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Bertil Lintner, the veteran Burma watcher, has launched a barrage to soften up the more optimistic analysis that is circulating about the country’s immediate prospects.
In this new article over at Asia Times Online he takes aim at the inadequacies of Burma’s current constitutional framework. In one key stanza Lintner argues that:
Myanmar’s staunchly nationalistic military may be willing to lessen its dependence on China, and even cut its ties with North Korea, provided the US and its allies can offer something substantial in return, including an eventual removal of economic sanctions. However, if one reads the 2008 constitution carefully, Myanmar will not become a genuine democracy any time soon, but rather a thinly disguised authoritarian state that the US and the West can cynically live with to counterbalance China’s influence.
His piece also includes interesting comments about Western ambitions for Burma and Aung San Suu Kyi’s willingness to accept “flawed” outcomes. It is well worth a read in full.
Lintner is right, of course, that the 2008 constitution will remain a thorny issue and there is likely to be much discussion on its potential reform over the years ahead. As I suggested some time back, there are quite a few reasons why reform is a good idea.
But, on the flipside, while Burma’s constitution probably limits certain desirable political outcomes it may also offer a new level of certainty, something a New Mandala reader once described as “calculability”. In the abstract I’m not sure how confident we can be about this (or any) constitution’s permanence, but looking at changes on the ground there is every indication that the current political, legal and constitutional format is here to stay.
In this context it is worth emphasising that while the United States and some other countries take their constitutions particularly seriously I don’t think that has ever been the Southeast Asian style.
So I suppose my question is: does Burma’s constitution really matter? A recent analysis of Thai politics, for instance, suggests that it is “misleading” to conceive the state in crudely “organisational” (or constitutional) terms. Is Burma any different?
Sad to say I thought Lintner’s article shows a lack of familiarity with constitutions and how they work. Many constitutions have historical baggage and the translation from constitutional text to practice is often bumpy, especially in SEA. Constitutions and their meaning change over time (Burma’s has only been in effect for a bit over a year). For Americans, our constitution still has the text that slaves are 3/5 of a person, although of course the civil war and subsequent amendments have rendered it a nullity. China’s constitution basically enshrines a role for the Communist Party and for years did not protect private property, but that did not prevent decades of robust growth. Of course, amendment provisions don’t matter a whole lot in transitions to democracy either – often, new democratic governments simply write new constitutions from scratch.
So yes Burma is still an authoritarian regime, but its political reality is fast outpacing the constitution. What we ought to be doing now is encouraging the reformers in the government, not pointing out obvious flaws in the constitutional document that probably have little bearing on how politics will develop over the next few years.
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Bertil Lintner has argued consistently that reform in Myanmar is doomed to fail. He has to defend this line. God forbid, he might rethink his argument. No, no. Hence the focus on the SPDC’s constitution. Nich is correct to note that the legalism matters less than the politics.
If Myanmar’s constitution were to be amended (as NLD would like to do via parliamentary process), then Bertil would doubtless find another reason to play Cassandra. You never go broke finding flaws in Myanmar.
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“…Myanmar will not become a genuine democracy any time soon”
Probably not, but it will end 50 years of isolation beginning in 1962 and with this will likely come progress in every sphere of life ranging from business to education to medicine to the legal system.
What Southeast Asia “experts” or pundits need to start doing is paying more attention to the details, to measurable outcomes in important areas that affect lives such as medicine, agriculture, education, legal system, economy, work and jobs, etc. (Albeit, there is little financial support and opportunity within western academic “Southeast Asian Studies” to do this. )
Personal Example: When the issue of a kidney transplant for my Burmese mother-in-law arose in 2002, I learned that there had been some ridiculously low number of kidney transplants in Burma, if I remember correctly about 7 total by one doctor in Yangon, miniscule compared to other countries like its neighbor Thailand. I have never seen this sort of issue or statistic addressed in Southeast Asian Studies academic analyses or even references to sources that do so. In contrast, Thailand has very good public health statistics but students need to be taught how to access them and use them better in writing research papers.
How exactly the vague future ideal of “democracy” is linked to concrete outcomes in the lives of flesh and blood people in these areas and whether “democracy” precedes and is more important than other factors is unclear. For example, feedback from export markets seems to have had more of an effect on food safety to-date in China than the still elusive ideal of “democracy”. South Korea, China, Singapore, Thailand, have all made progress in these areas, despite the fact that they lacked or still lack pure unalloyed “democracy”.
