To most people their national constitution is a legal framework that receives very little attention. Except in the case when someone or an institution tries to infringe on rights protected by this document. However, a national constitution is an extremely important legal document. It defines the fundamental political principles and establishes the power and duties of each government. In most cases it also guarantees certain rights to the people.
Prior to the military dictatorship that has ruled with an iron fist since 1962, Burma was a fledgling democracy. Since independence in January 1948 from British colonial rule, sovereignty had been divided between a central governing authority and state authorities. However the decentralization of power was not large enough to constitute Burma being considered a Federation. This lack of autonomy or self-determination for ethnic states within the Union of Burma led to friction between political groups and eventually civil war.
The Constitution of this time was drafted in 1947 and while it upheld democratic ideals, it failed to unify the country, especially the ethnic groups. Aung San, the leader of Burma’s independence movement and key negotiator in bringing the ethnic groups together, dreamt of Federation that created “unity through diversity”. For a country with such a diverse ethnic make-up, each group with an unquenchable thirst for self-determination, federalism was a good option. Perhaps, if Aung San had not been assonated, Burma’s political landscape would have been different, and his vision realized.
Following the 1962 military take-over by General Ne Win, he and his compatriots, the Revolutionary Council, ruled Burma with little, if any, regards for the 1947 constitution. In 1974 the Revolutionary Council drafted another constitution which merged the legislative and judicial arms of the so-called government. This constitution was suspended in 1988 following the large non-violent democracy protests that occurred across the country.
At the moment there is no constitution in place. The military body that rules Burma, the State Peace and Development Council (SPDC), is in the process of a National Convention that is charged with drafting a new constitution. However, delegates for the convention were handpicked by the SPDC and have been given strict instructions not to waiver from the pre-set agenda. Furthermore, discussions are limited to “constructive” comments and ideas. In other words, the convention has been stacked with SPDC “yes men” who will guarantee the constitution will be exactly what the SPDC wants - further legitimization and consolidation of the military leadership of Burma - but with the illusion of being created as a result of open dialogue between all sectors of society.
However, the SPDC is not the only group drafting a new constitution for Burma. Many opposition groups, from political parties to armed groups that are either boycotting or excluded from participating in the National Convention are in the process of creating alternative constitutional frameworks. The National League for Democracy and the National Council of the Union of Burma have drafts of a national constitutions, while ethnic groups are in the process of designing a constitution for their respective States.
The idea of a constitution is to unite different sectors of society under a common framework. This unification should not occur after the constitution has been written, but at the very beginning - during the drafting process. The groups should be working together, to ensure that the process is inclusive. As the conflict in Burma has isolated people, there is a great need to build bridges and involving everyone in the drafting of the constitution is one way to achieve this. Furthermore, this bottom-up approach ensures that from the start people’s needs and wants are included, crafting a constitution that is for the people.
There are many examples of constitution drafting from around the world and Burma itself. However, the Shan State Constitution Drafting Commission (SSCDC) has developed a system that involves the grassroots people at every step of the process. Representatives of the SSCDC have visited villages and discussed issues associated with the constitution. Throughout these visits, representatives discussed with people about what a constitution is, what it does, about different political systems and what their rights are. After these discussions, the grassroots people began suggesting ways to protect their rights.
Through out the two years that the drafting process has been underway, the people and the SSCDC have identified a number of issues that are very important to the development of the Shan State constitution. One of these is the need to document all of the traditional, or customary, laws to ensure that village level wisdom is given appropriate emphasis in designing the state constitution. In some situations the traditional laws are very similar in every village however, in others they vary dramatically. In these situations villagers want assurances that their traditional ways will receive precedent over external administration structures.
Another concept that has emerged from discussion with the grassroots people is the need for people to be involved in the decision making process. Under the current political structure (which has no legitimate claim to power) there is no space for the people to be involved in deciding the policies and future of the country. This must change. Moreover, the people’s right to be involved in the political process needs to be protected by the constitution.
However people’s rights are not the only elements that need to be clearly set out in the constitution. For federalism to re-emerge and to have a chance there needs to be special emphasis to ensure there is a clear separation of power between the central and the state governments. Furthermore, there needs to be a clear description of each institution, their role and responsibilities and checks and balances to ensure that these institutions are operating in a transparent manner.
Past constitutions and administrations were not clear in the separation of powers and their activities, which led to confusion, further fragmentation of an already fragile Burmese society and civil war. Care needs to be taken to ensure that this does not happen again. One way this is possible through Tripartite Dialogue.
In 1994 the United Nations General Assembly passed a resolution calling for Tripartite Dialogue between Burma’s military dictatorship, the National League for Democracy and the ethnic groups. The objective of these talks, which are yet to take place, is to create a solution to the political impasse that has plagued the country for decades.
For the Tripartite Dialogue to be effective each party needs to be an equal stakeholder. Due to the international awareness and unwavering support for the NLD, the current stranglehold the military has on Burma and the decades of systematic oppression of minority groups, there are genuine concerns that the ethnic groups would not be given an equal platform at the talks. However, the Ethnic Nationalities Council, which was formed in March 2004, aims to create a “United Ethnic Nationalities Voice and Platform” for Tripartite Dialogue. One way that the ethnic groups have been working towards created a unified position is through the drafting of state constitutions, like the previously mentioned Shan State. This process allows states to identify the needs and wants of the people in a systematic manner, and to then use these state constitutions as a starting point to create an ethnic platform.
The drafting of a constitution is a long and arduous task filled with limitless potential. It has the possibility to ensure equality for all and to protect the vulnerable, or to consolidate the power-base of the already powerful at the expense of other citizens. It can merely define the legal parameters of the executive, legislative and judiciary (the first three estates) or to go further and provide a legal framework that protects the rights of the population.
While it will take a long time for peace to come, it is necessary to start developing the constitution now. Without a strong constitution that fairly shares power between the central and state authorities, society will again fragment. Most importantly the constitution is a legal document for the people. Consequently it should be put to the people before it is accepted and they should be the final arbiters of any constitutional changes or amendments.
To go to the other articles published in the April 2006 BI Newsletter click on the links below:
