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COMMENTARY

Burma’s Constitutional Collision Course

Burma’s generals got the Constitution they wanted, hence the NLD’s victory is unlikely to affect the country’s power structure with the military at its apex.


There is a common misperception that even Burma’s first, 1947 Constitution, barred persons married to foreign citizens from becoming the country’s president or vice president. I first heard this from Rangoon-based foreign diplomats in the 1990s, and some of them also claimed it was Aung San Suu Kyi’s father, General Aung San, who had insisted that such a clause should be written into the Constitution. By pinning it on him, the generals wanted to show that his own daughter was going against his wishes.

If the diplomats I met had actually read the 1947 Constitution, they would have found out that all that was crude propaganda, at the time spread by Lt-Gen Khin Nyunt, the strongman of the then ruling junta, the State Law and Order Restoration Council. But the misperception has lived on, and I heard it most recently from a Rangoon taxi driver—himself a supporter of Aung San Suu Kyi’s National League for Democracy (NLD)—when I was there to cover the Nov. 8 election.

In fact, the 1947 Constitution does not mention who the president could or could not be married to, but it says: “No person shall be eligible for election to the office of President unless he is a citizen of the Union who was, or both of whose parents were, born in any of the territories included within the Union, and is qualified for election to the Union Parliament.” (Chapter V. 49) A person would not be qualified to become a member of the Parliament if he or she “is under any acknowledgement of allegiance or adherence to a foreign power, or is a subject or a citizen entitled to the rights and privileges of a subject or a citizen of a foreign power.” (Chapter VI.74)

Aung San Suu Kyi’s marriage to Michael Aris, a British citizen, gave her the right to reside in Britain, but certainly no other special rights or privileges. Furthermore, that law was most probably enacted in order to prevent anyone of Indian origin from becoming president; about half of Rangoon’s population during the British era was Indian, and as the principal taxpayers in the 1930s they had argued for more influence over the city government. The pre-independence Burmese parliaments of 1922 and 1937 also had communal seats and special Indian electorates—which was widely detested by the Burman nationalists.

If the law were meant to prohibit the President from having a foreign spouse, the old dictator Ne Win would have had to resign when, in 1976, he married June Rose Bellamy. She is also known by her Burmese name, Yadana Nat-Mei, and is the great-granddaughter of Prince Kanaung Mintha, better known as Prince Limbin, the son of King Tharrawaddy. June Rose Bellamy’s mother was the daughter of Princess Hteiktin Ma Lat, of the Konbaung dynasty that had ruled Burma until the final British conquest in 1885. Her father was an Australian orchid collector and erstwhile horseracing entrepreneur called Herbert Bellamy, who had lived in Burma. Despite that royal background, June Rose Bellamy, alias Yadana Nat-Mei, was a British citizen when she married Ne Win. She now lives in Florence, Italy, where she teaches Italian and Oriental cooking.

The next Constitution, which was promulgated in 1974 during the reign of the Burma Socialist Program Party—and in force when Ne Win married June Rose Bellamy—simply states that “The Chairman of the Council of State shall be the President of the Republic” and that members of the Parliament and “People’s Councils” at various levels had to be “a citizen born of parents who are also citizens.”

It is only the 2008 Constitution that stipulates that the qualifications of the President and Vice Presidents are that “he himself, one of the parents, the spouse, one of the legitimate children or their spouses not owe allegiance to a foreign power” and is a “subject of a foreign power or citizen of a foreign country.” (Chapter III.59). This clause was quite clearly included in the 2008 Constitution to bar Aung San Suu Kyi from becoming the next President of Burma. There is no legal precedent for such a draconian clause in Burma’s judicial history.

So can that clause be changed or amended? Minor constitutional changes may be considered by the bicameral parliament if 20 per cent of Members of Parliament submit a bill. However, a tangle of 104 clauses cannot be amended without the prior approval of more than 75 per cent of all MPs—and the clause that bars Aung San Suu Kyi from the presidency is one of them. With 25 per cent of all seats reserved for the military, elected MPs alone are unable to enforce such changes. And even if approved by Parliament, a nationwide referendum must be held in which more than half of all eligible voters cast ballots to approve suggested amendments.

This complicated procedure, coupled with Burma’s record of holding bogus referendums—the first in December 1973 for the 1974 Constitution and the other in May 2008 for the present charter—makes it virtually impossible to change those 104 clauses, which in various ways legally protects the military’s now indirect hold on power.

Moreover, one of the first sections of the 2008 Constitution guarantees the military’s “national political leadership role of the state” (Chapter I.6) and, in case of an “emergency”, the “commander-in-chief of the Defense Services has the right to take over and exercise state sovereign power” after consulting the president (Chapter XI). And “no legal action” can be taken against the military for what it does while exercising such emergency powers, the Constitution says.

In 2008, Burma’s generals got the Constitution they wanted and the NLD’s election victory is unlikely to affect the country’s fundamental power structure with the military at its apex. All that can be done now is to put the record straight and see the difficulties that lie ahead. Any attempt to change the 2008 Constitution would put the NLD on a direct collision course with the military, for among the charter’s “Basic Principles” is a strong pledge: “The Defense Services is mainly responsible for safeguarding the Constitution.”