Thailand Law Journal 2009 Spring Issue 1 Volume 12

Once a session of the National Convention commenced under the chair of the SPDC's nominee, each delegate had very limited speaking rights. Delegates only spoke before the commission if he or she had permission of the National Convention Convening Work Committee (NCCWC) (art. 5(c), 16(c) & 37). In practice, delegates had to submit their discussion papers to the NCCWC for its approval prematurely. Delegates were permitted to speak in accordance with the discussion paper (art. 45(j)), which was edited and prepared extensively by the NCCWC.

All "discussions" (i.e., recitation of the discussion paper) during the National Convention were limited to the aims set out in Article I of the Procedural Code (art. 5(c)). This prevented effective discussion of issues essential for the development of a lasting democratic constitution in Burma, such as the causes of civil war and the instability in Burma and the failures of the 1947 and 1974 constitutions. Delegates were not permitted to analyze alternative constitutions or constitutional principles from around the world. The rights of ethnic minorities, human rights and genuine democratic principles could not be discussed. Through the NCCWC, the SPDC used these powers of censorship strictly to control all discussion at the conference. This eliminated any possibility of democratic leanings or criticism of the military. Any contravention of the SPDC's rules was dealt with harshly. One delegate, Dr Aung Khin Sint, was arrested and sentenced to 20 years imprisonment for distributing a paper among delegates.

All information in relation to the National Convention was strictly controlled by the SPDC. The NCCWC and Presidium could declare any discussion paper as "secret" (art. 47(f), 16(h)). These secrets were not allowed to be discussed, distributed or published in any manner (art. 47(f)). All "news" in relation to the National Convention was released merely by the NCCWC and was to be regarded as confidential up until the time of its release (art. 8(j)).

The control of the flow of information highlights another important feature of the National Convention. The delegates were not actually charged with the responsibility of achieving anything. They were simply asked to talk. The National Convention had no actual authority to lay down principles or to draft a constitution.

Delegates to the National Convention had no right to vote on any topic. There were no voting procedures in the Procedural Code. Delegates had no right to pass motions. Delegates had no right to approve or express any opinion, as a collective group, in respect of the principles on which a constitution was to he based, or on a draft constitution itself. The delegates had no role in the actual drafting of the constitution.

The control of all information emanating from the National Convention allowed the SPDC to complete the drafting of its constitution and to announce through the NCCWC that the new constitution had been drafted and endorsed by the National Convention.

Given the absolute usurpation of control over the constitution making process by the SPDC, 85 out of the 99 elected representatives, members of the National League for Democracy (NLD) led by Daw Aung San Suu Kyi, chose to withdraw from the National Convention.

The Constitution making process highlights the unacceptable means by which the Constitution was fabricated. Moreover, the fact that the referendum which passed the Constitution was entirely undemocratic is a further demonstration of its illegitimacy. In threatening, forcing and manipulating the Burmese people during the recent constitutional referendum, the SPDC showcased its abhorrence for democratic procedures. Elections to be held in accordance with the Constitution will simply be a continuation of the illegitimate and undemocratic methods of the SPDC.

Part II.
A Critique of SPDC's 2008 Nargis Constitution

Introduction to the Status of the SPDC's 2008 Nargis Constitution

A constitution defines the relationship between the individual and the state. It should place limits on the government's power for the protection and promotion of fundamental individual liberties. Yet the SPDC's Constitution fails to provide important foundational principles such as democratic governance, a separation of powers, checks and balances, judicial independence and the protection of individual rights. Instead of limiting and defining the role of the state, the Constitution confers significant powers to the military elite, with the name of “National Security and Defense Council", seeking to justify and enshrine its hegemony within a constitutional framework.

1. Denial of Popular Sovereignty
Like a thread that binds the Constitution together, the powers conferred to the military elite are woven throughout each section of the Constitution. Of the six primary aims and objectives outlined at the beginning of the Constitution, one actually aims "for the Tatmadaw (or) armed forces to be able to participate in the national political leadership role of the State." In guaranteeing 25% of all seats in both national assemblies and in each state legislature to the Tatmadaw, the military has secured significant representation in all legislative chambers - contrary to any definition of democratic governance; perhaps this is the meaning of a democracy that is "discipline-flourishing". Actually, it is against the concept of popular sovereignty which constitutes a major component of constitutionalism. Contrary to popular sovereignty, in the SPDC's constitution, the concept of military supremacy is exercised mainly by the military elite, led by the Commander-in-Chief of Defense Services.

2. The Constitution grants the Commander-in-Chief significant powers

The military's involvement in national politics however, is not limited to legislative representation -- it permeates each corner of the constitutional framework. The President for example, is not elected directly by the people. Instead, an unaccountable "presidential college" has the choice of selecting amongst three candidates for the presidency; one candidate being appointed by the Commander-in-Chief of Defense Services is guaranteed at minimum a position as Vice-President. Furthermore, the President must appoint army personnel selected by the Commander-in-Chief of Defense Services to certain positions in the executive, including the ministries of defense, security/home affairs and borders affairs. In fact, the Constitution grants the Commander-in-­Chief significant powers, assuming all powers of the President during certain "states of emergency", and unlike the President, there is no process for impeachment or accountability of the Commander-in-Chief's position.

This article is published with the kind permission of Burma Lawyers Council. This article originally appeared in Lanka Pala Legal Journal on Burma, No. 30, August 2008.