Burma’s Constitutions: Downgrading from Democracy to Dictatorship

April 29, 2008

THE MON FORUM

A. The 1947 and 1974 Constitutions and Demands for Democracy

Burma has had two national constitutions since independence, known as the 1947 and 1974 Constitutions. Now, a third is scheduled to be voted on in a national referendum, scheduled for May 10th.

The first constitution was drawn up in 1947 in order to obtain freedom from Britain. But before it was drafted, the British colonial government allowed nationwide elections to be held and representatives were chosen for a “Constitution Drafting Assembly.” The elected representatives were chosen by the people and included many non-Burman leaders, who gave favor both to democratic rights and the rights of Burma’s many ethnic minorities. The resulting document guaranteed the rights of non-Burman ethnic nationalities and provided for a multi-party democratic political system.

In order to guarantee fundamental democratic rights, the 1947 Constitution included:

The Rights to Citizenship

The Rights of Equality

The Rights of Freedom

The Rights Relating to Religions

The Cultural and Educational Rights

The Economic Rights

The Rights in Relationship in Criminal Laws

In order to guarantee the right to self-determination or self-rule of non-Burman ethnic nationalities, Chapter IX of the 1947 Constitution also guaranteed the formation of:

The Shan State Council and the Government of Shan State

The Kachin State Council and the Government of Kachin State

The Recognition of Karen State and the Formation of Karen Affairs Council

The Karenni State and the Government of Karenni State

Special Division of Chin and the Chin Affairs Council

The 1947 Constitution was, however, far from perfect; it created a very powerful central government and delayed the creation of new states like Mon State and Arakan State even though both groups had long histories of self-rule. In response, in 1948 Mon groups began what would become an almost five decade long armed struggle for self-rule. Other groups took similar actions, and the newly independent country soon found itself mired in civil war.

In 1958, after political conflict among Burman leaders in the ruling party, the central government offered General Ne Win, Chief of Staff of the Burmese Army, control of the country for one year as head of a “Caretaker Government.” An election was held in 1961 and a democratic government under U Nu was formed. In late 1961 and early 1962, as ethnic nationalities advocated for more control of their territories, Gen. Ne Win claimed that a Federal system in Burma was destined for disintegration and seized power from U Nu.

Democratic and ethnic leaders were soon arrested and jailed, and Gen. Ne Win ruled the country, without a constitution, for the next decade. In 1974, lawyers and consitutional experts handpicked by Gen. Ne Win and the Burmese Army drew up a constitution. The new document abolished any last vestiges of a democratic system or self-rule by ethnic nationalities. Instead, it legalized permanent single-party rule by the Burmese Socialist Programme Party (BSPP).

Gen. Ne Win’s regime, operating as the “Revolutionary Council,” then arranged a National Referendum, pressuring people to vote in support of the Constitution before declaring it confirmed with over ninety percent of the vote.

While the 1974 Constitution did divide Burma into seven ethnic states and seven Divisions where ethnic Burman people held the majority, it gave absolute power to the BSPP as below:

It adopted as state policy the Burmese Way to Socialism, and officially formed the Burmese Socialist Programme Party.

It vested all sovereign power of the State – legislative, executive and judicial – in the Pyithu Hluttaw (People’s Assembly), in which all members were to be elected from the BSPP.

It created only a central government – all state governments and the Ethnic Affairs Councils of the 1947 Constitution were abolished.

It limited freedom of speech, expression and publication in deference to the “Interests of Working People in Socialism.”

It delcared Burmese the common and official language

It allowed nominal participation in political, social, class and mass organizations, but limited them by law.

After seeing the 1974 Constitution confirmed, Burmese Army military leaders traded in their military uniforms for civilian dress, acting as the political leadership of the country’s single-party system. All elected members were appointed from Rangoon, and “elections” were only conducted for show, in which the people could elect one appointed representative with a “yes” or “no” vote. Members appointed by the BSPP were always elected.

The economic and social conditions of the country deteriorated severely under BSPP rule and, in 1987, Burma was declared a “Least Developed Country.”

B. The people’s genuine desire for democracy in Burma

The Burmese Army, first under the name the State Law and Order Restoration Council (SLORC) and then as the State Peace and Development Council (SPDC), has maintained power by bloodily suppressing opposition. In spite, and because, of this the people have shown genuine desire for change on the following notable occasions:

ท 1988, pro-democracy uprisings: across the country, people demanded abolishment of single party rule, a multi-party political system based on liberal democracy, formation of an interim government, peaceful transfer of power and unity and peace in the whole country. Military leaders refused and thousands of pro-democracy students, monks, government servants and civilians fled from the country to escape from the subsequent killings, arrests and detentions.

