Tuesday 31 May 2011

Myanmar Constitution 2008 Critic

Hello everybody! My name is Tin Thu Zar Swe. I come from Myanmar formerly known as Burma and my nationality is Burmese. I have been studying in the UK since October 2005 and until now I am a post-graduate student in the United Kingdom. Whilst in the UK, I have been enjoying human rights such as freedom of speech, freedom of opinion and expression, freedom of thought, freedom from torture, inhuman or degrading treatment ,women’s rights, etc. which I can never enjoy in my own country, Burma. I am now giving a brief summary of how the present government flouts human rights and trying to prolong the current regime under the name of Myanmar Constitution 2008 for my own personal reasons. I am giving my expressions in English for the international community and again in Burmese for my own people.
In Burma, Parliamentary meetings were finished. The President, Vice-Presidents and top brass were elected. In fact, it is a sham Parliament. The military government had already chosen all the important positions as they wished. To be able to hold such a sham parliamentary meetings, the Head of the State, the Senior General promulgated the Myanmar Constitution 2008. It had been written by the sham national convention which took  14 and a half years. Now we will look at the details of that Myanmar Constitution 2008 and see how it is serving the military government.
First of all, let’s look at Chapter 1, the Basic Principles of the Union. Because the principles govern all the following articles in the Constitution 2008. Articles 1 to 5 mention what the Union is. And articles 6 to 48 are the Basic Principles.
The first principle which explicitly favours the military is Article 6 (f). It says: “The Union’s consistent objectives are: enabling the Defence Services to be able to participate in the National political leadership role of the State”.

And another undemocratic principle is Article 14 which states “The Union Parliament, Region and State Parliament include the Defence Services personnel as representatives nominated by the Commander-in-Chief of the Defence Services”.

And the third worst principle which gives executive powers to the military personnel is Article 17(b). It says “In the executive of the Union, Regions, States, Union Territory, Self-Administered Areas and districts, Defence Services personnel, nominated by the Commander-in-Chief of the Defence Services to undertake responsibilities of the defence, security, border administration”.

The fourth worst Article is Article 40 (a) (b) (c) which give Constitutional rights to the military to stage a coup.

Article 40 (a) states “If there arises a state of emergency, Region or a State or a Self-Administered Area, the President is empowered to exercise executive power in that Region, State or Self-Administered Area and, if necessary in doing so, the President is empowered to exercise legislative powers concerning that Region, State or Self-Administered Area in accord with the provisions of this Constitution.”

Article 40 (b) states “If there arises or there is sufficient reason to arise a state of emergency endangering life and property of the people in a Region, State or Self-Administered Area, the Defence Services has the right to prevent that danger and provide protection.”

Article 40 (c) states “If there arises a state of emergency, the Commander-in-Chief of the Defence Services has the right to take over and exercise State sovereign power in accord with the provisions of this Constitution.”

The follow-up articles which were written in line with these principles are:

In Article (109), People’s Parliament is formed with 440 representatives. Of all the 440, 330 are elected representatives and 110 are Defence Services personnel nominated by the Commander-in-Chief of the Defence Services. This article allows military personnel to be nominated by the Commander-in-Chief. The total number of military personnal is 25% of all the representatives.
In Article (141), National Parliament is formed with 224 representatives. Of all the 224, 168 are elected representatives and 56 are Defence Services personnel nominated by the Commander-in-Chief of the Defence Services. The total number of military personnel is also 25% of all the representatives. 
In both the People’s Parliament and the National Parliament which is called Union Parliament, 25% of the representatives are Defence Services personnel. It directly effects the amendment of the Constitution. Because in article 436, all the important articles are allowed to amend with the approval of more than 75% of the representatives.  In addition to that, more than half of the votes of the eligible voters in the National Referendum are required. For the less important articles, the approval of more than 75% of the representatives is required.
Because in the Union Parliament, 25% of the representatives are Defence Services personnel, it is impossible to amend the Constitution unless Defence Services personnel in the Parliament give approval. It means if the Commander-in-Chief does not give approval to amend the Constitution, it can never be amended. Because all Defence Services personnel in the Union Parliament shall obey the orders of the Commander-in-Chief who nominated them to be the representatives.
To exacerbate the problem, military backup Union Solidarity and Development Party won the majority of the Parliamentary seats in the 2010 General Election. The military government had used all possible tricks to win their pro-military party. Of all the 664 representatives in the Union Parliament, 388 are from the USDP. It makes more than 58% of the Union Parliament. Adding the Defence Services personnel and the USDP representatives, more than 83% of all the representatives are pro-military representatives. As a result, to amend this Constitution 2008 is NOT possible and the present military regime will govern the country under the name of democratic government.
Now I will continue my Second Part of the Myanmar Constitution Critic very shortly. Bye for now.

