From the Archive

Constitutional Conundrum

By Kyaw Zwa Moe 8 May 2018

It has been 10 years since the military-drafted 2008 Constitution entered into force. Constitutional reform remains elusive, and the military retains a powerful influence under the charter. The Irrawaddy revisits this cover story from the magazine’s April 2008 issue, published one month before the constitutional referendum was held.

FOR the generals who rule Burma, it is a step closer to the coveted goal of permanent military control of the country’s politics. For its detractors, it is a potential lightning rod for decades of pent-up discontent. But for most, it is still a mystery, as they wonder if this is really a distant light at the end of the tunnel or the headlights of an impending disaster.

The Burmese regime’s draft constitution, which Burmese voters will be asked to endorse or reject in a referendum in May, has drawn many reactions from people both inside and outside the country.

Although there is little consensus on the constitution, which was 14 years in the making, few doubt that the referendum, if it actually goes ahead, will be the junta’s most significant political move since elections in 1990, when voters unequivocally signaled a desire for an end to military rule.

For dissidents in Burma, that desire has only grown stronger over the past 18 years. They see the referendum as an opportunity to let the junta and the world know that that it is time for the generals to go.

“This is not a referendum,” said Tun Myint Aung, a leader of the 88 Generation Students group. “This is a chance to vote against military rule.”

“The regime has given us two choices—‘yes’ or ‘no.’ But the only real choice is, should we vote ‘no’ or just boycott?” he added.

Calls for a referendum boycott have been growing, but Tun Myint Aung, who spoke to The Irrawaddy by phone from a hiding place in Burma, insisted that only a vote “No” would send a clear message.

“It doesn’t matter what people think of the constitution,” the prominent activist said. “They will just be voting to express the anger that has been accumulating over the past 20 years.”

The Tatmadaw Chapter

Of all the people The Irrawaddy has spoken to about the referendum since it was announced on February 9, few have expressed any interest in the actual contents of the constitution, which was released by the junta in March. In the absence of public debate on the constitution, most discussion among exiles and dissidents has focused on ways to effectively turn the referendum against the junta.

The draft constitution does not fundamentally differ from a version of the “principles” of the constitution released by the Ministry of Information in August 2007, one month before the National Convention formally completed its work on the charter.

The draft contains an entire chapter spelling out the precise powers of the military. This chapter, entitled “Tatmadaw”(Burmese for armed forces), is something new in Burma’s constitutional history and represents the first explicit attempt to enable the armed forces to “participate in the national political leadership role of the State”—one of the stated goals of the first chapter of constitutional “principles.”

The cover of The Irrawaddy magazine’s April 2008 issue

In concrete terms, this means that 25 percent of the seats in both the upper and lower houses of parliament would be filled with military appointees selected by the Tatmadaw commander in chief. That is, 110 members of the 440-seat lower house, or People’s Parliament, and 56 members of the 224-seat upper house, or National Parliament, would be selected from within the ranks of the armed forces.

The powers of the commander in chief also extend to the selection of the president and two vice presidents. Each of these positions would be filled by individuals selected by the People’s Parliament, the National Parliament and a committee of military officials appointed by the commander in chief, ensuring that a member of the armed forces would occupy at least one of these top government positions—most likely the presidency, since the Tatmadaw exercises considerable influence over both houses of parliament. The commander in chief, meanwhile, would possess powers equal to those of the two vice presidents.

While all of these measures are intended to give the military considerable power over the government, there would also be guarantees that this influence doesn’t go in both directions. Parliament would not be permitted to discuss or interfere in military affairs, including defense spending. Under the new constitution, “The Tatmadaw has the right to independently administer all affairs concerning the armed forces.”

No Room to Maneuver

Critics of the constitution say that it will only serve to legitimize military rule, while reducing parliament to a toothless institution with no more power than the hand-picked National Convention which drafted it.

“Parliament will become a rubber stamp to endorse the commander in chief’s proposals,” said Aung Din, the executive director of the Washington, DC-based US Campaign for Burma, in an open letter calling on the Burmese people to reject “the military regime’s sham constitution.”

