BurmaNet Appropriate Information Technologies, Practical Strategies
The BurmaNet News: November 17, 1998
Issue #1140

Noted in Passing: "Our law is consistent with U.S. policy and second, our law isn't the conduct of foreign relations, it's the conduct of our own purchasing. We have a right to decide with whom we'll do business." - Thomas A. Barnico, the Assistant Attorney General handling the case for Massachusetts (see NEW YORK TIMES: LIMITING A STATE'S SPHERE OF INFLUENCE)

HEADLINES:

  1. BKK POST: IS BURMESE POLITICS LEGAL?
  2. AFP: MYANMAR LEADER ACCUSES WEST OF "SABOTAGE"
  3. THE NATION: BURMA COMES IN FOR CRITICISM
  4. NYT: LIMITING A STATE'S SPHERE OF INFLUENCE
  5. SF CHRONICLE: PRESIDENT SHOULD BLOCK BUSINESS
  6. BKK POST: IT'S GIVEN US A ROAD, BUT AT WHAT COST?
  7. ANNOUNCEMENT: NEO DOCUMENTARY ON 1988 UPRISING

THE BANGKOK POST: IS BURMESE POLITICS LEGAL?
15 November, 1998 by Khin Maung Win

DEMOCRACY AND HUMAN RIGHTS: THE REACTION  OF SOME ASEAN MEMBERS TO ANWAR
IBRAHIM'S TRIAL IN MALAYSIA RAISES QUESTIONS ABOUT THEIR LACK OF RESPONSE
TO SIMILAR POLITICALLY MOTIVATED ARRESTS IN BURMA
.

While the rest of the international community expresses concern over the arrest and trial- of Mr Anwar Ibrahim from human rights and legal perspectives, some Asean leaders have gone further by focusing on the plight of Mr Anwar personally. Open expressions of concern by Asean leaders are a step towards the constructive intervention (or flexible engagement) in the affairs of group members that Thailand and the Philippines have been advocating. It would be a good next step for those Asean members who have voiced concerns over the internal affairs of Malaysia to extend their constructive intervention to other Asean members. The situation in Burma, where human rights and democracy are not respected, would benefit from a policy of constructive intervention. To correctly understand the situation in Burma it is helpful to consider the legal issues arising from the political situation.

Burma's  repressive laws: As with the Internal Security Act in Malaysia, under which Mr Anwar was first detained, there are many repressive laws in Burma currently being used to neutralise opposition members,  including hundreds of elected representatives. Perhaps the most notorious is section 5(j) of the Emergency Provision Act. This provides that it is an offence to infringe   upon the integrity, health, conduct or respect of state military organisations and government employees, to spread false news about the government, or to disrupt morality.

The penalty is a fine, seven years in prison, or both. There have been many cases in which state authorities and the military-controlled courts have interpreted this vague provision so as to imprison opposition members for what would otherwise be legitimate political activity. Many political prisoners are in jail or facing trial under the Emergency Provision Act. The Emergency Provision Act is widely used by the junta because the vague wording of section 5(j) lends itself to abuse. It is estimated that 90 percent of political prisoners are imprisoned under this Act. Many of the members of the National League for Democracy (NLD) and other political parties recently detained by the regime have been charged under section 5(j).

The State Protection Act was used to put Daw Aung San Suu Kyi under house arrest for six years without trial, and to arrest U Nu, Burma's first democratically elected prime minister after independence. This Act originally  allowed state  authorities to detain any person without trial for a maximum of three years. The maximum penalty was amended to five years when it became necessary to extend the detention of Daw Aung San Suu Kyi. Action under the State Protection Act has been taken not only against  Daw Aung San Suu Kyi and U Nu, but many other democracy activists.

