

the international community to more carefully review the political reality in the
delta region in the military-ruled country before further assistance is delivered.
“The open engagement of community based organizations is essential to effec-

tively implement sustainable recovery and rebuilding efforts in the region. It is
inhumane that Burmese people have been jailed for offering charitable assis-
tance and comfort to their suffering countrymen.”
Media enquiries:
Center for Public Health and Human Rights, Johns Hopkins Bloomberg
School of Public Health
Chris Beyrer Luke Mullany USA

Tel: +1443 807 0412 Tel: + 1410 502 2626
cbeyrer@jhsph.edu lmullany@jhsph.edu
EAT Team –Burma

Dr. Cynthia Maung Mahn Mahn
Tel: +6689 961 5054 Tel: +6687 943 8750
Bangkok
Tel: +6686 003 2316
hallacy@loxinfo.co.th
*********
No. 32 - April, 2009 Page 45

Part D: Constitutional Issues
(D . 1)
Analysis of the SPDC Constitution from the

Perspective of Ethnic Nationalities
By B.K. Sen
Introduction
A monarchy ruled Burma for centuries with various nationalities living under the
nominal suzerainty of the kings who were of Barman nationality. The ethnic
nationalities lived in a self-governance system under the control of their nobles
and lords known as Swabs, Dumas, etc. They wielded power over their people
and were virtually sov-
ereign. The British
then came and ruled
Burma. They made
Burma distinctly Brit-
ish. The Federation of
States (frontier areas)
was constituted from
among the ethnic na-
tionalities such as
Shan, Kachin, Chin,
and Karen. Burmans
were the major ethnic
nationality and they
formed British Burma.
Under colonial rule,
the division between
the majority national-
ity and the others wid-
ened, sharpened and
took the form of na-
tionalism. On the eve
of Independence,
there was great dan-
ger that the country would be partitioned like India and several sovereign States
would emerge on the assertion of their right to self-determination. In their wis-

L AW K A PALA
dom, the leaders of all nationalities met at Panglong and resolved to remain as
the Union of Burma. The Panglong Agreement is the greatest milestone in the
history of the country. The first constitution of the country, known as the Union
of Burma Constitution of 1947, evolved from the principles laid down in the
Panglong Agreement. The Union of Burma was born and governance of the
people, by the people, and for the people prevailed in the country’s first journey.
It is therefore natural and befitting that posterity studies this constitution framed
by the founding fathers. No constitution is permanent. Amendments and revi-
sions are necessary but not at the cost of the original constitution’s basic char-
acter.
Constitution–Making Process
The first question is whether the referendum held in 2008 can be challenged
after apparently having been accepted by the people of Burma. It may be ar-
gued that because the people voted for it, how can a few dissidents repudiate it?
The answer is that the ‘voting’ and referendum were not free and fair. The
people voted under fear and intimidation while not knowing what they were
voting for. It is an acknowledged fact that the constitution was not discussed,
debated and was devoid of transparency. It was entirely the product of the
National Convention of 703 delegates from various imaginary groups. The con-
vention comprised handpicked people of the junta. The 1947 Constitution was
debated in a Constituent Assembly, which was elected on the basis of universal
suffrage. Different political parties competed in the elections for the Constituent
Assembly and there was complete freedom of expression. There were also a
number of newspapers
that voiced their differ-
ences. It was an open so-
ciety and the international
community watched and
judged the fairness and
free nature of the election.
In the case of the 2008

Constitution, which took
fifteen years to be formu-
lated, the reverse has hap-
pened; no political party
was allowed to campaign
and there was no freedom
of expression. To the con-
trary, under Law Number 5/96, which prohibits any discussion of the constitu-
tion, hundreds of dissidents were held as political prisoners. Human rights viola-
tions were widespread. The referendum was held in a threatening atmosphere
No. 32 - April, 2009 Page 47

that could never reflect the free voice of the people. The constitution-making
process itself was so vitiated that a constitution emerging from such a situation
was bound to be fraudulent. The 2008 constitution is a fraudulent constitution
and it violates the mandate given in the elections of May 1990. These elections
were held by the junta itself and thereafter it passed Order Number 1/90, which
states that ‘the responsibility of the elected representatives is to draw up the
constitution of a democratic state.' Clearly, it was for the elected representa-
tives, the NLD and SNLD, to draft the constitution. After an objective analysis,
the irrefutable conclusion is that the referendum and the 2008 constitution are
illegitimate and motivated to perpetuate military rule. On its merits the constitu-
tion also does not pass the necessary tests, as it fails to address the paramount
need of the nation, namely autonomy in a multipolar nation.
The Legislature Manipulated
Each state or region will send in members to the Upper House. The regions are
Burman dominated and therefore 84 representatives will be Burman. The states
are comprised of ethnic nationalities and they will have 84 representatives. There
is an appearance of equality, but in reality there is ethnic rivalry. The Burman
majority will in all probability slice off and control a majority in the Upper House.
The 1947 constitution established a bicameral system establishing a system of
checks and balances on legislative power. The equal representation of ethnic

L AW K A PALA
nationalities vis a vis the Burman majority was to a great extent met and the
State Councils were given autonomous powers, though with some limits. The
2008 constitution has abolished this balance and created an imbalance in favor
of a Burman majority. In creating seven ethnic states, the constitution created
seven territorial units/regions where a Burman majority resides. The Upper House
has fourteen units. In the Lower House, the Burmans dominate as it is com-
posed on a population representation basis. The Army chooses 25% of the mem-
bers of the Upper House. Apart from the 25%, some are from specially desig-
nated territories and self administered areas within the ethnic states. The result
is that the Army will always have a stronghold on the legislative bodies in addi-
tion to occupying the presidency. Overall, one can come to the conclusion that
structurally the 2008 constitution is built to provide Burman supremacy in all
matters of governance. The provision for the distribution of powers is such that
there is no concurrent power or division of powers between the central and
state governments. There is, in fact, as before, no distribution or separation of
powers.
There is no provision for a prime minister and the constitution is a presidential

type which is potentially risky in a multi ethnic country. The parliamentary type
of constitution with an election system based on proportional representation would
better serve the needs and aspirations of countries such as Burma. The 2008
constitution is not a presidential system or a republic but a hybrid of different
constitutions inflated with army powers called ‘discipline.' The Commander in
No. 32 - April, 2009 Page 49

Chief of the Defense Services has been given wide power without accountabil-
ity. Each state and region has the same number of representatives regardless of
its population, twelve each. This arrangement created the seven regions where
one majority nationality, the Burmans, resides and thereby gives them majority
representation. The entire balance was upset, the ethnic nationalities were di-
vested of their right to equality, and control of the Upper House was vested in a
majority Burman rule. The noble principle of power sharing was blatantly de-
stroyed because the Army will choose twenty five percent of the members of
the Upper House, which amounts to more than four representatives from each
region or state, inclusive of union territories.
Sweeping centralization of all powers is the hallmark of the constitution. The

avowed aim is not only suppression of the Burman majority but also
marginalization of the ethnic nationalities. The president controls the ‘leading
bodies’ which means domination of all three organs of power. It is clearly stated
that the Army shall have a ‘national political leadership role.’ The president
himself is required to have army experience. As a whole, the 2008 constitution
has put the death-knell to democracy and ensured supremacy of the Army. The
hidden agenda is to keep the ethnic nationalities in line.
The president must appoint personnel selected by the Commander in Chief to

specific positions in, for example, the Ministries of Defense Security, Home
Border Control, etc. The 2008 constitution essentially provides for rule by the
Commander in Chief beginning in 2010. The Lower House consists of 440 mem-
bers and the Upper House consists of 224 members. Ethnic groups comprise
35 percent of the entire population. On that basis they will have 154 representa-
tives in the Lower House and 84 representatives in the Upper House, making
their total number of representatives in Parliament 238. In contrast, Burmans
will have a total of 426 representatives. Thus, Burman majority rule is main-
tained. The centralization of power, the abolition of power sharing, attacks on
the separation of powers, and suppression of federal principles of a constitution
are the basic principles of the 2008 constitution. Underlying is the suppression of
ethnic nationalities.
Administrative and Legal Spheres Eroded
The 2008 constitutional article on states of emergency violates the Universal

Declaration on Human Rights. The president has been given arbitrary power to
declare a state of emergency on grounds of state security which are vague and
jargon heavy. If a state of emergency is declared on the grounds of a special
situation in a state, the state council should be consulted and should give consent
before it is exercised. No such provision is in the 2008 constitution. The consti-
tution should also provide that the central government cannot, without a state’s
explicit consent, deploy and order the presence of military and paramilitary forces

L AW K A PALA
in a state which is considered as experiencing an ‘internal disturbance’. There

must be a time limit for the president to approve bills passed by state assemblies.
The residual powers of legislature should lie with the state assemblies. There
should also be a formal, institutional structure requiring consultation between the
central government and the state governments. Under the constitution, there
should be a provision for an interstate council as a supreme body to ensure
concurrence on legislative matters between the central and state governments
along with a national development council to ensure even growth. (Only 99
seats were allocated to members of the NLD and SNLD parties, all of which
were either disqualified or resigned. The National Convention Procedure Code
controlled the entire constitution making process. No public meeting was al-
lowed and there was no flow of information).
Judiciary
The 2008 constitution does not provide any institutional safeguards such as a
supreme court with the power of judicial review for infringement on the rights of
ethnic nationalities. This absence leaves the ethnic groups in a helpless state
where they cannot seek any judicial cessation of or retribution for the wrongs
they suffer. The 2008 constitution has made the judiciaries of the ethnic states
subordinate to the central judiciary. There is no provision for representation by
justices of ethnic nationalities in the highest courts of the land. All decisions
regarding appointment, tenure, and removal will be made by the Burman major-
ity. Even the states' judicial systems will remain under the Burman majority
domain. The lack of independence of the judiciary is another casualty of the
2008 constitution. The constitution does not provide the mechanisms to correct
the imbalance of the central and state governments. The constitution is wholly
unitary in character. Centrifugal tendencies have been preempted. The consti-
tution promotes uniformity at the cost of diversity and emphasizes the need for
a strong center. Feelings of neglect by the center have contributed to a growing
sense of alienation among the various members of the Union of Burma, result-
ing in the exacerbation of armed conflict. The 2010 constitution has provisions
which will deepen and sharpen the sense of alienation and the country will be-
come more and more entrenched in perennial ethnic conflicts. Only a state with
equal resources and power can successfully counter disunity and strengthen the
relationship between the ethnic groups and the majority Burmans.
Gross inadequacy of resources in the states in relation to their developmental

needs is the direct result of revenues remaining with the central government,
which has been the basic cause of conflict. The 2008 constitution contains no
provision for the transfer of revenues (to the ethnic states) from income taxes,
corporate taxes, customs taxes and service taxes. The constitution must provide
that states control 50% of taxes in a divisible pool, and furthermore that states
be allowed to issue tax-free bonds. Without such provisions, the central govern-
No. 32 - April, 2009 Page 51

