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THE STRUGGLE FOR THE RULE OF LAW IN BURMA 

JUSTICE MARCUS EINFELD AO QC

Introduction

May I start by expressing my warm thanks to the Committee for Democracy in Burma, in particular those members of the Committee responsible for organising today's public meeting, for providing me with this opportunity to speak on the continuing struggle to bring the rule of law and justice to Burma. I sincerely admire and congratulate the members of the Committee for their continuing efforts to focus Australian and international minds and labours on ways to ameliorate the plight of the oppressed peoples within Burma and provide hope to those of their families that have relocated to this and other countries. In particular the continuing restrictions on the truly inspired and saintly Aung San Suu Kyi must again be elevated to our minds, concerns and actions. We are speaking of nothing less than the right of Burma's rich ethnic and human tapestry to self-determination and to participation in a democratic government committed to human rights and justice for all the people..

The struggle for Burma

As all of us gathered here today have shown merely by our presence, the struggle for the enjoyment of human rights is not one that the people of Burma must and should have to endure at all, but they must certainly not do so alone. It is a struggle that all Australians, and all peoples of the world, must take as their own if we are to honour our supposed commitment to democracy and justice for all. Human rights are, as their most famous declaration says, universal. They are for all of humankind. No one person is more of a human being than another. We who cherish these fundamental beliefs are simply not permitted to rest while the Burmese people can only have them in their dreams.

Whatever the situation with other countries, Australia cannot continue in its reluctance to take Burma to task for flagrant human rights violations. It is the responsibility and duty of all Australians to pressure the military junta to honour the result of the 1990 elections and to cease to deny and trample on the most basic of peoples' rights. The honour the Committee for Democracy in Burma has done me by inviting me to speak today is thus one I accept on behalf of all of my friends who continue to partner me in the pursuit of bringing the rule of law to Burma.

As you know, it is just over 5 years since democracy leader and Nobel laureate, Aung San Suu Kyi, was supposedly released after 6 years of what was called house arrest but was actually the torture of isolation and forced separation from husband, the late Michael Aris, and children, friends and colleagues. The military junta held out Suu Kyi's release in July 1995 as proof of its intention to comply with the law and restore democracy to Burma. Of course it has done no such thing. It has not even restored Suu Kyi's rights. The generals did change their own name, though - from the State Law and Order Restoration Council (SLORC), itself the quintessential euphemism, to the State Peace and Development Council (SPDC) which is no more reflective of the true nature of the body concerned - in the hope of persuading the disingenuous and the na´ve that Burma was finally addressing its political, social, economic and human problems.

Recent developments

Yet no real steps have still been taken by the junta to release the country from its repressive military regimentation. Despite the junta's strategy of military cease-fire agreements with some of the ethnic opposition groups, it has shown no semblance of giving human rights and humanitarian treatment to the people. On a number of occasions in recent years, Suu Kyi and her colleagues from the National League for Democracy have been stopped by the military authorities by the roadside outside Rangoon on their way to meetings with fellow members of the NLD or other legitimate peaceful activity. Such occasions are clearly instances of the denial of these people's rights to freedom of association and freedom of movement.

As recently as 2 months ago, on 24 August, such an event led to a roadside stand off after Suu Kyi had written to the generals requesting and urging them to convene the parliament constituted by the 1990 elections. This stand off is all the more alarming for the way it ended - with 200 well-armed riot police forcibly returning Suu Kyi and her colleagues to Rangoon on 2 September and effectively placing them under in communicado house arrest. As Amnesty International reported on 14 September, the NLD leaders have since thankfully been allowed to "resume their daily activities as usual". Although this language has meant a reduction in the fear held outside of Burma for the safety of Suu Kyi, it actually means the perpetuation of restrictive conditions on the movement of NLD leaders. Nevertheless these courageous individuals have stepped up the NLD's agenda for democracy and were able to announce on 16 September the intention to form a Committee to represent the parliamentarians elected in 1990. Apparently such a step has the support of 251 of the 459 MPs-elect still living, 26 having died since 1990. This bold new step and the cessation of the frightful period of silence imposed on the NLD should raise the spirits of all of us working for democracy in Burma once more. Hopefully this renewed energy will encourage the governments, non-government organisations and peoples of this world to assist Suu Kyi to lead the peoples of Burma to the democratic destiny they so long for and deserve.

As I am sure many of you here today are aware, it is not only the forces of social democracy that face persecution in Burma. On 15 June the International Labour Conference, the quasi-parliamentary body of the International Labour Organisation, itself a peak international body of governments, employers and workers, voted overwhelmingly in favour of a resolution unprecedented in its 81 year history. This resolution - passed with an 80% majority - calls upon the Burmese junta to take concrete action to implement the recommendations of a 1998 Commission of Inquiry which found that resort to forced labour by the authorities and the military in Burma was "widespread and systematic". By this resolution, 30 November 2000 was appointed as the end date for the implementation of the Commission's recommendations, which included the amendment of legislation that authorised the conscription of forced labourers in direct contradiction to Burma's international obligations under the Forced Labour Convention 1930.

In spite of a mountain of regime rhetoric suggesting a willingness to rectify the current situation and also criticising the ILO, it should be to no one's surprise but everyone's dismay that the generals have not rectified a single thing. At present, an ILO technical cooperation mission is in Burma to examine any relevant developments, after which visit the Labour Conference will consider whether to adopt certain measures to enforce compliance. The range of possible measures includes recommending to the ILO's constituents as a whole, including governments, and employers' and workers' associations, that they review their relations with Burma and take appropriate measures to ensure such relations do not perpetuate or extend the system of forced or compulsory labour.

If, as unfortunately we should all expect, the junta is shown to have failed to eliminate or even reduce the extent of forced labour, I would hope that the constituents of the ILO maintain their resolve and do not shy away from the task at hand, namely the identification and implementation of such measures in trade and economic relations as are appropriate to bring about the essential social and political freedom of the people of Burma. That the Association of South East Asian Nations (ASEAN) has so shamefully put the situation in Burma off the agenda for its meeting in November makes the urgency and importance of the ILO response all the more real.

Continuing injustices

But these recent developments in Burma should not draw attention away from the many instances in recent years that the regime has denied the rights of the very people they purport to govern for. In October 1995 the military government decreed that Suu Kyi's reappointment as leader of the NLD was illegal. In other words, after the overthrow of Suharto in Indonesia and his extraordinary appointment of the Leader of Megawati's party, only in Burma of all countries in the world can a political party's members not choose their own leader. Despite Suu Kyi's continued policy of peaceful demonstration and engagement with the military regime, the Generals have refused to enter into a dialogue with the NLD on the future of the country. The Government has said that it will consider dialogue at an appropriate time in the future if Suu Kyi "pledges to make a 'constructive contribution' to the country". Constructive? Constructive by whose standards? Ten years after elections it called in which the NLD won 80% of the seats, the junta has purported to rename the country and its capital city without the slightest consultation with the people, let alone their consent, and has cajoled some other countries' leaders and a few self-seeking elder statesmen and women and journalists to follow them. The Australian Department of Foreign Affairs reports that 195 of the members elected in 1990 are still being detained, and other reports state that 835 other people are held as political prisoners.

It is especially tragic that so much of what the regime has done represents the brutal use of a national army against its own people. I have always thought that national armies were designed to protect the people, not cower, threaten and wage war on them. We are talking of the largest and best equipped military in Asia, which is allocated fully 50%, perhaps more, of its nation's budget despite the chronic impoverishment of the people and the country having no external enemies. Who else but their own people are they being conscripted and equipped to fight?

As the 1998 ILO Commission of Inquiry determined, the outrageous inhuman practice of "portering" by which men, women and children are conscripted by the regime for mountainous labouring work while living in tortuous conditions on near starvation rations continues. Perhaps worst of all, the whole country is overrun by drugs, corruption and a widespread absence of basic services for ordinary people such as health, education, housing and work, not to mention human freedom. For those who have work, an average government employee's daily wage is said to provide the capacity to purchase a mere 2 eggs.

In July of last year, Hla Khin, a member of the NLD, committed suicide in prison by hanging himself with a sarong in his cell in Rangoon's notorious Insein Prison (Burma News Update July 1999). Suu Kyi has revealed that at the same time, hundreds of prisoners, including imprisoned members of her party, were transferred to provincial jails from the Insein Prison, prior to a visit by the Red Cross. In reaction to her allegations, a junta statement stated, or more accurately, threatened, that her comments were "counter-productive" for prisoners and their families. The regime is simply not prepared to grant political concessions. The generals do not recognise, and regularly trample on, the most basic of the people's rights.

A report to the UN General Assembly by a special human rights investigator quite recently told of summary executions, torture and rape by the military with impunity. The military has asserted that such accusations are unfounded and that nothing can be done unless the victims bring their cases to the authorities concerned. But they will not allow me or other leaders or international organisations or media to investigate the reports or advocate the cases brought to our attention.

