Brief Analysis of the Burmese Military Junta's Constitution

Brief Analysis of the Burmese Military Junta’s Constitution

Aung Din
Executive Director
U.S. Campaign for Burma
aungdin@uscampaignforburma.org
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(A) Powers Authorized to the Commander-in-Chief to Independently Administer the Military Affairs

(1) The Commander-in-Chief (CC) will become the most powerful person of the Country and will have the right to administer the military’s affairs independently. All military affairs, including recruitment and expansion of troops, promotion, troop positioning, budget, purchase and manufacturing of weapons, military-owned businesses, etc, will be administered by the CC according to this constitution (Article 20-B, 20-C, 20-F). The military, which is supposed to be a state organization, is not under the supervision of the President. The Parliament is restricted not to legislate and oversee the military (Article 115-B). All military personals who are accused of crimes, will be tried by the court-martial appointed by the CC (Article 343), state judiciary power has no jurisdiction over the military. Therefore, the military is allowed to stand above all three sovereign powers. Furthermore, according to the constitution, the CC and the military are granted power to monitor and intervene in all three sovereign powers.

(2) If there is an emergency situation, the CC is authorized to declare a state of emergency for the whole or parts of the country. The CC is then authorized to control all three branches of powers (executive, judiciary and legislative) as long as the country is in a state of emergency. In truth, the ‘state of emergency’ is a tool to fend off any attempt for amending the constitution. Thus, if there were to be an attempt to amend the constitution, the CC would simply declare a ‘state of emergency’; seize control of all three branches of state powers (Article 40-C, 413-B, 418-A, 419). This is authorizing the CC and the military to stage a coup at anytime they want.

(B) Powers Authorized to the Commander-in-Chief to Intervene in the Country’s Legislative Affairs

(3) According to this constitution, there will be two Chambers of Parliament at the central level, called "Peoples' Parliament" (PP) and "National Parliament" (NP) respectively. The Union Parliament (UP) is formed by the combination of the PP and the NP. The PP will have 440 Representatives, in which 330 will be elected from the various Townships according to their populations while 110 will be appointed by the CC (Article 109-B). Therefore, military officers, appointed by the CC, will control one quarter of the PP. The NP will have 224 Representatives, in which 168 will be elected from States and Regions (12 each from 7 states and 7 regions) and 56 will be appointed by the CC (Article 141-B). Therefore, the CC will control a quarter of the NP with its military officials.

(4) If civil servants are elected in the elections, they are required to retire from their occupations and abandoned the facilities, provided by the state. However, military officials, who are appointed by the CC to sit in the Parliament, are not required to do so. They still can keep their military positions and state facilities, houses and cars.

(5) The Union Parliament is supposed to be the highest body in the country's legislative affairs. However, according to this constitution, the Parliament has no right to legislate and/or oversee military affairs. The CC-appointed military officers in the Parliament are authorized to discuss the military affairs and budget separately and the Parliament is to approve their submission (Article 115-B, 147-B). Therefore, the Parliament will become a rubber stamp to endorse the CC's proposal.

© Powers Authorized to the Commander-in-Chief to Intervene in the Country’s Executive Affairs

(6) According to the election method, one of the three Presidential nominees will be a current military officer or a former military officer, nominated by the military representatives in the Parliament (Article 60-B/3). According to the stated criteria, Presidential nominee needs to be well acquainted with military affair (Article 59-D) and therefore two other nominees nominated by two other groups are also expected to be former military officers. As military officials appointed by the CC occupy one quarter of the Union Parliament, which will become the presidential Electoral College, no nominee can be elected without the support of military officials. Therefore, only the nominee who is favor by the military officials will become the President.

(7) Even so, the President has no right to exercise his executive power over the Commander-in-Chief and the military. Reversely, the CC has the authority to influence over the President. When the President establishes his Cabinet, he will not have power to appoint the ministers and deputy ministers for defense, home and border area affairs. The CC will recommend military officials to run these departments as ministers and deputy ministers and the President is required to appoint the CC's nominees (Article 232-B/2, B/3, C and 234-B, C). It is clear that by controlling the three most important Ministries (Defense, Home and Border Area Affairs) in the Cabinet, the Commander-in-Chief will be more powerful than the President.

(D) Powers Authorized to the Commander-in-Chief to Intervene in the Country’s Judiciary Affairs

(8) According to this constitution, the Commander-in-Chief will have the authority to administer the military affairs freely, including judiciary. Military personal, who involves in any crime, will be tried by court martial, appointed by the CC (Article 293-B, 319, 343). The civilian courts have no authority to try the military personals.
In that way, the military is above the law.

