Constitutional Reform Key, But Still Far Off: Report

Burma’s opposition leaderAung San Suu Kyi takes her place in Parliament in July 2012. The Constitution prevents her from becoming president and gives military MPs (seen left) control over a quarter of Parliament. (Photo: The Irrawaddy)

Reforming Burma’s Constitution is essential to establishing rule of law but it is unlikely that necessary amendments can be made before the 2015 elections, according to a new report. It also said that the judiciary, legal profession and criminal defense and legal aid system are in need of comprehensive reforms.

“There is consensus that law reform efforts are underway in Myanmar, but questions remain as to whether these efforts can be permanent and irreversible without meaningful constitutional reform,” said the “Myanmar Rule of Law Assessment.”

The report was released earlier this week by international legal aid non-profit New Perimeter, US law firm Perseus Strategies and the Jacob Blaustein Institute for the Advancement of Human Rights.

“All parties interviewed, except the government, had concerns about various provisions of the Constitution,” wrote the authors, who spoke with more than 70 sources, including government officials, opposition parties, ethnic groups, lawyers and UN and non-government organizations.

They noted however, that constitutional amendments would probably not happen any time soon.

“Constitutional reform is a major point of dispute between government and opposition leaders—it appears unlikely these issues will be substantially addressed until after the 2015 presidential and parliamentary elections,” the report said. It added that even if elections shift the balance of political power, support from military MPs would still be needed to enact constitutional amendments.

The former military junta drafted the Constitution in 2008 and it gives military officers control of 25 percent of Parliament—even after the elections. Another provision stipulates that constitutional reform requires support from more than 75 percent of MPs. This situation gives the military MPs a de facto right to veto any amendment to the Constitution.

Such provisions and many others in the Constitution should be amended, recommends the report, which notes that “There are numerous ‘exception clauses’ in the Constitution to fundamental rights and freedoms.” Other concerning provisions include Article 59, which disqualifies opposition leader Aung San Suu Kyi from becoming president because her sons are foreign nationals.

The Constitution also gives the central government control over state governments in ethnic regions and all local natural resources. Amending these provisions is a key demand of ethnic rebel groups, most of which have started peace negotiations with the government last year.

Managing director of Perseus Strategies Jared Genser said in an email that these “serious constitutional issues” were unlikely to be tackled in the near term, but he added that reforming Burma’s judicial system was a key step that should start now.

The judiciary is in need of large-scale reform as “corruption is a serious issue and decisions are sometimes made by the executive branch,” according to the report.

“There are many other important areas for growth but without a judicial system that is up to the task, the remaining reforms will not be able to be sustained,” said Genser, who was a pro bono lawyer acting for Suu Kyi during her last years of house arrest.

The report also noted numerous shortcomings in the functioning of the criminal defense and legal aid system, the legal profession, the Parliament and the government’s human rights commission, which was formed last year.

“Currently, the lawmaking process is opaque with only initial drafts of introduced bills and adopted bills being made public,” the report said of Parliament. It added that funding should be allocated to build up capacity and expertise of MPs, so that they can initiate the drafting of legislation.

The report described the state of practice for Burma’s lawyers as “truly dismal—with most qualified lawyers in the country not practicing law and those who practice lacking access to sufficient office space, basic legal materials, computers, and printers.”

3 Responses to Constitutional Reform Key, But Still Far Off: Report

  1. The system is broken. But that’s not the main point. The system is irredeemable.Nothing short of revolution will do.

  2. What a load of hogwash!

    This useless, cowardly and criminal craps put on paper called “constitution”, which by the way would have been read by few and studied by even less, has been rightly soundly trashed by all before after Aung San Suu Kyi endorsement brought it back to life as well as great acclamation by the “international Business Communities” their lackeys- the “Democratic Western(Japan, Korea included) Governments” and their off-shoots- the international PREDATORY loan agencies (IMF, WB, ADB) for their own evil desire and needs.

    What is teh silliest logic of associating this particular crap with this 2015 thing which is also a product of that particular crap anyway.

    People of Burma are not as dumb as this columnist thinks.

    Look at Latpadaung right now. It appears knowing the truth and lies and being screwed and fighting for own livelihood does not need internet or Harvard degree or even any participation of this enlightened “media’ people or the fake thoroughly phony “opposition” of sorts.

    2015! Burma may NOT get there or even 2014 in one piece. 2015! Pretentious crap.

  3. Constitutional change is the main pillar to overhaul Burma future. 2010 constitution is ostensibly democracy but realistically just barricading the regime despot to live freely until his death. Talking of rule of law in this situation is like riding on the bus which have no driver.

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