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Political Mythology Print
This page contains an analysis of 'mythology' about the situation in Myanmar since the military coup on 18 September 1988, a result mainly of both misinformation and disinformation. The page may be expanded and revised from time to time as more materials become available. The present revision is dated 17 February 2012.
1. The 1990 Elections

The elections held on 27 May 1990 were not to a governing parliament, but to a Constituent Assembly. Although there was no Decree specifically stating this, but only speeches and press statements to this effect, foreign correspondents covering the elections were in no doubt that the elections were only the first stage in the constitutional process set out by the State Law and Order Restoration Council (SLORC). They reported prior to the elections that the task of the new Assembly was to draft a Constitution and arrange a national referendum, and most agreed that there would then need to be a second election based on the new Constitution, if approved. International correspondents who covered the elections from within Burma were briefed in this sense by the Election Commission, which is why they reported as they did. Although not granted a visa to cover the elections, that arch-critic of the military regime Bertil Lintner reported in the 'Far Eastern Review of 24 May 1990, only three days before the elections: "Diplomats say it might take up to two years to write a new constitution, have it approved by a referendum and then hold fresh elections. Meanwhile, the military will remain in power.”

After the elections, the SLORC negotiated with the NLD on this issue and reached an understanding with the NLD Central Executive Committee about the drafting of a new Constitution. This understanding was however rejected by the NLD rank and file, who demanded the immediate transfer of power. An extract from a 2008 paper by Hong Kong based academic Kyaw Yin Hlaing sets out the background. The full document is at this link.

Daw Aung San Suu Kyi (who was detained on 20 July 1989 and remained under house arrest until 10 July 1995) fully understood the position in this sense. In her interview with Dominic Faulder of  AsiaWeek on 1 July 1989, she told him: "Whoever is elected will have to draw up a Constitution that will have to be adopted  before the transfer of power. They haven't said how the Constitution could be adopted. It could be through a referendum, but that could take months and months, if not years." ('Freedom from Fear' Chapter 17 Page 225) The detailed evidence is available at this link and is beyond any reasonable doubt. Suu Kyi herself has recently confirmed that she herself was not in favour of taking part in the 1990 elections, reflecting her 1989 expressed conviction that the NLD could not participate in the elections until the question of the transfer of power was resolved, which it never was. This does not mean that the elections were not a free and fair expression of the will of the people as repeated General Assembly Resolutions asserted in the 1990s.  But it does explain why the SLORC refused to hand over power to the National League for Democracy which won the elections by a landslide. The transfer of power was simply not in the electoral 'contract' which the SLORC had not adequately clarified prior to the elections and which in any case the NLD had decided  to reject as unacceptable. In the circumstances, and with hindsight, a post-election confrontation was inevitable.

The results of the elections were valid from 30 June 1990, when the final results were announced, until 10 March 2010 when it was decreed under Article 91 (b)  of the Pyithu Hluttaw (Lower House) Election Law  that: "As the Multi-party Democracy General Election held under the law repealed by this Law is no longer consistent with the Constitution, the results of the said election shall be deemed to be invalidated automatically." Khin Aung Myint, the Speaker of both the Upper House and the Union Parliament, acknowledged in an interview in the Yangon Times in October 2011 that "I recognize the results of 1990 election. I am explaining the details because I recognize the election results. This incident cannot be abolished and I have no intention to abolish." The NLD and Daw Aung San Suu Kyi have taken note of this acknowledgement and have said they are satisfied with this recognition, though Khin Aung Myint expressed no opinion about the purpose of the elections, whether to a Constituent Assembly or to a governing Parliament.
2. The National League for Democracy and the 2010 Elections