(9) According to this constitution, the President has the authority to appoint the Chief Justice and States/Regions Judges. Furthermore, the judiciary system has no jurisdiction over the military. As the President himself is less powerful than the Commander in-Chief, the CC will be able to intervene in judicial power freely.

(E) Powers Authorized to the Commander-in-Chief to Intervene in the Country’s Ethnic Nationalities Affairs

(10) All States and Regions will each have a State/Region Parliament, and military officials appointed by the Commander-in-Chief will occupy one quarter of all Parliaments (Article 161-D). The expectation of ethnic nationalities to obtain the right of self-determination will never be realized as unelected military officials will effectively intervene in their State affairs. According to this constitution, State Representatives will not have the chance to elect their Chief Minister, who will be the head of the State. The President will select one of the State Representatives to be the Chief Minister of the state (Article 261-B, C) and the State Chief Minister will be responsible to the President (Article 262-L/1/2). Ethnic nationalities do not even have a chance to elect their head of State by themselves. They have to accept someone chosen by the President.

(11) Then, the State Chief Minister has no right to form his or her Cabinet as he or she wishes. He or she has to compile a list of individuals to fill in the State Cabinet and submit it to the President (Article 262-E). Two of the State Cabinet members, who will run the security and border area affairs, will be appointed by the CC (Article 262-A/2). States do not have the right to appoint State Judges too. The President will appoint the State Judges, in consultation with the Chief Justice of the Union. Therefore, the judiciary power in States will be handled by the judges appointed by the President. As mentioned above, military officials occupy a quarter of State Parliaments and will intervene in State legislative affairs, as instructed by the Commander-in-Chief. Military officials also take charge of State security and border affairs and will effectively intervene in the State Executive power. Then Judges appointed by the President will handle the State judiciary affairs. There is no realistic possibility that equality among all ethnic nationalities and self-determination are met.

(12) Self-Administered Division and Zones will be led by the Leading Bodies and as usual, one quarter of the Bodies will be military officials appointed by the CC (Article 276-D/2, 276-H). The President will appoint the Chairman of the Leading Bodies (Article 276-F), while Judges appointed by the President will handle the Self-Administered Division and Zones judiciary affairs. Contrary to its name, there is no real self-administration.

(F) National Defense and Security Council

(13) According to this constitution, National Defense and Security Council (NDSC) will be formed with 11 persons (Article 201). The NDSC will have responsibilities to declare the state of emergency and appoint the Commander-in-Chief, who is the most powerful person in the country (Article 342).

Members of the NDCS are as follows:
(i) President, (ii) Vice-President, (iii) Vice-President, (iv) Head of Peoples' Parliament, (v) Head of National Parliament, (vi) Commander-in-Chief, (vii) Deputy Commander-in-Chief, (viii) Minister for Defense, (ix) Minister for Home Affairs, (x) Minister for Foreign Affairs and (xi) Minister for Border Area Affairs

(14) According to this formation, the Commander-in-Chief secures at least eight-vote majority at his side. They are;
(i) President, who can be elected only with the support of the military representatives in the Parliament
(ii) Vice-President, who will be nominated by military representatives in the Parliament
(iii) Commander-in-Chief himself
(iv) Deputy- Commander-in-Chief, who is appointed by the CC
(v) Minister for Defense, appointee of the Commander-in-Chief
(vi) Minister for Home Affairs, appointee of the Commander-in-Chief
(vii) Minister for Border Area Affairs, appointee of the Commander-in-Chief
(viii) Minister for Foreign Affairs, appointee of the President
With this super majority vote, the NDCS will be also a rubber stamp to advance the agenda of the Commander-in-Chief.

(G) Amendment is Impossible

(15) The junta makes it difficult to amend the constitution in the future. Any amendment will be submitted to the Union Parliament (the combination of Peoples' Parliament and National Parliament) with a sponsorship of at least 20% of the Parliament Representatives (Article 435). To amend the main Chapters of the constitution, including State Fundamental Principles, Formation of the State, Formation of Legislative Power, Formation of Administrative Power, Formation of Judiciary Power, State of Emergency, in addition to over 75% of the support of the Parliament, 100% of support from the national referendum is required (Article 436-A). Other chapters can be amended with over 75% of the support of the Parliament.

(16) Since military officials occupy 25% seats in the Parliament and they will vote as instructed by the Commander-in-Chief, to receive over 75% support is almost impossible. Even there are over 75% supports with all the 75% of elected representatives agree to amend the constitution and joining some military officials who might disobey the order of the Commander-in-Chief, obtaining 100% of the voters in the referendum is totally impossible. Even this happens, the CC will immediately declare the state of emergency with the reason to protect the constitution, and stage a coup officially, as the constitution has granted.