ment will appropriate the entire power to levy service taxes. The constitution
fails to mandate that states be given the power over service taxes.
The Web of Control
The 2008 constitution has not addressed a crucial national problem; namely, the
cease-fire agreements. Since the seizure of power by the army, its role in the
suppression of ethnic nationalities has increased by leaps and bounds. In the
1974 constitution it went to the extent of abolishing the chamber of nationalities,
which under the 1947 constitution guaranteed equal representation by the ethnic
states. The 2008 constitution has created seven geographical divisions, which
on the surface appears to create a balance of power. However, it was with
much consideration that the central government created these divisions in such
a way as to maintain a Burman majority in each division. The ethnic nationali-
ties, however, were not deceived because the lack of a constitutional provision
for an honest balance of power was obvious. The true intentions of the central
government were clear, as open aggression, looting, dislocation, forced labor,
torture and rape became daily occurrences. When there was resistance, it was
countered with annihilation. The Army provoked a civil war and the ethnic na-
tionalities fought in defense of human dignity. Any constitution must address the
root cause of this civil war. Further, the civil war was brought to a tempered halt
by the Army when it realized that the resistance could not be eliminated. It
offered and entered into cease-fire agreements with the various armed ethnic
nationalities. The question is how the government in the context of the 2008
Constitution will tackle issues with the cease-fire groups. The 2008 constitution
has miserably failed to offer any solution. It will lead to a break down of the
cease-fire agreements and the conflict between the ethnic nationalities and the
army will be aggravated, failing to bind the ethnic nationalities in its web of
control. Burma will remain in a state of instability and disintegration.
Conclusion
The 2008 constitution will cast doom and disaster on the ethnic nationalities. The
army is intentionally planning to rekindle the civil war. The prison sentences of
respected Shan leaders have sent a clear message that the army junta intends to
rule forever. From the perspective of ethnic nationalities, the constitution of
2008 is destructive, disempowering and dehumanizing. All people comprising
the nationalities, majority or minority, must prepare to bury the 2010 constitution
in 2009. The tripartite dialogue between the SPDC, NLD and ethnic leaders is
the genuine roadmap for change in Burma and the only hope for ending the
misery of millions of people in the land of golden pagodas.
*********

L AW K A PALA
(D . 2)
[Editor’s Note: This is Part 2 of a four-part series of articles excerpted

from “Position Paper on the National Convention’s Principles for a Constitution
for the Union of Burma” prepared by David C. Williams, Director, Center
for Constitutional Democracy in Plural Societies. With the permission of
the author, specific recommendations made by the Ethnic Nationalities
Council have been omitted.]
II. Decentralization
Power-sharing in the union government will go some distance toward
giving the minorities a stake in the system, but it is not enough: the constitution
must also decentralize power to Burma’s states. If the ethnic minorities as a
group have power in the capital, then they will be able to participate in national
level decisions, but those decisions will still be made by the nation as a whole for
local communities that each has its own range of cultures, traditions, styles of
government, languages, and religions. When the constitution decentralizes power
to the states, then each state may make decisions for itself over those things that
matter most to it. When States have influence only by working through the
Union government, then they have power only when they can persuade the rest
of the Union government to go along with them. If they cannot do so, then they
will feel oppressed when national policy trammels on their particular values and
life-ways. In other words, power-sharing at the center is not an adequate sub-
stitute for local self-determination.
Decentralization of power can promote good government in a variety of

ways. If local people control some of their own affairs, they may become more
involved in government, so that democratic participation increases. Frequently,
local people understand their own local problems better than the center, so de-
centralization allows them to make more informed decisions. Similarly, because
they are close to the problem, local people can often respond to local problems
with greater speed and efficiency than the center could. Finally, when local
cultures are different from those surrounding them or from the larger state,
decentralization can allow local people to govern themselves in their own way,
so they can achieve real self-determination. And again, the benefits of decen-
tralization are directly relevant to Burma’s particular history and applicable to
Burma’s particular situation: Burma has been governed so much from the cen-
ter that local people have rarely been allowed to contribute their energy and
No. 32 - April, 2009 Page 53

expertise or to express their local values. Decentralization can occur only if

local people have some real control over their own affairs, rather than always
being subject to the authority of the union government.
Again, the National Convention’s Principles appear to recognize the

importance of local self-determination, because they would create state govern-
ments, complete with legislatures, executives, and judges, as well as self-admin-
istered zones for smaller groups within the various states: “”[T]he three branches
of State power, so separated, are distributed among Pyidaungsu (Union), re-
gions, states, and self-administered areas.” Principle I/5(b). But again, this
gesture toward decentralization is largely a token one for several reasons: the
Principles dictates the form of each state’s government, but each states is dif-
ferent, so each state should determine its own form of government through its
own constitutional process; although the state legislature would be elected un-
der the Principles, the state executive and judges would be under the control of
the Union President; the local governments other than states (self-administered
areas and union territories) will be clearly subordinate to the national President;
and the powers of the state legislatures will be extremely limited. Under these
Principles, the sub-national governments would merely be servants of the cen-
tral administration.
a. Under the NC Principles, States will not be allowed to write their

own constitutions.
As the SPDC often points out, each polity has its own particular needs,
challenges, traditions, values, and hopes, so each polity needs its own constitu-
tion, tailored specifically to it. A constitution that might be right for the United
States or China might be very wrong for Burma. There is no one-size-fits-all
constitution. And yet the NC’s Principles would take exactly that approach with
respect to the form of state governments: each state would receive exactly the
same form of government, taken off the shelf rather than crafted by the people
of the particular state. What the National Conventions demands for itself, it has
denied to the people of the states.
State constitutions are important for two reasons. First, because Burma’s
states are very different, each will need a different form of government. But
the NC Principles would create exactly the same legislature for each: a unicam-
eral body with two representatives from each township, see Principle IV/23 (a),
one representative chosen by each “national race” larger than 0.1 percent of
the population “other than those who have already got the respective State or a
self-administered area in that state,” Principle IV/23(c); and twenty-five per-
cent of the total representatives chosen by the head of the Tatmadaw.