There are several myths about the NLD and the elections held on 7 November 2010. The main myth is that the NLD would have had to expel Daw Aung San Suu Kyi from the party because she was held to be "in prison". [The relevant clause was revoked on 4 November 2011.] In fact, Suu Kyi was not in prison. She was under "restrictive residence" as a result of a Directive issued by the Head of State. This meant that her party membership was not threatened, that her name remained on the electoral roll (which was later confirmed) and that she was not debarred by her civil status from standing for election, though it seems very likely indeed that she would have been debarred on other grounds. This mirrored exactly her position at the time of the 1990 elections - see Pages 17-19 at this link.
Only the Union Election Commission could have ruled on her case in 2010, and they were never asked as Suu Kyi had made it clear that she would not dream of taking part in those elections. Even so, in her second BBC Reith lecture on 5 July 2011, Suu Kyi claimed that: "This [persons in prison or appealing aginst their sentences] included me as I would have to be expelled if the NLD wanted to register." Had the Union Election been asked for a ruling, however, it is likely that they would have decided that the prohibition did not include her as she was appealing against her prison sentence from outside prison.

Another myth is that Suu Kyi was debarred from standing for any elected seat because of her marriage to a British citizen, Michael Aris, who died on 27 March 1999 aged 53.  There is no such provision in the 2008 Constitution. Suu Kyi is however ineligible to be nominated as a candidate for the presidency or vice-presidency because her two sons are  British, though they once also enjoyed Burmese citizenship, which was taken away from them. As regards her marriage, the Constitution would have debarred her from the presidency or vice-presidency if her husband were not deceased.
3. The Immunity Clause in the 2008 Constitution

Article 445 of the 2008 Constitution grants immunity to members of the government and to members of the State Law and Order Restoration Council and its successor the State Peace and Development Council "in respect of any act done in the execution of their respective duties." It is alleged that this immunity clause grants impunity to anyone in the former regime responsible for human rights abuses. It should be pointed out that it only applies to SLORC/SPDC members and government ministers and that any rational interpretation of the clause can only mean acts lawful under the laws then in force. In any case, a government cannot grant immunity from human rights abuses deemed to be crimes against humanity or war crimes which are a matter of international humanitarian law. No such claim to immunity has been made by the present administration, though impunity for human rights abuses is still far too widespread.
4. Senior General Than Shwe still in control after the transfer of power

After the transfer of power to a civilianized regime on 30 March 2011, many not unreasonably supposed that Senior General Than Shwe, the former Chairman of the SPDC, might still be "pulling the strings" from behind the scenes. To give substance to this conviction, The Irrawaddy magazine reported on 10 February 2011 that Than Shwe was to head an "extra-constitutional" State Supreme Council which Than Shwe himself "had revealed". In fact Than Shwe made no such announcement and the existence of this supposedly eight-body Council would seem to be a total myth. Than Shwe has also allegedly been reported to be a member of the eleven-body National Security and Defence Council set up under Article 201 of the 2008 Constitution, although any present or previous position he might have occupied is not mentioned in Article 201. These reports persisted until quite recently. As recently as 9 December 2011, The Irrawaddy claimed on the basis of what it called circumstantial evidence and reports from "military insiders" that Than Shwe was still "pulling the strings."

It has also been reported that  Law 28/2010 issued on 4 November 2010, the Myanmar Reserve Forces Act, and so only three days before the 7 November 2010 elections, provides that members of the military, on retirement, become members of the reserve forces for a period of five years. These provisions apply to all ranks, and so would apply to senior ranks as well, including the Commander-in-Chief himself. But this would surely not allow Than Shwe to resume leadership of the military if he felt the need to, though this interpretation is postulated by both the International Crisis Group  (see Page 8 of their report at this link) and Win Min, an experienced and respected defence analyst based in Thailand. It is in any case probably now out of the question that Than Shwe, whose retirement was recently yet again confirmed, would ever be invited to return to his former position, and even less likely that he could do so "if he felt the need".