Hello everybody! I would like to continue on my Part Two of Myanmar Constitution 2008 Critic.
Now let’s look at Article (161) for the formation of Region and State Parliaments.
This Article allows Commander-in-Chief of the Defence Services to appoint Defence Services personnel in the Region and State Parliaments. The number is one-third of the total number of representatives. 
To sum up, in the National Parliament, People’s Parliament and the Region and State Parliaments, Defence Services personnel are given parliamentary seats together with the elected representatives. In all democratic Constitutions, it can never be found.
The division of Civil Services Personnel and the Defence Services Personnel is written in Article (121).
 
It states a list of persons who are not entitled to be elected as the representatives of People’s Parliament with the proviso of Defence Services personnel in Article 121(j). It means Defence Services personnel can be selected and appointed as representatives of People’s Parliament. And now in the Parliament, they have been given parliamentary seats.
We will now scrutinize over the declaration on a state of emergency, particularly in the areas of how the President has to dance in accord with the tune of his puppet master, the military. 
Article 410 says “the president may declare a state of emergency after coordinating with National Defence and Security Council in a Region or a State or a Union territory or a Self-Administered Area if the administrative functions cannot be carried out.” 
And in Article 412(a), it states, “the president may declare a state of emergency after coordinating with National Defence and Security Council in a Region or a State or a Union territory or a Self-Administered Area if lives, shelter and property of the public in that area are endangered.”
And also in Article 412(b), it states, “if all the members of National Defence and Security Council are unable to attend, the president may declare a State of Emergency after coordinating with Commander-in-Chief of the Defence Services, Deputy Commander-in-Chief, Minister for Defence and Minister for Home Affairs.”  
And Article 417 says: “if there is sufficient reason for a state of emergency to arise, the president may, after coordinating with National Defence and Security Council, declare a state of emergency the entire Nation and the specified duration is one year.”

Those Articles: Article 410, 412(a), 412(b), and 417 are all about the declaring of a state of emergency. However, for the entire nation, a Region or a State or a Union territory or even for a Self-Administered Area, to declare a state of emergency, the President can declare only after coordinating with the NDSC.

We therefore should look at how National Defence and Security Council which plays the most vital role in the Constitution 2008 is formed.
Article (201) specifies Formation of the National Defence and Security Council, NDSC, and it states: “The National Defence and Security Council led by the President, to enable it to discharge the duties assigned by the Constitution or any law, shall be formed with the following persons :”

(a) The President;
(b) Vice-President;
(c) Vice-President;
(d) Speaker of the People’s Parliament;
(e) Speaker of the National Parliament;
(f) Commander-in-Chief of the Defence Services;
(g) Deputy Commander-in-Chief of the Defence Services;
(h) Minister for Defence;
(i) Minister for Foreign Affairs;
(j) Minister for Home Affairs;
(k) Minister for Border Affairs.

