Ex-Chief Justice Who Presided Over Drafting of Myanmar’s Pro-Military Charter Dies

By The Irrawaddy 25 May 2021

Former Myanmar Chief Justice U Aung Toe, who headed the commission that drafted the 2008 constitution, which guarantees the military a leading political role in the country and bars pro-democracy leader Daw Aung San Suu Kyi from the country’s highest office, died on Monday. He was 96.

He served as chief justice for 22-and-a-half years, making him the longest-serving head of the Supreme Court of Myanmar since independence.

However, he will be best remembered for his leading role on the military-appointed commission that drafted the 2008 constitution, which enshrines a prominent role for the army in the country’s political affairs. The charter reserves a quarter of the country’s parliamentary seats for military-appointed representatives.

It also dictates that any reform of the constitution must be approved by more than 75 percent of lawmakers, meaning that no change is possible without a nod from the men in uniform. In Article 59(f), its provision on the qualifications for the posts of president and vice-president, the charter disqualifies anyone with a foreign spouse. The stipulation was apparently aimed specifically at Myanmar’s popular leader Daw Aung San Suu Kyi, whose late husband was British. Unsurprisingly, the constitution was criticized as undemocratic at home and abroad.

It all started on a February evening in 2008, with Chief Justice U Aung Toe’s announcement on state TV of his commission’s approval of the draft of the charter.

“I hereby declare that the draft of the state constitution has been approved by this commission,” he said.

He said the commission had followed the basic principles adopted in 2007 by the National Convention—a 14-year-long meeting between political parties and others orchestrated by the then regime to lay down principles for the charter. A closer look at the principles reveals that the charter was intended as nothing more than a shield for the then sitting military dictator Senior General Than Shwe, ensuring his safe retirement. With the army in control of politics and the country’s defense, what else would the old general have to worry about?

The commission’s approval paved the way for the then junta to hold a referendum on the draft. The regime held it two months later, in the immediate wake of the devastating Cyclone Nargis, which killed more than 120,000 people in a single day in the country’s Irrawaddy Delta.

The regime ratified the charter on May 29, 2008, claiming the draft was supported by more than 92 percent of the country’s eligible voters.

The Daw Aung San Suu Kyi-led National League for Democracy (NLD) government tried to amend the constitution after coming to power in 2016. But its attempts were in vain due to resistance from the military, which claimed—in its capacity as “the guardian of the constitution”—­that the NLD’s approach was unconstitutional.

Then came the latest military takeover in February. Coup leader Senior General Min Aung Hlaing claimed the election last year that earned the NLD another landslide victory was marred by massive vote fraud. In attempting to justify his action, and his declaration of a state of emergency in the country, he insisted he was merely fulfilling his constitutional duty “to safeguard the genuine and disciplined democracy.”

When announcing his commission’s approval of the draft charter in February 2008, Chief Justice U Aung Toe stressed that when drafting the constitution, “the commission adhered strictly to the six objectives, including giving the Tatmadaw [Myanmar’s military] the leading political role in the future state.”

The former chief justice lived long enough to witness, exactly 13 years later, the country’s latest coup in February 2021, just a few months before his death. It would be interesting to know what he thought of the results of the “leading role” that his charter delivered to the military—not least the killing of more than 800 civilians and counting since Feb. 1.

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