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BP: ANALYSIS / BURMA AND SOUTHEAST
- Subject: BP: ANALYSIS / BURMA AND SOUTHEAST
- From: suriya@xxxxxxxxxxxx
- Date: Wed, 10 Jun 1998 19:08:00
June 10, 1998
ANALYSIS / BURMA AND SOUTHEAST ASIA
Towards a
democratic
charter
Asia's economic crisis has in many
cases helped to promote political
reform, but certainly not in Burma -
although there are some efforts being
initiated.
Vitit Muntarbhorn
In 1997 the destinies of Burma and other Southeast Asian
countries became intertwined when Burma became a member of
the Association of Southeast Asian Nations (Asean). In terms of
inter-state solidarity, this was welcomed by the governments of
the region. However, in terms of democracy, human rights and
the constitutional process, it was a decidedly paradoxical affair.
The paradox emanates from the fact that Burma is still governed
by junta rule, a direct contradiction with the aspirations of
democracy. It is rife with human rights violations, a shameful
travesty of international norms. It is replete with oppression and
a manipulative process whereby the junta is seeking to finalise a
new so-called national constitution which flies in the face of
popular participation in the constitution-drafting process.
The world may need to be reminded that the junta stole the
elections from the people in 1990. It was the democratic groups
that won those elections, yet they saw themselves deprived of
the fruit of their labour. The elections themselves were preceded
by massive persecution of the proponents of democracy with
widespread repression in 1988.
To this may be added the longstanding armed conflict between
the junta and ethnic groups in Burma; such groups have been
seeking self-determination since the end of World War Two. As
a result, there are hundreds of thousands of internally displaced
people in Burma and a multitude of who have crossed borders in
search of safe refuge elsewhere. Thailand itself is a temporary
home to over 100,000 Burmese refugees.
Face to face with Southeast Asia, one of the most intriguing
developments is the economic mess which has gained momentum
since 1997. The economic growl of the so-called tigers has
become the anaemic mew of the Siamese cat. Millions of people
are now out of work, poverty is on the rise, the real sector is in
the doldrums, migrants are being expelled and the debt situation
is gargantuan.
Yet, behind the bane, there is the boon; there is a blessing in
disguise.
It is a time for reform and restructuring. Without the economic
maelstrom, these tigers would not be reforming their financial
systems which have all to often been plagued by a lack of
transparency and a pervasive presence of cronyism. A major
lesson from the crisis is that the economic maelstrom will not
subside unless there is also political reform.
Those countries which are democratic are emerging more rapidly
than those countries beset with authoritarian or undemocratic
regimes. Aptly, it is the economic chaos which is the key factor
pressing for political reform.
In such a context, it is timely to take stock of existing
constitutions and the constitution-making process.
It is worth remembering that not so long ago, most Southeast
Asian countries were colonised by outside powers. The
constitutions which were born at the time of their independence
after World War Two tended to be a contract between the
colonisers and elites who negotiated independence for their
countries. They were not essentially a social contract between
the state and its people whereby the state, particularly the
government, would undertake to abide by the rights of the
various peoples populating the land.
Several of these constitutions failed to reflect the rights of
minorities and indigenous communities, thereby recognising a
kind of "majoritarian absolutism". Other constitutions were
evolved by authoritarian regimes seeking to perpetuate their
power without a popular base, whether among the majority or
the minority. These tended to be a stranglehold exerted by
various cliques to destroy or limit people-based participation.
Burma and Thailand personify those experiences poignantly.
Burma's first constitution of 1947 failed to settle the issue of the
rights of ethnic communities, and this was a key factor in the
escalation of armed conflict between those groups and the
government. In 1974 another constitution in Burma emerged
after a coup d'etat staged by the military. It was obvious that
such a document would be an instrument of authoritarianism.
By comparison, until Thailand's 1997 constitution (its 16th), most
previous constitutions had been written by military elements and
their friends responsible for over 20 coups and failed coups. Yet,
the tide is turning.
Thailand's latest constitution has been generally lauded as a
participatory constitution due to the drafting process which
involved many members of the community and public hearings
throughout the country prior to its adoption. It has a concrete
section on rights and freedoms, while establishing many
innovative checks and balances against undemocratic
government. These include a Constitutional Court, a National
Counter Corruption Commission, a National Electoral
Commission and a National Human Rights Commission.
In addition, there are more guarantees for transparency, such as
the obligation on cabinet ministers and their families to reveal
their assets before and after taking office. The Thai public has
been astounded by the wealth so far revealed (in the billions),
and one newspaper has printed details of this wealth under the
appropriate heading of "The Millionaire's Club". Interestingly,
many politicians' spouses are twice as rich as the politicians
themselves, and often they pay no tax at all.
However, there is a bottom line underlying the process of
evolving this new constitution for Thailand. Were it not for the
economic whirlpool, the new constitution might not have been
born. It was this magnetic mess which mobilised the public to
seek the passage of the new constitution as a political cure for
economic ills, granted that these ills were greatly the
consequence of the nexus between political misdeeds and
economic mishaps.
Those politicians who had previously rejected this constitution
ultimately yielded to its adoption as they did not want to be seen
as countering the public sentiment or losing their credibility.
Current conditions in Burma are, of course, very different. Given
the iron rule of the junta, it is highly unlikely the junta will consult
the public genuinely about the possibility of a new constitution.
Whatever new constitution it has under wraps is likely to prolong
its rule and protect its impunity, while incorporating various
obstacles to prevent the leaders of democratic groups from
gaining power.
For these reasons, one can and should welcome the draft of a
new constitution prepared by the democratic groups under the
umbrella of the National Council of the Union of Burma.