Law 28/2010 was to be given effect by a Notification by the SPDC Chairman, and this responsibility would have passed to the President on the dissolution of the SPDC. There is no evidence that such a Notification was in fact issued by the SPDC Chairman before the dissolution of the SPDC or has yet been issued by the President. The Law may then have been enacted, but it is almost certainly not in force. The same applies to another law also enacted on 4 November 2010 - the People's Militia Act providing for up to two years' national military service. It has likewise yet to be brought into force. Both laws would seem to have been enacted primarily as contingency measures.
5. The Amendment to the Political Parties Registration Law

After much speculation, on 4 November 2011 an amendment was made to the 10 March 2010 Political Parties Registration Law. The amendment brought the law into line with the 2008 Constitution and previous constitutional practice in Myanmar. Political parties are no longer required to "safeguard" the constitution, but only to "respect" it as required by Article 405(b) of the Constitution. [Presumably political parties are also now required to "abide by" the Constitution as provided for in Article 405(b), though the text of the Amendment has unofficially been interpreted as "obey" in the only and still unofficial translation at present available.] A clause denying persons currently in prison membership of political parties has been revoked, thus enabling an estimated 200 NLD political activists still in prison to keep their party membership. Finally, an explanatory clause has been added to  make it clear that in the event of multi-constituency by-elections (as will happen soon when some 48 vacated seats are to be contested as their incumbents have accepted ministerial posts and are required under the Constitution to resign as elected members of various assemblies), political parties will be required to contest at least three seats, as is already the case at general elections.

The Amendment is no more than a tidying up exercise to remove anomalies in the PPR Law.  It has however been widely misinterpreted as allowing anyone who has ever been convicted, whether in prison or not, to re-acquire party membership rights. Human Rights Watch even interpreted it as "removing restrictions on candidates with prior prison convictions from contesting elections." Western Governments too are not immune from the euphoria. President Obama would seem to refer obliquely to this Amendment when he recently said that  "legislation has been approved which could open the political environment." A senior US administration official likewise recently said that "the amendment of the political party's registration law allows for much broader participation of various political groups inside the country going forward." The EU High Representative for Foreign Affairs has also congratulated  the Government of Myanmar "for passing the amendments to the law which have enabled the NLD's decision." This is not to suggest that the US, the EU and indeed the NLD themselves are not aware that the Amendment hardly amounts to a row of beans, but as the NLD needed an excuse to re-register, no one saw any good reason to undermine that excuse through any public dismissal of the Amendment as only marginally relevant. The senior ranks of the NLD include a number of litigious lawyers who can be in no doubt about the precise meaning of the Amendment.
6. UN Special Rapporteur Quintana and a UN Commission of Inquiry

In March 2010 the UN Special Rapporteur on the situation of human rights in Myanmar, Tomás Ojea Quintana, issued a progress report in which he expressed concern at the lack of accountability for possible human rights abuses and proposed in Paragraph 122 that "United Nations institutions may consider the possibility to establish a commission of inquiry with a specific fact-finding mandate to address the question of international crimes." This was no more than a proposal that a UN body might like to consider such a possibility. The English text is perhaps a little obscure, which is no doubt why the French version suggested that UN institutions "voudront peut-être envisager la possibilité" or "might perhaps wish to consider the possibility" of a UN-led body setting up a Commission of Enquiry.

Almost immediately the UN Special Rapporteur's proposal was interpreted by human rights and activist organisations as a call by him to set up such an Inquiry. No doubt Quintana would have liked to have made such a call, but he did not in fact do so. His mandate as Rapporteur appointed by the Human Rights Council meant that he could only make such a proposal directly to the Council and he no doubt knew that such a proposal would have little chance of success. As it is, he probably exceeded his mandate by making a proposal to UN institutions generally, but is not to be criticised on this count because representatives at Council meetings knew exactly what he was proposing and understood the problems which would arise in giving effect to this proposal in any UN body, whether the Security Council, General Assembly or Human Rights Council itself.