If we look at the currently selected persons in the Parliament;
President is Thein Sein who is the ex-General.
The first Vice-President is Tin Aung Myint Oo who is the ex-General.
The second Vice-President is Sai Mauk Kham @ Maung Ohn. He is from the military back-up Union Solidarity and Development Party.  
Article (59) prescribes the qualification of the President and Vice Presidents and (59)(d) is written as: “President and Vice Presidents shall be well acquainted with the affairs of the Union such as political, administrative, economic and military;” It means they must be military personnel or ex-military personnel. Only these people are eligible to hold the presidential office.
Thein Sein and Tin Aung Myint Oo are ex-army Generals. Another elected Vice President; Sai Mauk Kham @ Maung Oham is a Physician by profession. He was not elected in line with Article (59) (d). It means the puppet master has the right to choose whoever he thinks is fit to serve the military without consulting with the Constitution 2008.
Speaker  of the People’s Parliament is Shwe Mann who is the ex-General.
Speaker of the National Parliament is Khin Aung Myint who is the ex-Major General.
Commander-in-Chief of the Defence Services is eventually from the military.
Deputy Commander-in-Chief of the Defence Services is eventually from the military.
Minister for Defence is Major General Hla Min.
Minister for Foreign Affairs is Wunna Maung Lwin. He is also ex-military services personnel. He was from the 16th intake of Defence Services Academy.
Minister for Home Affairs is Lt.Gen Ko Ko.
Minister for Border Affairs is Major General Thein Htay.
To sum up, 10 members out of 11 are military personnel or ex-military personnel and one is from the pro-military party, Union Solidarity and Development Party. It means the entire nation is again under the military government.
To enhance the power of the National Defence and Security Council, the following Articles are also prescribed.
Article 427 (a) says “The National Defence and Security Council exercises the powers of the legislature, executive and judiciary before the Assemblies are formed”


In Article 427 (b), “The National Defence and Security Council has the right to exercise the sovereign power until the new President has been elected and the Union level administrative bodies have been formed”

In Article 428, “The National Defence and Security Council shall form and assign duties to different levels of administrative bodies, the Self-Administered Division Leading Bodies”.

And in Article 429, “The National Defence and Security Council shall hold the general election within duration of six months commencing from the day on which the ordinance is annulled under Section 426.”

I will continue my Final and Part Three of Myanmar Constitution 2008 Critic very shortly. Bye for now.

Hello everybody! Now I would like to continue on my Final and Part Three of Myanmar Constitution 2008 Critic.

Now let’s look at the powers of Commander-in-Chief of the Defence Services in a state of emergency.

Article 413(b) says: “The President may declare a military administrative order and conferred the executive powers, the judicial powers, duties concerning community peace and tranquillity and prevalence of law and order on the Commander-in-Chief. Commander-in-Chief of the Defence Services may exercise the said powers and duties himself or empower on any suitable military authority to exercise thereof”.

And in Article 418(a), “in the declaration of a state of emergency, president shall declare the transferring of legislative, executive and judicial powers to the Commander-in-Chief of the Defence Services and all assemblies will be suspended and dissolved automatically.” 
Article 419 says: “During a state of emergency, the Commander-in-Chief of the Defence Services may exercise the legislative power, executive power and judicial power. The legislative power may be exercised either by himself or by a body including him. The executive power and the judicial power may be transferred to and exercised by an appropriate body that has been formed or a suitable person.” Therefore the Sovereign Power of the State: Legislature, Executive and Judiciary will be conferred on the Commander-in-Chief of the Defence Services during a state of emergency.

Article 420 says: “The Commander-in-Chief of the Defence Services may, during a state of emergency, restrict or suspend the fundamental rights of the citizens”. Therefore the Commander-in-Chief can restricts the rights of the citizens as he likes during a state of emergency.

Worst of all, Article 432 says, “during a state of emergency, all measures taken by the official are valid. No legal action shall be taken on such legitimate measures”.