The Official Secrets Act makes it an offence to hand over classified "state documents of national interest" to an unauthorised person, and is an infringement of freedom of expression. This Act is another example of the obsessively secretive nature of public life in Burma, where government and state authorities have never been transparent in carrying out their tasks. NLD Vice chairman U Kyi Maung was charged under this - Act and sentenced to three years imprisonment for having a discussion with other political party leaders, in which he mentioned insignificant matters that he had discussed with Maj-Gen Khin Nyunt, Secretary (1) of the military junta.

The Unlawful Association Act allows the government to declare that any organisation is unlawful by its interpretation of vague provisions within the Act. The Act also empowers the authorities to put any person into detention through the unilateral judgement of the state that the person is supporting or communicating with an unlawful organisation. Simply handling a publication of an unlawful association is punishable under this legislation. There are many elected representatives who have been sentenced to imprisonment under this Act.

Many political parties, including election-winning ones, have been de-registered or declared unlawful. The Burmese people interpret the organisation of mass rallies by the military junta to denounce the NLD and Daw Aung San Suu Kyi as a manoeuvre by the regime to create an atmosphere in which it can declare the NLD unlawful.

The Law Amending the Pyithu Hluttaw (People's Assembly) Election Law was promulgated two years after the original Election Law had been adopted, under which general elections had been conducted in 1990. The Amending Law operates retrospectively to create offences by elected people's representatives who were innocent of any offence under the original Election Law. Many elected representatives have been dismissed and banned from contesting future elections.

Application of law in Burma: Legal interpretation and the application of due process in Burma is probably the worst in the world, as all judges are subject to the orders of the military junta, who appointed them. The State Law and Order Restoration Council, renamed the State Peace and Development Council in November 1997, has made it clear that it rules the country with martial law, which effectively means no law at all.

The Special Rapporteur of the UN Human Rights Commission on Burma, Judge Rajsoomer Lallah, clearly pointed out the lack of due process of law and rule of law in Burma in his 1996 report. Whichever law the military junta might use to justify its many political arrests, the arrests can never be considered just, as there is no due process of law in Burma for political detainees. The imprisonment of political activists without trial is a normal practice for authorities in Burma. This practice could not be allowed in a society in which human rights were respected, and which was on the path to democratisation.

No political prisoners in Burma are allowed access to legal counsel, and the trial process does not even pretend to offer an opportunity for an accused person to present a defence. Confessions obtained by force in interrogation centres are read to the court. There is then a short adjournment, followed by sentencing. The whole process takes about one hour for one "trial". The 1990 election and its aftermath: The military junta promised that it would transfer power to the elected people's representatives after the 1990 election. The international community, the Burmese people and the military junta, which sponsored the election, all accepted that the elections were free, fair and legitimate. Therefore all parties involved in Burmese politics have full responsibility under the law to respect and implement the election result.

The NLD was mandated to govern the country in the 1990 election. The junta, however, accused the NLD of breaching laws by seeking to convene parliament. A number of coercive measures including these oppressive laws were used to force elected representatives to resign, or to imprison or dismiss them. The arrest of hundreds of NLD members and elected representatives, along with elected representatives from other parties, totally lacks legal support.

These measures appear to be an attempt by the military junta to eliminate the result of the 1990 election. Ignoring the election result is in fact a breach of law. For a responsible government, there is no greater crime than to ignore the result of a legitimate election. In response to criticism, the military junta is producing a state constitution under which a new government will be formed. The drafting process is taking place under the total control of the military. It is intended to persuade the international community that a new military backed yet so-called civilian government should enjoy full legitimacy.

Burma, Malaysia and the response of Asean: Some observers hoped that Burma's admission to Asean in July 1997 might serve to check the abuses perpetrated by the regime. In fact, since Burma joined Asean there has been a massive crackdown on members of the democratic movement, and thousands of supporters of the opposition NLD have been detained. The international community, which has advocated political liberalisation in Burma has now turned its attention to the same cause in Malaysia. Beyond the arrest and trial of the outspoken Mr Anwar, who advocated political reform in Malaysia as well as in the region, political liberalisation in Malaysia is in the interests of the international community. The trial of Mr Anwar has been portrayed as a trial of freedom and democracy. There have been hundreds of politically motivated arrests in Burma similar to Mr Anwar's. Given such similar situations, Asean members should have no difference in policy between Malaysia and Burma.