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I would be interested in what Lintner means by “genuine democracy?” Constitutional structures and normative guarantees mean very little if governments fail to enforce and honor constitutional processes and protections constitutionally guaranted.. The Yudhoyono government refuses to or is incapable of enforcing the Indonesian peoples constitutionally protected freedom of religion. Does that make Indonesia less than a “genuine democracy?” Is Thailand an ersatz democracy because its government functions under the military-dictated constitution that replaced Southeast Asia’s most democratic constituion. And of course, there is the Philippines. Cory Aquino’s legacy was the the 1987 constitution considered to be a model for democracy. Behind it, however, the oligarchs continue to rule with their provincial minions backed by goons, thugs, and militias To answer Farrelly’s question, constitutions only matter if governments are willing to abide by them. Constitutions are not self-enforcing. The test of “genuine democracy” is not the consitution but political will. It is too soon to make a judgement about Myanmar.
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Maybe the constitution is not so much imporant in Burma as Lintner seems to imply, but it ‘s also necessary to point out that this SE Asia’s “constitutional laxity” is mostly encouraged and used by the powers-that-be to reinforce or preserve the status quo and their grip on power, much more used anyway than to advance democracy (Thailand is again a case in point). Anyway, in Burma, it’s likely that constitutional changes will be introduced by the same people who wrote the constitution (not only because the constitution provides for it, but because, and more importantly, the balance of power in Burma is strongly in their favour and it seems that this will be the case in the foreseeable future) and it’s almost unthinkable that they would intoduce changes that could affect substantially their privileged position in the power structure of the country. I think that the sober analysis of Lintner still holds water, specially among so much excessively optimistic accounts of recent developments in Burma.
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“So I suppose my question is: does Burma’s constitution really matter?”
Regarding the “constitutional laxity” this isn’t the most important question for me.
The rather interesting one is: How can Burma progress on its way to democracy (as it is said in paragraph 6 of the “Basic Principles of the Union”: “The Union’s consistent objects are …flourishing of a genuine, disciplined multi-party democratic system, enhacing the eternal priciples of Justice, Liberty and Equality…”) if the constitution itself is in great parts not “democratic” in a western sense at all (for example later on in paragraph 6: …enabling the Defence Services to be able to participate in the National political leadership of the state.” Or in many other paragraphs such as 11 (a), 17 (b), 20, 33, only to mention a few).
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Nich
It appear that discussion on:
Respect for constitutions, coming elections, prospects of reform, Present government of Thein Sein, China, N.Korea, Indonesia etc
only make the following points again
1) Same circuitous matters repeated without any tangible benefits or enough exposé to real continual Citizenry of Myanmar suffering.
2) It justify continuing or delay abrogating present useless careless policy.
3) It absolve the combined iniquities of the west and all the protagonists and running dogs.
Everyone except the present government has lost one way or another.
Until the pointed discussions of how to directly and boldly benefit the citizenry is brought forth, changing Myanmar will never happen.
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Does Burma’s constitution really matter? Well, it depends on who is valuing it. I think it’s hard to assess how much members of the Hluttaw really value the constitution, or really how much it is valued by the particular members that power gravitates around. It’s difficult to say because there is no media freedom, and subsequently, no journalist would have the audacity to question them on it. Also, perhaps foreign researchers who have ‘seen it all before’ and are determined to go for the jugular through the smoky veil of deception that shrouds Naypyidaw don’t really value it either. It does matter, however, that there is a constitution because, if anything, it is a political tool. It’s a political tool that could be used (and improved) by people other than the present ruling elite.
If the constitution is valued little, it can always be valued more when those involved in politics who have little value for it now have reason to value it more. The more the constitution is mentioned and is in the national psyche, the more the public will surely value it (even just the word: constitution), irrespective of how poorly written and loaded with negativity it actually is. Indeed, surely the current constitution’s uselessness could spur public support for amending it. Support for amending it could occur if the reforms of moving towards a free media and moving towards gaining the entire public’s acceptance of law enforcement are being fulfilled. That way critiques of the constitution can be made without fear by people who really value it. Until Naypyidaw moves towards implementing those two reforms, everyone shall surely be in limbo when trying to assess what has actually changed, or valued or not valued in, what is at present as Lintner calls it, the ‘thinly disguised authoritarian state’.