The fact is that in less than a generation this cruel regime and its internal and external allies have reduced one of the richest countries in the world to one of the poorest. No wonder the regime is now actively seeking investment from western commercial enterprises and their professional representatives. Regrettably quite a number have been seduced, as have some national leaders.

But both nations and individuals, including former Prime Ministers of this country, should not mix their search for financial reward or advancement of their own or others' commercial interests with apparently dispassionate human rights commentary which is ultimately quite false and merely condones shocking abuses. Those who fail this simple test in Burma following the end of the most infamous of centuries should beware of the unattractive company they are joining.

Refugees

Burma is today the largest refugee-producing country in South East Asia. More than 100,000 Burmese are already living over the Thai border, most belonging to ethnic minority groups who have fled the fighting between the military junta and the armed rebel groups seeking autonomy, with the safety of the Karen refugees particularly pressing. In June 1999 the Huay Kalok refugee camp, home to about 8,000 refugees, mostly ethnic Karens, was burned to the ground for the third time in the past three years by pro-Rangoon armed troops allegedly assisted by Burmese government soldiers (Burma News Update July 1999).

In its 1999 Country Report, Amnesty International said of Burmese refugees:

Although Thailand gave refuge to thousands of refugees from neighbouring Cambodia and Myanmar, thousands more Burmese asylum-seekers and refugees continued to be arrested for "illegal immigration". One Karen refugee was beaten to death by security forces. The security forces ill-treated demonstrators and detainees. Conditions in places of detention amounted to cruel, inhuman or degrading treatment. Thirteen people were sentenced to death; one person was executed.

As a member of the United Nations, Burma is bound not to create refugees. Yet the junta chooses even to flout this simple principle to the detriment not only of the people concerned but its neighbours as well, one of whom, Thailand, is its ally in ASEAN while another, China, continues to act as protector and military supplier of the Burmese rulers. Indeed by admitting Burma to membership in 1997, ASEAN has actually connived in this inhumane conduct. At the very least, the governments of the ASEAN countries might call on the receiving countries, especially India, China, Bangladesh and Thailand, to offer asylum to the refugees, provide them with economic assistance, and allow the UN High Commissioner for Refugees to operate in their countries to care for the refugees until they receive full residency rights. Taking the matter off their agenda is hardly a responsible way of dealing with a situation that threatens the international currency of ASEAN, let alone the peace and security of the very region ASEAN is concerned with.

Commercial and economic relations

The fate of 40 million Burmese is not less urgent than that of 4 million Cambodians, a million or so Haitians, or the population of Somalia. There should be widespread outrage at what was once a free and rich country being turned into a mass poverty-stricken concentration camp. Virtually nothing is published or earned in Burma today. What newspapers exist are crude government mouthpieces. What writers exist are in prison. What local economy there is largely consists of barter and sale of natural resources. Like Cambodia's Pol Pot, the regime and its cohorts have turned Burma into a backwater hell and disguised it all as a pantomime of charming touristic folklore.

Yet businessmen of democratic countries still operate their peculiar brand of exploitative amoral or immoral profiteering. If the world had done to Burma even a fraction of what we did to South Africa and Vietnam, the junta's army, like the other evil autocracies which have passed or are passing into history, would not have been able to hold on. Instead, the world has taken refuge in the withholding of official aid while allowing the private sector to hone in on the opportunities thrown up by the desperate plight of a regime whose priority is the repression and vandalising of its own peaceable and kindly people.

To deal with the problems posed by Burma, the ASEAN diplomats established a policy of what they called "constructive engagement". The purpose of this policy was to encourage political and social change in Burma by improving its economy through private sector trade. None of this positive trade nonsense has or has ever had a hope of changing the generals. Attempts by former Australian Foreign Minister Gareth Evans to get the ASEAN nations to put further Burmese participation in the international community of nations on strict conditions deserve special acknowledgment and strong approval. But Mr Evans' views did not win favour with the ASEAN leaders. Yet little of substance has been achieved and "constructive engagement" has been an abject failure. Its only noticeable effect has been to concentrate the new wealth in Burma in the hands of the generals, allowing them to further tighten their stranglehold over the country and its people. Human rights are or ought to be no less an integral part of foreign policy than trade.

The Australian Government's attitude in this regard is saddening to say the least. In its regularly updated country brief on Burma, the Department of Foreign Affairs and Trade said as recently as 25 October:

Unlike the United States, which has imposed sanctions on new investment in Burma (but not on trade), Australia has a very low level of trade and investment in Burma, and any unilateral action by us would not have a practical effect on improving the situation in Burma.