This is a constructive alternative voice based upon these tenets:
commitment to a multi-party democratic system, a guarantee of
basic rights and freedoms, direct applicability of international
human rights standards, due process of law and access to
justice, federalism based on respect for different ethnic groups,
an elected people's assembly, independent courts and a national
human rights commission, and restrictions imposed on the
declaration of a state of emergency.
The Burmese scenario raises a variety of interlinked concerns for
the birth, reform and implementation of national constitutions in
Southeast Asia including:
Legitimacy. The legitimate entry point for the preparation of a
constitution is the involvement of the broad mass of the
population and its representatives. A junta or unelected
government is evidently illegitimate as a proponent or drafter of a
national constitution. Yet, such shameless travesties persist in
Southeast Asia.
Democratic Rule of Law. This implies the need for multi-party
systems, free and fair elections, government by means of the
people's elected representatives, equality before the law, and
constitutional guarantees for the protection of individuals and
groups.
Process Orientation. The process of drafting a constitution
should be very open and participatory. The process of bringing
together people from all walks of life is often as important as the
ultimate written text of the constitution as it is a means of
empowering and mobilising the community to feel that the
constitution belongs to them rather than being an instrument
superimposed from the top.
Human Rights. Most constitutions have a section on rights.
However, many constitutions in the Southeast Asian region refer
to the rights of citizens or nationals rather than the rights of all
people on their territory. From the angle of human rights, it is
important to reinforce the principle of non-discrimination
advocating the rights of all people rather than only the rights of
citizens or nationals. In terms of human rights, it is international
standards which must prevail over lower national standards.
Fair Constraints on Rights. The constraints imposed on
human rights are often in the form of duties or restrictions on the
basis of national security or public order. Although in
international law some constraints are acceptable, they need to
be fair and they are to be measured from the angle of whether
they are permissible in a democratic society. The criterion has to
be what is allowed or restricted in a democracy rather than in an
autocracy.
Pluralism. This calls into play the concerns of the plurality of
people and communities in the country. It counters the
"majoritarian absolution" noted earlier and requires the
consultation and inclusion of minorities, indigenous peoples and
other groups on the territory, coupled with guarantees for their
rights.
Justiciability. This implies that individuals and groups should be
able to invoke directly in the courts the various rights and
freedoms stated in the constitution to test the validity of laws,
policies and programmes linked with the government and to seek
their nullification if necessary.
Good Governance. This is rapidly becoming a key principle for
measuring how power is exercised, whether in the public or
private sphere. It is inherently linked with the need for
transparency and accountability (at least) of the machinery and
personnel of government, with remedies against dishonesty and
redress for grievances.
Check and Balances. Most constitutions refer to the various
organs of government and administration such as the executive,
parliamentary and judicial branches. They need to be based
upon checks and balances against the abuse of power. On one
front, it is important to keep the military in the barracks. On
another front, although there is usually a call for independence of
the judiciary, this is incomplete; an honest and transparent
judiciary is still an aspiration rather than a reality in many
countries.
Other mechanisms should be evolved to be more accessible to
the people. These include national human rights commissions,
ombudsmen and administrative courts. These formal entities also
should be balanced with non-formal entities such as
non-government organisations, community leaders and the media
so that they can act as watchdogs to monitor the formal
instruments of government.
Subsidiarity with Responsibility. This refers, in particular, to
the need to provide for decentralisation with responsibility. Many
matters are best planned and implemented at the local level, and
localities thus should enjoy the subsidiary power to control and
manage local resources. However, the localities also should be
under the responsibility to be open and accountable to the
electorate.
Complementary Legislation. Inevitably, the constitution in
most countries tends to provide a broad framework which needs
to be supported by subsequent laws providing more details for
operations. In some countries, the latter are known as organic
laws. They also may be linked with delegated legislation giving
powers to various authorities to evolve a subset of rules and
regulations particularly for the administration of government.
It is imperative that these subsequent laws be consistent with the
spirit of the constitution and the community should be on guard
against the powers-that-be who some time seek to dilute the
substance of the constitution by means of other laws.
However, by contrast, one may note that in those cases where
the constitution is itself undemocratic, the saving grace may be to
bypass the constitution by evolving other laws such as a criminal
code or a criminal procedure code which are more in keeping
with international standards than the constitution intends to be.
The ultimate test is complementarity of the national constitution
and other laws when tested against international standards.
Popular Participation. This is axiomatic and needs to be
integrated and mainstreamed into all laws, policies, programmes
and practices. While very related to national elections and
government, it also pertains to other walks of life, including the
localities, communities and families. It demands more public
hearings prior to decision-making concerning actions which may
affect the livelihood of communities. It calls for more public
inquiries and remedies if there are infringements of people's
interest. It is interrelated with particular attention for vulnerable
groups, including women, children, the elderly and those with
disabilities.
These yardsticks are essential for the evolution of all
constitutions. They are particularly pertinent today to the
constitution-making process and the democratisation of
Southeast Asia precisely because the region is still faced with
vestiges of undemocratic rule and antiquated constitutions and/or
those superimposed by vested interests.
As this year is the 50th anniversary of the Universal Declaration
of Human Rights, that great global charter of our rights adopted
by the United Nations, it is time to turn over a new leaf. The tree
of life ultimately depends upon democracy, human rights,
people-based sustainable development, the peaceful prevention
and settlement of disputes, and environmental protection. The
greener pastures will grow only with the cross-fertilisation of
people-based solidarity.
* Vitit Muntarbhorn is a professor with the Faculty of Law,
Chulalongkorn University. He was formerly a UN special
rapporteur on the sale of children. This article is based on
a keynote speech he delivered at the seminar on
Democratisation, Peace and Economic Development and
Burma's Future, held in Bangkok from June 5-7.
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Last Modified: Wed, Jun 10, 1998