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Debating whether this dictator will be different is akin to predicting the weather in hell will be at anytime.
Ne Win went constitutional with BSPP, with great respect and affection manipulated to the hilt to his own advantages with little benefit to the citizenry, and the west described him, “enigmatic”.
1) No independent Judiciary, as everywhere else in Asia except Singapore
2)Almost impossible to be an independently elected Hluttaw, even with Daw AUng San Suu Kyi in it.
3) With a perpetual chosen insider to the dictator as a President
The west is now discussing nonsensical possibilities. All the expats are chiming in.
Either this is an attempt to being obtuse or continuing the white washing of the iniquities of the ongoing policy.
This ‘much to do about nothing’ at best, over compensating for the fantasy of changes by the dictators at worst will again put the Citizenry of Myanmar benefits 2┬║ to every thing else in the ongoing engagement.
This rather contradict the concept of changes must come from within.
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Burma’s Ethnic Issue
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Optimism is good, we all are happy at the changes the new government has undertaken. But here by not dealing with the main issue, the problem remains hidden and perhaps unsolved as well. The main issue is the ethnic problems.
Constitutional changes truly matters especially in countries like Burma with many strong ethnic minorities because Burma’s problem is not fundamentally a democracy problem; in its essence it is the problem of sharing power with ethnic minorities. Burma failed miserably in this sharing experiment. ( Read Abid Bahar’s book, “BURMA’s MISSING DOTS,” 2010 for details)
If past experience is any guide we see it was U Nu accepting the minority’s federalist demands that led to the toppling of his elected government. Ne Win and his fellow military coup leader ever since have been fighting against the rebels.
The latest changes we can see in democratic reforms is coming from India playing behind the scene to remove Burma from Chinese influence and in exchange the sweetener the military is getting is that its sins perhaps will be erased. But Burma will never go against China, it will continue to play its cat and mouse game it is familiar with.
Change or no change, nothing significant has happened in the direction of the roadblocks in ethnic areas. If we recall, the denying of the Rohingya citizenship rights was done in 1982 by Ne Win passing a constitutional Act. This black Act was not yet revoked to show the world at least superficially that genocide in ethnic minority areas were brought to an end. ( See “What is Rohingya genocide? http://burmadigest.info/2012/01/18/tell-me-what-is-rohingya-genocide-in-burma/)
Talking about the Rohingya genocide, of course Arakan is a triangle where the Rakhine-Rohingya Buma tri parties and racial favoritism by the military deployed in the region makes the issue more complicated. Furthermore, Rakhines are only 5% of the Burmese population but are 30% in the army, making the issue more tilting toward the Rakhines.
Recent report shows that while there has been small changes taking place in Rangoon and in the new capital Naypyidaw but nothing significant has happened yet in ethnic areas like in Kachine, Karen, Chin or in Arakan areas.
It seems that more than constitutional changes what is urgently needed is the changes in education to demystify that Buma people are not a master race and minorities are not the guest people or foreigners in Burma. So constitutional changes are necessary particularly to stop genocide of Rohingyas and other ethnic groups demanding their rights codified in a federalist constitution. But again more importantly, the dominant Buma people have to be educated in to respect and tolerate ethnic minorities as equal human beings.
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Mr. Lintner has blinders on, and is a prisoner of his own misunderstandings about the functionings and creation of a democracy.
While of course there severe hamperings in the constitution regarding mostly, the military’s role, I am constantly fascinated by how no pundits or writers pick up on some of the more positive developments the constitution has provided, such as:
– a certain level of decentralization
– autonomous zones for some ethnic groups
– the creation of a bicameral legislature
– the outlawing of effective military rule of states/divisions by replacing regional commanders with Chief Ministers and their cabinets.
– the discussion in both parliaments, of what were previously extremely sensitive issues. government officials publicly defending and explaining their policies for the first time.
I’m not arguing that its a 100% benevolent constitution, but find it interesting that no one focuses on some of the less sexy progress thats happened in the past year…
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Abid Bahar #10
What make the Rhohingya so unique that this ethnic group among 100+ deserve more attention than others including the Bamar, the whole Citizenry of Myanmar?
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Colum Graham,
I think most of my journalist friends working inside the country would be offended by your remark on the lack of media freedom! You’ve obviously not been paying a lot of attention lately.
