AAPP and The Burma Lower Council (2001) Burmese Political Prisoners
In the 40 years it seized power and over threw the country’s Constitution, Burma’s military rulers ruled in different garbs. From legal aspect, this is an interesting study. In 1962, Ne Win ruled with the laws which he took over from the democratic government headed by U Nu. Except the abolition of Supreme court and the constitutional rights for redress of infringement of fundamental rights, he ruled with the earlier legislation, old judiciary and legal system. In 1974, he floated 1974 constitution. The judiciary was drastically changed and a new law the State Protection Law was enacted.
It was introduced in 1975. The date is important because this was done after the 1974 Constitution of Burmese Socialist Programme Party (BSPP) was passed. Articles regarding fundamental rights had been incorporated in that Constitution. The State Protection Law therefore patently violated the Constitution, which the military rulers brought in the guise of BSPP. Its birth was flawed. Since Law making body and the Executive was one and the same. i.e. the BSPP One-Party, the question of challenging its legality had no scope. Truth was that State Protection Law governed the country and not the Constitution, which was kept as a facade. Before going into the flaws of the Law, it will be interesting to address the question as to why the Law was enacted. This Law was not considered necessary in earlier periods.
1. The position in respect of State Security Law during colonial days was almost same as the State Peace and Development Council (SPDC) regime. The Penal Code was extensively used and Defense of Burma Act similar to State Protection Law (1975) was used selectively.
2. In the period 1948 – 62, U Nu government had ruled under Public Order Provision Act (POPA), the Emergency Provision Act (EPA)(1950) and Unlawful Association Act (UAA) (1908). There was countrywide unrest. Its government lost control and became only repressing Rangoon government. Yet a Law like State Protection Law was not enacted. The three laws POPA, EPA and UAA were enacted to meet the abnormal conditions of the Country. By and large POPA was used and in extreme cases S 120 Penal Code was resorted to. The redeeming feature was that there was Constitution and Supreme Court and legal remedies were available.
3. In period’ 62 – 74 (military rule) when Revolutionary Council ruled under Ne Win after toppling the democratic government of U Nu, the necessity of this Law was not felt. Ne Win ruled under Emergency Provision Law 1950 and The Unlawful Association Act 1950–. It is to the credit of Ne Win that he did not feel the necessity of State Security Law. Those two Laws ironically passed by the democratic government were enough. Of course the MIS apparatus was the paramount Law to keep him in power.
The question therefore is -: Previous regimes did not resort to such draconian Law; Its creator was ’74 regime, same as the Revolutionary Council in the guise of political Party, BSPP. In spite of its own constitution with power to declare state of emergency or martial law and “elected judges” it had to resort to such a law as State Protection Law. In spite of holding Referendum and getting 99% people’s approval why did it resort to such blatant act?
The reason is that situation was explosive and unpredictable. People through their life experience learnt about the misdeeds of the Military officers. There had been a series of sporadic protests against military rule. Country was speeding towards a volcanic situation. The military regime needed an absolutely arbitrary Law. The more instability and threat a regime feels the more it has to resort to draconian Laws. This historical background has been provided to appreciate the roots of this Law.
However in 1991 SPDC made the law harsher by amendment 11/91. The right of appeal to judiciary was abolished. The semblance of justice was removed. The punishment of arbitrary detention was enhanced from 3 to 5 years. The pattern of law making by the military leaders confirms the theory that more they feel insecure, harsher the law they made and used them as tools to suppress any dissent.
This report attempts to examine the incompatibility of some of those extensively used laws with international human rights standard and that Burma is beyond the Law.