MYANMAR: Draft Constitution by the Military- An Analysis

Paper no. 2667

10-Apr.-2008

Guest column by Dr. Tint Swe (The views expressed are those of the author) Burma is a country which has been ruled by Burmese Army without constitution for 30 years: from 1962 to 1974 and from 1988 to 2008. The military regime can do everything in Burma: crackdown, arrest and kill the students, the Members of Parliament and the monks. But it is impossible to kill the results of 1990 election because it was voted by the people. To kill the election results they twisted the Roadmap. The referendum like the election is where the people have opportunity to be involved. “Boycott” has no legitimacy. So to deny the constitution for perpetual military despotism the people have to vote “No”. The Burmese Army and the Constitution The Burmese Army was established as an ultra-constitutional authority and it will continue to be above the constitution and above the law and forever The Burmese Army is the institution which abandoned both constitutions by coups, 1947 and 1974 and it is the Burmese Army that drafted the new constitution of 2008 But in the draft it is said, “The Tatmadaw[1] is mainly responsible for safeguarding the State Constitution.” The Burmese Army held the election in 1990 and prevented the convening the parliament. The regime has announced that new election would be held in 2010 after this constitution was approved by the referendum on May 10th. The authorities are compelled to explain how they view the 1990 election result and the reason why they refuse to honor its results The drafting of the constitution 2008 The drafting of this constitution took 14 years 11 months and 12 days as the national convention was held off and on from 9-1-1993 to 17-12-2007 while 1974 constitution took only 7 months. When the NLD[2] and the ethnic parties surprisingly won the 1990 election, the regime announced that those elected representatives were to write a new constitution.[3] However when the national convention was practically held, in the beginning, only 15.24% of delegates were elected MPs. In the later sessions it was reduced to 1.38% Except political party representatives almost all delegates were hand-picked The procedures of the National Convention are utterly undemocratic as freedom of speech of the delegates to the Convention was strictly prohibited by order and through the intelligence officers monitoring all sessions All proposals submitted by NLD and the ethnic delegates were turned down One of the six objectives for the formulation of the constitution as stipulated in the SLORC[4] order 13/92 said the Tatmadaw (Army) was to be able to participate in the national political leadership role of the future State The largest election winners, the NLD and the SNLD[5] walked out of the national convention in 1995[6] as their legitimate demands were ignored On the Constitution Although it is written, “Sovereign power of the State is derived from the citizens” and “the Union is constituted by Pyidaungsu (Union) systems”, the SPDC[7] constitution is to establish an “Authoritarian Centralist” government. In many respects the constitution is blurred and puzzling and open to conflicting interpretations[8]. The proposed system is essentially a presidential system, with extensive powers vested in the President who will have to be an army officer. The military is to be entrenched in every institution of State, including the Presidency, the Parliaments, the Central and the local Governments. The President of the State shall have the right to appoint the Hluttaw representatives[9] or non-Hluttaw representatives as the Union Ministers and the Union Deputy Ministers. There will be virtually no opposition party or the Leader of Opposition which is characteristic of the multi-party democracy. The Chief Ministers will be nominated by the President and he or she may or may not be the same nationality of the people of the State while all States in Burma are formed on ethnic nationality basis. There is no guarantee for the rule of law or for the independence of the judiciary from interference from the military. ·        The State judiciary has no jurisdiction over the military ·        The Judges of the Supreme Court are to be nominated by the President ·        It is uncertain if the Supreme Court can even interpret the constitution ·        It is uncertain who can initiate laws and whether laws must be passed through the one House or both Houses ·        It is uncertain if the President can veto or ignore laws passed by the Union Assembly ·        These discrepancies are deliberate and are designed to give the military flexibility to control the administration. Aung San Suu Kyi or any woman or any non-military man cannot be the president The President of the Union shall be well acquainted with affairs of State such as political, administrative, economic and military affairs The President of the Union shall be a person who has been residing continuously in the country for at least 20 years up to the time of the election The President of the Union himself, parents, spouse, children and their spouses shall not owe allegiance to a foreign power, shall not be subject of a foreign power or citizen of a foreign country. They shall not be persons entitled to the rights and privileges of a subject or citizen of a foreign country Everywhere is Army (Tatmadaw) The Tatmadaw has the right to independently administer all affairs concerning the armed forces The Tatmadaw has the right to administer for participation of the entire people in State security and defense i.e. all citizen can be made soldiers If civil servants are elected in the elections, they are required to retire from their occupations and give up the facilities, provided by the state. However, military officials, who are to sit in the Parliament, can keep their military positions and state facilities like house, car etc. The Army which has approximately 400,000 and which is 1/8th of the approximately 32,000,000 voters will have 1/4th of all Parliamentary seats (110 out of 440 Lower House seats and 56 out of 224 Upper House seats) and all are nominated The Defense Services Commander-in-Chief is the most powerful person under this constitution ·        His appointment and removal are not referred to in the constitution ·        He will appoint army officers as the security and the border affair ministers in the State/Region and in the Self-Administered Division and Zones governments ·        He is entitled to nominate 25% of all members of the Union Assembly[10], the People's Assembly[11] and the State Assemblies and Regional Assemblies and the self-administered areas and