Others say that giving the ruling generals the powers they want will only embolden them to step up their oppression.

“Right now, they are ruling the country without any legal authority, and yet they treat citizens and religious leaders brutally,” said Ashin Pyinnya Jota, a leading member of the All Burma Monks Alliance. “If the constitution comes into force, it will only make them worse.”

But others ask what the alternatives are. Some argue that it would be better to accept the constitution and use it as a basis for future democratic changes. This is a position taken both by apologists for the junta and by pragmatists who point out that 20 years of resistance to the regime have yielded little in the way of progress.

One outspoken advocate of the constitution is Dr Nay Win Maung, a member of the so-called “Third Force” group founded during an international Burma conference in Singapore in 2006. This group, which claims to be neither pro-junta nor pro-opposition, has called for more engagement with the regime and an end to sanctions.

In an open letter obtained by The Irrawaddy, Nay Win Maung called on National League for Democracy (NLD) leader Aung San Suu Kyi to endorse the constitution and focus on elections to be held in 2010. This is the only way to ensure that the party is not disenfranchised, he said.

“This time, Burmese people should be smart enough and set their emotions aside, so as not to [create] another deadlock,” he wrote, adding that whatever the outcome of the referendum, it was certain that the constitution would ultimately be rectified at a later day.

In response to the letter, Aung Naing Oo, a Burmese political commentator based in Thailand, agreed that it was time to take a more forward-looking approach. “We have to stop living in the past. It only prolongs the deadlock and conflict,” he said.

However, others say it is naïve to believe that the regime is offering the country a way forward.

“The junta just wants to be old wine in a new bottle,” said Win Min, a Thailand-based Burmese political analyst. “If the junta wants the opposition to endorse their rule, they must compromise for national reconciliation.”

Win Min points to clauses in the constitution that effectively block future changes as the greatest hurdle to acceptance.

“If we cannot modify the constitution, democratization in Burma cannot grow,” he said.

Under Section 4 (a) of Chapter 12, “Amendment of the Constitution,” any suggested change would need to be sponsored by at least 20 percent of parliament members. This would be followed by a parliamentary vote, which would require over 75 percent support before the proposed amendment could be put to a national referendum. More than fifty percent of voters would have to approve of the amendment before it could come into effect.

With 25 percent of seats going to the military, it would be effectively impossible to pass any amendments that the commander in chief did not approve of. Moreover, in the chapter on the powers of the Tatmadaw, the armed forces bear responsibility for “safeguarding the State Constitution.” This principle can be invoked at any time to prevent amendments that the military sees as inimical to its interests.

At this stage, debate about how the constitution can be reconfigured to make it more democratic is still largely academic. It is also, in the view of some exiled opposition activists, irrelevant.

“Some experts think endorsing the constitution is better than nothing. But people will not see it like this,” said Aung Moe Zaw, a secretary of the exiled opposition’s umbrella group, the National Council of the Union of Burma. “People want to see a long-term guarantee for their future—real democracy and freedom.”

“If the NLD endorses this unjust constitution, people in Burma will object. People will go their own way,” he added.

Even setting aside the question of whether the opposition would be able to alter the constitution to meet the democratic needs of the people, it remains unclear how civilians would function within a military-dominated parliament. Even the normal functions of a parliamentary opposition party could be regarded as hostile to national unity and thus subject to draconian restrictions.

Another concern of the opposition is that the constitution effectively bars Aung San Suu Kyi from occupying a leadership position. As the widow of British scholar Michael Aris and mother of two sons who are British citizens, Suu Kyi would have no right to lead Burma, according to the draft constitution, which states that “the President of the Union himself [and his] parents, spouse [and] children … shall not owe allegiance to a foreign power, shall not be a subject of a foreign power or citizen of a foreign country.”

Ethnic opposition groups also have cause for concern, as their claims to autonomy would also be severely constrained. As Aung Din of the US Campaign for Burma noted, ethnic state legislatures would also have military appointees occupying 25 percent of seats.

