After a drafting process of more than 15 years, Burma unveiled its new constitution in February. The 194-page document has generated a widely disparate response. In May, just days after tropical cyclone Nargis hit Burma and killed tens of thousands of 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. Likewise, 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.
This constitution is 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. This new charter 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 favourable 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 org anize, 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.”