While the rest of the international community pushes towards democratisation in Burma, Asean remains an obstacle, as some influential members stick to their conservative non-interference "constructive engagement" policy towards Burma's military junta. The time has come for Asean to engage in constructive intervention by responding to the legal and political questions raised by Burma's political situation, as has been done with Malaysia.

Khin Maung Win is the secretary of Information Department, All Burma Students' Democratic Front (ABSDF).


AFP: MYANMAR LEADER ACCUSES WEST OF "ECONOMIC SABOTAGE"
14 November, 1998

YANGON, Nov 14 (AFP) - Myanmar military leader Than Shwe has issued a virulent attack on the West, accusing governments of using economic "sabotage" to impose their will on his country, state media reported Saturday.
"Some big nations who want to impose their power...are trying to jeopardize Myanmar's economy, taking the opportunity at a time when many nations are facing economic problems," Senior General Than Shwe was quoted as saying by the New Light of Myanmar newspaper. The United States and the European Union maintain an embargo on the junta for failing to recognise the sweeping victory of the National League for Democracy (NLD) of opposition leader Aung San Suu Kyi in 1990 elections and for alleged human rights abuses.

Some economic objectives had not yet been reached due to the efforts of "destructionists" aided by "external elements," he said while on a cross-country tour, referring to the  NLD. Myanmar had, however, made "serious efforts" to "endure and overcome the fluxes of the world's economic problems" and had made progress, said Than Shwe, chairman of the ruling State Peace and Development Council  (SPDC). Myanmar ministers claimed in interviews with AFP this week that the country's economy was healthy despite Western sanctions and the regional economic crisis.

However, Western diplomats said the economy had ground to a halt and was suffering soaraway inflation, an almost worthless currency and virtually no foreign investment. The SPDC is currently carrying out a countrywide sweep against NLD members and has detained hundreds and taken them to government "guest houses." Scores of NLD activists have resigned. The government says those who stepped down were unhappy with Aung San Suu Kyi's leadership but the NLD says the resignations followed coercion and intimidation by military intelligence.

The junta has been holding mass meetings throughout the country in recent weeks to condemn the NLD for demanding the convening of the elected parliament and encouraging economic sanctions against Myanmar.


THE NATION: BURMA COMES IN FOR CRITICISM
15 November, 1998

KUALA LUMPUR - The United States circulated a draft at the Apec meeting here yesterday condemning the human-rights situation in Burma and called for support from the members. Foreign Ministry spokesman Kobsak Chutikul said that the Thai delegation had received a draft and was studying the text. He quoted Surin as saying that the situation in Burma should be considered within the framework of the United Nations Thailand prefers the UN approach and supported the recent visit of UN special representative, Avaro de Soto, to Burma. The UN General Assembly is expected to deliberate on the situation in Burma soon During de Soto's visit last month to Burma he met leaders from the military junta as well as opposition leaders and discussed the possibility of UN-related agencies extending assistance in exchange for political reforms. New York Times: Limiting a State's Sphere of Influence 15 November, 1998 by Carey Goldberg To some, it may smack of flower-power idealism that in recent years two dozen American cities have passed sanctions against foreign countries, roaring like local mice against the ruling regime of Nigeria or political repression in Tibet.

But to a Federal district judge here, a state-level move by Massachusetts to tilt at human rights abuses in Myanmar, formerly Burma, seemed not sweetly quixotic but downright unconstitutional. The judge, Joseph L. Tauro, ruled late last week that the Massachusetts Burma Law, which largely bars the state government from doing business with companies that trade with Myanmar, infringed on the Federal Government's exclusive control of American foreign policy. He is expected to issue an order telling Massachusetts exactly what to do about the law next week.
''State interests, no matter how noble, do not trump the Federal Government's exclusive foreign affairs power,'' Judge Tauro wrote.

