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27/06/97:BURMA AND FEDERAL CONSTITU



/* Written 28 Jun 6:00am 1997 by drunoo@xxxxxxxxxxxx in igc:reg.burma */
/* ----------------" Burma and Federal Constitution "--------------- */

BURMA AND FEDERAL CONSTITUTION
******************************
When we look into the task of drafting constitution, serious thinking will
be needed in analyzing the problems of past and present. It is relatively
straightforward to understand human rights violations in Burma - the
government repression of minorities and of political opposition, problems
of refugees and internally/externally displaced people - when one has
enough information. However, the drafting a constitution, in my view, will
certainly require considerations far beyond the effort to redress these
immediate problems. For example, the ceasefire and peace settlement for
minorities are the immediate answer for current problems. But one need to
examine, as we look beyond this period of problems at hand and seek a
longer-term solution to that problem, the question of why the minorities
of Burma were in revolt and are still in revolt in the first place. In
this context, the fact military government (Burman?) have done various
political, economic and social injustice upon the minority people is
evident; then again, one must separate between the real and perceived
injustice. 

When one consider a future federal constitution for Burma, various factors
must be taken into account. The faulty draftmanship can cause a new circle
of conflicts and violence. It is important that, in the process of
searching for political solutions, considerations are made of free from
prejudice at the individual level and  must be made of free from
self-preservations at the organizational level. Of course, we need to
recognize that, in politics, no one can be free from bias and everyone has
its own limited view of the situation.

After the problems are being identified, the political solution could be
followed. There will be questions as to (1) how should the minority people
be represented in the national/state governments (self-determination ?);
(2) how can the new political order guarantee to protect human rights of
the ethnic minorities and, most importantly, (3) how should the people of
Burma protect their country sliding back into having an authoritarian
government. Question (3) is equally deserving of our attention to that of
(1 & 2), since maintaining freedom and democracy can be as difficult as the
task of striving to achieve it.

DISCUSSIONS ARE NEEDED
**********************
Looking around materials in regards to constitution in Burma, apart from
the analyses of SLORC's National Convention by pro-democracy groups,
there are few documents describing about constitution of 1947. One notable
book by the Burmese historians is (The 1947 Constitution and Ethnic
nationalities affairs) written in Burmese published in April 1990 (Special
thanks to a pro-democracy friend who bring in this book.) Despite published
in Burma under the SLORC censorship, the book does give some valuable
account of the period of 1944-47 as it was compiled by historians.

The paper by Professor Silverstein also give a good review of the two
draft constitutions prepared by SLORC and DAB. While the draft constitution
by SLORC, in Prof Silverstein's word, is described as "the blueprint for a
garrison state that is planning to erect", the DAB proposed constitution is
so far apart from that of SLORC and with a diametrically opposed views and
principles. The third option is certainly needed in this regards. (I still
have not seen any of DAB's draft constitutions.) The ethnic representation
in federal government that proposed by the DAB draft constitution(the July
1993 version), in my view, is quite complicate and may not be a workable in
practice.

My opinion for the possible third option is to look at Australian or
American Federal Constitutions as a model. In this case, all states, in
principle, are to be treated as multi-ethnic states since all states in
Burma accommodate more than one ethnic group. Of course, the economic,
social and cultural rights of all ethnic minorities can still be promoted
as required.

In views of the academics, the constitution and structure of governments
of Australia and United States are more federal than any other system.
According to K.C. Wheare (see Federal Government, 4th ed (1963) by
K.C.Wheare, Oxford University Press), one system can be more federal than
the others, but he refers the Constitution(& government) of Australia as
more federal:

        "If, then, the federal principle may be defined along the lines set
        out in the preceding chapter, what are we to mean by a federal
        constitution and a federal government ? Are we to confine the terms
        to cases where the federal principle has been applied completely
        and without exception ? It would not be sensible to do this. After
        all the (1787) Constitution of the United States itself, as
        originally drawn up, contained at least one exception to the federal
        principle in that the Senate was composed of representatives
        selected by the legislatures of the states...." (Wheare, Chapter2)

K.C. Wheare comment on Australian Federal system as follow:

        "Adopting this method, then, which are the federal constitutions ?
        The Constitution of the Commonwealth of Australia enacted in 1900
        is perhaps the most obvious example, at any rate in the form in
        which it was originally enacted, before later amendments modified
        it. The Australian Constitution established a government for the
        whole of Australia which, within a sphere, was enabled to exercise
        powers independently of the governments of the states; while the
        latter, within a sphere, were authorized to act independently of
        the government of the whole Commonwealth. Neither state nor
        Commonwealth government acting alone could alter the scope of the
        other's power as laid down in the Constitution. In personnel as in
        powers both Commonwealth and state parliaments were to be
        independent of each other. Each was to be elected directly by the
        people. The respective cabinets were to be responsible each to its
        own parliament. Both Commonwealth and state parliaments were to be
        limited in their powers, but not by each other; they were to be
        co-ordinate with each other, but they were to be subordinate to the
        Constitution. And, while the Constitution of the United States had
        been silent on the point, the Constitution Act of Australian
        declared that the people of the associating colonies were to form a
        'federal commonwealth'. The Australian Constitution of 1900 was
        clearly an example of a federal constitution."

His comment on Swiss and Canadian system are:

        "Two other examples - Switzerland and Canada - do not appear so
        obvious. The Swiss Constitution of 1848 follows the American
        Constitution in many respects. In two matters it contains a
        modification in the strict application of the federal principle.
        First of all it provides that the upper hose of the general
        legislature -- the Council of States -- shall be composed of two
        representatives from each of the cantons and that these
        representatives shall be paid by their cantons and their period of
        office and method of election shall be determined by their cantons.
        This admittedly creates a small degree of dependence, particularly
        as in some cases the cantonal representatives are elected by the
        cantonal council themselves. But it will be appreciated that this
        degree of dependence does not prevent us from describing the Swiss
        Constitution as federal....." (K.C.Wheare, PP-15)

There also exist quasi-federal states, such as in India, where the general
government can make intervention on state governments. It cannot be
claimed, of course, in general that the governments of "more-federal system"
are better than that of "less-federal system". We can look at all those
models and project these into our society.

I shall continue to post to BurmaNet of materials in regards to constitution
and our friends and especially pro-democracy groups are invited to
comment/contribute on this matter.

With best regards, U Ne Oo.

/* Endreport */
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