On the constitution’s “uselessness”, I know quite a few people that see exactly what is happening now – top-down reform – as the value of a flawed constitution that managed to secure the interests of those who were in power when it was written.
Also, the way that President Thein Sein seemingly went around the constitution (and National Defence and Security Council) to release political prisoners last week shows the constitution is not all-powerful in Myanmar in 2012. I think most groups will use the constitution to push their own interests, however. Journalists say it enshrines freedom of press, for example, and then use it as justification to call for ending of censorship.
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Kyaw,
Why would your journalist friends be offended? Who do they work for? Please see this recent report by the Committee to Protect Journalists:
http://cpj.org/reports/2011/09/in-burma-transition-neglects-press-freedom.php
A flawed constitution is still a constitution and there to be amended. Of course, the constitution is used by all groups (and all people) for their own interests. Are you implying that this is a bad thing? The world would surely collapse if people pursued their own interests!
How did Thein Sein ‘go around’ the constitution? The 2008 constitution is rather amorphous.
Section 354 of the constitution does not enshrine media freedom at all. It merely mentions that people can express their convictions and opinions freely with the proviso that it does not interfere with the security of the state. With the direction of the state being based on the extremely insecure objective of ‘not to disintegrate’, this is an highly prohibitive proviso as anything could be interfering with the security of the state if deemed so by the people whose interests the current constitution really serves: as you say, those who were in power when it was written.
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Most people I know would not see that CPJ report as reflective of reality inside Myanmar. I think Reporters Without Borders has been more accurate. The CPJ report is also quite out of date. Reporters are allowed into the parliament (and were even when this report was published on September 20). Foreign journalists, including exile media, have been invited to visit on jouranlist visas, although only to cover the visits of foreign dignitaries. A number of reporters, mostly from DVB, imprisoned under the military government were released last week.
And I’m not really sure what you mean when you ask who my friends work for. Most of the major news journals in the country? Nobody is saying that censorship has disappeared. In fact for most the process hasn’t changed. However, the relaxation of censorship has been significant. The diversity of media ownership in Myanmar and the lack of political affiliations among the publishers means the industry is better placed than some of its counterparts elsewhere in Southeast Asia.
And by going around the constitution I meant Thein Sein used the criminal code (I can’t remember the exact section) rather than the constitution to issue the amnesty.
Yes the constitution doesn’t enshrine media freedom but what I meant was journalists will use its ambiguity (who says what is contrary to the security of the state, for example) to advocate for more freedom. And why you inferred that I was saying that was a negative thing I have no idea.
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Pla B #12 said:
“What make the Rhohingya so unique that this ethnic group among 100+ deserve more attention than others including the Bamar, the whole Citizenry of Myanmar?”
It is about saving innocent lives!
Rohingya issue is supremely important because it to stop genocide. It is to chose life over improving life style-the essence of protecting human rights. To the Nazis during the 30’s it was about improving their life style but to the German Jews, it was to save lives.
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Kyaw,
Why would your journalist friends be offended with what I’ve said if, as you say “Nobody is saying that censorship has disappeared”? Would any of your journalist friends have the audacity to rigorously question a member of the Hluttaw on the lack of media freedom? Or why, as you put it, “…for most the process hasn’t changed.”? I hope one of your journalist friends rigorously interviews someone from the USDP/military!! If your journalist friends are offended with what I’ve said, they should not cower and lack the audacity to write about media freedom frankly, but instead go and question those at the source of the censorship. Surely your journalist friends wouldn’t be that offended, though! And a good thing, too!
I wasn’t sure why you mentioned groups will use the constitution to push for their own interests because I too was suggesting that constitutional ambiguity will be used to advocate for more media freedom. After the apparent offence caused to your journalist friends was mentioned first, I looked at the rest of your post as a critique with that in mind.
Which Reporters Without Borders report has been more accurate?
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Constitutions must matter, or the military regime wouldn’t have bothered to seek legitimacy in them in 1974 and again in 2008. Their latest must be unique in enshrining incontestable military domination for eternity even providing a ‘constitutional’ coup as and when necessary, beyond the frontiers that Indonesia’s military or any other had ever dared go before. That’s Burmese bloody-mindedness for you, and of course they don’t need to be reminded that they are not the only Burmese around.