The morality of this position completely escapes me. Like all of you here, I try to teach my children that the contribution of one person can make a difference. What message are our leaders trying to send by propagating such an attitude? That we are not confident enough as a nation to stand by our convictions? Whatever it is, this policy should be changed.

The Burmese leaders know the free world well. They know that without the easy flow of information, our politicians, journalists and people will continue to pretend that everything is good and safe. The hundreds of thousands of people who have sought refuge from this regime, as well as the millions who are its internal prisoners, are the hapless victims of this pretence.

When will the world ever learn not to play footsy with fascists? Appeasement never achieves anything other than more agony and human suffering. Such regimes only leave office through war or under intense pressure, both national and international, both external and internal. Like all bullies, they are ultimately cowardly when bullied themselves. Although the prestigious London-based Institute of Strategic Studies has called for international troops to be sent to Burma, the only realistic tactics presently available to us non-Burmese are exposure, embarrassment and isolation of the regime and the strengthening of the democratic resistance.

It is true that the first victims of economic and other sanctions are almost always the innocent and the poor. But their physical and emotional plight is usually already so bad that it can hardly get worse. This is certainly so in Burma today. The continuing anguish of the Burmese people at the hands of their rulers is merely creating ever greater misery and devastation. On the other hand, externally caused suffering for the purpose of securing their freedom and independence has a manifestly noble goal which will assuredly end their agonies in time.

As Archbishop Desmond Tutu has written:

International pressure can change the situation in Burma. Tough sanctions, not constructive engagement, finally brought the release of Nelson Mandela and the dawn of a new era in my country. This is the language that must be spoken with tyrants - for, sadly, it is the only language they understand.

This view is supported by our friend Prime Minister Sein Win, a cousin of Suu Kyi, who has been reported as saying that ordinary Burmese would not be affected by sanctions because the unofficial economy would continue to operate. He has argued strongly for sanctions as the only effective way of reducing the power of the junta. I entirely agree with him.

Whatever its good intentions, a policy of sitting on the fence by neither approving nor disapproving trade amounts to a policy of neutrality towards the systematic violation of human rights and the institutionalisation of military rule oppressing democracy.

Conclusion

It never ceases to amaze me how political and business leaders can sup with the devil, and clothe it with good intentions. The idea that free peoples anywhere could hold a regime like the Burmese generals in anything other than contempt is outrageous. They simply do not operate on any standard that could remotely be called fair or decent. The toadying friendliness of the west has clearly been interpreted by them as a blank cheque to continue their revolting behaviour. The evidence is now incontrovertible. They are getting worse, not better. I call upon all Australians and good people everywhere to get behind efforts to win the freedom of the Burmese people. People who sanctify the human condition and cherish human dignity as we do are simply not permitted to allow this level of brutality to be carried out on our doorstep without responding positively and generously. An organisation of Judges and lawyers which I head called Australian Legal Resources International (ALRI) is working right now, at the request of the NCGUB and other Burmese groups, to prepare a Charter for Transition to Government for the democratic forces. There may be other things we can do as well, including training the Judges and lawyers, and equipping the Courts, to carry out their duties free of outside interference and as true protectors of the people's rights. Others can also help in their own fields and in their own ways.

Today, by gathering and talking as we are doing, we reconfirm our determination to work to ameliorate the sufferings of the Burman majority and the ethnic minorities in Burma, and further the realisation of their right to self-determination and to full and free participation in the government of a democratic Burma. We must resolve to continue our efforts to protect and ensure the safety of Suu Kyi and her democratic colleagues. We must bolster and support the forces of social democracy. We must tirelessly strive for the establishment of a constitutional order based on human decency and justice. And we must call on all the genius and ingenuity we regularly use in other fields to ensure that our voices are heard. Whatever some might tell you, our influence and power is not insignificant.

Above all we must not forget the people in their suffering. We call out to the people of Burma: we are with you in your struggle to be free. This battle will be won. The Burmese people will be free. All of us, indeed every decent human being, must do whatever is necessary to help them bring it about. And we have not a moment to lose.

 

The Honourable Justice Marcus Einfeld AO QC

Judge of the Federal Court of Australia, Australian Capital
Territory Supreme Court and Eastern Caribbean Supreme Court
Officer in the Order of Australia
AUSTCARE's Ambassador for Refugees
UNICEF's Ambassador for Children
National Vice President, International Commission of Jurists
(Australian Section)
Foundation President, Australian Human Rights and Equal
Opportunity Commission and Australian Paralympic Federation