That decision, and the announcement this week that Massachusetts would appeal, set the stage for a legal battle that experts say could ultimately reach the United States Supreme Court and affect all such local sanctions -- from New York City's recent moves to shun Swiss banks unless they made restitution to Holocaust survivors, to Los Angeles's current consideration of whether to pass a Burma law of its own. At stake, advocates of such down-home involvement in foreign affairs say, is the kind of groundswell for divestment and sanctions that many believe helped end the South African system of racial separation. If such a ruling had come out a decade ago, said State Representative Byron Rushing, who sponsored the Massachusetts law, ''Nelson Mandela might still be in prison today.''

Furthermore, Thomas A. Barnico, the Assistant Attorney General handling the case for Massachusetts, said: ''Our law is consistent with U.S. policy and second, our law isn't the conduct of foreign relations, it's the conduct of our own purchasing. We have a right to decide with whom we'll do business.'' But opponents argue that local sanctions not only violate the Constitution, but also fail to influence the countries they target. They say the sanctions' main effects are to hurt the ability of American businesses to compete abroad and to complicate the State Department's job.
''None of our companies, and certainly nor we, in any way apologize for the way the Government of Burma operates,'' said Frank Kittredge, president of the National Foreign Trade Council, the lobbying group that successfully challenged the Massachusetts law. ''Nobody argues with the purpose or objective. We just argue with the means of accomplishing it, and we feel so strongly that these international sanctions do not work.''

In this global-market era, the opponents to local sanctions also include foreign governments, which complain that the sanctions violate international free-trade pacts signed by the United States. The European Union filed a brief opposing the Massachusetts law in Federal court, and the European Union and Japan have brought a complaint about it to the World Trade Organization. The law that touched off all this local-state-Federal-international fuss was passed by the State Legislature in 1996, making Massachusetts the only state with such an anti-Burma sanction. (A similar measure is pending in the New York State Legislature, however, and New York City already has one.) Called a selective purchasing law, it required the state government to refrain from buying from companies that did business with Myanmar, unless bids from those companies were at least 10 percent cheaper than the closest comparable bids.

The prospect of losing business with the state appears to have influenced some companies to pull out of Myanmar, Representative Rushing said -- at least, he added, Apple Computer said as much when it left. But Mr. Rushing said he did not know of any case in which the state had actually rejected a bid from a vendor with ties to Myanmar. The military regime in Myanmar has violently repressed dissent, and human rights monitors accuse it of practicing torture, perpetuating slavery and trafficking in drugs.

While divestment was the main local sanction applied against South Africa in the anti-apartheid movement, selective purchasing laws and ordinances now predominate in the movement to pressure Myanmar. According to a list maintained by the National Foreign Trade Council, cities from Berkeley, Calif., to Boulder, Colo., to Takoma Park, Md., and Cambridge, Mass. -- more than 20 in all -- have passed such selective purchasing measures against Myanmar.

That is their right, argued Robert Stumberg, a professor of law at Georgetown University Law Center who advises the Free Burma Coalition, an umbrella group modeled after the anti-apartheid movement.
''It's a core principle of democracy that the Federal Government should not intrude on state powers to spend local tax dollars unless there's an overwhelming Federal interest at stake,'' Mr. Stumberg said. ''Neither the text of the Constitution nor the politics of the situation reaches that level, and we think the Supreme Court will agree with us.''

Mr. Stumberg and other defenders of the Massachusetts law say they also have an important legal precedent to lean on: a decision by Maryland's highest court in 1989 that the City of Baltimore had the right to pass a statute that withdrew its investments from South Africa.

But Judge Tauro, in his decision, wrote that the Baltimore case did not apply because the city was seeking only to modify its own investment practices. Baltimore did not ''seek to influence individuals or companies in their private commercial activities,'' he said. He also cited a 1937 Supreme Court decision saying that power over international affairs ''cannot be subject to any curtailment or interference on the part of the several states.''

In the end, Judge Tauro wrote: ''Massachusetts' concern for the welfare of the people of Myanmar, as manifested by this legislative enactment, may well be regarded as admirable. But, under the exclusive foreign affairs doctrine, the proper forum to raise such concerns is the United States Congress.''

In fact, Congress and President Clinton have spoken on Myanmar. Mr. Clinton issued an executive order in 1997 barring new American investment in Myanmar, and Congress has backed similar sanctions. But that seems only to give more ammunition to both sides. Opponents of the Massachusetts law say it is pre-empted by Congress; supporters say that since Congress did not nullify the law, it should stand. On one thing, both sides agree. No such concerted challenge ever arose to the local pushes for divestment from South Africa, as college after college and city after city voted to divest. That could be because the Myanmar cause has less popular support, some say. Or it could be because the Government has signed more free-trade agreements since then, obligating states and cities to keep their barriers down as well.


SAN FRANCISCO CHRONICLE: PRESIDENT SHOULD BLOCK BUSINESS WITH BURMESE JUNTA
11 November, 1998 by Joe Patrick Bean

Joe Patrick Bean comments on national and international affairs from his home in Austin, Texas. joepatrickbean@hotmail.com

NOW THAT A FEDERAL JUDGE has overturned Massachusetts' "Burma Law," the Clinton administration and Congress should impose tough sanctions against doing business with that country's brutal military regime. Last week, U.S. District Court Chief Joseph Tauro declared unconstitutional a law that barred state agencies in Massachusetts from contracting for goods or services with companies that did business in Burma, also known as Myanmar.

In siding with the National Foreign Trade Council, Tauro ruled that the Massachusetts law infringed on the federal government's power to regulate foreign affairs. The ruling does not affect other Burma boycott measures outside Massachusetts, although that could happen if the issue reaches the U.S. Supreme Court.

In 1995, Berkeley became the first American city to adopt sanctions focusing on Burma's repressive military junta. Oakland, Palo Alto, San Francisco, Santa Cruz and some two dozen other cities followed suit, along with Alameda County and Massachusetts. The military thugs of Burma's State Law and Order Restoration Council depend upon their economic ties to U.S. and other Western companies. The SLORC is one of the most brutally repressive dictatorships in the world. President Clinton told Congress last year that the SLORC had arrested and detained large numbers of students and opposition supporters, sentenced dozens to long terms in prison and squashed the expression of political views by the democratic opposition, including Nobel Peace Prize winner Aung San Suu Kyi.

Clinton noted that the Burmese military had committed serious abuses in their campaign against the country's Karen minority, forcibly conscripting civilians and making thousands flee to Thailand. The regime is also heavily involved in the production and global distribution of heroin. Burma is the world's leading producer of both drugs. "It is not possible to do business in (Burma) without directly supporting the military government and its pervasive violations of human rights," Levi Strauss concluded, when it decided to pull out of Burma completely.

In May 1997, Clinton issued an executive order barring any new investment in Burma by U.S. businesses because "the actions and policies of the SLORC regime constitute an extraordinary and unusual threat to the security and stability of the region," and therefore to U.S. national security. Given the regime's long record of human rights abuse and drug trafficking, Clinton's executive order, which the president renewed in May 1998, was both appropriate and overdue. But it was not enough. Unlike the Massachusetts' law, it allowed U.S. companies that had done business in Burma before May 1997 to continue to do so.

The Massachusetts statute was modeled on laws passed by many states and cities to put economic pressure on apartheid-era South Africa. The collapse of the apartheid system proves that tough sanctions can work. If states and cities are not constitutionally permitted to exert this kind of pressure on Burma's military junta, the Clinton administration and Congress have a clear duty to do so. U.S. companies should not continue to support a ruthless regime.


