Myanmar at the HLP Crossroads: - Displacement Solutions

Myanmar at the HLP Crossroads 32The Socialist Military Regime: 1962-1988On 2 March 1962, the military, led by General Ne Win, staged a coup d’etat overthrowing the democraticallyelected Government and establishing a Socialist Revolutionary Council that ruled by decree. The RevolutionaryCouncil launched its own political party, the Burma Socialist Programme Party (BSPP), whose membership wasdrawn largely from the ranks of the military. All democratic structures including parliament, the civil administrationand the judicial system were dismantled and abolished. The 1947 Constitution was not formally repealed,however, the dismantling of all major democratic institutions left many of the provisions inoperative or irrelevant.One of the first decrees of the Revolutionary Council was that all laws would continue to be in force unless specificallyrepealed.In 1971, the BSPP transformed itself into a civilian government. A one party State was created with no separationof powers doctrine. The socialist regime created the “People’s Judicial System” with the vast majority ofjudges being drawn from the ranks of the party and having no legal qualifications. The bar of freelance lawyerswas converted into salaried People’s Attorneys who received their income from the State. In addition to codifiedlaw, traditional Burmese notions of community, harmony, fair play and socialist concepts were among the factorswhich affected court decisions. Further, in 1973, the Government published a Courts Manual that stated thatjudges should not refer to any decisions from other countries nor earlier decisions of Burma’s courts.In terms of legislative treatment of HLP rights during the socialist period and acting under the slogan “theBurmese Way to Socialism”, the State embarked on an expanded programme of large-scale nationalisation ofagriculture, building on the Land Nationalisation Act and including the nationalisation of rice production in 1962.The first HLP law approved by the new regime, the Protection of the Right of Cultivation Act (1963), statedthat the following were protected: (1) agricultural land; (2) cattle and ploughing implements; (3) tractors andmachinery; (4) other implements whether animate or inanimate; (5) prohibition from confiscation for any reasonof agricultural produce and arrest of cultivators. It was also stipulated that such protection would not apply in thecase of: (a) non-payment of dues owing to the state; (b) disputes arising from inheritance cases or actions takenby the state for security reasons. The Act also empowered the State to confiscate land in lieu of debts, or if “statesecurity” is threatened.The Tenancy Act (1963) and Tenancy (Amendment) Act (1965) further took control of land from agriculturalistsand placed it into the hands of the state. (16) The Tenancy Act provided that the government may order any landto be leased to tenants, usurping the right of landowners to lease their land. The subsequent Tenancy (Amendment)Act (1965) further strengthened the hold on land by the State and provided the Government with authorityto issue regulations for tenants working on the lands leased from the State. The cultivators who, under the LandNationalisation Act, possessed the right to own land now become lessees under the laws. Both the Land NationalisationAct and the Tenancy Act empowered the state to determine which crops agriculturalists grow. Noncompliancewith this and other conditions could result in confiscation of land, fines and imprisonment.After 12 years in power, the socialist military regime approved a new Constitution in 1974. The Constitutionentrenched the position of the BSPP as the only legal political party in the country and the non-separation ofpowers and the non-independence of the judiciary become constitutionally formalised and complete. As onecommentator has noted, “a monolithic political structure without checks and balances was constitutionalised”. TheConstitution proscribed socialism as the official ideology of the state and the rights and freedoms granted werecircumscribed by an overriding duty on the part of citizens to refrain from undermining: (a) the sovereignty andsecurity of the state; (b) the essence of the socialist system; (c) the unity and solidarity of the national races; (d)peace and tranquillity and (e) public morality.The 1974 Constitution did not explicitly repeal the 1947 Constitution, and asserted that existing laws and rules,so long as they were not inconsistent with the 1974 Constitution, remained in force until they were repealed oramended by the Council of State. This may be significant as arguably some of the provisions of the 1947 Constitutionare still in force. One example is compensation for private property that has been expropriated in the public(16) Hudson-Rodd, supra n47.