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Major flaws in the 2008 constitution

Burma’s constitution was ratified in the days following cyclone Nargis in May 2008 by an alleged 92 percent of the population, out of a total 98 percent who turned out to vote, the ruling junta asserted. International observers have said however that voter intimidation and corruption, not to mention the deaths of 140,000 people from the cyclone, distorted the real picture, particularly as the cyclone prevented millions from accessing polling booths.

The constitution will play a key role in the results of elections this year; several clauses bar opposition leader Aung San Suu Kyi from participating, while other deliberately vague laws appear to permit use of intimidation and threats against opposition by the government. Critics of the ruling junta have already said that the elections will be a charade aimed at cementing military rule in Burma.

Aung Htoo is general secretary of the Burma Lawyers’ Council (BLC)

Prevailing of impunity

The Constitution provides a blanket amnesty to all members of the SPDC military regimes for their previous commission of heinous crimes.[i] No national court in Burma will prosecute the perpetrators of jus cogens crimes such as violations of the Geneva Conventions,[ii] crimes against humanity,[iii] and war crimes.  As such, impunity will continue to prevail in the country, and efforts of victims of crimes to seek justice would be permanently prohibited.

This aggressive and deliberate act by senior general Than Shwe to enshrine impunity as a “right” is a serious breach of peremptory norms striking at the heart of Burma’s non-transgressible obligations under the Genocide and Geneva Conventions, customary international law, accountability mandates as in SCR 1325 and SCR 1820,[iv] and the principles of the Charter of the United Nations.  Burma’s constitutional maneuvers are similar to those of South Africa in the late 20th century, when the Security Council declared that country’s “new constitution” and elections null and void.[v]

Lack of equality

The Constitution does not guarantee equality.  The military, as a privileged class, assumes state powers in terms of the legislature[vi], executive[vii] and judiciary[viii], which is contrary to the major concept of the rule of law which states, inter alias, that every person is equal before the law.  Given that women are largely excluded from the military in Burma[ix], all of the power reserved for members of the military is automatically unavailable to women[x]. This denial of gender equality is in direct opposition to the principles enshrined in the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), to which Burma is a state party.

Non-existence of independence of judiciary

Independence of the judiciary, which is also a major component for the Rule of Law, will never become a reality under this constitution.  The chief executive[xi] has the power to appoint and dismiss the Supreme Court Justices at his or her own discretion[xii] while judicial tenure is not guaranteed.  The existing judicial system, which is subservient to the military[xiii], will remain in place.

Establishment of separate military tribunals

The Constitution has already established permanent military tribunals[xiv], separated from the oversight of civilian justice mechanism, for which the military Commander-in-Chief will exercise appellate power[xv]. As such, it is evident that the military will be above the law.

Human rights violations will continue unabated

The Constitution deprives people of their basic human rights by stipulating ‘exception clauses’[xvi] in the chapter of fundamental rights and duties of citizens.  The effectively draconian laws[xvii] which strictly prohibit basic freedoms such as freedom of speech, association and assembly, will continue to exist.  Furthermore, additional oppressive laws which will deprive people of their liberty will come into existence.  The Constitution also lacks a rights protection mechanism, effectively allowing such violations to continue.

Denial of ethnic nationalities’ rights to self-determination

Equal rights and self-determination[xviii], stipulated by the ethnic nationalities for decades, is required for decentralization[xix]. Rather, the Constitution formulates rigid centralization by creating a permanent military institution that will exercise the executive power indefinitely under the name of the National Defense and Security Council (NDSC)[xx]

Each state or region does not have the right to develop its own constitution within the framework of the Union Constitution of Burma, nor does it have the power to elect its Chief Minister[xxi]. The citizens of each state cannot select the members of their own executive department, either directly in a presidential system or indirectly in a parliamentary system or a combination thereof[xxii].

In accordance with the Union Legislative List[xxiii] natural resources[xxiv] will be exploited mainly by the Union, but not by the states or regions.

The status of legislative bodies:

(1)   The military representatives will occupy one fourth of the seats in Parliament;

(2)   Former military personnel and cronies of the military may be elected as civilian representatives;

(3)   The representatives of the Union Solidarity and Development Association (USDA), which is similar to Golkhar Party in Indonesia, will participate in the election and form a major component of the regime’s proxy parties.