Lintner’s point strikes a chord with ordinary Burmese, not the business class that stands to gain like the ‘international community’. To the regime securing 25% of seats in the legislative chamber endorsed by the ‘referendum’ isn’t nearly enough, even though to amend a bill 75% is mandatory which is well nigh impossible. To top it all, as a fail safe measure they formed their own party and managed to win a ‘landslide election victory’. How ASSK hopes to amend the 2008 Constitution in such a parliament stretches credulity – the chance of a snowball in hell. The next round in 2015 is being dangled in front like a great big juicy carrot, the handy big stick out of sight for now. Swe Swe Kyi’s comment on Lintner’s article is absolutely spot on, the whys and the wherefores.
That there is every indication that the current political, legal and constitutional format is here to stay reminds me of the conventional wisdom not so long ago that ‘the military dictatorship is here to say and we have no choice but to deal with it’. Power talks in any guise or format. It has parallels to an earlier era in our history when the older diarchy politicians such as Dr Ba Maw and U Saw tried to work with the colonial govt for greater self administration whilst younger Dobama Thakins pushed for a radical programme and full independence. Constitutions serve a purpose while they last.
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Abid Bahar #16
I could have sworn that you are more concern about suffering Muslim in Myanmar only by your post @ BBC making Rohingya as the poster issue.
The fact is the whole country, the Citizenry of Myanmar is under siege, or suffering the genocidal— as you might put, by the present Dictators, as well as the west useless careless policy, instigated by DASSK, now prolonged by “how high can Thein Sein government jump” attitude.
As others proceed to discuss the merit of this constitution that a few short moment ago, if mentioned, will be called Junta Sympathizer, the last thing to do is giving these hypocrite another reason “The Rohingya to delay reversing the still ongoing useless careless policy that affect ALL Myanmar citizenry.
It will be quite a stretch to equate Rohingyas with Anti Semitic genocidal Nazi/Hitler PLANNED final solution. Unless of course you also accept ALL the Jewish/Isreal assertions UNEQUIVOCALLY.
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Constitution is primarily for granting individual rights. If there is a democratic constitution, it is understood as a document that guarantees the safety and security of the entire citizens of the country; Burman and non-Burman alike. Imagine out of only close to 2 million Rohingyas during the 70’s, until now, one million were forced to leave the country with the excuse that they are “foreigners” in Burma. Ne Win’s notorious constitutional Act of 1982 is still there.
The premise is: If Rohingyas are accepted as Burmese people, but not as “intruders,” bringing changes in the constitutional Act is not going to be an act sidetracking or denying any Burmese issue because Rohingya issue becomes both a Burmese issue and a constitutional issue.Changes in the constitution issues like this and others would be a movement in the right direction for changes in other areas as well for everybody Burmese person.
True, Rohingya genocide has similarities and differences with Jewish genocide in Germany, but what is not true is BBC didn’t make up something about Rohingya people, it was already there and to inform the readers about the nature of the Rohingya genocide here are some sources:
—————————————————————————————“What is Rohingya genocide? http://burmadigest.info/2012/01/18/tell-me-what-is-rohingya-genocide-in-burma/)
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Stateless Rohingya…Running on Empty http://www.youtube.com/watch?v=wShJ0dv121U
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Colum Graham,
Sure they would be willing to question a hluttaw representative on why there isn’t more media freedom. That’s why I think they would be offended by your apparent suggestion that they are subservient to members of the government and parliament. It’s certainly not reflective of the journalists I know, although they are a polite bunch. When I said the process hasn’t changed, I meant that pre-publication censorship is still in place for news journals. However, there are far, far fewer articles and photos being redacted – the difference between what is being published now and two years ago is quite dramatic.
I thought this (http://en.rsf.org/burma-burmese-media-combating-censorship-22-12-2010,39134.html) was a more nuanced report from RSF and this recently published piece (http://www.foreignpolicy.com/articles/2012/01/20/paper_tigers) also gave a pretty accurate picture of the issues local journalists are facing. I can’t imagine Maung Wuntha (quoted in the article) being subservient to an MP…
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Thanks Kyaw. The Foreign Policy review is quite good. Yes I know there has been change, my comment was rash. Apologies for the miss communication.
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Colum Graham,
There’s clearly no reason to apologise. The main reason I come to NM is to engage in reasonable debate and I appreciate your perspective, whether we agree or not.
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