Constitutional Conundrum

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.