ท 1990, General Elections: the NLD, lead by Daw Aung San Suu Kyi, daughter of revolutionary hero Aung San, shocked the regime and won eighty-five percent of the vote. Most of the remaining votes went to the political parties of non-Burman ethnic groups in the ethnic regions. The SPDC, however, failed to transfer power to the winners of the elections.

ท 1998, Formation of the CRPP: elected MPs from the NLD and non-Burman political parties formed the Committee for Representing People Parliament (CRPP). Unfortunately, SPDC authorities arrested many of the group’s members, including Daw Aung San Suu Kyi.

ท 2002-2003, Public support for the NLD prior to Depeyin Massacre: After Daw Aung San Suu Kyi was released from detention in May 2002, she was allowed to move throughout the country. Wherever she and NLD leaders traveled, thousands of people from villages, towns and cities turned out to welcome her and listen to her speeches. The support shown her by the people signaled the people’s hunger for democracy, but within a year the SPDC would issue its own counter-signal. On May 30th, members of the SPDC sponsored Union Solidarity and Development Association attacked a NLD motorcade near the village of Depeyin, in Northern Burma. Daw Aung San Suu Kyi narrowly escaped, but other NLD supporters were severely beaten and at least seventy are reported to have been killed.

ท September 2007, Saffron Revolution: Thousands of Buddhist monks and civilians demonstrated peacefully in September 2007. Riot police, soldiers and government supported civilian thugs responded brutally. An estimated one hundred people were killed while hundreds more were beaten, arrested, detained and even tortured.

Observing events over the years, from 1988 to 2007, makes clear that people in Burma – monks, students, public servants, farmers and others – wish for democracy and peace. Unfortunately, it does not appear that this will be granted by the Draft Constitution.

C. Analysis of the Draft Constitution

Background of the Drafting Process

After refusing to transfer political power to those elected in 1990, the SLORC reframed the election. Rather than immediately take democratic office, those elected were to help draft a new constitution, only after the completion of which would a multi-party system be implemented. The people and winning parties were disappointed, but attempted to engage the SLORC in the drafting process.

In 1993, SLORC called a National Convention made up of handpicked supporters and some representatives of the political parties victorious in the 1990 elections. The first session of National Convention was held in January 1993 but, of 702 delegates, only 99 were representatives of the NLD or ethnic political parties. The remaining 603 delegates were sympathetic to, and controlled by, the military regime.

During the National Convention, regime supporters pushed for the military to occupy the central, dominant role in national politics. Representatives of the NLD and ethnic political parties felt this to be undemocratic and argued fervently against including such principles in the constitution. Over the next fifteen years, the drafting process was marked by conflicts between regime supports and representatives elected in 1990.

In 1996, political deadlock reached such a point that the SPDC halted the process, resuming it only in 2004 as the first of a seven-point “Road Map to Democracy.” This time without inviting and consulting the representatives elected in 1990, the SPDC again held the National Convention.

While the National League for Democracy did not participate, leaders of ethnic ceasefire groups were invited as special delegates. The National Convention was still overwhelmingly made up of members sympathetic to the regime, however, and in 2005 the United States State Department slammed the process as a sham.

The Draft Constitution is undemocratic

The regime does not appear to have changed its principles on the leading role of the military in national politics, and the Constitution’s 15 Chapters and 457 Articles seem designed to cement its dominant position.

Military dominance in lawmaking and barriers to Constitutional Amendment

Article 109, in the Formation of People’s Assembly, describes:

The People’s Assembly shall be composed of a maximum 440 representatives (or members) as follow:

(a) No more than 330 elected representatives elected on the basis of population, and

(b) No more than 110 military personnel, nominated and submitted as representatives, pursuant to law, by Chief of Staff of the Defense Force.

Article 141, in the Formation of National Assembly, describes:

The National Assembly shall be formed with a maximum number of 224 members as follows:

(a) A total of 168 elected representatives, elected on the basis of 12 per Regio n (or Division), including the Union Territories, and 12 per State, among whom shall be one representative from each autonomous Division or Province.

(b) A total of 56 military personnel, whom Chief of Staff of the Defense Force has nominated and submitted as representatives, pursuant to law, on the basis of four per region, including Union Territories, four per State.

These two articles guarantee that military leaders will control twenty-five percent of both legislative bodies. These military officers will be appointed by the Chief of Staff of Defense Force, and will not have to run for election, or even remove their military uniforms, to be involved in parliament. This means that any policies disapproved of by the military will be sure to face opposition from a quarter of lawmakers – a substantially favorable handicap for the regime, who must then only “convince” another twenty-five percent of the Assembly, half as many representatives as the opposition must recruit to pass or oppose a a given policy.

