By JANET BENSHOOF
Published: 20 February 2013
The international community acts as if development and engagement
alone can secure a democratic future for Burma. The United Nations and
donor countries, with staggering rapidity, are investing considerable
amounts of international and bilateral aid in Burma, including for
“rule of law” projects designed to jettison Burma into the 21st
century global legal community. However, this well-intended
engagement, touting ideals of democracy and the rule of law, is built
on a fallacy, which neither serves the people of Burma nor advances
the global security sought by the international community.
This fallacy is that justice, democracy, and rule of law can be
established in Burma notwithstanding the fact that the 2008
constitution establishing the “Republic of the Union of Myanmar”
grants the “Defense Services,” under Commander-in-Chief Min Aung
Hlaing, complete and total legal autonomy over its own affairs, as
well as immunity for its actions, however criminal or corrupt. The
truth is actually quite simple: unless and until the military is
placed under civilian control through constitutional amendment, talk
of democracy and rule of law in Burma is just that, talk.
Autonomy and immunity guarantees in the constitution give the military
a green light to wage war and commit war crimes; power over the
police; and exert a monopoly over all weapons and disarmament
programmes, as well as Burma’s development of nuclear capability for
any purposes.
There are good reasons for the military to be responsive to
international pressure to amend the constitution so that true
democracy can take hold, given that development and aid greatly
benefits the military’s economic interests. But the international
community is not using its considerable power to pressure the
military. Instead, it ignores inconvenient truths such as continuing
military attacks against civilians in ethnic areas, secretive weapons
development, and failure, after some 60 years of armed conflict, to
ever prosecute any member of the military for war crimes despite
evidence of the endemic use of child soldiers and the rape of ethnic
women as a weapon of war.
ဆက္ဖတ္ရန္- ေခါင္းစဥ္ ကုိ ႏွိပ္ပါ။
A nation’s constitution is usually considered to be a quintessential
exercise of sovereignty, and not typically a matter for international
action, but just who has sovereign power in Burma? The legal
definition of “sovereignty” or of a “sovereign” state requires that
the state have complete legal authority over the military and over the
constitutional amendment processes. In this case, the “Republic of the
Union of Myanmar” does not meet the standard of a sovereign state.
The international community must recognise, as do democracy activists
on the ground that for true democracy to take hold, the constitution
must be amended to reflect the will of the Burmese people rather than
the political designs of the military. The constitution anoints the
military as the “guardian of the constitution” and gives the military
control over passage of any constitutional amendments. The military
drafted and designed the constitution to preserve its political power
rather than foster democracy and the rule of law, and it will take
concerted international effort to convince the military to open the
window to change.
To find evidence of the troubling autonomy of the military – not to
mention the inconsistencies between military action and civilian
government rhetoric – one need look no further than the ordering of
the army not to attack any ethnic minority groups by President Thein
Sein on 19 January 2013. Hours after the announcement, the military
renewed its offensive against the Kachin Independence Army (KIA),
heedless of any efforts by the civilian government to negotiate a
lasting peace.
On 29 November 2012, the use of white phosphorous against peaceful
protesters demonstrating against Latpadaung, a copper mine in central
Burma, provided additional evidence of the rogue nature and power of
the military. The copper mine project involves a contract between
Union of Myanmar Economic Holdings Limited (UMEHL), a conglomerate run
by the military, and the Chinese company Wanbao, which puts military
economic interests at the center of the controversy. Military-owned
corporations, the greatest source of wealth in Burma, are not taxed as
are other businesses, thereby curtailing a crucial revenue stream that
could be invested in the people of Burma, such as by increased
spending on desperately needed health and education programmes.
“The legal definition of ‘sovereignty’ or of a ‘sovereign’ state
requires that the state have complete legal authority over the
military”
According to a recent investigation conducted by the Lawyers Network
(Burma) and Justice Trust (USA), police used excessive force,
“including military-issue white phosphorus weapons,” injuring more
than 100 monks with severe chemical burns. The use of white
phosphorous against civilians is illegal under international law and
in direct conflict with the promises made by President Thein Sein’s
representative on 23 November 2012 to forge a non-violent solution to
the protest.
This incident raises serious questions about who authorised the use of
this dangerous chemical weapon against peaceful protesters and about
the contradiction between the civilian government’s promises and the
police actions. The police forces in Burma report to the Minister of
Home Affairs, Lieutenant General Ko Ko, who is an active military
officer reporting to Commander-in-Chief of the Armed Forces, Vice
Senior-General Min Aung Hlaing. Under military control, how can police
be held civilly and criminally accountable for its activities?
The white phosphorous incident must be a reminder that there is no
weapon that will not be used to stop dissent. Perpetrators – be they
the police or military or private thugs hired by the military – are
not deterred since no police or military have been punished nor has
any civilian authority been capable of stopping police or military
action since 1962.
