The international community acts as if development and engagement alone can secure a democratic future for Burma.  The United Nations and donor countries, with staggering rapidity, are investing considerable amounts of international and bilateral aid in Burma, including for “rule of law” projects designed to jettison Burma into the 21st century global legal community.  However, this well-intended engagement, touting ideals of democracy and the rule of law, is built on a fallacy, which neither serves the people of Burma nor advances the global security sought by the international community.

This fallacy is that justice, democracy, and rule of law can be established in Burma notwithstanding the fact that the 2008 constitution establishing the “Republic of the Union of Myanmar” grants the “Defense Services,” under Commander-in-Chief Min Aung Hlaing, complete and total legal autonomy over its own affairs, as well as immunity for its actions, however criminal or corrupt.  The truth is actually quite simple: unless and until the military is placed under civilian control through constitutional amendment, talk of democracy and rule of law in Burma is just that, talk.

Autonomy and immunity guarantees in the constitution give the military a green light to wage war and commit war crimes; power over the police; and exert a monopoly over all weapons and disarmament programmes, as well as Burma’s development of nuclear capability for any purposes.

There are good reasons for the military to be responsive to international pressure to amend the constitution so that true democracy can take hold, given that development and aid greatly benefits the military’s economic interests. But the international community is not using its considerable power to pressure the military. Instead, it ignores inconvenient truths such as continuing military attacks against civilians in ethnic areas, secretive weapons development, and failure, after some 60 years of armed conflict, to ever prosecute any member of the military for war crimes despite evidence of the endemic use of child soldiers and the rape of ethnic women as a weapon of war.

A nation’s constitution is usually considered to be a quintessential exercise of sovereignty, and not typically a matter for international action, but just who has sovereign power in Burma? The legal definition of “sovereignty” or of a “sovereign” state requires that the state have complete legal authority over the military and over the constitutional amendment processes.  In this case, the “Republic of the Union of Myanmar” does not meet the standard of a sovereign state.

The international community must recognise, as do democracy activists on the ground that for true democracy to take hold, the constitution must be amended to reflect the will of the Burmese people rather than the political designs of the military. The constitution anoints the military as the “guardian of the constitution” and gives the military control over passage of any constitutional amendments.  The military drafted and designed the constitution to preserve its political power rather than foster democracy and the rule of law, and it will take concerted international effort to convince the military to open the window to change.

To find evidence of the troubling autonomy of the military – not to mention the inconsistencies between military action and civilian government rhetoric – one need look no further than the ordering of the army not to attack any ethnic minority groups by President Thein Sein on 19 January 2013. Hours after the announcement, the military renewed its offensive against the Kachin Independence Army (KIA), heedless of any efforts by the civilian government to negotiate a lasting peace.

On 29 November 2012, the use of white phosphorous against peaceful protesters demonstrating against Latpadaung, a copper mine in central Burma, provided additional evidence of the rogue nature and power of the military.  The copper mine project involves a contract between Union of Myanmar Economic Holdings Limited (UMEHL), a conglomerate run by the military, and the Chinese company Wanbao, which puts military economic interests at the center of the controversy. Military-owned corporations, the greatest source of wealth in Burma, are not taxed as are other businesses, thereby curtailing a crucial revenue stream that could be invested in the people of Burma, such as by increased spending on desperately needed health and education programmes.

[pullquote] “The legal definition of ‘sovereignty’ or of a ‘sovereign’ state requires that the state have complete legal authority over the military” [/pullquote]

According to a recent investigation conducted by the Lawyers Network (Burma) and Justice Trust (USA), police used excessive force, “including military-issue white phosphorus weapons,” injuring more than 100 monks with severe chemical burns.  The use of white phosphorous against civilians is illegal under international law and in direct conflict with the promises made by President Thein Sein’s representative on 23 November 2012 to forge a non-violent solution to the protest.

This incident raises serious questions about who authorised the use of this dangerous chemical weapon against peaceful protesters and about the contradiction between the civilian government’s promises and the police actions.  The police forces in Burma report to the Minister of Home Affairs, Lieutenant General Ko Ko, who is an active military officer reporting to Commander-in-Chief of the Armed Forces, Vice Senior-General Min Aung Hlaing. Under military control, how can police be held civilly and criminally accountable for its activities?

The white phosphorous incident must be a reminder that there is no weapon that will not be used to stop dissent. Perpetrators – be they the police or military or private thugs hired by the military – are not deterred since no police or military have been punished nor has any civilian authority been capable of stopping police or military action since 1962.