A result though of this deliberate misrepresentation of Quintana's proposals was that a world-wide campaign for a UN-led Inquiry ensued which received the general support of only twelve members of the EU as well as the US, Canada, Australia and New Zealand (that is, 16 out of 193 members of the United Nations), all sixteen of whom had come under strong domestic pressure to make a supportive statement but who declined to take any specific action to give effect to Quintana's proposal. All sixteen countries subsequently co-sponsored with twenty-eight other countries a draft Resolution in the General Assembly Third Committee which contained no reference to any "Commission of Inquiry" but in Paragraph 11 urged the Government of Myanmar "to undertake without further delay a full, transparent, effective, impartial and independent investigation into all reports of human rights violations and to bring to justice those responsible in order to end impunity for violations of human rights, and, regretting that previous calls to that effect have not been heeded, calls upon the Government to do so as a matter of priority and, if necessary, drawing on the assistance of the United Nations."

The  US position, reflecting the Western position generally, was well expressed in Yangon on 2 December 2011 by US Secretary Hillary Clinton when, in response to a question on the prospective Committee of Inquiry, she told a press conference: "We are going to support the principle of accountability, and the appropriate mechanism to ensure justice and accountability will be considered, but I think it’s important to try to give the new government and the opposition a chance to demonstrate they have their own approach toward achieving that." Quintana himself likewise stresses these days that "truth, justice and accountability are primarily the responsibility of the state, but the international community has also obligations in this respect." For the present, the idea of a UN-led Inquiry has been quietly put on ice.
7. Myanmar a "Threat to the Peace" under Chapter VII of the UN Charter 

On 12 January 2007 the US and the UK presented a draft Resolution to the UN Security Council highly critical of the Myanmar Government. China and Russia had made it clear prior to the Council meeting that they would veto any such Resolution if introduced. The US and the UK nonetheless went ahead and the Resolution was duly vetoed. In the discussion at the Council Meeting Western countries made it clear that, in their opinion, the situation in Myanmar was indeed "a threat to the peace" in the region and thus meriting discussion under Chapter VII of the UN Charter. This view was rejected by China and Russia. There is of course no forum to which the matter could be referred for arbitration as the views of Council members are sovereign and beyond appeal. 

It is for members of the Council an entirely subjective judgement whether a situation is "a threat to the peace" or not. There are plausible enough reasons to allege this in the case of Myanmar, notably the serious outflow of refugees, the extent of cross-border narcotics trafficking and a number of other issues having transnational implications (trafficking in women and children, the spread of infectious diseases). However, the notion of "a threat to the peace" is unconvincing in a situation where not a single neighbour of Myanmar, nor any country in the region, nor any regional organisation supported the Western position, but even denied that they felt under threat. 

An impetus to raising the matter in the Council was given by the publication in September 2005 of a document commissioned by Bishop Desmond Tutu of South Africa and Vacláv Havel of the Czech Republic "Threat to the Peace: A call for the UN Security Council to act in Burma." prepared by a US law firm DLA Piper. The publication was however more of a political campaigning document than a serious legal study. No government formally endorsed the report, whose main recommendation was that: "The UN Security Council should adopt a resolution on the situation in Burma in accordance with its authority under Chapter VII of the UN Charter (Article 41) and past Security Council precedents." The reference to Article 41 was clearly a mistake, because that Article concerns measures which the Council may decide are to be employed to give effect to its decisions, including sanctions of various kinds. However, the report denied that it was the intention to call for sanctions at this stage, thus leaving readers puzzled about why the report had mentioned Article 41 in the main recommendation. 

The report claimed that seven Council Resolutions provided firm precedents for taking action. However, none of the precedents was relevant. Four of the Resolutions quoted - Afghanistan (1076/1996), Yemen (924/1994), Rwanda (812/1993) and Cambodia (668/1990) - neither determined a threat to the peace, nor made reference to Chapter VII. The other three Resolutions - Haiti 841/993), Sierra Leone (1132/1997) and Liberia (788/1992) - while determining a threat to the peace under Chapter VII made clear the pressing concerns expressed by regional organisations and states, which were totally lacking in the case of the situation in Myanmar.  

As a result, the report was of no technical value to Council members at the time who, in their presentations inside and outside the Council, at no stage referred to the report as a whole or even to elements in the report in support of their argumentation. US Ambassador to the UN John Bolton did refer at press conferences to another Resolution 688/1991 (not quoted in the report) which mentioned refugees from Iraq, but even that was not a sound precedent because it was motivated by representations from Iraq's immediate neighbours, Turkey and Iran. 