L AW K A PALA
This provision would create a peculiar kind of legislature: some chosen

by the military, some chosen to represent “races,” and some chosen to repre-
sent localities. Of the last group, each township regardless of size will send two
representatives, so the smaller townships will be over-represented relative to
population. And there will be no representation based on population at all. It is
not clear that such a legislature would be wise for anyplace: it will likely be
highly divisive and fissiparous as each group pulls in very different directions. In
addition, to give a representative to each “national race” builds racial definitions
into the constitution, and such arrangements almost always lead to profound
conflict, even war. Minority “races” will feel that they have too little power, and
majority “races” will feel that the minorities have too much power. (To be sure,
Burma’s various ethnic groups need some measure of self-determination, but it
would be better to do it simply by geographically decentralizing power, not through
rigid racial lines). Finally, the smaller townships are over-represented and there
is no representation based on population. As a result, urban townships will likely
be dissatisfied and may feel little stake in the system. In short, it is unlikely that
this style of legislature could lead to stable government for anyone.
But even if it might work for some, it surely will not work for all of
Burma’s states, because they are too different. Shan State is quite large, ethni-
cally diverse, and commercially active, with long international boundaries; Karenni
State is quite small, much more homogeneous, rural, and without any interna-
tional boundaries. Shan State’s problems will probably resemble those faced by
Burma as a whole, so it might need a similar form of government, especially a
bicameral legislature—yet the NC Principles would give it something very dif-
ferent. Karenni State, on the other hand, is quite different from both Shan State
and Burma as a whole, yet the NC Principles would give it a government ex-
actly the same as Shan State’s.
The second reason that state constitutions are important is that by writ-
ing the constitution together, the people of the state acquire a stake in the system
and work out their differences. If the citizens of a state have worked together
to create a shared form of government, then they might stick with it even when
times are bad. If by contrast they feel that someone else has imposed a one-
size-fits-all constitution on them, then they will hold it in scant regard and aban-
don it as soon as soon as misfortune hoves into view. And by developing a stake
in their state constitutional regime, the citizens of the state will likewise acquire
a stake in the national constitutional regime as well, because the one is part of
the other.
The genius of true decentralization is that it allows each state to govern

itself in its own way while simultaneously knitting together into an overarching
national frame. But the Principles do not focus on the particular problems of
No. 32 - April, 2009 Page 55

particular states because they do not conceive the states as political communi-
ties; instead, they imagine that the states are administrative subdivisions of the
national government, with the same structure, in the way that regiments are
subdivisions of armies. Thus, the Principles describe decentralization as a pro-
cess of distributing State (meaning national) power across different jurisdic-
tional levels—so that all power is really the power of the national government.
But the power of states is not a gift from the central government; it is a gift from
its own citizens who, by writing their own constitution, can address their own
particular problems and acquire a stake in the system.
At present, the Ethnic Nationalities Council is sponsoring a state consti-

tution-drafting process. Each state has its own constitution drafting committee,
and each committee has produced at least one draft. The drafts are based on
deep reflection about the circumstances of the individual states and on consulta-
tion with the people of the states. Each draft constitution is different because
each state is different. Only through writing their own separate constitutions
can the people of Burma ultimately come to think of themselves as a single
country, joined by mutual commitment in all their differences, rather than yoked
together into a single team of oxen.
b. Under the NC Principles, members of the State Executive and Judi-

cial Departments will be responsible to the union President, not to the
citizens of the state.
The NC Principles would dictate the form of each state legislature,

rather than leaving that decision to the people of the states, but at least the
members of the legislature (except the Tatmadaw representatives) would be
answerable to the people of the state. By contrast, under the NC Principles, the
State executive and judiciary would merely be underlings of the national Presi-
dent. They would not be selected by or answerable the citizens of the state.
They would not in fact be part of a state government at all. Instead, they would
be national officers, prefects sent out to govern the local population, captains
deployed by the generals to command the local troops.
Under the principles, the President appoints and controls the State and
Regional executive department. The President selects a person from the State
or Regional Hluttaw to become Chief Minister of the Region or State. See
Principle V/21(e). The State or Regional Hluttaw has no power to reject the
person so named unless that person fails to satisfy the constitutional qualifica-
tions for the position such as age and residency. See Principle V/21(g). The
State or Region Chief Minister then appoints the other State or Region minis-
ters, and again the local legislature has no right to refuse. See Principle IV/
22(a) and (c). Because the President controls the Chief Minister, he of course

