Framing the Future

Framing the Future
By DOMINIC FAULDER

Burma has always been cursed by its constitutions. So, is the upcoming referendum a chance for progress or a step back for the people?

WHEN the last British governor in Burma, Maj-Gen Sir Hubert Rance, departed Rangoon in early 1948, he wept as he surveyed the city’s receding colonial skyline. His tears were not for a lost colony, but for what he feared was about to unfold.

Burma’s most prominent independence figure, Bogyoke Aung San, and half his Cabinet had been murdered six months earlier. The British were leaving behind a constitution with rickety and ambiguous provisions for restive minorities who might one day want to secede from the fledgling Union of Burma.

British forces had been running bandits to ground since the end of World War II. The loyalties and political motivations of these “dacoits” were uncertain, but nobody doubted that trouble was brewing. The ethnic Karen revolt ignited almost immediately and flickers on to this day as the world’s longest-running insurgency.

The tale of the tearful departing governor was recounted to me by his widow, Lady Rance, in early 1982 at her retirement home in Surrey, England. Over tea, she spoke fondly of Aung San and what might have been. I was reminded of her words in January 1989 by Snr-Gen Saw Maung as he launched into an unprecedented interview in the fortified Ministry of Defence compound in Rangoon.

After weeks of negotiation, Saw Maung, the first chairman of the new Burmese junta, the State Law and Order Restoration Council (SLORC), had agreed to talk. I and another journalist from Asiaweek, a Hong Kong-based newsweekly, were there to hear his side of the August-September 1988 uprising that had left at least 3,000 Burmese dead. To our dismay, the general proceeded to lecture us bitterly on a clause in the constitution bequeathed by the British that sanctioned possible secession to three minorities after a decade. Saw Maung argued that this had had a disastrous impact on Burmese history and unity down the years.

Saw Maung may well have been right, but that was not the topic we had come to discuss. His deputy chairman at the time, Gen Than Shwe, listened impassively from an armchair but said not one word. After 20 minutes in what would turn out to be a wide-raging three-hour interview, Saw Maung actually seemed relieved when I nudged the topic away from defective constitutions towards more recent developments.

He had not mentioned that in 1974 the Burmese had the chance to put the British constitutional deficiencies to rights with a fresh charter of their own. That too failed. With the 1974 constitution abrogated, Saw Maung replaced the Cabinet, known as the Council of Ministers, with the SLORC, a junta that continues to this day in its second incarnation as the State Peace and Development Council (SPDC) with a weak Cabinet playing second fiddle.

With its new 1974 constitution, Burma moved from rule by a junta to rule by a one-party state dominated by retired military officers. The 1974 constitution was adopted after a referendum in 1973, conducted without the benefit of a secret ballot, and allegedly paved the way for a return to civilian rule.

Since 1962, Burma had been ruled by strongman Gen Ne Win’s Revolutionary Council and his idiosyncratic Burma Socialist Program Party (BSPP) as the country underwent a “transitional period for its construction.”

The BSPP’s party constitution was adopted in July 1962 and published alongside the party’s philosophy: “The System of Correlation of Man and His Environment.”

This unique, convoluted and largely impenetrable treatise opened the way to Burma’s economic ruin. In terms of military dominance and economic ineptitude, nothing has really changed since 1962. Burma staggered on under the BSPP until mid-1988, by which time the economy had completely run aground.

Ne Win finally resigned as BSPP chairman—but with a typically contrarian flourish: He called for multi-party democracy whilst promising that the army would shoot demonstrators, which it has dutifully done, most recently last September.

In May 1990, a general election was held that, although completely ignored by the junta, will forever stand as a ringing rebuke to the military and its stranglehold on political life in Burma. The landslide victory of the National League for Democracy (NLD) was left to wither on the vine and a resounding mandate for peaceful and inclusive political reform was squandered.

An argument still rages as to whether the original purpose of the 1990 election was to form a new parliament/government or a constituent assembly to draft a new constitution. In the event, neither occurred, making this a genuinely academic debate.

The constitution that will be put to a referendum in May is instead the creation of a junta-appointed “representative” assembly that took a record-breaking 15 years to produce.

Even then, the document still needed redrafting and was only made public in March.

It includes a requirement that the head of state have a military background, that a significant proportion of seats in the assembly and key ministerial portfolios be held by the military, and even a clause that would allow the army to suspend the government and assume power.

Information Minister Kyaw Hsan has rebuked critics of this process for double standards, pointing out that the constitution passed in Thailand last year—the 18th since 1932—was drafted without opposition involvement.

There are actually a few key differences. Thailand’s new constitution is mostly a modification of its freely drafted 1997 constitution, and the Thai public had the opportunity to accept or reject it in a secret ballot. Indeed, although it was adopted by a convincing 60 to 40 percent margin by the 55 percent of eligible voters who turned out, it was rejected by almost two-thirds of voters in the northeast, a bastion of support for the ousted premier, Thaksin Shinawatra. Essentially, it was a legitimate, properly observed vote—and the Thais know they can always adjust and improve their constitution in changing times.

It is doubtful that the people of Burma will be similarly enfranchised, particularly as military vetoes have been incorporated as predicted. The Thais were also able to move ahead in good order to a general election in four months. The Burmese may have to wait up to 30 months for reasons not explained.

For all this, few observers doubt that May’s referendum in Burma will see the adoption of the new constitution. Cynics and pragmatists will argue that however flawed, 10-percent democracy is better than no democracy at all. They may be right.

However, the United Nations will have a hard time getting behind this process once it starts counting up the infractions of its own 1948 Universal Declaration of Human Rights (UDHR). Whilst not a treaty, the UDHR carries significant moral authority as “a common standard of achievement for all peoples and all nations.”

Why should the Burmese be excluded?

The Burmese regime routinely flouts UDHR articles 8, 9, 10, 12, 13, 19, 20, 21, 23 and 26 (at least).

The draft constitution excludes Aung San Suu Kyi, the secretary general of the NLD, from political life because she was once married to a foreigner. Suu Kyi is a widow and always retained her Burmese citizenship, so any such exclusion may contravene Article 21 (i): Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.

In the late 1990s, she did not leave Burma to be with her dying husband in England because she was certain of not being allowed to return. Even so: Article 13 (ii) states: Everyone has the right to leave any country, including his own, and to return to his country.

Perhaps it is not only the long-dead governor who should be weeping.

Cover Story, Irrawaddy Magazine (Apr 2008, Vol 16, No. 4)