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:
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.