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27/06/97:BURMA AND FEDERAL CONSTITU (r)
- Subject: 27/06/97:BURMA AND FEDERAL CONSTITU (r)
- From: enmasse_1@xxxxxxxxxxx
- Date: Tue, 14 Jul 1998 00:44:00
Re: BURMA AND FEDERAL CONSTITUTION(REPOST)
==========================================
The above material was reposted on "June 23, 1998" and I found it very
interesting.
As interesting it could be, I noted the author has made a brief
references to constitution of Burma (1947) and constitutions drafted by
the SLORC and DAB. More importantly, he had proposed a possible third
option to look at other federal constitutional systems of Australia,
United States, Swiss, Candian and India.
Here are some of my comments that relates to the topic of constitution
in Burma:-
1. I have no faith in the SLORC's. draft as the National Convetion
sponsored by the SLORC was not sincere and was not freely convened
let alone allowing wide referencing or critical thinking as you
have suggested. Moreover, the delegates were hand picked by them.
The truth is, this regime came to power by a military coup. They
don't have the mandate to draft a national constitution, at
all. Their predecessor RC is the one that pulled down the only
1947 constitution that we ever had. It may not be a perfect one.
But, we had our constitution to start with.
The present situation in Burma is something like solving an
obvious theft case. "The RC stole away the constitution and now
the SPDC is saying that the parliament cannot be convened because
you don't have a consitution". Are they daft or something? Even a
child can see its solution.
2. I have no comments for the DAB's draft as I have not seen it
myself. By the way, have you got the DAB's draft constitution by
now?
3. I also beleive that it is honestly worth comparing notes with other
constitutional systems in the world and the ones at home. So, my
third option offer is this.
4. Last, but not least, my third option offer is this.
Make sure that the constitution that people want should be
drafted freely and by the government which has the mandate by the
people of Burma and in consultation with all the parties
including the ethinic minorities.
The fact is, NLD has got the people's mandate to do this job.
There is no question about that.
Since the last posting on this, I can't remember receiving any further
postings in regards to this topic from the author or have I missed some
of them?
I'll be glad to receive a repost on the continuation of this material
from the author if I missed them earlier.
Thanks.
Minn Kyaw Minn
==============
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>Reply-To: Conference "reg.burma" <burmanet-l@xxxxxxxxxxx>
>From: uneoo@xxxxxxxxxxxxxxxxxxxxxxx
>Subject: 27/06/97:BURMA AND FEDERAL CONSTITUTION(REPOST)
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>/* 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 */
>___________________________________________________________________
>! drunoo@xxxxxxxxxxxx !
>! http://www.physics.adelaide.edu.au/~uneoo !
>! ***** NOW ALSO ON ***** !
>! http://freeburma.org/ (A one stop homepage for all Burma info.) !
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