L AW K A PALA
controls the choice of ministers made by the Chief Minister. The President also
has the power to allocate ministries among the list of persons so chosen. See
Principle IV/24(f). Finally, the Principles overtly stipulate that all the ministers
shall be subordinate to the President: “The Region or State Chief Minister shall
be responsible to the President of the State,” Principle IV/22(l)(1); “The Region
or State Ministers shall be responsible to the Region or State Chief Minister
concerned, and through the Chief Minister, to the President of the State,” Prin-
ciple IV/22(l)(2). In short, the President chooses the ministers, can terminate
the ministers, and can control the actions of the ministers in office. They are
merely the local agents of the central government.
Some ministries are chosen by someone other than the President, but
ultimately all are responsible to the President:
The Tatmadaw chooses the ministers for security and border affairs,
see Principle IV/22(a)(2), but of course, this selection method does not al-
low the citizens of the state to govern themselves. It would appear that the
Tatmadaw ministers are responsible to the President the same as every
other state minister, though if the President dismisses one, the Tatmadaw
still control the selection of the next.
In self-administered areas, the Okkahta will be chosen by a compli-

cated committee (explained below), rather than by the President, see Prin-
ciple IV/34(e), and the Okkahta then also becomes a member of the execu-
tive department of the state in which his self-administered area is located,
see Principle IV/22(e). But though not chosen by the President, the Okkahtas
are still responsible to the President and so serve only at his pleasure, see
Principle 34(k)(2), and the President assigns duties to the Okkahtas “to
undertake the affairs of respective self-administered division or self-admin-
istered zone,” Principle 22(g)(1).
Similarly, as we have seen, in each state, the “national races” who are
more than 0.1% of the population “other than those who have already got
the respective State or a self-administered area in that state,” Principle IV/
23(c), are entitled to send one representative to the State or Regional Hluttaw,
and those representatives then become members of the executive depart-
ment as well, see Principle IV/22(a)(4). Again, these ministers are not
chosen by the President and are “elected to undertake the affairs of na-
tional races in the respective region or state”—so at first glance, they would
appear to be accountable to their constituents. But in fact, like all the other
ministers of the state, they are responsible to the President and so must
follow his dictates, see Principle IV/22(l)(2), and he assigns them their du-
ties “to undertake the affairs of the national races concerned,” Principle IV/
No. 32 - April, 2009 Page 57

22(g)(2). In other words, the national races administrators are not repre-
sentatives of the national races in the state government; instead, they are
ministers of the President to carry out his policy with respect to those na-
tional races.
The State or Regional Hluttaw apparently has power to reject the Chief
Minster’s nominees for State Advocate-General, see Principle IV/28(a),
and State Auditor-General, see Principle IV/31(a), and the President has no
right to reject the person approved by the State or Regional Hluttaw for
either of those posts, see Principle IV/28(c) and 31(c). But of course the
President chooses the Chief Minister, who nominates people for these posts,
so the President really controls their selection in the first place. In addition,
both the Auditor-General and the Advocate-General—like everyone else
exercising executive power of any sort under these principles—will be re-
sponsible to the President. See Principles IV/28(f)(i) and 31(e)(i).
Finally, The President appoints the justices of the High Courts of the
states and regions, see Principle VI/10(c)(1), and again the state legislature
cannot reject his nominees except on the grounds that they do not meet the
formal qualifications laid down by the constitution itself, such as age, citizenship,
and experience, see Principle VI/10(c)(2). In other words, the legislature can-
not reject a nominee on the grounds that he is incompetent, corrupt, a crony of
the President, or likely to act in unfair ways. In short, the President can stack
the courts with his political allies, and no-one can do anything about it. Because
the lower courts are subordinate to these high courts, the President can control
them as well through his appointees to the high courts. See Principle VI/18.
Formally, unlike the members of the state executive departments, these judges
are not responsible to the President, but as we will see when discussing national
judges, the President has very broad powers to impeach judges if they displease
him. See Principles VI/12 and 13.
c. Under the NC Principles, sub-national government other than the

states will also be responsible to the union President, rather than to
the citizens of those sub-national governments.
Aside from states, the NC Principles ostensibly provide for three other
forms of sub-national government: the national races administrators, the self-
administered zones, and the union territories. Once more, however, these provi-
sions only give lip service to decentralization because they are all under the
control of the President.
As we have seen, national races are entitled to send one representative

to their state or regional Hluttaw, and those representatives will also become the

L AW K A PALA
national races administrators in the state or regional executive department. But

as we have also seen, those representatives are actually just a part of the state
government, not a separate unit, and they are ultimately subordinate to the Presi-
dent.
Similarly, the President has ultimate control over the self-administered

zones and division. The principles call for self-administered zones and divisions
“to be prescribed for national races who reside together in communities on the
same common stretches of land in appropriate sizes of population, other than
national races who have already got Regions or States.” Principle I/4. Because
these areas are described as self-administered, it might seem that the point in
these areas is the decentralization of power. But again, that appearance is
misleading.
These areas are to be governed by a “leading body,” which has “legis-

lative power vested in them under the Constitution,” Principles IV/34(b)—a
short list of powers contained in Principle on Sharing of Legislative Power 12.
The makeup of the leading body is complicated:
First, the representatives to the State or Regional Hluttaw from
the townships in the self-administered areas become members,
Principle IV/34(d)(1);
Then the Tatmadaw appoints members to handle security and
border affairs, Principle IV/34(d)(2);
Then the Hluttaw and Tatmadaw members choose one
representative for each national race (with more than 10,000
population and without “regions or states of their own”),
Principle IV/34(h)(1);
Then the Hluttaw and Tatmadaw members choose other people,
as necessary, to bring the number up to ten, see Principle IV/
34(h)(2) ;
Then the Commander-in-Chief of the Tatmadaw assigns some
more people, if necessary, to ensure that the Tatmadaw
members constitute twenty-five percent of the leading body.
See Principle IV/34(i).
In short, the leading body will be composed of Hluttaw members,

Tatmadaw members, and some other people chosen by the Hluttaw and
Tatmadaw members. Thus, at least some of the members of the leading body—
the Hluttaw members—will be elected by the people. The Hluttaw and
Tatmadaw members (but not, apparently, the others) of the leading body choose
their own Okkahta, who will become a minister in the surrounding state or re-
gion. See Principle IV/34e).
No. 32 - April, 2009 Page 59

