Document Type

Article

Disciplines

International Law

Abstract

In 1996, the Massachusetts Legislature enacted Massachusetts General Law Chapter 7, Sections 22G-22M (the "Burma Law") in response to human rights violations by the Union of Myanmar (formerly known as the Nation of Burma) against citizens thereof as well as to the regime's refusal to recognize the results of a democratic election held in 1990.1 In general, the Burma Law restricts the Massachusetts' government and entities thereof from purchasing goods or services from companies doing business with Burma.

The United States Department of State has declared that the 'people of Burma continue to live under a highly authoritarian military regime that is widely condemned for its serious human rights abuses."' 2 The military regime in control of Burma is referred to as the State Law and Order Restoration Council ("SLORC"). The SLORC "'continues to dominate the political, economic, and social life of the country in the same arbitrary, heavy-handed way that it has since seizing power in September 1988 after harshly suppressing massive pro-democracy demonstrations." 3 Furthermore, "'[t]here continue to be credible reports, particularly from ethnic minority-dominated areas along the Thai border, that soldiers have committed serious human rights abuses, including extra-judicial killing and rape.' ' 4 Reports indicate that arbitrary arrests, beating of detainees, and detention of political foes have resulted in several hundred, or more, political prisoners having been detained, including twenty-nine Members of Parliament.' In addition, the SLORC consistently restricts what the State of Massachusetts deems the basic rights of free speech, press, assembly and association.

Prior to the reluctantly held 1990 parliamentary election, the SLORC arrested the leader of the most powerful opposition party, Ms. Suu Kyi.7 Ms. Suu Kyi was held captive in her home from July 1989 until July 1995, unable to see her husband or children for much of this six-year period.' Despite being detained during the election, Ms. Suu Kyi's party won 81% of the vote and 392 of the 485 parliamentary seats available in the election.9 Despite the election victory, Ms. Suu Kyi remained under house arrest because the SLORC invalidated the election results.'" The SLORC has used military force to stifle opposing political parties, including barricading the entrance to Ms. Suu Kyi's home and arresting other members of her party.

Furthermore, the SLORC has continued assaults on ethnic minorities and launched its most severe attacks against the Karen and the Rohingya Muslims. 2 Starting in 1994, the SLORC regime ordered its army to attack the Karen and Mon enclaves residing along the Thai border. 3 In February of 1997, the Burmese Army (SLORC) launched a full-scale attack on the Karen people resulting in the relocation of approximately 12,000 Karen refugees to neighboring Thailand.' 4 In addition, army offenses, dating back to 1991, against approximately 24,000 Rohingya Muslims have forced their relocation to nearby Bangladesh.'5 The U.S. State Department estimates that the oppression and hostility inflicted upon minority groups in Burma by the SLORC has resulted in as many as 100,000 Burmese fleeing (Burma) to nearby countries. 6 Members of the minority groups, who were unsuccessful in escaping, were forced to join and serve the Burmese Army. 7 Presently, reports by the State Department and the President regarding Burma confirm the abuses and violations of human rights suffered by the ethnic minority.'8 Accordingly, it is the severe violations of human rights and the oppression inflicted upon the Burmese people by the SLORC for numerous years that has prompted the citizens of Massachusetts, and others, to take action in an attempt to express their outrage at the barbaric conditions in Burma.

In response to the enactment of the Burma Law which prohibits, with some exceptions, any state agency from procuring goods or services from any company doing business in or with Burma, the National Foreign Trade Council ("NFTC") brought suit in the U.S. District Court of Massachusetts challenging the Burma Law as being unconstitutional.' 9 The district court improperly granted summary judgment for the Plaintiff, NFTC, and the Commonwealth of Massachusetts has filed an appeal before the First Circuit. The purpose of this Note is to discuss the district court's improper ruling and explore a more logical approach that should be adopted by the First Circuit when ruling on the Commonwealth's appeal. Therefore, section II of this Note will discuss the Massachusetts Burma Law. Section III will discuss the actions taken by the U.S. Government. Section IV will analyze the district court's reasoning and ruling. Section V will then explore the issues on appeal and critique the district court's opinion as well as the Plaintiff's arguments. Section VI will conclude this Note.

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