While Burma watchers continue to debate the extent of and motives behind Naypyitaw’s current reform process (see here for my take), there seems to be much wider agreement that the 2008 Constitution is a deeply flawed document. Indiana University Maurer School of Law Professor David C. Williams calls it the “worst he had ever seen.” Other writers describe it as a patent tool to ensure military dominance over politics.
While much of this criticism is just, it is also difficult to imagine that a liberal democratic constitution would have survived long even in Burma’s current political environment. The constitution itself is only a piece of paper representing careful elite negotiations about the rules of the political game. The U.S. Constitution works because neither political party could ever completely dominate the country. Thus, each has an incentive to see that the government respects the political rights of political losers as well as winners. By contrast, Burma’s military remains powerful enough to demand a veto over any reforms. Thus, the 2008 Constitution does not create the underlying power imbalance, but merely ratifies it.
Fortunately, constitutions are not static but rather respond to underlying political dynamics. Much constitutional change comes not from rewriting the words in the text, but rather reaching a new consensus on how to interpret those words. After all, constitutional language is often imprecise, sometimes deliberately so. However, in those instances when even the smartest lawyers cannot find new meaning in old words, political elites amend or rewrite the constitution to reflect new political developments.
This happens more frequently than one might think. In fact, constitutions generally live fast and die young. According to research by Tom Ginsburg, Zachary Elkins, and James Melton with the Comparative Constitutions Project, the average lifespan for constitutions is just 19 years. To put that in perspective, a generation in the U.S. is around 25 years. (Alternatively, the average constitution lives one year less than the average Canary.) The U.S. Constitution, which will soon celebrate its 225th anniversary, is the exception, not the rule. Thomas Jefferson, who believed each new generation should write its own constitutional compact, would feel vindicated.
So should critics of Burma’s 2008 Constitution, if history is any guide. Burma’s previous two constitutions — 1947 and 1974 — each lasted around 14 years. Moreover, the 2008 Constitution lacks the ingredients for a long-lived constitutional recipe — an inclusive drafting process, detailed provisions, and a flexible amendment procedure. The question is not if Burma’s democratic opposition will be able to change the constitution, but rather when.
It’s worth looking at how other countries have handled constitutional transitions. After all, Burma’s military is not the first to have written a constitution that assures itself a veto over an elected government. When the 1988 referendum restored democracy to Chile, Pinochet’s constitution established a National Security Council; prohibited the president from removing the commander-in-chief of the armed forces; reserved 9 out of the 35 seats in the senate for non-elected appointees; and established high barriers to amendments (sound familiar?). Today, Chile is a vibrant democracy not because Pinochet wrote a good constitution, but rather because democratization made it in the military’s interests to not block constitutional reform. In 2005, the Escobar government worked out a deal with conservatives and abolished all of the aforementioned restrictions.
It’s also not uncommon for newly democratic governments to avoid the amendment process by simply convening a constitutional convention to write a new constitution. Starting afresh also encourages drafters to consider topics not included in the previous constitution. After overthrowing Marcos in 1986, Cory Aquino’s coalition took this approach in order to circumvent conservatives in the congress and ensure that the new constitution reflected their progressive human rights and nationalist economic goals. For that to happen, the country — and particularly political elites — must support the move to a new constitution. That is why almost every government puts new constitutions to a public referendum — as a symbol of that national consensus.
This approach of course frees constitution drafters from the straightjacket of a constitution imposed by the military. However, it also entails risks by reopening old debates and forcing political elites to spend time and effort forging new compromises. After 1998, for example, Indonesia’s major parties chose not to replace the 1945 Constitution for fear that doing so would give Islamists an opening to propose enshrining Shari’ah law in a new constitution. In the end, Reformasi eventually amended the constitution beyond recognition, but also managed to forestall debate on the role of Islam.
Which path is better for Burma? Will democracy be more stable if the new government accommodates the old? Or should Burma begin with a tabula rasa? Unfortunately, political scientists have only just begun to research these questions. The decision will depend heavily on the exact nature of the democratic transition. However, when transitions come they often come quickly and without warning. It is worth thinking about not only which provisions of the 2008 Constitution should be amended, but also about the risks and benefits of starting constitutional bargaining anew. If history is any guide, Burma might face this choice within the next decade or so.
Dominic J. Nardi, Jr. is a Ph.D. student in the University of Michigan Political Science Department. He also has a J.D. from Georgetown University and an M.A. in Southeast Asian Studies from Johns Hopkins. His research focuses on judicial politics in Indonesia, the Philippines, and Myanmar.
The crux of the matter is that the 2008 Constitution does not create the underlying power imbalance, but merely ratifies it. Whilst the question is not if Burma’s democratic opposition will be able to change the constitution, but rather when, what is of greater import is how, the Chilean or the Filipino way.
0
0
There is a Burmese proverb that says “scaffolds are for disposal once a pagoda is fully built”. The 2008 Constitution is part of the exit strategy crafted by military regime and meant to be dismantled soon after it has retreated to safety. There is no doubt about whether the Constitution will be amended or even be abolished and replaced with a new one. The question here is timing. When this will happen? Well, whatever the answer is, the word “trust” has a confirmed place in it. Like many societies in East Asia, Burmese has overwhelmingly high attachment to relationship and trust than the rule of law. There is no law in Burma that is straitjacket and this constitution is no exception.
On the other hand, the 2008 Constitution has nonetheless served as a catalyst for political process in which trust will take the centre stage. This has become more evident in recent months as both the government and the opposition try to reach out to each other’s camp. The government is reaching out to earn trust from the people (and the international community). Aung San Suu Kyi in her campaign speeches routinely praises government leaders for their reform efforts and stresses importance of military’s blessing in achieving democratic goal. Positive changes will trickle in if both sides continue to stick to friendly script while structural factors such as economic prosperity and personal freedom begin to take shape. Again on the day the rule of law has taken root in Burma will also be the last day of this constitution.
