Thailand Law Journal 2009 Spring Issue 1 Volume 12

The 2010 Election in Burma - A Hopeless Avenue for Human Rights

(June 25, 2008)

Burma's military junta, the State Peace and Development Council (SPDC), recently approved The Republic o/' the Union of Myanmar Constitution in a sham referendum held on May 10 and 24, 2008. According to the SPDC's roadmap, elections will be held in 2010 to provide for a "discipline-flourishing genuine multiparty democracy" as outlined in the Constitution. The Burma Lawyers' Council contends that any optimism about the election's prospects is ill-founded for two reasons:

(1) the elections will be held in accordance with the constitution, which was produced and passed by the regime in an undemocratic drafting process and illegitimate referendum; and
(2) the Constitution's provisions demonstrate the government's blindness to the entitlement of the people of Burma to their basic human rights - providing more reason to weep than to hope.

This paper asserts that the Constitution and the pretense of elections are an attempt to proliferate the SPDC's harsh military rule under the guise of a constitutional democracy, providing no hope for human rights or democratic governance in Burma.

Part 1.
An Analysis of SPDC's Constitution Making Process

Article 21 of the Universal Declaration of Human Rights provides that the will of the people shall be the basis of the authority of government. It follows logically from this provision that, in any nation, the will of the people should he reflected in the constitution which forms the foundation of government. It follows, too, that the manner and extent to which a nation includes the people in the production of its constitution signifies the importance that nation gives to the pivotal role of the process of constitution making. A free, fair and inclusive constitution making process - one which accurately reflects the will of the people is certainly likely to guarantee a lasting constitution.

Contrary to the provision laid down by the Universal Declaration of Human Rights, the constitution making process in Burma was controlled by the ruling military junta with complete disregard to what the peoples of Burma might wish to contribute. Law No 5/ 96 proclaimed in 1996 is the existing law of Burma. Under its provisions, the people are prohibited from participating in the constitution making processes and_ any infringement of the law is punishable by a minimum of five to a maximum of twenty years imprisonment.

It will be helpful to explore the background to this situation more fully.

It is universally recognized that the National League for Democracy (NLD) won a massive landslide victory in the May 1990 elections in Burma. Despite this fact, the military junta ignored the expressed will of the people of Burma and refused to transfer political power to the legitimate democratic government. Instead, they issued a declaration (No 1/90). Article 20 of that declaration provided, among other things, that:

The responsibility of the elected representatives is to draw up the constitution of the future democratic state.

However, the military dictatorship did not transfer power to the elected representatives to implement that declaration. Instead, the military attempted to add a further layer of artificial legitimacy to justify holding on to power through the setting up of a National Convention to draft its constitution. To ensure the dominant role of the military in politics, it formulated a National Convention Procedural Code which tightened control of the constitution making process.

When the National Convention held its first session in January 1993, in attendance were 703 members representing eight nominal delegate groups. The Procedural Code provides no indication as to how the delegates were chosen. Article 2 simply states that delegates "froth the groups mentioned below are to attend to the National Convention". The total number of delegates from each group was determined by the NCCC. Several of the groups are ambiguously defined such as "peasants", "workers" and "appropriate persons". Seven of the eight delegate groups did not exist as separate and independent organizations capable of nominating delegates to the National Convention. In reality, the SPDC was free to nominate delegates to the National Convention in any manner it considered desirable, and took the opportunity to do so.

Despite SLORC's declaration No. 1/90 that provides the elected representatives with "the responsibility to draw up the constitution of the future democratic State", only 99 positions were allocated by the NCCC to the elected representatives out of a total of 703 delegates. Furthermore, most of these elected representatives had later been dismissed, been disqualified or had resigned from the National Convention.

The constitution making process was controlled absolutely by that sham National Convention. No public meetings on the constitution were allowed, no suggestions from the people were collected and no comments from the people were printed in the media.

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.