"The Special Rapporteur observes that the absence of the rule of respect for the rights pertaining to democratic governance is at the root of all the major violations of human rights in Myanmar insofar as this absence implies a structure of power which is autocratic and accountable only to itself, thus inherently resting on the denial and repression of fundamental rights."
-Judge Rajsoomer Lallah, Special Rapporteur of the Commission on Human Rights, October 19964
Before discussing the 1993 Child Law and other relevant legislation, it is necessary briefly to review the current legal climate in Burma. The State Law and Order Restoration Council (SLORC) seized power in a bloody takeover on September 18, 1988, bringing to an end six weeks of peaceful pro-democracy demonstrations which had toppled three heads of state. The SLORC, which is composed entirely of senior military officers, is supported by a cabinet of forty-four ministers, of whom only five are not serving military officers. Of those ministers with a special interest in children, only the Ministry of Health is headed by a civilian, U Saw Tun, while the ministries of education and social welfare are both headed by serving military officers.5
Immediately after assuming power and imposing martial law, the SLORC announced that it was a temporary government which would oversee general elections once law and order had been secured and would then transfer power to a duly elected civilian government. At the same time, the SLORC suspended the 1974 Constitution and established military tribunals and new civilian courts. Elections were finally held in May 1990, and observers stated that they were free and fair. However, the SLORC did not transfer power to the overwhelming victors, the National League for Democracy (NLD), and instead claimed that the election was for a constituent assembly which would write a new constitution, under which new elections could be held. At the same time, hundreds of NLD members and elected members were arrested. Nearly three years later, in January 1993, a constituent assembly, known as the National Convention, was finally convened, yet less than one hundred of the 702 delegates were elected members of parliament, the rest being hand-picked by the SLORC. In November 1995, the NLD withdrew from the convention in protest at the lack of democratic rights within the forum, removing any semblance of legitimacy the National Convention might have had. Since March 1996 there have been no further meetings of the convention.There are no other signs that the SLORC intends to honor its original pledge and its international obligations (in particular, Article 21 of the Universal Declaration of Human Rights) by transferring power to those duly elected in 1990.
This situation has been described by the Special Rapporteur to Burma as one which raises the question as to:
whether any juridical legitimacy that could, arguably, have been derived from past acquiescence in the assumption of power by the Military Forces can any longer provide a defensible basis for the continued maintenance of a non-constitutional system based on the assumption of martial powers, having such an unfavorable impact on human rights in the context of generally accepted international norms and the obligations undertaken by Myanmar.6
Thus, the SLORC itself can be considered an illegitimate body, both in terms of national and international law, and any consideration of the rule of law and due process of law in Burma must take this into account. Since coming to power, the SLORC has enacted a series of new laws and decrees while continuing to employ legislation which existed under the old constitution. Many of these laws are contrary to international norms, especially those concerning freedom of thought, expression, association and movement.7 In addition, there are concerns regarding the independence of the judiciary and increasing corruption and malpractice among lawyers.
While military tribunals were revoked in 1992, there is ample evidence that due process of law and the independence of the judiciary do not apply in politically sensitive cases. Judges are appointed directly by the SLORC, and there has been an increase in retired military judges being promoted to work in the High Court-one example is that of U Tin Htut Aung, a former colonel who was appointed as a high court judge in April 1994. During 1996 alone, over sixty members of the opposition NLD who were arrested had not been charged or tried by the end of the year.8 This action contravenes national and international law, and insofar as none of these people have had any communication with their families who in most cases do not know where they are being held, it also contravenes Article 9, Section 4 of the CRC.9 In other cases, NLD members or supporters are often not permitted to have legal representation, and their trials often take place in camera.
Even in nonpolitical cases, both civil and criminal, the rule of law has been undermined by a marked increase in corruption among judges and lawyers, resulting in a system in which there is one rule for the rich and none at all for the poor. Judges are paid around 3,000 Kyats a year (about US$300) and supplement this meager income by accepting bribes. Concern over the increase in corruption of the courts has even been voiced by Chief Justice U Aung Toe, who told a group of recently graduated advocates in May 1996, "Advocates and lawyers must avoid bribingjudges, paving the way to be able to bribe and urging the clients to bribe." He also urged advocates "to be loyal to the State and to direct their efforts toward the welfare of the people without losing sight of the objectives of the State."10
This is the context within which children and their parents in Burma have to struggle for justice. Implementation of the CRC, and the SLORC's own Child Law, will continue to be severely handicapped by the lack of accountability and access to justice in Burma.
4 Judge Rajsoomer Lallah, "Situation of Human Rights in Myanmar" (New York, U.N. General Assembly, A/51/466, October 8, 1996).
5 Lt. Col. Pan Aung is the minister for education, and Maj, Gen. Soe Myint is the minister for social welfare. U Saw Tun became the minister of health in May 1996, replacing Vice-Adm. Than Nyunt. Since his appointment he has demoted some of the most respected and capable personnel within the ministry, including the former head of the AIDS control program, Dr. Bo Kywe.
6 Judge Rajsoomer Lallah, "Situation of Human Rights in Myanmar," para 31.
7 See K. S. Venkateswaran, "Burma: Beyond the Law," (London: Article 19, August 1996); and Lallah, "Situation of Human Rights in Myanmar."
8 Human Rights Watch/Asia does not have a full list of the names of those detained without charge or trial, but the list includes U Aye Win, a businessman and cousin of Daw Aung San Suu Kyi, who was arrested on May 21, 1996; Dr. Aung Khin Sint, an MP who was arrested (for the third time) on July 22, 1996; U Moe Thu, editor of the popular Da Na economics magazine, arrested in May 1996; and Ma Thet Thet Aung, a female student, arrested on August 8, 1996.
9 Article 9, states that "States Parties shall ensure that a child shall not be separated from his or her parents against their will..." and Section 4 states, "Where such separation results from any action initiated by a State Party, such as detention, imprisonment, deportation or death (including death...while the person is in the custody of the State) of one or both parents of the child, that State Party shall, upon request, provide the parents, the child or, if appropriate another member of the family, with the essential information concerning the whereabouts of the absent member(s) of the family."
10 The New Light of Myanmar (Rangoon) May 4, 1996. Quoted in Foreign Broadcast Information Service (FBIS) May 7, 1996.