Tuesday, 19 February 2013

The 2008 Burmese Constitution: may fail to reach international law requirements, certainly fails to reach the requirements of humanity

by Thomas MacManus

The Burmese military doesn’t answer to the Burmese president, parliament or anybody else. What are the consequences of this arrangement for the international legal status of Burma? And, more importantly, are the people of Burma protected from this vicious military regime?

The military cannot be held to account under the latest constitution

In 2008, the third Burmese constitution was passed following a referendum process that suffered from widespread accusations of voter intimidation and fraud, the anecdotal evidence of which is readily available. For example, former Burmese police office Soe Min explained that he was ordered to discard any 'No' votes and replace them with fake 'Yes' ballots during the referendum.

This constitution gives the Burmese military (known as the ‘Tatmadaw’) 25% of parliamentary seats in both houses (with another 3-4% probably held by military proxies) and therefore an effective veto of any constitutional amendment, which requires over 75% of parliamentary votes. Under the constitution, the uniformed Commander-in-Chief of the armed forces, Min Aung Hlaing, does not answer to the President of Burma, Thein Sein – or anybody else for that matter.

Article 20 of the Burmese constitution formalises the military’s independence from parliament and has led some to argue that Burma does not fit with the international legal definition of a sovereign state. But before looking at the international law connotations, it may be helpful to look at the de facto situation on the ground.

Unsuccessful attempts at controlling the military

Thein Sein ‘ordered’ a cessation of military activities in Kayin (Kachin) State in December 2011, and has sent Min Aung Hlaing “two loosely worded letters asking Tatmadaw units to stop fighting in Kachin State unless attacked” but the conflict continues to escalate. A unilateral ceasefire was announced by Thein Sein on 19 January 2013 and was broken less than two days later. The president’s public announcements appear to have no effect on the military.

Political scientist Mary Callahan argues (PDF) that another potential mechanism for making the military accountable is the constitutional requirement for lower-house approval of the national budget. But the military controls the lion’s share of the country's biggest corporations and its lucrative illicit poppy industry keeps the cash flowing. The rebels of the Shan State Army are often outstripped when it comes to profiting from drugs: the example of Shan state shows that drug production is highest in Tatmadaw-controlled areas. Furthermore, it is unclear where the money from the national budget actually goes; “the military cannot afford to properly pay its own 350,000 troops despite receiving almost a quarter of the national budget”, a recent report says.

State sovereignty and the 2008 Constitution

The legal separation of military and government as suggested by the constitution raises an interesting point of international law – can Burma be considered a sovereign state?

There are two schools of thought when it comes to statehood: the constitutive theory and the declarative theory. The constitutive theory of statehood, developed in the 19th century, claims that a state can only be a member of the international community of states if that country is so recognised by other sovereign states. The declarative theory, as expressed in the 1933 Montevideo Convention and the European Economic Community Opinions of the Badinter Arbitration Committee, defines a state as a person in international law if it has a defined territory, a permanent population, a government and a capacity to enter into relations with other states. Recognition statements by other sovereign states are therefore not required.

Burma appears to pass both tests. Obama’s recent official visit to the country has cemented recognition by the international community. And the Montevideo requirements are well settled in the case of Burma. However, the Global Justice Centre, using Black’s Law Dictionary’s (1991) definition of ‘sovereignty’, has recently argued that Burma is not a sovereign state, since the 2008 Constitution grants the Tatmadaw “complete autonomy and supremacy over the civilian government”. The civilian government is therefore unable to enforce any erga omnes international law obligations – that is, international law obligations that all sovereign states have to the international community of states – as set down by treaty (including the UN Charter) or by international customary law.

The government’s lack of control is a serious concern for Burma’s citizens

Of course, there is probably no question that Burma is de facto a sovereign nation state. Pakistan’s government has recently told the Pakistani Supreme Court that it has no operational control over the military but few would argue Pakistan’s claim to statehood (despite the fact that borders may not be fully delimited in relation to Pakistan’s and India’s competing claims on Kashmir, as would be required by Montevideo). Hence, the real question is whether Burma’s constitution is compatible with international law. To answer it, a reference could be made to the International Court of Justice for an advisory opinion.

But legal questions aside, the issue of the Burmese government’s lack of control over the military is one of serious concern for the citizens or Burma. As was the case before the adoption of the 2008 constitution, the Burmese military continues to be responsible for indiscriminate attacks on civilians. However, chapter 14 (s445) of the constitution provides immunity to all military officials from being tried or prosecuted. So therefore, not only are the elected representatives of the people of Burma unable to control the Burmese military, they cannot hold them to account for their continuing atrocities.

This blog refers to the state as Burma in solidarity with those resisting the oppressive ruling regime which changed the name from Burma to Myanmar in 1989 without consulting the people of Burma.

Dr Thomas MacManus is Postdoctural Research Fellow at the International State Crime Initiative and is based at King’s College London’s School of Law.

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