The impact of the guaranteed military representation becomes especially clear when understood in terms of amendments to the constitution. While amendments must only be sponsored by twenty percent of lawmakers, over seventy-five percent must approve an amendment before it can be submitted to the public for a national referendum. The guaranteed military quarter of the vote, then, means that amending the constitution is functionally subject to an up or down vote of military approval. Perhaps even more frightening, the Irrawaddy reports that while early copies of the Constitution made public by the regime state that “more than half of all eligible voters” must approve an amendment, a copy that leaked in early April contains four fewer words, requiring support from “all eligible voters.”

Lack of Rights for Ethnic Nationalities

Although the current Constitution is comprised of two assemblies, which is similar to many federal countries, it does not guarantee equality for ethnic nationalities within those assemblies. Moreover, the Constitution continuously proposes chauvinism in order to support political and racial power for the majority Burman people and members of the Burman-dominated Burmese Army.

Ethnic nationalities from the Seven Ethnic States will be given 37.5% of seats in the National Assembly, 37.5% will be given to given to majority Burman people from the Seven Burman Regions and the remaining 25% will be controlled by the military. In the People’s Assembly, of which 75% is made up of representatives elected from the political parties, majority Burmans can be expected to get even more seats.

In addition to setting up a system likely to be dominated by ethnic Burmans, the Constitution does not guarantee “equal racial rights,” and contains no provisions for the protection of minority rights. Although the Constitution provides for State Assemblies in each ethnic state, military commanders will control 33% of representatives. The Chief Minister of the state or region will also be nominated and appointed by the President of the central government, and chosen from among the state or regional assemblies. This means that although ethnic people may elect their representatives, the leaders of winning parties will not necessarily be able to hold high office in their state or region.

The president, who will often be of the military, or will in the very least have to work carefully to avoid conflict with the Defense Forces, will likely appoint persons close to the military. This means that while State Assemblies may be operating, they will be doing so dominated by the military.

While the Constitution does allow for the creation of Six Union Territories for the Naga ethnic tribe, Da-nuu people, Pa-oh people, Palaung people, Koka people and Wa people, these groups will have no right to elect their own leaders to the National Assembly. Only the president of the central government will select their leaders to join in the National Assembly.

The Constitution also does not guarantee or encourage the maintenance or preservation of non-Burman ethnic nationalities’ cultural rights – language, literature, traditions, customs, etc. Chapter 8, Article 354 (D) describes:

“Ethnic nationalities by one to another, or within in the community of an ethnic group, without attention to discriminate other regions, they can practice to develop their languages, literatures, cultures, religions and customs.”

This provision reads very similarly to the 1974 Constitution, which in similar words seemed to permit ethnic nationalities’ cultural rights while, in reality, the Central government never encouraged ethnic people’s undertake their own programs to preserve and maintain their languages and cultures. The BSPP government, and the current SPDC, did, and does, not allow ethnic languages to be taught in schools or used in government offices.

Worse, like the 1974 Constitution, the Draft Constitution defines Burmese as the “ONLY official language,” which will seriously affect ethnic people’s rights to use their language in public, government offices and ceremonies. This is a key point of the regime’s systematic Burmanisation policy, designed to assimilate ethnic identities into a single “Myanmar National Character.”

Legalized coups and broad authority to crack down on demonstrations

According to this Draft Constitution, the Central government has less power than the National Defense and Security Council (NDSC). The role of this Council is very similar to both the Revolutionary Council, led by Gen. Ne Win after the 1962 coup, and the current SPDC, led by Gen. Than Shwe.

In Chapter 5, Article 201 described the formation of NDSC as below:

By the authority of Constitution and laws, in order to carry on duties, the National Defense and Security Council under the leadership of State President will be formed with the following persons:

1. President

2. Vice President

3. Vice President

4. Chairman of People’s Assembly

5. Chairman of National’s Assembly

6. Chief of Staff of the Defense Force

7. Deputy Chief of Staff of the Defense Force

8. Minister, Ministry of Defense

9. Minister, Ministry of Foreign Affairs

10. Minister, Ministry of Home Affairs

11. Minister, Border Affairs

Among the eleven members of NDSC, at least six members are gauranteed to be from Burmese Army or Defense Forcesf, meaning that the military will always hold the majority when deciding emergency issues. One of the Vice Presidents, as well as the Chief of Staff, Deputy Chief of Staff, Minister of Ministry of Defense, Minister of Home Affairs, and Minister of Border Affairs are all military men and can be expected to place the interests of the Burmese Army first.

It is especially frightening that the military can be expected to dominate the NDSC, given the breadth of its authority. The NDSC has the right to:

ท suppress any demonstrations or strikes against the government or Armed Force, if it believes these activities threaten the security of the state.

ท approve attempts by the President to declare ‘amnesty’ for individuals or groups

ท encourage the Union Assembly via the President to propose bills and make laws to support and strengthen the armed forces, in the cases of purchase of military supplies and equipments, etc.