“The expectations of ethnic nationalities to obtain the right of self-determination will never be realized, as unelected military officials will effectively intervene in their State affairs,” said Aung Din. “This sham constitution systematically denies equality among all ethnic nationalities and self-determination, demanded by all ethnic groups for a long time.”

World Opinion Divided

As Burmese debate the pros and cons of the constitution, the international community also remains divided over the junta’s latest attempt to set the terms of political change in Burma. While neighboring countries broadly support the constitutional referendum as a step forward, Western critics of the regime, particularly the United States, have dismissed it out of hand.

“It has to begin somewhere and now it has a clear, definite beginning,” said the chief of the Association of Southeast Asian Nations (Asean), Surin Pitsuwan, soon after the referendum was announced. “I think it is a development in the right direction.”

The United Nations, which has attempted to mediate between the regime and the democratic opposition, was more guarded in its assessment. In a statement, UN Secretary-General Ban Ki-moon urged the Burmese junta to “make the constitution-making process inclusive, participatory and transparent in order to ensure that any draft constitution is broadly representative of the views of all the people of Myanmar [Burma].”

The US, which has long been the regime’s most outspoken critic, was more explicit about the shortcomings of the constitution-making process, drawing attention to the ongoing suppression of democratic rights in Burma.

In a statement released after the regime declared its intention to hold a referendum, Sean McCormack, a US State Department spokesperson, said, “No referendum held under these conditions—a pervasive climate of fear in which virtually the entire population, including Aung San Suu Kyi, is under detention, and the Burmese people not being allowed to participate in or even discuss the drafting of a constitution—can be free, fair or credible.”

In late February, in a move that confirmed suspicions that the junta intended to stage manage the referendum, its top leader, Snr-Gen Than Shwe, signed into effect a law that threatens dissenters with heavy penalties for opposing the referendum. Under the Referendum Law for the Approval of the Draft Constitution, anybody who publicly criticizes the referendum faces a fine and a three-year prison sentence.

Thein Nyunt, a lawyer in Rangoon, remarked that the current law is even more severe than similar legislation enacted ahead of a referendum in 1973. “Under the previous law, anyone who was against the referendum could be sentenced to one year’s imprisonment. But now people can receive three years’ imprisonment under the terms of the present law.”

A Final Showdown?

Against this backdrop of deepening repression and a mixed international response, many activists suspect that the real referendum will take place not in the polling booths, but on the streets.

“We don’t see it as a final battle, but it will reach that point,” said student activist Tun Myint Aung, who noted that the last constitution drafted under military rule was ultimately scrapped under pressure from the popular uprising in 1988.

In a sign of growing frustration in Burma, in late March a 26-year-old man set himself on fire at Rangoon’s famed Shwedagon Pagoda, a religious site that has often served as a focal point of political protests. Reports suggested that he was acting out of desperation over economic hardships and political frustration.

Observers of Burma’s economy have noted that conditions have only gotten worse since a drastic hike in fuel prices triggered protests last year. Although the regime has put a lid on dissent since its crackdown on monk-led demonstrations in September, it remains vulnerable to economically inspired unrest, which could easily assume a more political nature amid the push to strong-arm the population into endorsing an unpopular constitution.

The lack of leadership from the NLD and disappointment with the international response to the junta’s brutal crackdown, have led many to the conclusion that people power is the only remaining option.

“In the entire history of the world, there has never been a dictator who willingly gave up power once he had it firmly in his hands,” said respected Burmese journalist Ludu Sein Win in a recorded message released in March. “And there are no countries in the world which have gained liberation through the help of the United Nations.”

“Don’t waste your time dreaming about dialogue and considering help from the UN Security Council,” the 68-year-old journalist and former political prisoner added. “We already have the power to force out the military dictatorship. That power is the force and strength of every Burmese citizen.”

Whether the regime’s exercise in manipulating public opinion succeeds or seriously backfires may prove more important than its efforts to enshrine its control through a new constitution.

In the end, the junta may find that its efforts to control the will of the people could unleash a political firestorm.