district executive organs [12] ·        He is also entitled to nominate the Ministers of Defense, Security/ Home affairs and Border affairs ·        He can appoint 6 out of 11 members of the National Defense and Security Council which can declare a state of emergency[13] ·        He will administer all military affairs, including recruitment and expansion of troops, promotion, troop positioning, budget, procurement and manufacturing of weapons, military-owned businesses, etc, Amending the constitution – no easy matter Any amendment will have to be submitted to the Union Parliament[14] with a sponsorship of at least 20% of the Parliament Representatives Although the other chapters can be amended with over 75% of the support of the Parliament, to amend the main Chapters, including State Fundamental Principles, Formation of the State, Formation of Legislative Power, Formation of Administrative Power, Formation of Judiciary Power, State of Emergency, in addition to over 75% of the support of the Parliament, over 50% of support in a national referendum is required In the official version of the draft constitution received by political parties, there is intentionally-made typing error which said the constitution be approved by all voters at the referendum. Only when NLD pointed out, the correction was added as it required simple majority at the referendum The Referendum – No freedom to vote without fear: with its strong aim methods to intensify The military regime continues exacerbating the climate of fear and intimidation leading up to the constitutional referendum on 10-5-08. ·        On 29 February, SPDC Special Branch police arrested three Rangoon residents for making comments about the referendum ·        The SPDC also ordered civil servants to vote “Yes” ·        SPDC local authorities appointed poll booth officers and instructed them to get “Yes” votes ·        In Townships across Burma the regime set up sub-commissions staffed mainly with local SPDC officials and USDA members ·        The SPDC charged about 20 detained pro-democracy activists, including 88 Generations Students under Decree 5/96 Other Flaws: The Law carries a three-year prison term and a fine of 100,000 Kyat for anyone who makes speeches or distributes leaflets to disrupt the voting process, tampering with ballot boxes, distributing leaflets or makes speeches against referendum Decree 5/96 punishes criticism of the regime’s “roadmap to democracy” with up to 20 years in prison The Law does not set the timing when to declare the vote results The Law also allows for voting to be postponed or cancelled in places affected by a “natural disaster, security breach or other harm that could endanger the holding of a free and fair referendum” Chief Justice U Aung Toe who was Chairman of the National Convention Convening Work Committee as well as the chairman of the State Constitution Drafting Commission is also chairman of the National Referendum Commission Only 21 days in advance, the date for referendum was announced and on that day copies of constitution are sold at 1,000 Kyat per copy No observers are allowed to oversee voting or ballot counting ·        The Burmese regime has firmly rejected the UN proposal for serious dialogue, and amendments to the draft constitution ·        The regime rejected an offer of UN technical assistance and help with providing observers at the referendum What to do with referendum?  This constitution cannot be supported because ·        It is designed to create the military as the first class elite strata and USDA as the second elite class while the people of Burma will remain a third class citizens to serve for the pleasure of the military ·        It is to perpetuate Military Despotism ·        It denies all democratic, and human rights, all rights of ethnic nationalities  The NLD has urged the entire people of Burma to stand up and reject this unacceptable constitution decisively by voting “No” in the referendum Burma Army’s constitution and a bit of help from India  It is unfortunate that during the high profile visit of Vice Senior General Maung Aye to India, there was no mention of constitution or referendum by both sides. Foreign countries may not be obliged to comment on the constitution writing in Burma. However the people of Burma will be happy if democracies speak out. Perhaps one of the numbers of India constitution experts should come up with commentaries so that Indian people will come to know what kind of Burmese President will pay the next state visit to New Delhi.   (Dr. Tin Swe is an elected member of Parliament  from Burma from the NLD now living in F-15, Vikas Puri, New Delhi and can be reached at his mobile- 981-000-3286, e-mail ncginida@vsnl.com). [1] Tatmadaw = Burma Army [2] NLD  =National League for Democracy which got 392 seats in 1990 election [3] The SLORC Announcement 1/90 on 27-7-1990 [4] SLORC = State Law and Order Restoration Council [5] SNLD = Shan National League for Democracy which got 33 seats in 1990 election [6] NLD party chairman U Aung Shwe: “The NLD has come to the conclusion that it will not benefit the nation by participating in the National Convention. Therefore it has been decided that the NLD will not attend the convention.” SNLD chairman U Khun Htun Oo: “We will not attend the NC because we know our demands will not be fulfilled.” [7] SPDC = State Peace and Development Council [8] (5) (a) the three branches of State power, namely legislative power, executive power and judicial power are separated as much as possible and exert reciprocal control, check and balance among themselves; [9] Hluttaw representatives = Members of Parliament [10] Pyidaungsu Hluttaw = Union Assembly (Upper House + Lower House) [11] Pyithu Hluttaw = People’s Assembly (Lower House) [12] The thirty Comrades who led the struggle for independence from British and Japan did not asked for reservation in the constitution [13] Members of the NDCS are: (i) President, (ii) Vice-President, (iii) Vice-President, (iv) Head of Peoples' Parliament, (v) Head of National Parliament, (vi) Commander-in-Chief, (vii) Deputy Commander-in-Chief, (viii) Minister for Defense, (ix) Minister for Home Affairs, (x) Minister for Foreign Affairs and (xi) Minister for Border Area Affairs [14] The Union Parliament = The joint session of the Peoples' Parliament and the National Parliament [15] The USDA was established in September 1993, under the patronage of Senior General Than Shwe, as an instrument for the mobilization of support for the military government. The USDA has 24 million members among 32 million voters. After the referendum, USDA is expected to become a political party to contest the 2010 election