ท transfer power to the Chief of Staff of the Defense Force if the NDSC determines there to be a “state of emergency.” If there is an emergency situation the NDSC believes threatens the security of the State, the NDSC has the special authority to take over President’s power and control the whole State administration and Union Assembly’s legislative power.

ท use force or violence to suppress rebellion, insurgency, demonstration, etcs until the law and order has been restored and a situation is no longer classifed as a “state of emergency.”

In other words, a coup by the NDSC or Chief of Staff is legal whenever the NDSC or Chief of Staff feels there to be an emergency in cities or in the border areas.

Restriction against Civil and Political Rights

In Chapter 8, the Constitution mentions the basic rights and responsibilities of citizens. Article 354, describes:

Every citizen, without disturbing the State security, rule of laws, peace and development of the communities, and other laws can practice freely for the following rights:

ท Rights of freedom of belief, expressing the opinion and freedom of expression and publication

ท Freedom of demonstration in peaceful way without arms

ท Freedom of assembly, association, and organization

ท Ethnic nationalities by one to another, or within in the community of an ethnic group, without attention to discriminate other regions, they can practice to develop their languages, literatures, cultures, religions and customs

Notably, every freedom is contingent upon not “disturbing the State security, rule of laws, peace and development.” The authorities will then, still, have the right to restrict every freedom whenever they deem it necessary. And, given the SPDC track record, it is reasonable to assume that pro-democracy demonstrators will be classified as risks to security. [DOES CONSTITUTION DEFINE THE ISHT IN THIS CLASUE?]

D. Undemocratic preparation for the referendum

Just as the Constitution drafting process, and the document itself, are undemocratic, so to have been the preparations for the referendum. The public was not permitted to read the constitution until late March, when a draft leaked. And an official public copy was not made available until the first week of April, barely one month before the scheduled vote and hardly sufficient time for reasoned deliberation.

Opposition to the referendum has also be outlawed, and those who “disturb the smooth procedure of the referendum” face jail sentences and heavy fines. Opposing the referendum also risks violence and harassment at the hands of organizations like the USDA, who are reported to have been assaulting people across the country.

While criticism and “Vote No” campaigns are harrassed and effectively outlawed, the regime has stepped up its efforts to ensure the populace votes “Yes.” State television is running nearly constant advertisements, and billboards across the country encourage “Yes” votes, proclaiming it to be the “national duty of the entire people today. “The regime is also resorting to threats – civil servants and teachers face losing their jobs, students their eligibility for school and farmers their land if they vote “No.” All government employees are reported to have been instructed to vote early, in the presence of military officials who will verify that they provide an affirmative vote. While ballots in Rangoon and other places easily accessed by outside observers will be anonymous, the voting process in rural areas and places classified as “brown” or “black,” rebel-controlled or contested zones will be in patent violation of the voter’s right to privacy; every voter will be required to sign his or her name next to his or her vote, virtually ensuring that voters in these areas will vot “no,” for fear of reprisals.

The regime also seems to be attempting to disenfranchise demographics from which it can expect to receive large percentages of “No” votes. Monks, who have traditionally played a vanguard role in politics and spearheaded the Saffron protests, will not be allowed to vote. Prisoners will also not be allowed to vote, which is unsuprising given that almost two thousand people are incarcerated for political reasons. Anyone who has illegally worked in neighbouring countries is also prohibited from voting, perhaps because those who have worked abroad have been exposed to information outside regime control and because the very act of leaving for work registers a serious level of discontent with conditions in Burma.

SPDC tactics seemed designed to stifle debate and discussion about the merits of the Constitution so that an uninformed populace can more easily be manipulated. Many Mon villagers, for instance, report that they have not yet decided how they will vote and have not read or seen a copy of the Constitution.

E. Conclusion

A nationwide referendum on a draft constitution is scheduled for May. It was not drafted democratically, and will not foster democracy. It entrenches military power and sets up a political system in which the military can assume full control in almost any circumstance. It provides little autonomy for ethnic nationalities, and paves the way for the continuance of the SPDC’s Burmanisation policies. And, in spite of its many flaws, it provides virtually no realistic recourse for modifications other than those that suit the military government.

It is unlikely that the Constitution will lead to national reconciliation. It is more likely that political conflict in Burma will increase. The regime still detains hundreds of political prisoners, including Daw Aung San Suu Kyi, 88 Generation Student leaders and ethnic leaders. The pro-democracy opposition will continuously fight for democratic rights, as well as other economic and social rights. At the same time, since the Constitution does not guarantee the rights of ethnic nationalities, many non-Burman people will continue their struggle for self-rule and equal rights.

Written by HURFOM · Filed Under Monthly Report