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BURMA: New Constitution - Radical Change or Fig Leaf?
By John Feffer, IPS October 14, 2008
In May, just days after Tropical Cyclone Nargis hit Burma
and killed tens of thousands Burmese, the military government reported that 92
percent of the population supported the new constitution in a referendum vote.
The opposition National League for Democracy (NLD), however, has
categorically rejected the new document. And outside observers generally treat
the constitution -- as well as the referendum results -- with scepticism.
From the current Burmese government’s point of view, the constitution
provides for a stable transition to democratic rule. Elections are scheduled for
2010, after which the new constitution would go into effect. The military has
reserved 25 percent of the seats in both houses of parliament, but the remaining
seats will be open to qualified candidates.
Some measure of autonomy is
accorded to the states.
The third in Burma’s history -- after an initial
1947 post-colonial document inspired by British common law and a socialist-era
document drafted by the military junta in 1974 -- the new constitution provides
at least the trappings of the rule of law. For instance, the constitution
mandates the creation of a constitutional court, which will administer and
interpret the law as well as preside over disputes between different branches of
government.
According to Dominic Nardi, a Georgetown University law
student and speaker at an Oct. 8 seminar in Washington, DC sponsored by the
Sasakawa Peace Foundation, the court has a third critical function as an "elite
insurance mechanism’’.
"If the political situation changes dramatically,
if the opposition takes over one or both houses of legislation, a constitutional
court ensures that minorities will have some protection under the law,’’ says
Nardi. ‘’In transition from less liberal to more liberal forms of government, we
see authoritarian leaders establish courts so that they have protection from
prosecution after the transition."
The constitution also rules out
demonetisation. In 1987, the government introduced a new currency and wiped out
the savings of millions of Burmese. The constitutional prohibition against
demonetisation is therefore a positive lesson learned, says David Steinberg,
professor of Asian Studies at Georgetown University.
At the same time,
Steinberg notes that the constitution contains a get-out-of-jail-free card for
the leadership: "No one can be tried for any crimes committed by the government
in the past."
The military has protected its position in other ways. In
an emergency, the president can hand power over to the military
commander-in-chief for a year. Moreover, changing the constitution requires the
consent of three-quarters of lawmakers. So it is quite difficult to change the
army’s leading role, the process of choosing the president or even the process
of amendment itself.
Nardi points out, however, that the U.S.
constitution is also a notoriously difficult document to amend, so that U.S.
leaders have gotten around the amendment process by focusing on judicial
appointments and constitutional interpretation.
"Many people think the
amendment procedure is a horrible provision. I don't think it will matter as
much as many people in the opposition believe," Nardi argues. Other provisions
in the new constitution "allow the speaker and the president to appoint judges
to a constitutional tribunal. If you can’t amend the constitution, you could
appoint judges more favorable to you and influence judicial interpretation."
Brian Joseph of the National Endowment for Democracy believes the
constitution does nothing to advance democratic rights.
"The
constitution drafting effort and the draft constitution offer us virtually
nothing to hold on to," he says. "It may have some provisions that allow for
protections or legislative action.''
But the essential characteristic is
that the military can dismiss the government without cause,'' Joseph added.
''Whoever is governing, once they overstep their bounds, will be dismissed. So
the government will constantly be looking over its shoulder."
Joseph
does not believe that there will be any true power-sharing under the new
constitutional order or any creation of space for the opposition. "They might
hold elections in 2010," he observes. "The important thing is not the technical
details of the constitution but whether people can organize, whether there’s
freedom of speech and mobilisation. If parties can’t organize, this is all just
an empty exercise."
Joseph pointed out that opposition leader Aung San
Suu Kyi cannot run for president because she was once married to a foreigner,
which disqualifies her according to a provision of the constitution.
Steinberg acknowledges that the military has no intention of undermining
its own power and that the constitution will be a continuation of military rule
by other means. At one time, in the 1950s and 1960s, social scientists looked to
the military in developing countries as forward-looking and relatively immune
from corruption. Today, however, perceptions of the military junta have changed.
"Maybe there will be some people within the military trying to change
the operation of power under the constitution," he concludes. "But right now it
is an unlikely possibility."
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