These three sectors will assuredly constitute a solid position for the military regime.  They will likely reject all attempts to be made by other civilian elected representatives to abrogate unjust laws and enact just laws.

The legislative body will continue enacting unjust laws while offering flawed reasoning based on the security of state, prevalence of law and order, community peace and tranquility, or public order and morality[xxv].

Fabrication of an election system for state president

In most presidential systems, election for the president who is also head of government and exercises the highest executive power is designed to be the most democratic. Direct election with universal suffrage is commonly applied. Contrary to this, the SPDC has fabricated a new election system for the state president.

Accordingly, the Presidential Electoral College (PEC) shall be divided into three groups[xxvi]; out of the three, one will be the army personnel representatives nominated by the Commander-in-Chief.  Each group shall elect a Vice-President, who will become a presidential candidate.  The PEC shall elect by vote one of the three candidates as the President.  As such, the army personal representative likely will be elected as the President or, at least, he will become a Vice-President.  This arrangement indicates that out of the three candidates – the President and the two Vice-Presidents – one will certainly be the incumbent army official.

The SPDC’s fabricated presidential system is not only undemocratic, but also harmful to the ethnic equality and unity. The experiences Burma gained during democratic governance of 1948-1962 and the country’s ethnic diversity suggest that the parliamentary system of government is less harmful to the ethnic equality and unity. Electoral system of proportional representation for the parliamentary election is considered favorable for the fair representation of smaller ethnic groups and their parties in the parliament. If the executive branch including Prime Minister comes from the parliament, there are more chances for the ethnic groups to become part of government which would not be the case in the presidential government.

The National Defense and Security Council[xxvii]

1. The National Defense and Security Affairs Committees and other Affairs Committees usually exist in some form in legislatures such as a Congress, Parliament, Assembly, and the like in democratic countries. Such committees primarily play supervisory and legislative roles. However, they do not assume executive power as provided in the SPDC’s 2008 Constitution.

2. The SPDC establishes a “Permanent Military Institution” by named the “The National Defense and Security Council” (NDSC) under the executive chapter of the 2008 Constitution, which is against the practice of the democratic countries.

3. The NDSC will exercise executive power by way of the State President and also by itself.

4. In the NDSC, the numbers of the incumbent military officials – six out of eleven – will constitute a requisite quorum in order that their motions are to be accepted all the time.

Formation of the NDSC[xxviii]

(a) State President

(b) Vice President

(c) Vice President

(d) Speaker of People’s Assembly

(e) Speaker of National Assembly

(f) Commander-in-Chief of the Defence Services

(g) Vice Commander-in-Chief of the Defence Services

(h) Minister of Defense

(i) Minister of Foreign Affairs

(j) Minister of Home Affairs

(k) Minister of Border Affairs

5. Out of the remaining five, majority numbers may also be army officials who claim to be civilians.

6. The SPDC will be transformed into the NDSC, which is a new name but includes the same leaders which will exercise military dictatorship, and rule the country indefinitely in accordance with the flawed 2008 Constitution.

[i] Article 445 of the SPDC’s 2008 Constitution:

” ———————- . No proceeding shall be instituted against the said Councils or any members thereof or any member of the Government, in respect of any act done in the execution of their respective duties.”

[ii] The International Committee of the Red Cross issued a global alert on Burma, on June 29, 2007, verifying the regime’s criminal violations of the Geneva Conventions, stating that such violations were personally observed by ICRC delegates, that all confidential bilateral negotiations had broken down, and that the crimes by the government were likely to be ongoing.

[iii] Amnesty International released a report entitled “Crimes Against Humanity in Eastern Myanmar”; June 5, 2008.

[iv] GJC/BLC letter to Ms. Louise Arbour, President of International Crisis Group, Oct 28, 2009.

[v] UN Security Council Resolution 554 (1984).

[vi] In legislative bodies, one fourth of members will at least be occupied by army personnel, nominated by the Commander in Chief of the Defense Services, without necessity for being elected; Article 109, 141 and 161 of the SPDC’s 2008 Constitution; Chapter (5) of the SPDC’s 2008 Constitution.

[vii] The real power of executive will not lie with the State President but with the National Defense and Security Council, which will stand as a permanent military institution, in the Chapter of Executive, in accordance with the constitution.

