Thailand Law Journal 2009 Spring Issue 1 Volume 12

3. The Lack of Judicial Independence: The Constitution Fails to Provide Checks and Balances
The Constitution also fails to provide the checks and balances that are necessary for democratic governance. To protect the rule of law, the judiciary must be able to scrutinize the legislature and the states must be able to scrutinize the acts of the federal government. The Constitution however, confers significant executive control over the judiciary by allowing the President to exert full control over the appointment of the Chief Justice. The judiciary's subservience to the executive is also highlighted in its whimsy impeachment process for judges, adverse to judicial independence.

The Constitution states that the judiciary is to "administer justice independently, according to law". The current laws however, provide ample means for abuse and avenues to violate human rights. The SPDC's Constitution allows these current laws to remain in force past the 2010 elections. Therefore, the judiciary can use these laws to justify violations of human rights, provided they do so "independently" and in accordance with the injustice of the laws. There is no institutional independence in the constitution.

4. Rigid Centralization Fails to Provide the Right to Self-determination

The Constitution provides extensive control, allowing the military elite, led by the army chief of staff, to pervade all state and municipal institutions. The constituent units, in terms of states and regions, are provided minimal powers and the military elite can encroach on these minimal powers as it pleases. This makes the constituent units defenseless against the power of the military elite, rigidly exercised in the position of the central government. In the Constitutional structure, any notion of the right to self-determination, claimed by various ethnic nationalities, is therefore absent as it does not exercise the principle of division of legislative, executive and judicial powers within the framework of the federal union.

5. No Possibility for the Emergence of New Laws to Promote Human Rights

In conferring significant powers to the military elite, it is hard to imagine the emergence of new laws for the promotion of human rights. In the Constitution, the participation of the people of Burma in the law making process is systematically denied or excluded. As long as this is the case, there will he a stark deficit of laws which actually benefit the people, and the advancement of the country. Instead, laws that serve only to subjugate and repress Burmese people will persist.

6. "Exception Clauses" to Justify the Infringement of Basic Human Rights

The chapter titled Citizenship, Fundamental Rights and Duties of Citizens, which is hidden at the back of the lengthy Constitution, provides a limited scope for rights and freedoms. The abundance of limitation clauses and those rights that must be "prescribed by law" before becoming a legal reality provide ample avenues to infringe basic human rights. Section 10 for example, which `grants' the fundamental freedoms of expression, assembly and association, are "subject to the laws enacted for State security, prevalence of law and order, community peace and tranquility or public order and morality." This broad limitation clause can be employed to rationalize almost any infringement of these fundamental freedoms - particularly with the military's hands directing each branch of the government.

7. The Continuation of Previous Laws that Infringe Fundamental Freedoms

The Constitution not only prohibits the emergence of new laws to safeguard human rights, it also permits the continuation of previous laws that have infringed fundamental freedoms. For instance, the 197.5 Stale Tinier/ion Law is one of the most abusive laws as it allows for a person to he held in custody for up to five years without any charge or trial. Burma's charismatic leader, Daw Aung San Suu Kyi, is currently being held under house arrest pursuant to this law. Even if the SPDC's Constitution comes into force, this law and other similar oppressive laws will remain to continue to deny a person's right to a fair trial and the right not to be held in arbitrary detention.

8. The Continued Suppression of Freedom of Expression

In allowing the existing laws of Burma to remain in force following the elections, the Constitution extends the injustice of the past far beyond 2010. Law No. 5/96, as one example among the many, allows the government to imprison any person who incites, demonstrates, delivers speeches, or makes oral or written statements that are counter to state "tranquility". Such a law greatly undermines freedom of expression, yet will continue to remain in force following the 2010 elections. Even if it can be cancelled with the power of the people's movement before 2010 elections, there is no provision in the constitution at all to prevent the emergence of similar laws, which will extremely limit freedom of expression, association and assembly, in the future.

A state that limits freedom of expression and the marketplace of ideas cannot possibly purport to be democratic. Freedom of expression is one of the cornerstones of democratic governance and basic human rights. Law No. 5/96 and similar laws will likely be rationalized by the military under the limitation clause of the constitution, justifying the silencing of people's voices and the false imprisonment of those who have the courage to speak.

9. Lack of Institutional Mechanism to Promote or Protect Human Rights

The Constitution not only provides guidelines to allow human rights infringements, it also fails to provide necessary guidelines for their protection. As has been stated, while the judiciary is forced to he subservient to the executive, there are no other institutional mechanisms to promote or protect human rights. In a country like Burma, where the rule of law has been abused for decades and the violation of human rights is the norm rather than the exception, the constitution must provide institutional safeguards - such as a human rights commission or other independent commissions - to check the powers of government from abuse and advance the basic rights of the people. The absence of institutional mechanisms demonstrates the absence of any real effort to advance human rights in the Constitution.

10. Lack of Process to Ratify or Facilitate International Human Rights Laws

Further to its silence in regards to institutional mechanisms, there is also no mention of the ratification or facilitation of international human rights law or norms. The Constitution provides no evidence of attempting to meet international human rights standards. In fact, it violates them in many areas, including its rigid citizenship rules and its many attempts to quell dissidence in its firm commitment to "national solidarity". So while a Constitution ought to protect human rights from the whims of a legislature, the Constitution provides more mobility to violate individual rights than mechanisms to safeguard their protection. It empowers the authority of government at the expense of empowering the people, limiting citizens' agency and fundamental rights.

Conclusion

The 2010 elections and the illegitimate Constitutional structure are simply attempts by the military junta to solidify its power under the guise of democratic constitutionalism. The Constitution promotes the powers of government and the military elite, while terribly limiting the rights of people, contrary to liberal democracy, the rule of law and the foundational principles of constitutionalism. The ill-fated prospects of the 2010 elections are reinforced by a broader examination of the socio-political context in Burma. During the aftermath of the destruction caused by Cyclone Nargis, the SPDC focused on manipulating its people through a sham referendum rather than aiding its victims after a tragic disaster. Any hope that the 2010 elections will be any different is quickly admonished by the Constitution and its blatant disregard for democracy and the rule of law. Despite the people's entitlement to their basic human dignity, the 2010 elections will be yet another democratic facade. They are a hopeless avenue for the promotion and protection of human rights in Burma

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.