Constitutional Power in the Hands of Commander in Chief

By KYAW ZWA MOE
The Irrawaddy

April 1, 2008 - Is something always better than nothing? If that’s the case, the Burmese people might be better off soon. The draft constitution for the military-ruled country that has had no constitution for 20 years surfaced last week.

The draft surfaced unofficially, and still has yet to be made public. The exact date and details of the May referendum haven’t yet been announced either.

Though the draft constitution stipulates that the president is the head of state, the first analyses of the draft constitution show that the real power to run the country is given to the military commander in chief, instead of vesting it in the people under the basic tenets of a democratic system.

The commander in chief, according to the draft constitution, is given the power to appoint 25 percent of the seats in both the upper and lower houses of parliament with handpicked military officials.

To be specific, 110 members of the 440-seat lower house, called People’s Parliament, and 56 members of the 224-seat upper house, called National Parliament, will be filled by military officials chosen by the commander in chief.

In essence, that means the appointed members are above the law. Their loyalty is to the commander in chief. With that clause alone, the constitution is undemocratic, but that’s not all.

Three vice president positions would be filled by a presidential electoral college comprised of members selected by the People’s Parliament, the National Parliament and the group of military officials in both houses of parliament who were appointed by the commander in chief. The electoral college would then elect a president from among the three vice presidents.

Thus, at least one military appointee will definitely become a vice president. That vice president could even be elected president because a clause in Chapter 3 of the draft constitution requires the president to be acquainted with not only political, administrative, economic but also military affairs of state.

The draft constitution says the commander in chief will also occupy a position on the same level as that of the two vice presidents.

The draft constitution clearly differs from Burma’s previous constitutions, in 1947 and 1974, when it states in Chapter 1, titled “State Fundamental Principles,” that the state is constituted to enable the armed forces to “participate in the national political leadership role of the State.” The draft constitution also has a chapter titled “Tatmadaw” (armed forces) which is new in Burma’s constitutional history.

In that chapter, it’s stated that parliament has no right to oversee military affairs, including defense spending.

Under the draft constitution, “The Tatmadaw has the right to independently administer all affairs concerning the armed forces.” The commander in chief is also given full control over military justice.

In Chapter 12, “Amendment of the Constitution,” it’s stated that a proposed amendment must be sponsored by at least 20 percent of parliament members, to be followed by a parliamentary vote that would require more than 75 percent support before the proposed amendment could be put to a national referendum.

More than 50 percent of voters would then have to approve the amendment before it could become law.

With 25 percent of the seats of parliament going to the military, it would be impossible to pass an amendment that was not supported by the commander in chief.

Moreover, in the chapter on the powers of the tatmadaw, it stated that the armed forces bear responsibility for “safeguarding the State Constitution.” That principle could be invoked at any time to prevent amendments that the military sees as inimical to its interests.

And in the event of a “state of emergency,” which the military is given the authority to declare at any time, the commander in chief would assume full legislative, executive and judicial powers.

Clearly, the draft constitution gives the commander in chief and the armed forces the dominate role and the real power.

The May referendum will determine if the Burmese people believe something is better than nothing. They have suffered under decades of military rule without a constitution.

If the draft constitution is approved in May—as flawed as it is— how might the lives of the Burmese people be improved?