[viii] With reference to SPDC’s Constitutional Principles, Prof. David C. Williams, Professor of Law, Indiana University, USA, and Director, Center for Constitutional Democracy in Plural Societies provides comments such as “The President will dominate the judiciary.”

[ix] See looking through Gender Lenses, WLB Position Paper, ftn. 7, (September 2006).

[x] Gender Analysis of the SPDC’s Constitution by Women’s League of Burma; June 2008, P. 6.

[xi] The Chief Executive is most likely to be the military which will take responsibility as the State President.

[xii] Appointment of judges: Article 299, 308 and 327 of the SPDC’s 2008 Constitution.  Removal of judges: Article 302, 311, and 334 of the SPDC’s 2008 Constitution.

[xiii] “Fourth Core Human Rights Element: Judiciary” elaborated by Mr. Tomas Ojea Quintana, UN Special Rapporteur on Human Rights Situation in Burma, in his report “Human Rights Situation in Myanmar” Special 5, 2008; P. 21.

[xiv] Article 293 of the SPDC’s 2008 Constitution.

[xv] Article 343 of the SPDC’s 2008 Constitution:

“In the adjudication of Military Justice:

(a) ——————————————————————-

(b) the decision of the Commander-in-Chief of the Defense Services is final and conclusive.”

[xvi] Article 354 of the SPDC’s 2008 Constitution:

Every citizen shall be at liberty in the exercise of the  following rights, if not contrary to the laws, enacted for Union security, prevalence of law and order, community peace and tranquility or  public order and morality;

(a) to express freely their convictions and opinions;

(b) to assemble peacefully without arms;

(c) to form associations and organizations;

Article 376 of the SPDC’s 2008 Constitution:

“No citizen shall, except matters on precautionary measures taken in accordance with law for the security of the state or prevalence of law and order or the peace and tranquility and interests of the people or matters permitted under an existing law, be held in custody for more than 24 hours without the remand of a competent magistrate”

[xvii] 1975 State Protection Law, 1962 Printers and Publishers Law, 1985 Television and Video Act, 1996 Computer Science and Development Law, 2000 Internet Law.

[xviii] One of the main objectives of the National Democratic Front established in 1974; NDF is a political alliance comprising ethnic armed organizations; One of the major agreements in Mae-tha-raw-hta Conference, attended by almost all major ethnic resistance organizations, held on January 7-14, 1997; It is formally recognized by Daw Aung San Suu Kyi, as the General Secretary of the National League for Democracy and it was mentioned in her speech delivered on 50th anniversary of the Union Day, held on February 12, 1997.

[xix] With reference to SPDC’s Constitutional Principles, Prof. David C. Williams, Professor of Law, Indiana University, USA, and Director, Center for Constitutional Democracy in Plural Societies provided comments, “Ethnic minorities will not control the upper house. The Upper House will also be powerless. States will not be allowed to write their own constitutions. Sub-national government other than the states will also be responsible to the union president, rather than to the citizens of those sub-national governments.” (January 15, 2008).

[xx] Articles 201, 214, 340, 410, 412 (a), 427, 410, 412, 427 of the SPDC’s 2008 Constitution.

[xxi] Article 261(b) of the SPDC’s 2008 Constitution

“In order to appoint the Chief Minister of the Region or State concerned, the President shall select

a suitable Hluttaw representative who has the prescribed qualifications from among the Region

or Sate Hluttaw representatives concerned;”

[xxii] Position Paper on the National Convention’s Principles for a Constitution for the Union of Burma,

Submitted by The Ethnic Nationalities Council (ENC), Prepared on behalf of the ENC by Prof. David C. Williams.

[xxiii] See Article 6,Schedule I.

[xxiv] Oil, natural gas, electricity, minerals, mines, gems, pearls, forests, wildlife, natural plants and natural areas; see Article 6 Schedule I of the SPDC’s 2008 Constitution.

[xxv] Article 354 of the SPDC’s 2008 Constitution.

[xxvi] Article 60 of the SPDC’s 2008 Constitution

[xxvii] The SPDC’s 2008 Constitution: Articles 201, 214, 410, 412(a), 417, 421(b), 422,

425, 426, 427, 428, 429, 431, 432.

[xxviii] Article 201 of the SPDC’s 2008 Constitution


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