jueves, 22 de abril de 2010

ANALYSIS OF THE 2008 SPDC CONSTITUTION FOR BURMA David C. Williams, Executive Director, Center for Constitutional Democracy


Burma’s ruling junta, the SPDC, has decided to hold elections in 2010 to choose a civilian government under the 2008 constitution, which was adopted by force and fraud. Even if those elections are free and fair, however, they won’t bring about civilian rule because the constitution does not provide for it--a partially civilian government, yes, but civilian rule, no. On casual reading, the constitution seems to provide for a transition to civilian rule, but closer reading reveals a blueprint for continued military rule. The constitution allows the Tatmadaw to keep however much control it likes.

International attention has focused most on the constitution’s mandate that hat the Tatmadaw will appoint 25% of the various legislative bodies. But there’s a much bigger problem: under the constitution, the the Tatmadaw is not subject to civilian government, and it writes its own portfolio. It can do whatever it wants.

The Constitution guarantees the power of the Tatmadaw in its section on “Basic Principles”—a clear sign that the framers thought the role of the Defence Services to be fundamental. Article 20(b) provides that the military will run its own show without being answerable to anyone: “The Defence Services has [sic] the right to independently administer and adjudicate all affairs of the armed forces.” The constitution defines the “affairs of the armed forces” so broadly as to encompass anything that the Tatmadaw might want to do. Article 6(f) provides that among the “Union’s consistent objectives” is “enabling the Defence Services to participate in the National political leadership role of the State.” Article 20(e) further assigns the Tatmadaw primary responsibility for “safeguarding the non-disintegration of the Union, the non-disintegration of National solidarity and the perpetuation of sovereignty.” This regime has frequently found a threat to “National solidarity” when people merely disagree with it; it is prepared to slaughter peacefully protesting monks. There is no reason to think that after 2010, the Tatmadaw will think differently.

Because the Tatmadaw’s responsibilities are so broadly and vaguely defined, the question of who will have the power to interpret their scope is critical. The constitution answers that question clearly: the Tatmadaw will have the power to determine the powers of the Tatmadaw. Article 20(f) assigns the Tatmadaw primary responsibility “for safeguarding the Constitution.” But if the military is the principal protector of the constitution, then the military will presumably have the final authority to determine its meaning, so as to know what to protect. And indeed, Article 46 implicitly confirms this conclusion: it gives the Constitutional Tribunal power to declare legislative and executive actions unconstitutional, but it conspicuously omits the power to declare military actions unconstitutional. In other words, the Tatmadaw has the final authority to interpret the scope of its own constitutional responsibilities. Most first year law students have read a famous portion of Bishop Hoadly’s Sermon, preached before the King in 1717: “Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the lawgiver, to all intents and purposes, and not the person who first spoke or wrote them.”[1] And under the Burmese constitution, the Tatmadaw will be “truly the lawgiver,” not the people elected in 2010.

The Constitution further ensures that the Tatmadaw will have the power to control the citizenry on a day-to-day basis. Under Article 232(b)(ii), the Commander-in-Chief will appoint the Ministers for Defence, Home Affairs, and Border Affairs. The military’s control over home affairs is especially ominous because it gives the Defence Services broad power over the lives of ordinary citizens in their daily lives.

The military’s control over Home Affairs (as well as Defence and Border Affairs) will constitute a military fiefdom, not part of the civilian government in any meaningful sense. The Commander-in-Chief will have power to name the ministers without interference from any civilian official. The President may not reject the Commander-in-Chief’s names; he must submit the list to the legislature. See Article 232(c). The legislature may reject those names only if they do not meet the formal qualifications for being a minister, such as age and residence. See Article 232(d). Theoretically, the legislature could impeach those ministers under Article 233, but the Commander-in-Chief would merely re-appoint a new minister acceptable to him.

In addition, these ministers will continue to serve in the military, so they will be under orders from the Commander-in-Chief, not from the President. See Article 232(j)(ii). In other words, the Commander-in-Chief will be administering home affairs, immune from interference by the civilian government. Theoretically—again—the legislature might try to pass statutes controlling the Tatmadaw, but recall—again--that under Article 20(b), the Tatmadaw has the “right to independently administer and adjudicate all affairs of the armed forces.”

The independent power of the Tatmadaw over ordinary citizens includes the power to impose military discipline on the entire population. Article 20 provides: “The Defence Services has the right to administer for participation of the entire people in Union security and defence.” In other words, the military may forcibly enlist the whole citizenry into a militia so as to maintain internal “security.” And, again, the civilian government has no control over the military’s operations. After the elections, Burma will be a military dictatorship just as much as now.

In short, during normal times, the Tatmadaw has constitutional power to do anything it wants without interference from the civilian government. But if it ever tires of the civilian government, it can declare a state of emergency and send everyone else home. On this subject, the constitution uses a bait and switch approach: in one section, it creates a process for declaring a state of emergency in which the civilian government will have a role; but in another section, it specifies that the military may re-take power entirely on its own initiative. Thus, in Chapter XI, the constitution provides for the declaration of a state of emergency in which the military would assume all powers of government, see Article 419, but it would require presidential agreement before the fact, see Article 417, as well as legislative ratification afterwards, see Article 421. But in Chapter I on Basic Principles, Article 40(c) provides for a very different, alternative process in which the Commander-in-Chief can act at his own discretion: “If there arises a state of emergency that could cause disintegration of the Union, disintegration of national solidarity and loss of sovereign power or attempts therefore by wrongful forcible means such as insurgency or violence, the Commander-in-Chief of the Defence Services has the right to take over and exercise State sovereign power in accord with the provisions of this Constitution.” (emphasis supplied). To be sure, the Tatmadaw may seize power only if “national solidarity” is threatened, but as already shown, the military has unreviewable authority to decide whether such a threat exists.

In other words, the Tatmadaw can seize control just as it did in 1962, and this time it will be legal. The whole constitution is based on a “wait and see” strategy: if the civilian government does what the Tatmadaw wants, then it will be allowed to rule; if not, then not. This constitution is not a good faith gesture toward democracy; it’s a cynical attempt to buy off international pressure.

[1] See Choper, Fallon, Kamisar, and Shiffrin, Constitutional Law: Cases—Comments—Questions, page 1 (Ninth Edition 2001).