The issue of weapons and nuclear energy development highlights yet
another distressing and pronounced disconnect between government
rhetoric and military action. On 22 December 2012, Vice Senior-General
Min Aung Hlaing speaking to the graduating class of the military’s
Medical Academy, announced plans to use nuclear technology for
medical, research and energy purposes but not atomic weapons
development. This contradicts previous statements by himself and
government spokespersons, such as a June 2012 statement by the
commander-in-chief that Burma had abandoned its nuclear programme and
there was no point in having the International Atomic Energy Agency
(IAEA) visit because there was nothing to see.
In November 2012, President Thein Sein announced he would sign an
international protocol requiring declaration of nuclear facilities and
materials and allowing more scrutiny by UN inspectors. However, how
can he enforce this pledge since the constitution grants the
commander-in-chief sole authority to admit inspectors into
military-owned territory, including nuclear facilities? Finally, the
president assured international leaders from South Korea and the
United States in May 2012 that Burma would refrain from military
cooperation with North Korea and abide by international sanctions
against that nation. Yet, three months later, Japan seized a cargo
shipment of materials suitable for uranium enrichment or missile
development destined for a Rangoon-based construction company, which
the US believes is a front for Burma’s military procurement, from
North Korea (via China).
Despite this disturbing evidence of ongoing human rights abuses,
military attacks on ethnic civilians, inconsistencies between
government statements and actions, and development of nuclear capacity
through cooperation with North Korea in violation of international
law, the global community continues to ignore or downplay both the
significance of these violations as well as the limitations of the
constitution.
For example, a December 2012 report by the International Bar
Association’s Human Rights Institute (IBAHRI), entitled “The Rule of
Law in Myanmar: Challenges and Prospects,” concluded that the immunity
clause of Article 445 of the constitution should not be interpreted to
include immunity for “serious criminal acts.”
Yet just after the IBA report was released, officials from the
Ministry of Communications and Information Technology cited the
Article 445 immunity clause in the constitution as the reason to limit
the corruption investigation of former officers and Minister of
Telecommunications, Thein Zaw. If the immunity/amnesty clause in the
constitution is being used to curtail investigations for greed and
corruption, how can it prevent similar dismissal of more serious
crimes, such as genocide, crimes against humanity and sexual violence
against women?
On a positive note, some members of the global community are waking up
to the structural impediments and global security concerns raised by
the constitution. The UN Special Rapporteur Tomas Ojea Quintana noted
on 16 February 2013, after a five-day mission to Burma, that the
constitution could “undermine the rule of law and fundamental human
rights.”
The Nuclear Age Peace Foundation (NAPF), an INGO with more than 55,000
members, wrote in November 2012 to all members of the United Nations
Security Council urging them to consider that military autonomy in the
constitution renders the civilian government incapable of keeping its
promises to enforce international obligations when examining that
country’s compliance with Security Council resolutions involving
nuclear sanctions and issues of weapons of mass destruction.
As stated by NAPF President David Krieger: “…under the 2008 Myanmar
Constitution, which became fully implemented on January 31, 2011, the
civilian government of Myanmar is deprived of its sovereign powers
over the military. This leaves the Myanmar government unable to comply
with, inter alia, Security Council Resolution, SCR 1540 or SCR 1874,
or any of its obligations under the UN Charter, Geneva Conventions,
Genocide Convention, and the Non-Proliferation Treaty.”
Democracy activists on the ground consider amending the constitution
crucial to achieving their goals. Daw Aung San Suu Kyi and other
National League of Democracy (NLD) leaders emphasise amending the
constitution, but recognise that the constitution itself, “adopted” by
a spurious referendum in 2008, derails these efforts.
Amendments require more than 75 percent majority vote of
parliamentarians and the constitution guarantees that the military may
appoint 25 percent of parliamentarians, effectively giving the
military a veto over all legislation and amendments. Daw Aung San Suu
Kyi is “talking sweet” to the military, as noted by NLD lawmaker Win
Htein, because she and other in-country activists still are not able
to speak freely, openly and forcefully about how the constitution is
holding democracy hostage.
But what is the international community’s excuse?
President Thein Sein could join this call for an independent legal
review of the constitution as a step toward establishing the rule of
law and democracy in Burma. The president could take other actions
indicating a willingness to join the international legal community and
force the hand of the military, such as signing the Rome Statute of
the International Criminal Court and bringing it to the parliament for
ratification. And to further confirm his commitment to these ideals,
he could indicate that he stands behind Burma becoming state party to
other international treaties such as the International Covenant on
Civil and Political Rights, the two optional Protocols to the Geneva
Conventions, and the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment.
But one thing is clear, if the international community is truly
concerned about installing democracy and the rule of law in Burma, it
should take positive steps towards pushing for its amendment. At the
international level, the UN General Assembly or Security Council could
request an advisory opinion on the constitution from the International
Court of Justice as was done regarding the legality of the declaration
of independence of Kosovo. Such positive steps must include making
reform a part of aid and development funding, and the international
community’s overall commitment to bringing true democracy and rule of
law to Burma.
Janet Benshoof is president and founder of the New York-based Global
Justice Center.
-The opinions and views expressed in this piece are the author’s own
and do not necessarily reflect DVB’s editorial policy
http://www.dvb.no/analysis/its-time-for-the-int’l-
community-to-address-burma’s-constitution/26505
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