0
0
Really thought-provoking post.
The main issue I found myself mulling over was this: by giving an entrenched power with the most to lose by an organic reform process (ie. the military) a formalised, legal way to stymie or retard any steps towards liberalisation, does this imperfect document actually facilitate reform in the short-term – by letting the only potential spoiler feel it can’t be threatened by the reform, that it actually controls the process, and thereby discouraging the army’s ‘nuclear option’ of coup d’etat and return to comprehensive repression?
While the much-discussed flaws in the 2008 constitution present clear barriers to achieving the profound changes desired by the population in the long-term, it will be interesting to see the extent to which the momentum of the past year’s political developments can be carried towards responding to the wider population’s aspirations for change, and how soon the 2008 constitutional framework becomes a serious enough constraint to be revised or discarded.
0
0
“Again on the day the rule of law has taken root in Burma will also be the last day of this constitution.”
‘Burmese has overwhelmingly high attachment to relationship and trust than the rule of law. ‘
Proving once again SG Than Shwe and cohorts hold on Myanmar not ending soon.
Making the rule of law 2nd to improving the present plight of the humanity.
Yet here we all are:
http://www.mizzima.com/edop/commentary/6696-make-burma-end-forced-labour-before-dropping-sanctions-tuc.html
http://www.mizzima.com/edop/commentary/6665-un-should-consider-commission-of-inquiry-on-burma-ai.html
Neglecting the most fudamental issue that effect the violation of Human Rights on the masses, elsewhere and in Myanmar: ABJECT POVERTY.
TUC, AI proxies of the west that prolong the present careless useless process risk becoming irrelevant through such irresponsible present irrelevance.
Obviously the British are still on the “bash a junta wagon”.
0
0
Good.
0
0
With no disrespect to you, Dom, a legal and political scholar, this post would be described as amusing.
To put in the ground work, none of the enlightened legal and political minds has known in advance or predicted any of the significant momentous events in the history like Berlin Wall, Glasnost, 9/11 or even beginning of the fall of PPP in Singapore. (Otherwise George Yeo would not have to endure the public embarrassment.)
Any thing written by human anywhere is subject to interpretation by the dominant force of the time, any time. There is never innate force on a paper. No constitution will come out of the book to grab the rule breaker by the throat. But it is there simply for people to take advantage of as circumstances arise.
Still action says a lot about the action-er. (Or act about the actor if one prefers.)
What the Nargis constitution says is that the mighty military thugs who make killing, bullying and paranoia as their main and only purpose and boundary of life, are so cowardly- predictably this time- to put in there lots of moats, fence, spikes and repelling charms to save themselves as they have no real innate self-confidence. By the reaction, same conclusion can be reached of the people vehemently opposing it as well.
Yet, for sure the military read the public right. All the “oppositions” are now arch cheerleaders of them with very few exceptions. And the bluff of the so noble international communities, who ostensibly put up sanction on the military who they were busy disparaging until so recently, has been well and truly called with just about all the people who think they can make money are there hobnobbing or trying to find out who to hobnob with intention to “do” Burma. Even the America’s Oscar winning performance of how to slowly reduce the sanction step-by-step is so hollow now.
That does make making too much of the small letters of the written words – well- purely academic.
Just like the such and such number commandments, or the Buddhist’s Five Precepts, which incidentally, was used to be observed by people in Burma one time.
For example, every one knows Thein Sein himself and the military in general were/ are deeply in breach of international laws and rules as well as common human decency in their treatment of all the citizens of Burma and there are innumerable examples happening in the country, Burma, as these words are being typed. But with international statutes and laws on the book, all that indomitable ex-magistrate Tomas Ojea Quintana has done is putting out a white flag.
It is always nice to see half blind people enjoying themselves immersed in the glow of “Burmese Democracy” but it must be said that just as Aung San Suu Kyi’s iron pressed Kachin dress was no solace to the raped Kachin women ( there are so many of them)or one would think, the dead Kachins, the effusive rosy promises of the “development” by the multinationals directly or indirectly via their lapdogs (democratic “western” governments) and the international loan agencies (the head of one of which conferred a prize to her favourite subject just now) will not be taken well by the majority Burmese public when they realise that the promised “development” is simply a code word to take away their land and make them serfs in their own land or slaves in the sweatshops apparently to save themselves from themselves, the little “time bombs” in A May Suu’s words.
The “Joe Public” of Burma is a lot less stupid than any credit given by people planning their future mostly in air-conditioned rooms around the world.
With Thant Myint-U approved criss-cross rails, roads, ports, trade, manufacturings, digging the land, destroying the forests, touristy theme parks as he saw in Yunan, etc., the new Burma is supposed to be the next suckers for the consumers good and people slaving to satisfy their new found, newly discovered desire. And all the leading voices in and out of Burma seem to agree with that “vision”.
People also cheered and clapped . Because they did not realise before that their ancestral possessions of land and their ways are not supposed to be compatible with this highly advanced “vision”. A “vision” people will die to object in short time to come.
It is notable the “Peace March”-es, the “Candlelight Protests”, the Lapadaung Taung land issue demonstrations and various others are spontaneous and leaderless, totally separate from the much touted NLD-88- Exiled group influence or participation and are just the beginning of the true Burma.
Now the stage is finally set. Oh, the constitution! What is that?
0
0
The loyal opposition is busy hobnobbing with the generals and acting as intermediaries, so the people do not inadvertently rock the boat too much in pursuing their rights and freedoms. Got its work cut out. Happy families then.
0
0