THE BANGKOK POST: IT'S GIVEN US A ROAD, BUT AT WHAT COST?
16 November, 1998 from V. Suwanvanichkij

I am writing in response to Mr Lombard's letter titled "But the pipeline has given us a road" (Nov 11). He cites the good that the Yadana gas pipeline will bring, namely providing a link between Bangkok and Rangoon. I do not believe this to be a benefit to either the Thai or the Burmese people. This road will only provide a much more efficient travel route for the main exports from Burma heroin, amphetamines and women to staff the brothels of Thailand. There is evidence of involvement of both Burmese and Thai authorities in the movement of all these "commodities".

And with these exports come HIV and Aids. It can already be seen that communities lining the roads linking India and Burma have high rates of heroin use and HIV infection, and that the HIV strains circulating in these areas are the same as those found in Burma and Thailand, not India. And as far as economics go, in this . era of economic recession few Thai investors would risk putting scarce resources into questionable Burmese ventures.

It also cannot be forgotten that income from the- sale of gas from this pipeline is going into the coffers of the military rulers of Burma, a group that has traditionally spent over double the amount put into education and health combined into the military. Thus this money allows them to directly kill and torture, keeping the regime in power. In addition, the fact that resources are not going into health and education is a formula for disaster in terms of the HIV epidemic now sweeping the country, indirectly killing further untold thousands. In fact, this illegitimate Burmese government is the biggest obstacle now to any efforts at controlling this plague.

From the Thai point of view, the fact that this was arranged clandestinely, without any input from those who will be affected, directly or indirectly, runs counter to democratic and ethical principles, leaving  many to question which individuals, government and private, derive financial benefit from the construction of such a monstrosity. Taken together, I still cannot see how the risks of the pipeline balance out what questionable marginal benefit it may bring for the people of Thailand or Burma. It instead stands out as a monument of shame, reminding us that greed takes precedence over principle.

V. Suwanvanichkij Baltimore, Maryland


ANNOUNCEMENT: NEO DOCUMENTARY ON 1988 UPRISING IN BURMA PREMIERS ON TELEVISION
16 November, 1998 from "Nonviolence Empowerment Organization"
< neo200@hotmail.com >

NEO Documentary on the 1988 Uprising in Burma premieres on television Ithaca, NY:  Birth: Voices from the 1988 Uprising in Burma, a documentary recounting the events of the nationwide demonstrations for democracy and human rights in Burma will make its television premiere in Central New York on PEGASYS station Channel 13, November 18, 1998 at 9:00 pm (Eastern Standard Time).

Birth: Voices from the 1988 Uprising in Burma features interviews with students and activists who were involved in and eyewitnesses of the pro-democracy struggle.  The firm traces the evolution of the Uprising from its early beginnings as a student movement to its development as a popular struggle and finally to the Burmese military regime's brutal crackdown of the demonstrations. It also examines the current situation in Burma as well as the reasons why Burmese activists continue working in the movement for democracy. Birth was produced by Shwe Htee (8.8.88), a Burmese activist who was actually a student leader in the 1988 Uprising.  Shwe Htee says, "We wanted to make a film that told the true story of the 1988 Uprising in Burma, a story that the military regime would never allow us to tell." Indeed, the film presents an honest and unflinching view of life under military dictatorship. With live footage from the uprising and this year's ten-year commemorations, Birth is a moving film about the struggle for justice and freedom in Burma.

The film will also air on PEGASYS Channel 13 on November 22, 1998 at 6:00 pm (EST) and on Channel 57 on December 10, 1998, the 50th anniversary of the United Nations Universal Declaration of Human Rights, at 11:00 pm (EST).  For more information, please contact The Nonviolence Empowerment Organization, Inc. (NEO), P.O. Box 6596, Ithaca, NY 14851-6596.

The Nonviolence Empowerment Organization, Inc. (NEO) is an organization dedicated to educating the public about the situation of human rights and refugees all over the world.