With all these Articles: Article 413(b), 418(a), 419, 420, 432, Commander-in-Chief of the Defence Services is given the sovereign power of the State by the Constitution. He is even given the Constitutional right to restrict the rights of the citizens and the criminal acts of he and his officials are regarded as legitimate measures during a state of emergency.
We can now come to a conclusion that the National Defence and Security Council is the most powerful as a team and the Commander-in-Chief of the Defence Services is the most powerful as a person in accord with the Myanmar Constitution 2008.
We will now continue on looking at the Articles which are also derived from the Basic Principles.
In Article 232 (b)(ii)  “ In order to appoint the Union Ministers for Ministries of Defence, Home Affairs and Border Affairs, the President shall obtain a list of suitable Defence Services personnel nominated by the Commander-in-Chief of the Defence Services.” 
Again in Article 234 (b), “ to appoint the Deputy Ministers for Ministries of Defence, Home Affairs and Border Affairs, the President shall have the list of suitable Defence Services personnel nominated by the Commander-in-Chief of the Defence Services.”
Therefore, Ministers and Deputy Ministers for Defence, Home Affairs and Border Affairs will be military personnel in accord with the Myanmar Constitution 2008. 
In addition to these, Article 232 (b) (iii) and Article 234 (c) give opportunities to the President to appoint military personnel as Union ministers and deputy Union ministers to other ministries. 

These Articles are also extended by the Articles 262 (a)(ii) and 262(j). They say: Chief Minister of the Regions and States shall request suitable military personnel for Security and Border affairs responsibilities from the Commander-in-Chief of the Defence Services.  

Article 262 (j) also says: “ The Chief Minister of the Region or State can request military personnel from the Commander-in-Chief of Defence Services for other ministries of Regions or States.”
And the Constitution 2008 will not disregard the Self-Administered Division/Zone in terms of the key roles of military personnel.
Article 276 (d) (ii) says: “Defence Services personnel nominated by the Commander-in-Chief of the Defence Services shall be assigned duties relating to Security or Border Affairs in the leading bodies of those divisions or zones.”
Again in Article 276 (i), “Commander-in-Chief of the Defence Services shall assign duties to the one-fourth of the total number of members with the Defence Services personnel in the Leading Bodies of the Self-Administered Division/Zone.”

Therefore, it can clearly be seen that at the Union Level, Region or State Level and the Self-Administered Division or Zone Level, military personnel will take all the key roles in accord with the Constitution 2008. It is only the military regime that will rule the entire nation.
And now I would like to point out other Basic Principles which were written for the benefits of the military.
Article 20(b) says “The Defence Services has the right to independently administer and adjudicate all affairs of the armed forces.” It means the Union Parliament is not given the right to administer the affairs of the armed forces. A sham Parliament and the puppet Parliamentary representatives are obviously useless.

In Article 20(d), it says “The Defence Services has the right to administer for the participation of the entire people in the Union security and defence.” Therefore if the military wants to recruit soldiers, it does not need to consult with any administrative body nor to submit the proposal to the Parliament.

Article 20 (f) says: “The Defence Services is mainly responsible for safeguarding the Constitution.” This Article allows the military to keep this Constitution as long as they want.
There is a huge difference between Civil Services personnel and the Defence Services personnel.
In Article 26 (a), it is written: “Civil Services personnel shall be free from party politics.” But in line with Article 121 (j), Defence Services personnel are entitled to be elected as the representatives of People’s Parliament. 
Again Article 232 (j)(i) says: “Civil Services personnel shall retire if selected as a Union Minister.” But for the military personnel, Article 232 (j)(ii) says: “The Defence Services personnel who are appointed as Union Ministers for the Ministries of Defence, Home Affairs and Border Affairs are not required to retire or resign”.
Article 32 (b) also gives privilege to the military personnel. It says, “The Union shall ensure disabled ex-Defence Services personnel a decent living and free vocational training.”

The rights of the citizens are restricted in Article 34 of the Basic Principles of the Union.

Article 34 says: “Every citizen is equally entitled to freedom of conscience and the right to freely profess and practise religion subject to public order, morality or health and to the other provisions of this Constitution.” The rights given are subject to many other things. There are no absolute human rights as are given in the Universal Declaration of Human Rights (1948) and in the European Convention on Human Rights (1953 ).

I therefore would like to say Myanmar Constitution 2008 the worst and the most bias written Constitution on earth. It is only to make the military regime legitimate government. And almost all the parliamentary representatives are puppets of the current military regime.

I believe you enjoy all of my Myanmar Constitution 2008 Critic. Thank you for all the supports you have given for the prevalence of Democracy in Myanmar (Burma).

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