Because the people choose the Hluttaw members, it might appear that
the principles allow them some decentralized self-government. But in fact, it is
not so: after all these provisions for choosing the members of the leading body,
the principles then provide that the members will all be subject to the will of the
President: the members of the leading body will be responsible to the Okkahta,
who will be responsible to the Chief Minister of the State or Region, who will in
turn be responsible to the President. See Principle IV/34(k). It turns out that
the leading bodies are really just subdivisions of the state executive department,
which in turn is really just a subdivision of the national executive department.
The Principles allow no decentralization of power to these areas.
The President’s dominance over the capital and other Union territories
is even greater. The Principles provide that the capital Nay Pyi Taw shall be a
union territory, and that the national government may create other union territo-
ries as the need arises. See Principle II/7. The Principles contain provisions for
the form of government for Nay Pyi Taw, see Principles V/35-38. They contain
no provisions for the form of government of other union territories, but presum-
ably the other territories would be governed in the same way as Nay Pyi Taw.
The Principles also say very little about what powers these territory govern-
ments would possess. Principle IV/14 stipulates that the national legislature
“shall enact the required laws if the need arises to do so for the Union territories
in connection with matters for which legislative powers are delegated to the
Region or State Hluttaws or the self-administered division or zone leading bod-
ies.” That language suggests that the legislature may but need not delegate the
same powers to the territorial governments as possessed by the state and re-
gional legislatures and the leading bodies of the self-administered areas. It is not
clear whether Nay Pyi Taw automatically receives these powers or must await
enabling legislation; Principle 35(k) suggests that the latter might be the case:
“Formation of Nay Pyi Taw Council, duties, rights and privileges of the chair-
man and members of the Nay Tyi Paw Council shall be prescribed by law.”
Presumably, in areas not delegated to the territorial government, the national
government would directly govern the territory.
What is clear is that however broad the territorial powers might be, they
will be exercised in subordination to the President. The President constitutes
the Nay Pyi Taw City Council, see Principle V/35(c)(1), appoints its members
without any legislative participation, see Principle V/35(c)(2), prescribes the
number of members, see Principle V/35(c)(4), prescribes qualifications for the
members of the council, see Principle V/35(d)(3), and “effect[s] changes in
demarcation of districts and townships in Nay Pyi Taw,” Principle V/35(b). All
of the members of the council are responsible to the President, see Principle V/
35(c), and the President may order their resignation, see Principle V/35(f)(3)(aa).
The only exception is that the Tatmadaw may appoint some number to the coun-

L AW K A PALA
cil, see Principles V/35(c)(3), and the President may terminate those members
only “in coordination with the Commander-in-Chief” of the Tatmadaw, see Prin-
ciple 35(f)(3)(bb). In other words, in practice, the President will make many of
the rules for the district in which the whole government sits. As a result, he can
directly threaten and control the rest of the government in their day-to-day lives.
Legislators might fear for their safety and liberty if they act in ways contrary to
the President’s desires.
In short, then, the President will control all the important government
actors outside of the central government, with the exception of the State and
Regional legislatures. For all intents and purposes, outside the central govern-
ment, the President is the state. The State and Regional legislatures alone pos-
sess some separate power, but as we will show in the next section, that power is
extremely limited.
d. Under the NC Principles, the legislative powers of the states will be

excessively limited.
The NC Principles contain two lists of legislative powers, one for the
union and one for the states and regions, organized under subject headings such
as “defense and security of the union” and “agriculture and livestock breeding.”
Again, the Principles appear therefore to gesture toward decentralization by
giving the states some powers. But on closer examination, those powers turn
out to be not much more than trivial. They certainly do not adequately address
the desire of Burma’s ethnic minorities for some meaningful degree of self-
determination.
The division of power between the union and the states should be the
result of genuine, open negotiations between the various stakeholders in Burma,
and this position paper cannot adequately forecast the outcome of such talks.
Nevertheless, the ENC feels that the Principles are not acceptable for four
reasons: all powers not listed are reserved to the union government; when state
and union powers overlap (as they often will), union power always prevails over
contrary state edicts; the total amount of power given to the states is too limited;
the Principles omit certain state powers that Burma’s ethnic minorities feel are
extremely important to them.
First, the residuary clause: the Principles provide that all powers not
specifically listed belong to the national legislature: “Legislative power is vested
in the Pyidaungsu Hluttaw in connection with other matters not stated in the
legislative list of the Union, Region or State, and self-administered division or
zone leading bodies.” Principle on the Sharing of Legislative Power 13. The
union, in other words, receives all residual power beyond the listed power. In
No. 32 - April, 2009 Page 61

practice, it is difficult to know how broad the listed powers will turn out to be,
because that question will be a matter of interpreting the listed powers. As a
result, it is difficult to know how large the residuary powers will be. But how-
ever broad or narrow, they should be given to the states, not the union. The
union government is the result of a compact between Burma’s peoples to live
under a single national government. They created that government for certain
specific reasons such as foreign affairs, commercial interchange, and collective
defense. Those powers should be given to the union government in a specific
list. But all other powers—those not listed—should be reserved to the states,
which Burma’s peoples recognize as their organic governments.
Second, federal supremacy: under the Principles, the powers given to