(H) However, Approval Is Much Easier

(17) The junta has also created a climate of fear for those who dare to oppose their plan. Decree 5/96, the law that punishes anyone who tries to disturb the constitution writing process with 20-years imprisonment, is still active. A new referendum law also imposes three-year imprisonment for those who criticize the constitution. Arrest and attack of the democracy activists by the junta security forces and its militias continues daily.

(18)The draft constitution, Chapter (XIV), Article 441 states "This Constitution shall come into force throughout the Union after its adoption in a referendum by the majority votes of more than half of all the people who have the right to vote." From this twist, the constitution is to be approved by the majority of more than 50% of the eligible voters. That means the junta needs only little more than 7 million votes to approve its constitution, as estimated numbers of eligible voters in Burma today are about 28 millions.

(19) To ensure that it wins, the junta also makes a provision of eligible voters in the referendum law. According to the referendum law, Chapter (V) Preparing Voting Rolls, Section 11 (a), the junta allows associate citizens and temporary certificate holders to vote in the referendum. No country allows associate citizens and temporary certificate holders (equivalent to the US permanent residents and legal residents with temporary visa) to participate in the referendum and the elections. There are more than two million Chinese in Burma who migrated from Yunnan Province in China since 1988. As favored by the junta, these Chinese immigrants are doing business very well and holding full and associate Burmese citizen cards, and they will surely vote for the constitution. Combination with military personals and families, as well as some USDA members, the junta can easily organize more then 50% of the voters to go to the polling stations and get enough votes to approve the constitution.

(I) Democracy Activists Are Not Allowed to Contest in the Elections

(20) Some expect that if all democracy activists unite and compete in the elections, they may capture all elected seats, which is 75% of the Parliament. Then, they may have chance to save the country, by working through the Parliament. However, we need to notice that there are restrictions in the constitution that limit the participation of many democracy activists in the elections. According to this constitution (Article 121-A, B, C), those who were/are in prison and convicted by courts for crimes are not allowed to contest in the elections. Almost all of NLD leaders, members and MPs, as well as student leaders, human rights defenders and democracy activists are in and out of prisons many times and some are still in prison, serving longer jail terms. They are surely not allowed to participate in the elections.

(21) Also, individuals, who were judged by an authoritative body as he or she is not eligible to contest in the elections, are also not allowed participating in the upcoming elections (Article 121-L). The elections commission, formed in 1989 by the military junta, made decision in 1990 that ban Daw Aung San Suu Kyi from competing in the 1990 elections. Therefore, as this ruling continues, she will not be eligible to contest. This constitution also bars those, who are loyal to the foreign governments and receive fund from them, since the military junta has accused all democracy forces as foreign stooges and axe-handles (Article 59-E). Those whose spouse and children are foreigners are also barred from contesting elections (Article 59-F). This provision effectively bars Daw Aung San Su Kyi, whose late husband was and their two sons are British citizens.

(J) Role of the Junta’s Militia “Union Solidarity and Development Association (USDA)”

(22) The military junta has formed the USDA as a civic organization. Gradually, USDA became the political arm of the military junta and a mechanism to monitor and oppress the people of Burma, on behalf of the junta. USDA is now involved in many activities, from midnight check and inspections in neighborhoods, road blocks and check points to watching activities of democracy activists and NLD members. With strong backing of the junta, USDA today is more arrogant and engaging in violent acts to crackdown on the peaceful protests. USDA members help police and military intelligence to arrest democracy activists and sometimes, even without law enforcement official, USDA members attack and detain democracy activists in many places. During the peaceful protests in August in September 2007, led by Buddhist Monks and student activists, the junta deployed thousands of USDA members, along with thousands of its security forces, to brutally attack Monks and peaceful demonstrators. The USDA is now given the assignment to run the referendum by the junta. We are confident that USDA members will employ all inappropriate and undemocratic methods, such as intimidation, vote buying, cheating and other frauds to endorse this sham constitution.

(23) After the referendum, USDA will become a political party and enter the elections. By using bullying methods and threat, it will surely try to get more seats in the Parliament and try to block democracy activists and honorable citizens from contesting in the elections. We are expecting to see a significant number of USDA representatives in the Parliament, who will stand together with military officials in the Parliament... It is clear that there will be no opportunities to amend the constitution in the future and it will also be impossible to promote democracy, human rights and equality among all ethnic nationalities, within the framework of this constitution.