All in all, the Western assertion of "a threat to the peace" remains unconvincing, though it continued up to  late 2010 to be made from time to time.
8. Burma or Myanmar?

In the Burmese language, 'Myanma' has long been the more formal name of the country. It is the name used in the Burmese-language version of the 1947 Constitution enacted in the last year of British rule. It has existed side by side for centuries with the more colloquial 'Bama'. However, a leading nationalist association in the 1930s called Do Bama Asia Yon ("We Burmese Association"), of which Aung San was a founder member, chose the name 'Bama' on the grounds that 'Myanma' only represented the traditional territory of the Burman Kings and did not include the non-Burman peoples. Likewise  in 1943 the name of the State set up by the Japanese was also called 'Bama' in Burmese, so the distinction between  Myanmar ('Myanma') as the literary designation and Burma ('Bama') as the popularly spoken designation is in no sense rigid. It is quite possible that both names are derived from a common etymological  source, as 'm' and 'b' are both labials and are often transposed, e.g. Mumbai and Bombay. The 'r' has been added in the English spelling to make it clear that the final 'a' in 'Myanma' (as also in 'Bama') is a long vowel.  Indeed, Burma was sometimes written 'Burmah' as in "Burmah Oil Company".

In 1989, the then military regime, the State Law and Order Restoration Council, changed the official English name of the country from 'Burma' to 'Myanmar'. The name in Burmese remained unchanged - 'Myanma'.  The Council argued that the change had been made because 'Burma' was the old colonial name and that 'Myanmar' was more inclusive of the non-Burman nationalities in the country.  There is however controversy about whether this is historically correct. A range of interpretations exists. They are often quite contradictory, at times politically motivated. It is best to retain an open mind. The Myanmar-English Dictionary compiled by the Myanmar Language Commission is only concerned with one of Myanmar's scores of languages - the Burmese language. In this context "Myanmar" only has a restricted meaning.

Because the name was changed by the regime without any attempt at popular consultation, opponents of the regime decided to continue to use the old English name 'Burma', on the basis that the change in name was unlawful without popular consent. Some Western countries, including the US, UK, France, Canada, Australia and New Zealand, have continued to use 'Burma' in support of Daw Aung San Suu Kyi who made it clear that she did not favour the change either. Indeed, use of the name 'Burma' has become an article of faith in some quarters. However, in the European Union, some members were inclined to accept the change of name in accordance with international practice and accordingly use the name 'Myanmar' on the basis that it the correct protocol. This caused something of a dilemma for the EU, who have temporarily resolved the issue by concocting the hybrid 'Burma/Myanmar'. Recent statements from Brussels however have shown a preference for 'Myanmar(Burma)'.  In the Western press generally, 'Myanmar' seems to be gaining ground over 'Burma'. The 'Financial Times' announced on 5 January 2012 that with immediate effect they would use 'Myanmar'. This decision has evoked comment.

There is a very clear international protocol and practice on the matter. Every State is entitled to designate its name in the English language. Accordingly, the country formerly known as 'Burma' is now seated as 'Myanmar' in the United Nations, and this name is used by all States in all formal communications with the authorities of that country, including Diplomatic Notes, Letters of Credence and Recall and international treaties. When the US and the UK sponsored a Resolution in the Security Council in January 2007, the Resolution presented by the two countries was entitled: "The Situation in Myanmar". Even so, those Western countries which still popularly refer to the country as 'Burma' occasionally use that description during discussions and debates in a UN context. Whenever the delegate of Myanmar objects, the chairperson of the meeting reminds the delegate using 'Burma' to refer to the country by its official name. The admonition by the chairperson is invariably respected, though some Western countries respond simply by not using any name at all.