the union and the powers given to the states will frequently overlap. When they
do, the union and the states may adopt contrary policies. For example, the union
is given power over “land management” Principle on the Sharing of Legislative
Power 5(A)(1), and over “forest,” Principle on the Sharing of Legislative Power
6(A)(6). The state, on the other hand, is given power over “agriculture,” Prin-
ciple on the Sharing of Legislative Power 5(B)(1)—ostensibly one of the state’s
broadest powers. But agricultural laws will almost always raise issues of land
management, and they often will raise issues of forestry as well—yet both those
powers are given to the union. When those powers overlap, conflict might
result. The state might wish to protect the traditional agricultural practices of its
people in the forest, and the union might instead wish to clear the forest.
When such a conflict occurs, the Principles provide that the union gov-
ernment will always win: “If anyone [sic] of the provisions stipulated in a law
enacted by a region Hluttaw or a state Hluttaw is in contrast with anyone [sic]
of the stipulations contained in a law enacted by the Pyidaungsu Hluttaw, obser-
vance of the law must be in accord with the stipulations contained in the law
enacted by the Pyidaungsu Hluttaw.” Principle on the Sharing of Legislative
Power 15(3). As a result, the state’s listed powers will be next to meaningless.
The union’s powers are so extensive—covering huge areas of every listed sub-
ject matter, plus the residuum—that they will almost always be relevant, and
when they are relevant, they prevail over contrary state policy. The listed state
powers, limited on their face, will prove to be utterly trivial in practice. Really,
the states are allowed to exercise their powers only on federal sufferance.
Third, limited state powers: the state powers, taken in toto, are quite
limited. It is not possible in this position paper exhaustively to show just how
limited they are, but a few themes emerge. First, many of the powers are
obviously miniscule in comparison to union power. In the “social sector” list,
after giving the union power over such broad subject as education and health (a
list with 21 subjects), see Principles on the Sharing of Legislative Power 9(A),

L AW K A PALA
the Principles give the states power over things like “Freight handling,” id. at
B(4) and “Photo, painting and sculpture exhibitions,” id. at B(7). Second, very
many of the state powers allow the states to regulate only in accord with a union
law, so that the states may not actually set their own policy. For example, in the
very important “economic sector” list, the states are allowed to regulate eco-
nomic, trade, and cooperative activities—but only in “accord with the law en-
acted by the Pyidaungsu.” See Principles on the Sharing of Legislative Power
4(B). And that is the sum extent of the states’ power over the economic sector.
Fourth, specific omissions: Burma’s ethnic minorities have been dis-

cussing the division of powers for some time, and certain common themes have
emerged. The minorities are specially concerned that the states should have
extensive powers over certain subjects, but the NC Principles would give the
states no or only very limited power in those areas. The subjects include educa-
tion, language, culture, natural resources, environmental protection, traditional
land use, transportation, etc.
In short, the NC Principles give the states very limited powers and no or
limited powers over those areas that are of particular concern to the states. The
Fundamental Principles require the union government to help the “national races”
in a number of ways—to “develop language, literature, fine arts and culture of
the national races”; to “promote solidarity, mutual amity, and respect and mutual
help among the national races” and to “promote socio-economic development
including education, health, economy, transport and communications of less de-
veloped national races,” Principle I/11—but nowhere do the principles recog-
nize that the states have a right to measured self-determination. In other words,
the union must help the national races, but at the end of the day the union de-
cides what is good for them. The power remains in the capital.
*********
No. 32 - April, 2009 Page 63

(D . 3)
E-mail: blcburma@blc-burma.org; blcsan@ksc.th.com; W ebsite: www.blc-burma.org
Burma Lawyers’ Council Statement on the Failure

of the 2008 SPDC Constitution to Protect
Judicial Independence
1. The independence of Thailand’s judiciary was on display Tuesday when
the Thai Constitutional Court unanimously ordered the People Power Party to
disband due to vote-buying. Dozens of the PPP's executive members, including
Prime Minister Somchai Wongsawat, were also found guilty of personal in-
volvement and banned from politics for five years. Despite great pressure from
pro-government supporters who surrounded the courthouse, the judges remained
independent of the ruling party. The ruling by the court has generally been ac-
cepted by the disputing parties and the people of Thailand. Mr. Somchai himself
acknowledged the court’s verdict, saying he was now "an ordinary citizen". This
respect for the court’s decision is only possible because of the independent,
objective, and impartial nature of Thailand’s judiciary.
2. In contrast, Burma is plagued with a judiciary that is merely a pawn of

the ruling regime. The courts of Burma continue to hold sham trials in which
defendants have no rights and the government always wins. Judges purpose-
fully misinterpret, misapply or completely ignore applicable laws to arrive at
judgments in the government’s favor. UN Special Rapporteur Tomás Ojea
Quintana stated in his September 2008 Report: "[U]nder the current functioning,
the judiciary is not independent and is under the direct control of the Govern-
ment and the military."
3. Unfortunately, there is no hope for an independent judiciary in the fu-

ture either, under the SPDC’s 2008 Constitution of the Republic of the Union of
Myanmar. While the Constitution prescribes that justice be administered "inde-
pendently according to law", in reality the Constitution ensures that after the
2010 elections the judiciary will remain under the control of the military-domi-