The issue of weapons and nuclear energy development highlights yet another distressing and pronounced disconnect between government rhetoric and military action. On 22 December 2012, Vice Senior-General Min Aung Hlaing speaking to the graduating class of the military’s Medical Academy, announced plans to use nuclear technology for medical, research and energy purposes but not atomic weapons development. This contradicts previous statements by himself and government spokespersons, such as a June 2012 statement by the commander-in-chief that Burma had abandoned its nuclear programme and there was no point in having the International Atomic Energy Agency (IAEA) visit because there was nothing to see.

In November 2012, President Thein Sein announced he would sign an international protocol requiring declaration of nuclear facilities and materials and allowing more scrutiny by UN inspectors. However, how can he enforce this pledge since the constitution grants the commander-in-chief sole authority to admit inspectors into military-owned territory, including nuclear facilities?  Finally, the president assured international leaders from South Korea and the United States in May 2012 that Burma would refrain from military cooperation with North Korea and abide by international sanctions against that nation.  Yet, three months later, Japan seized a cargo shipment of materials suitable for uranium enrichment or missile development destined for a Rangoon-based construction company, which the US believes is a front for Burma’s military procurement, from North Korea (via China).

Despite this disturbing evidence of ongoing human rights abuses, military attacks on ethnic civilians, inconsistencies between government statements and actions, and development of nuclear capacity through cooperation with North Korea in violation of international law, the global community continues to ignore or downplay both the significance of these violations as well as the limitations of the constitution.

For example, a December 2012 report by the International Bar Association’s Human Rights Institute (IBAHRI), entitled “The Rule of Law in Myanmar: Challenges and Prospects,” concluded that the immunity clause of Article 445 of the constitution should not be interpreted to include immunity for “serious criminal acts.”

Yet just after the IBA report was released, officials from the Ministry of Communications and Information Technology cited the Article 445 immunity clause in the constitution as the reason to limit the corruption investigation of former officers and Minister of Telecommunications, Thein Zaw. If the immunity/amnesty clause in the constitution is being used to curtail investigations for greed and corruption, how can it prevent similar dismissal of more serious crimes, such as genocide, crimes against humanity and sexual violence against women?

On a positive note, some members of the global community are waking up to the structural impediments and global security concerns raised by the constitution.  The UN Special Rapporteur Tomas Ojea Quintana noted on 16 February 2013, after a five-day mission to Burma, that the constitution could “undermine the rule of law and fundamental human rights.”

The Nuclear Age Peace Foundation (NAPF), an INGO with more than 55,000 members, wrote in November 2012 to all members of the United Nations Security Council urging them to consider that military autonomy in the constitution renders the civilian government incapable of keeping its promises to enforce international obligations when examining that country’s compliance with Security Council resolutions involving nuclear sanctions and issues of weapons of mass destruction.

As stated by NAPF President David Krieger:  “…under the 2008 Myanmar Constitution, which became fully implemented on January 31, 2011, the civilian government of Myanmar is deprived of its sovereign powers over the military. This leaves the Myanmar government unable to comply with, inter alia, Security Council Resolution, SCR 1540 or SCR 1874, or any of its obligations under the UN Charter, Geneva Conventions, Genocide Convention, and the Non-Proliferation Treaty.”

Democracy activists on the ground consider amending the constitution crucial to achieving their goals.  Daw Aung San Suu Kyi and other National League of Democracy (NLD) leaders emphasise amending the constitution, but recognise that the constitution itself, “adopted” by a spurious referendum in 2008, derails these efforts.

Amendments require more than 75 percent majority vote of parliamentarians and the constitution guarantees that the military may appoint 25 percent of parliamentarians, effectively giving the military a veto over all legislation and amendments.  Daw Aung San Suu Kyi is “talking sweet” to the military, as noted by NLD lawmaker Win Htein, because she and other in-country activists still are not able to speak freely, openly and forcefully about how the constitution is holding democracy hostage.

But what is the international community’s excuse?

President Thein Sein could join this call for an independent legal review of the constitution as a step toward establishing the rule of law and democracy in Burma. The president could take other actions indicating a willingness to join the international legal community and force the hand of the military, such as signing the Rome Statute of the International Criminal Court and bringing it to the parliament for ratification. And to further confirm his commitment to these ideals, he could indicate that he stands behind Burma becoming state party to other international treaties such as the International Covenant on Civil and Political Rights, the two optional Protocols to the Geneva Conventions, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

But one thing is clear, if the international community is truly concerned about installing democracy and the rule of law in Burma, it should take positive steps towards pushing for its amendment. At the international level, the UN General Assembly or Security Council could request an advisory opinion on the constitution from the International Court of Justice as was done regarding the legality of the declaration of independence of Kosovo. Such positive steps must include making reform a part of aid and development funding, and the international community’s overall commitment to bringing true democracy and rule of law to Burma.

Janet Benshoof is president and founder of the New York-based Global Justice Center.

-The opinions and views expressed in this piece are the author’s own and do not necessarily reflect DVB’s editorial policy