It is perfectly in order as a matter of common practice to use the name of a country as it might be more widely known. In the UK, more people have probably heard of 'Burma' than of 'Myanmar'. It is however a serious breach of diplomatic protocol and international practice to use the name 'Burma' in an international diplomatic context. During her visit to Myanmar in December 2011, US Secretary of State Hillary Clinton avoided all use of the description 'Burma' in her talks with her Burmese hosts, referring to 'your country'. It would have been regarded as highly insensitive had she not done so. Western diplomats in Myanmar all use 'Myanmar' in any discussion where local representatives are present. It would be thought boorish, if not offensive, to use 'Burma'. 

Although it is true that in 1989 the change of name was not approved by popular consent, in 2008 the full name of the country in English was changed from 'The Union of Myanmar' to 'The Republic of the Union of Myanmar' in the Constitution presented for popular approval in a national referendum. Though there are serious reservations about the way in which the referendum was conducted, it was approved, according to the official statistics, by 92.48% of the voting population. This could not unreasonably be interpreted as a popular endorsement of the name 'Myanmar' and that whatever reservations might have been held because of the 1989 decision, these reservations are no longer valid in the light of the 2008 referendum. 

Western countries which still use the name 'Burma' are nowadays very much on the defensive. They are fighting a battle which they cannot hope to win. Both the US and Australia have publicly hinted that their policy could be open to review. The new civilianized regime in Myanmar can have no intention of submitting the issue to another popular referendum in view of the 2008 result. Now that the National League for Democracy (NLD) has submitted an application to the Union Election Commission to register the party under the old name, it has undertaken to 'abide by and respect' the Constitution as required in the Political Parties Registration Law recently revised to make it consistent with the wording of the Constitution. The NLD has said incongruously that they decided to apply for fresh registration because of changes to the Constitution which they say met their concerns. 

A more serious problem for Western countries still wedded to 'Burma' is that use of this designation is seen by almost all other countries, and especially those in the Asian region, as pejorative. It is interpreted as yet another example of the West's attempts to exceptionalise Myanmar's problems. It brings the West no credit and is even redolent of a Western imperialist mentality. 

[None of the issues discussed in this clarification applies to the renaming of geographical names in Myanmar, such as Yangon for Rangoon, Ayeyawardy for Irrawaddy and Kayin for Karen. Nor does the article consider whether to use in English the adjectival 'Burmese', 'Myanmar' or 'Myanma' (reflecting the shorter final 'a' in the Burmese adjectival form).  This article is solely concerned with the official name in English of the State.]
9. The "right" of the Commander-in-Chief to take over power
 
In an interview published in the Washington Post on 20 January 2012, Suu Kyi is reported to have said that "Our present constitution gives the military far too much power. Although the President is the head of state, he is not necessarily the highest power in the land. The Commander-in-Chief can take over all powers of government at any time he feels it to be necessary. That must be very difficult if you are in the position in which our President is."  

This view has been expressed by many others, like Bertil Lintner, so Suu Kyi is not alone. But she and they would seem, with respect, to have misunderstood the Constitution or, in Suu Kyi's case probably been badly advised by colleagues in the National League for Democracy. Article 40, in Chapter I on "Basic Principles", states that the Commander-in-Chief "has the right to take over and exercise State sovereign power" but only "in accord with the provisions of the Constitution". The provisions on the declaration of a State of Emergency occupy the whole of Chapter XI. According to Article 410 in this Chapter, it is the President who "may, after consulting with the National Defence and Security Council, promulgate an ordinance and declare a state of emergency." Article 418 also provides that "the President shall declare the transferring of legislative, executive and judicial powers of the Union to the Commander-in-Chief to enable him to carry out necessary measures to speedily restore its original situation in the Union."

The Commander-in-Chief's "right" formulated briefly in Article 40, which was first released as Article 28(c) in September 1993 in what was known as the "104 Basic Principles" and has since remained virtually unchanged, should surely be interpreted in accordance with the detailed provisons of the Constitution.  

Constitutions, however, are rarely an impediment anywhere in the world to Army commanders bent on staging a coup.
 
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