COMMENT ON THE FEDERAL REPUBLIC OF UNION OF BURMA CONSTITUTION DRAFT
By T. Lian Thawng and Max Bilson.
June 18, 2007
chinlandguardian. com
[Chinland Guardian Note: Lian Thawng is a Chin student studying Political Science at University of Regina, Canada, and Max Bilson is Senior Policy Analyst, Policy, Planning and Evaluation Branch of Saskatchewan Justice, Canada. For the full text of original draft constitution of the Federal Republic of Union of Burma, please check URL http://www.encburma .org/fcdcc. htm]
Article 2 – The Federal Union shall be composed of States with full right of self-determination and having equal political powers vested in by this Constitution.
I find this provision ambiguous/unclear. What do you mean by "full right of self-determination?" Nowhere does this Constitution either explicitly allow the right of secession of member States or prohibit it. Thus, the phrase I underline can be interpreted as a constitutional secession right.
Articles 4 and 5 – Sovereign power is not a term that is well defined in law, and hence this term may need to be defined somehow. As it stands, a court may have problems determining the difference between, say, sovereign power and sovereignty, or "full power" or some other such usage. It may be preferable to use a well-established term, perhaps taken from a long-standing constitutional tradition.
As well, Article 4 and sub-article 4(B) appear to conflict: how can the elected people's representatives exercise the sovereign power, and the Federal Supreme Court and its subordinate courts also exercise sovereign power?
Article 8 – The territory comprising of land, water, and air masses of the Federal Union, shall be as it stands on the day this Constitution is adopted and promulgated. The territory of the Federal Union shall not be altered without the approval of all the member States.
It is common knowledge that the current States' boundaries are artificial and not recognized by any States (except maybe by Bama State ). It means all the States' boundaries have to be redrawn before this Constitution is adopted, or in order for the Constitution to be adopted. As redrawing States' boundaries has to be agreed to and recognized by all Member States of the Union of Burma, this would not be an easy task; article 8 is likely to be a big obstacle and cause delays in adopting this Constitution. At worst, it could result in delays, perhaps forever, or make it impossible to adopt this Constitution.
Article 11
Section B – Shall be equal before the law irrespective of differences with regard to ethnicity, native birthplace, religion, skin color, social status, age, gender and sexual orientation.
This Article depends on what kind of society we want to see or want to be. The term "sexual orientation" is a broad term. According to this Article, any sexuality from homosexuality, incest, crossed sex like between animals and humans, same sex marriage would be legal and receive the Constitutional recognition. I am aware that these individual fundamental rights could be restricted or limited by Article 14, Section E which we might call "reasonable limitation clause" as in Canadian Constitution. It states "The Federal Assembly shall have the power to enact laws to limit exercise of the rights specified in this Article insofar as the exercise of these rights contravenes democratic practices, endangers public health, or corrupts public morality." But we need to be aware that whether any sexual activity contradicts with "democratic practices, endangers public health, or corrupts public morality" totally would depend on how politicians in the federal government level interpret it.
It is important to note here that the Judicial Branch or the Court would only have a limited say in this regard. Of course, this provision would not be a problem if we do not want to keep our traditional values and practices. In other words, if we can accept the sexual orientations I have mentioned.
As well, Article 11, Section B and Article 27 are contradictory, or at least inconsistent. Article 27 states "Every citizen shall have the right to work and the freedom to choose his or her occupation without discrimination on the ground of birthplace, religion, class or social status, gender, color, race or ethnicity or age". If you compare this with article 11, section B, you find that the phrase "sexual orientation" is missing. I do not know if the drafters did this on purpose. According to these two provisions, while every citizen shall be equal before the law, some people may legally be discriminated against by businesses, all levels of government departments, agencies, social institutions and so on, on the grounds of sexual orientation. If this Constitution grants every one equal status before the law regardless of sexual orientation, why not grant the equal right to work?
Article 16. Gender Equality
Gender equality shall be guaranteed in the family and in the political, economic, social and cultural fields.
According to this Article, husband and wife are equal, have equal power in all family matters, and no one would have a final say. They would equally own all family's property, and they would have to discuss and reach agreement to make any decision from the smallest to the biggest. In a broader sense, not only husband and wife, but also all the family members would have equal status, equal power or say in all family matters. It may mean that families would have to hold a family meeting to discuss family business or any family matters and to make decisions. They might need to cast a vote, or some matters might have to be decided by vote unless all family members were able to reach agreement by consensus. Moreover, to implement and carry out their decision efficiently and successfully, families may need to elect or select a family president, secretary and so on.
Another thing worth noting here is that all children of a family, regardless of gender, would have the right to inherit family property. The problem here is who would carry the family name? I know that according to Article 30, families have the right to maintain their traditional practices in this regard. However, it could still create problems in families and society as a whole. For example, what if one family from a patriarchal society decided to hand down the family property (like land and house) to one of their daughters instead of their eldest son? Would the male/males in the family accept that? Would their society accept that? Would not that be against their traditional values and practices? Would not that be a threat to their traditional values and practices? Could a woman keep and carry their family name?
The "equality in family" is not only impractical; it is very dangerous to society. It is directly opposite to our traditional values which most of us are proud of. It would result in a decline of moral values and there would be an increase in divorce, an increase in the number of single mothers and orphans resulting from divorces. It would hurt the national economy, and maybe increase the rate of crimes. People of Burma who live in North America and Western Societies should familiar with the problems resulted by this.
Article 34, Section (C) Every female citizen of the Federal Republic of the Union of Burma shall be the primary decision-maker concerning her own reproductive matters, if her health is affected or she has reason to believe that her health is affected.
While this provision might need to protect a certain wife's health if her husband pressures her to reproduce a child despite her unwillingness due to her health problem, the clause I underline should be removed from this provision. First, it gives too much favor to women, and may cause unnecessary problems in the families. This provision does not require any evidence or proof like medical note from relates experts for a wife to show bearing a child affected or can affects her health. What if a wife tells her husband that she believes bearing a child affected simply because she does not want to bear another child? Would a husband keep his wife/their marriage if he does not believe that reproducing a child would affect his wife's health due to lack of solid medical evidence? In other words, what if a husband wants to have more children, but his wife does not and uses this provision to protect herself despite her health is good, but because she does not need any kind of proof? Would not that lead to domestic conflicts, and might even lead to divorce? I do not think no husband who loves his wife would force her to bear a child if it affected her health. Thus, would it better to leave this issue in the family?
Article 37 - To ensure gender equality, at least 30 percent of the seats at all levels of legislation of the Federal Union shall be reserved for women.
There are two ways to measure gender equality. First, giving equal opportunity to all citizens regardless of gender in all fields/areas, and measured by the outcome. This article clearly measures gender equality by the outcome. In either way, it would be wrong /unwise to have this article in the Constitution.
First, it is too biased to female citizens and unfair or it discriminates against male citizens. While it gives women 100 percent opportunity, it gives only 70 percent to men. In other words, only 70 percent of the seats are opened to compete for both men and women in all Federal level seats. Regardless of gender all citizens should have equal opportunity in all fields. What if this 30 percent seats in all levels of legislation of Federal Union are filled up by incompetent women simply because these seats are constitutionally reserved for women? Would not that be a bad thing to do to the citizens/public who are deserved to be served by the most competent and finest people in the country?
Secondly, it restricts the freedom and the right of the citizens to choose their leaders as they want, or whom they can trust to be their leaders. It is like saying to the citizens "you can elect anyone whether men or women to be their leaders or government for all federal level seats for 70 percent of the federal level seats, but you cannot elect men for the other 30 percent of seats because they are for women only; you must elect women for those seats." Should not the citizens have the right and freedom to elect who they want for their leaders regardless of gender? Would it be a problem if the citizens elected all women or men for all levels of legislation of the Federal Union?
Third, it is like a constitutional recognition of the inferiority of women. It is like saying women are not as competent as men, or women are highly unlikely to be able to beat men if they are given equal opportunity for federal level government seats. So there would be no women or too little number of women in federal level seats unless some portions of seats are reserved for them.
Even if gender equality is measured here by the outcome, this article does not guarantee or would not produce gender equality. Does reserving 30 percent cent of seats for women confer gender equality? Moreover, this article contradicts article 16. Thus, if we believe our women are as capable as men, and if we do not believe women are inferior to men, and if we believe in having equal opportunity for everyone regardless of gender, this article must be removed from this draft, or must not be in the constitution.
Article 41 – While this Article is in many ways laudable and visionary, as it is written it could produce chaos in the economy of the Union of Burma. This could enable anyone to sue a manufacturer, transporter, salesperson, shipping line, railway, energy producer or any other entity for even the slightest measurable impact on the environment. While a clean environment is obviously desirable, any economic intervention will have some impact on the environment. This article could be rewritten so as to avoid this problem.
Article 43 – This may need to be reflected more clearly in the jurisdiction of the Supreme Court in Article 140.
Article 49 – It may be wise to ensure that the constitutions of the Member States cannot derogate from the Constitution of the Union of Burma.
Articles 52 and 55 – These Articles are intended to be read and work together, but it is not clear how they interact. It may be useful to more clearly define how they differ and how they are intended to work together.
Article 53 – While it is reasonable for larger states to have larger police forces than smaller states, larger states having larger security forces could pose a threat to the security of smaller states in case of interstates conflicts. [Bama] state's security force might be larger than the security forces of all states combined.
Article 60(A) – Is there a minimum session length?
Article 71 & 82 – These two articles automatically will exclude from the political arena a great number of intellectuals of the Federal Union of Burma who have happenned to live abroad, and this would be a great loss to Member States and the Federal Union of Burma as a whole. While these provisions are rational, it may be better or more beneficial for the people of Burma if we make our constitution more flexible and open due to our situations.
I notice that the qualifications for members of the Chamber of People's Representatives (Article 82) are relatively less strict or more flexible than members of the Chamber of Nationalities. Can you explain why?
Article 94 – in order to protect member states from potential abuse by the federal government, and as respecting and recognizing of the rights and status of the member states, it is advisable to add as a Sub-article (C) to Article 94 a provision that requires the absolute approval by the member(s) representing the affected state in the Chamber of Nationalities, for any work undertaken under Article 101, nos. 5 & 6. This would be modeled on the German law. It is very important to have this kind of provision in the Constitution of a multinational state, especially a state where ethnicities are not equal in population and power, or their differences in population and power are too big. Article 104 is not strong enough.
Articles 100, 101, 103, 104, 105 and 106 would produce too powerful a Federal government and weak state governments. There should probably be an Article that defines the powers of the Member States in the same way that the powers of the Federal Government are defined. Many other constitutions, including Canada , do so.
Article 109 – Section (A) I find the RFofUB constitution draft preferable, which was prepared by the Burma Lawyers Council ( BLC ). The Federal president should be elected by Chamber of Nationalities since the Federal Prime Minister will probably be of Burmese ethnicity according to Article 80.
Although Section (B) puts in some restrictions, the majority of the Federal presidents could be of Burmese ethnicity too. I do not know whether the drafters deliberately do this to show that the Federal president is more powerful or important than the Federal Prime Minister. While article 109 requires that the Federal president be elected by the Federal Assembly, the Federal Prime Minister is to be elected only by members of Chamber of People's Representatives according to article 118. On the other hand, while the members of Chamber of People's Representatives have a say in the election of the Federal president, the members of Chamber of Nationalities do not. It could suggest many things. First, the Federal president is more important than or powerful than the Federal Prime Minister. Second, the Chamber of People's Representatives is a more powerful house than or less than the Chamber of Nationalities and so on. In short, it would depend on how one interpreted it.
Article 111, Sub-article (E) contradicts Article 118, Sub-article (A). Art. 111, s. E states "The Federal President shall appoint the person, whose name has been submitted by the Federal Assembly, as the Federal Prime Minister." But in Art. 118, s. (A) states "The Federal President shall appoint as the Federal Prime Minister the person chosen by members of the Chamber of People's Representatives."
Article 111, s. (H) – "On advice of the Prime Minister, the Federal President shall convene the Federal Assembly or dissolve it in accordance with Article 87 of this Constitution."
It is wrong. It is Article 89, not Article 87. It is the Constitution, there shouldn't be any mistake.
Article 124 – It is not clear what the reasoning is behind prescribing the maximum number and subject matter of ministries in the Constitution. Societies grow and change, and so do priorities. It may be that the Federal Government will require more or less ministries, and for different reasons, over time.
Article 132 Qualification of Justices
"Justices of the Federal Supreme Court shall be citizens of the Federal Union and have at least ten years of experience in legal profession."
It is far less restricted than the qualifications of Federal President and Prime Minister and all members of the government. I wonder if the drafters have done this on purpose. Again, it can be seen as inconsistency with other provisions related to the qualifications for members of the two houses, the Federal President and Prime Minister.
Article 148 – It seems to be typing mistake. But it is Constitution so even small mistake can cause big problem. As it is typed here only male citizens would have the rights to vote or stand for public office.
Article 150, Section (E) – According to this, the majority of the members of Federal armed forces would be ethnic Burmese. Based on population, the number of members of the Burmese ethnicity of the Federal armed forces would be more than the armed force members of all of the rest of the Member States of the UB.
Article 154 – I suggest adding Section (E) that would state the general staff of the Federal armed forces shall be composed of equal number of generals from the Member States, and a rotating of chairman of chiefs of the general staff (taken from BLC 's constitution draft), as with the EU Presidency.
Article 160 – Since there is no apparent external military threat, I do not think Mandatory Military Service is necessary. Moreover, it is should be voluntary. In other words, the citizens should have the rights to decide whether to join the military service like other professions.
Article 189 – How does this Article work with Articles 52 and 55?
Article 191 – I think that you mean "and they are consistent with this Constitution" .
Article 193 – You may wish to insert language that permits civil servants to be let go in the ordinary course of business, e.g. for fraud, incompetence – as it stands, this Article may guarantee a current civil servant a job for life.
