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IV. A Constitution for Military Dominance

A complete, clause by clause analysis of the entire draft constitution—a document numbering some 194 pages with 15 chapters—is beyond the scope of this report. Briefly discussed here are some of the draft constitution’s more problematic aspects.

The Entrenchment of Military Power

The SPDC’s “Seven Step Roadmap to Democracy” project has been designed in large part to entrench within the constitution continued military rule.⁸⁷ The draft constitution makes this clear in its opening clauses, listing as one of the six “aims and objectives of the State” “for the Tatmadaw [military] to be able to participate in the national leadership role of the State.”⁸⁸

The draft confers constitutional legitimacy to the military’s broad powers, ensuring effective military control over the proposed “civilian” government. One-quarter of the seats in both the upper and lower houses of the new national parliament, the Union Assembly (Pyidaungsu Hluttaw)—110 of the 440 seats in the lower “People’s Assembly” (Pyithu Hluttaw) and 56 of the 224 seats in the upper “Assembly of Nationalities Parliament” (Amyotha Hluttaw)—are reserved for military appointees directly selected by the commander-in-chief of the Burmese armed forces.⁸⁹ The commander-in-chief is also entitled to appoint a similar proportion of military appointees to all state and regional parliaments, ensuring a dominant military role at all levels of governance.⁹⁰ In addition to their reserved appointed seats, serving military officers are also allowed to stand for election for the non-reserved seats, and are likely to do so in significant numbers, potentially leading to a significantly higher military representation than the one-fourth reserved seats.⁹¹

The draft constitution gives the military even broader representation in the selection of the Burmese president and two vice-presidents. The presidential electoral college is to be formed by equal numbers of elected representatives of the People’s Assembly, elected representatives of the Assembly of Nationalities, and military members of both assemblies appointed by the commander-in-chief, giving the appointed military members a one-third vote in the process, rather than the one-fourth vote they have in both assemblies.⁹² The commander-in-chief holds the same level of position as a vice-president, according to the draft constitution.⁹³

The military bias in the selection of the president and vice-presidents is further reflected by the requirement that any president or vice-president who belongs to a political party “shall not participate in party activities of that party… during the time in office.”⁹⁴ By contrast, serving military officers elected to the presidency or vice-presidency are not required to resign from their military post and are allowed to continue to participate in military activities.

Certain cabinet positions—including the minister and deputy minister of defense, the minister and deputy minister of security and home affairs, and the minister and deputy minister of border affairs—are reserved for military officers, and can only be appointed from names submitted by the commander-in-chief, thus entrenching military control over key security portfolios.⁹⁵ As with the president and vice-presidents, cabinet members who belong to a political party must “refrain from participating in party activities during the term of office,”⁹⁶ but military officials who serve in cabinet positions are not required to refrain from continuing in active military service. Significantly, the functions of the military are beyond the control of the executive and the cabinet, the ostensible civilian authorities—as the draft constitution states, the military “has the right to independently administer all affairs concerning the armed forces.”⁹⁷

The military has also ensured that the dominant role assigned to it in the draft constitution is virtually immune from legislative amendment. The draft constitution declares that the military “is mainly responsible for safeguarding the State Constitution,”⁹⁸ and the most important chapters of the draft constitution, including those enumerating the role of the military in governance, require the approval of more than three-quarters of the members of both houses of the Union Assembly and a majority of all eligible voters in a nationwide referendum.⁹⁹ Since the commander-in-chief directly appoints a quarter of the members of the Union Assembly, the military holds an effective veto over any proposed changes to the constitution.

The Barring of Opposition Members from Elected Offices

The draft constitution has a clause apparently designed specifically to prevent the popular NLD opposition leader Aung San Suu Kyi from being appointed to the presidency. Under an article entitled “Qualifications of the President and Vice-Presidents,” the draft constitution requires that “[t]he President of the Union shall be a person who has been residing continuously in the country for at least 20 years up to the time of the election,” and that “[t]he President of the Union himself [sic], parents, spouse, children and their spouses shall not owe allegiance to any foreign power, shall not be subject of a foreign power or citizens of a foreign country. They shall not be persons entitled to the rights and privileges of a subject or citizen of a foreign country.”¹⁰⁰ Suu Kyi is the widow of a British citizen, the late academic Michael Aris, and has two children who hold British citizenship, although she has always remained a Burmese citizen. Such arbitrary restrictions would also limit the ability of the large number of highly educated Burmese who were forced to go into exile during the period of military rule to stand for executive office, as they would not meet the requirement of 20 years of continuous residence.

The eligibility requirements for members of parliament also seem targeted at excluding a significant number of opposition leaders; persons “punished for the commitment of an offense that makes him or her lose qualifications” for election to parliament are permanently excluded,¹⁰¹ which would affect the thousands of opposition activists who have been convicted and imprisoned for peaceful opposition activities. Even more sweeping, also excluded is any “person who obtains and makes use of [,] or member of any organization that obtains or makes use of money, land, housing, building, vehicle, property, etc. directly or indirectly from a foreign country’s government, or religious organization or other organizations.”¹⁰² This clause could effectively bar any member of a political organization that has ever received any financial support from a foreign government—for example by having a foreign government sponsor a study tour for members of a political party, which is a common practice in many countries.

Members of political parties are also barred from standing for certain important positions in government service, although similar bans are not extended to serving military officers. For example, members of political parties cannot be appointed as either chairperson or members of the Union Civil Service Board which regulates and oversees the civil service, but active military officers are not similarly excluded.¹⁰³

Provisions on the “Fundamental Rights and Duties of Citizens”

While there are no international requirements for the protection of individual rights in national constitutions, the provisions in Burma’s draft constitution concerning fundamental rights will all too easily allow the promulgation of laws that do not meet international standards.

Burma is not a party to the International Covenant on Civil and Political Rights (ICCPR), yet language in the draft constitution’s chapter on the fundamental rights and duties of citizens seems drawn from that document. For instance, the rights to freedom of expression, association, and assembly are protected, “subject to the laws enacted for State security, prevalence of law and order, community peace and tranquility or public order and morality.”¹⁰⁴ The language of the relevant articles of the ICCPR is similar, but also requires that any restrictions provided by law “are necessary.”¹⁰⁵ As Prof. Manfred Nowak in his authoritative commentary on the ICCPR writes, the “requirement of necessity implies that the restriction must be proportional in severity and intensity to the purpose being sought and may not become the rule.”¹⁰⁶ Without this “necessity” provision, the draft constitution provides no constraints on the Burmese government from adopting legislation that unjustifiably cites state security and public order to restrict fundamental rights to expression, association, and assembly.

Other constitutional protections seem similarly subject to easy abuse by the government or on their face violate international human rights standards. The provision providing citizens with the right to “freely develop literature, culture, arts, customs and traditions” nonetheless requires that they “avoid any act which is to the detriment of national solidarity”¹⁰⁷—a restriction that seems intended to allow the clampdown on otherwise permitted activities by Burma’s minority populations. And a provision prohibiting discrimination in the qualifications for “posts or duties” on the basis of race, birth, religion, or sex concludes, “However, not[h]ing in this section shall prevent appointment of men to the positions that are naturally suitable for men only.”¹⁰⁸