L AW K A PALA
nated ruling party.
4. Appointment of Judges. The procedure for appointing judges is an

essential factor in the independence of the judiciary. The power to appoint means
the power to control who serves in the judiciary. There must be adequate checks
and balances to ensure that one person or party does not dominate appoint-
ments. Under the SPDC Constitution, the President, who will surely be either a
former military officer or an ally of the military, will essentially have complete
control over appointment of judges of the Supreme Court, the Constitutional
Tribunal and the High Courts of States and Regions. (Articles 299, 308, 327)
The Parliament can only reject the nominees on technical qualifications and for
lack of loyalty to the Union, not if they are corrupt or have a history of being
unfair. (Articles 299(c)(ii), 308(b)(ii), 328). These provisions will result in courts
packed with judges who favor the President and his party.
5. Removal of Judges. If it is too easy for one person to remove judges,

they will decide cases that favor that person out of fear of losing their jobs. The
SPDC Constitution gives the President broad power to remove judges by allow-
ing him to begin impeachment proceedings for a wide variety of ill-defined rea-
sons, such as "misconduct", "high treason" or "inefficient discharge of duties".
(Articles 302, 311, 334) These grounds give the President power to eliminate
judges who issue rulings that the President dislikes, thus undermining judicial
independence. In fact, the threat of impeachment is alone enough to give the
President extreme influence. Even though the Parliament has the power to ac-
quit a judge of impeachment charges, the Constitution does not obligate the
President to follow the decision.
6. Length of Term. In general, longer terms for judges results in greater

independence. Judges with short terms are less secure in their jobs, which in
turn can influence their decision-making so that it favors whoever will reappoint
them. Importantly, the term of each member of the Constitutional Tribunal is
only five years. (Article 335) This provision will likely lead members of the
Tribunal to interpret the Constitution the way that the President wants.
7. Amount of Judges. Increasing the number of judges is another way to

control the court. The Constitution provides that the Supreme Court can have
between 7 and 11 judges, while the High Courts can have between 3 and 7.
(Articles 299, 308(a)(ii)) If a court is issuing decisions that the President does
not like, he can simply add more judges who will rule differently. This flexibility
will likely be used by the regime to undermine independence of the judiciary.
8. No Prohibitions against Interference. Significantly, there are no

constitutional prohibitions on interference of the judiciary, by the President or
No. 32 - April, 2009 Page 65

anyone else. Thus, the President or Commander-in-Chief faces no constitu-

tional barrier to bribing, threatening or retaliating against judges. Considering the
history of coercion and corruption in the Burmese judiciary, this lack of institu-
tionalized protection against undue interference poses a major threat to the inde-
pendence of the judiciary.
9. The Burma Lawyers’ Council has determined that, under the 2008 SPDC
Constitution, there is no potential for an independent judiciary. The provisions
discussed above as well as the impossibility of amending the Constitution with-
out military approval make the Constitution a document that puts the judiciary
under the total control of the military regime. If it is not rewritten or at least
significantly revised, the people of Burma can expect to see more one-sided
justice with no accountability.
December 4, 2008
*********

"LawKa PaLa - Legal Journal On Burma" - No. 32 (April 2009)

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LawKa PaLa

Legal Journal on Burma

BURMA LAWYERS' COUNCIL

Published by the Burma Lawyers' Council

Funded by: Friedrich Naumann Stiftung (FNS)

WISDOM IS POWER TO TRANSFORM A SOCIETY INTO

Legal Journal on Burma is published three times a year by Burma

Suggestions, or contribution of articles, for Legal Journal on Burma

Redistribution of all or part of any article in this journal is welcome,

The BLC Publication Team

Part A: Special Features PAGE

(A.2) Opening of Advanced Internship Program at Peace Law 14

(A.3) Housing, Land and Property Rights in Burma: Towards 17

Part B: Rule of Law

(B.2) The Case of Ma Kay Thi Aung 29

(B.3) The Issuance of Passports to Burmese Migrant Workers 33

(B.4) Statement on the Unlawful Confiscation of Land in Burma 34

(B.5) Statement on the SPDC Government Ministries 37

(B.6) Statement on the Abolishment of the Union Solidarity and 40

Part C: Criminal Accountability

Part D: Constitutional Issues

(D.2) Part 2: Excerpt from Paper on the National Convention’s 53

(D.3) The Failure of the SPDC Constitution to Protect Judicial 64

Part A: Special Features

Currently, in Burma, the judiciary has been subservient to the ruling

A. Independence of the Judiciary

Page 4 Legal Journal on Burma

government and not merely proclaimed in constitutional provisions and legal

In Burma, the doctrine of separation of the judiciary must be exercised,

No. 32 - April, 2009 Page 5

The defendants must be presumed innocent, and a detained suspect

The judiciary shall take responsibility for unlawful detentions, which

D. Judicial Activism and Judicial Review

To ensure good governance, the judiciary has to act efficiently with a

E. Protection of Individual Liberty and Fundamental Rights

The judicial system in Burma operates on a common law tradition, in-

Page 6 Legal Journal on Burma

On the other hand, should the perpetrators be allowed to enjoy absolute

G. Focusing on Procedural Justice

H. Preserving the Traditional Judicial Value

No. 32 - April, 2009 Page 7

Since the reign of King Anawrahta (1044-77), customs based on Bud-

The future Constitution of Burma must provide unambiguous provisions

1. In the constitution, the following provisions relevant to the judiciary

i. interpreting the constitution and resolving

Page 8 Legal Journal on Burma

(the power to issue writs such as habeas corpus,

B. Court Powers for the Protection of Individual Liberties

The various ethnic nationalities residing in remote mountainous areas

Obviously, complete judicial independence from the other two arms of

No. 32 - April, 2009 Page 9

D. Payment of Adequate Salaries and Benefits

Payment of adequate salaries and benefits to judges and legal officers

E. Abrogation of Abusive Laws

Page 10 Legal Journal on Burma

A. The Role of the Supreme Court

C. The Formation of Administrative Courts

The administrative court is a new phenomenon which did not exist in

In cognizable criminal cases, the jury system will be introduced. It will

E. Judicial Service Commission

A permanent Judicial Service Commission will be set up and entrusted

No. 32 - April, 2009 Page 11

Today, in Burma, the placement of military intelligence and other civil-