Thursday, June 26, 2008

Constitutional sophistry

"As it is, some of the commentaries on the Constitution are not well founded. Thus it is widely held that Daw Aung San Suu Kyi is debarred from office because of her former marriage to a British citizen, Michael Aris, but in fact she is technically debarred from the Presidency only because her two sons are not Burmese citizens, while this nationality barrier does not in fact apply to nomination as a candidate for election or as a Minister. If she is also debarred from the Presidency because she is not “well acquainted” with military affairs, one might dare to ask whether military nominations would be allowed because knowledge by the military of political and economic affairs has been demonstrably deficient ever since 1962. There are however
political grounds on which she could be debarred from representative or ministerial
office, for example as a result of her declared support for Western sanctions policies."

Derek Tonkin, "Burmese Perspectives" (http://networkmyanmar.org/images//bp%206%20june%202008.pdf

The above is an example of the logic-chopping that has been employed by the pro-engagement lobby with regard to the sham Constitution recently affirmed in Burma's sham referendum. The claim that the Constitution is not designed to prevent Suu Kyi following a Mandelaesque path to the Presidency, that technically, legally (whatever that means in Burma) she could still end up as Head of State is used as a tool to paint regime opponents as misinformed and, more usually, purveyors of deliberate anti-regime misinformation (the terms 'anti-regime' and 'misinformation' being virtually synonymous among sections of the pro-engagement cheer squad). As usual, this piece of sophistry in fact reveals itself to be the product of either ineptitude or deliberate dissembling. The Constitution as it currently stands

(http://www.amnestyusa.org/all-countries/myanmar-burma/page.do?id=1011205&n1=3&n2=30&n3=955

clearly does prevent Suu Kyi from attaining not only the Presidency but any other Executive Post; this however, despite the strategic focus upon it of Tonkin et al, is not the main point of concern. The Constitution effectively disenfranchises all existing opposition forces in toto, and whittles the possible space for future political organisation to virtually zero.

The qualifications for the Presidency are set out in Chapter II of the Constitution. They are as follows:

Qualifications of the President and Vice-Presidents

(4) (a) The President of the Union shall be loyal to the Union and the citizenry,

(b) The President of the Union must be a citizen of Myanmar who was, and both of whose parents were, born in the territory under the jurisdiction of the State, belonging to the nationality of Myanmar,

(c) The elected President of the Union shall be a person who has fully attained the age of 45.

(d) The President of the Union shall be well acquainted with affairs of State such as political, administrative, economic and military affairs,

(e) The President of the Union shall be a person who has been residing continuously in the country for at least 20 years up to the time of the election,

(f) The President of the Union himself, parents, spouse, children and their spouses shall not owe allegiance to a foreign power, shall not be subject of a foreign power or citizen of a foreign country. They shall not be persons entitled to the rights and privileges of a subject or citizen of a foreign country,

(g) The President of the Union shall possess specific qualifications required of the President in addition to qualifications required to stand for election to the Hluttaw.

(h) The Vice-Presidents shall possess qualifications required of the President.


With regard to Suu Kyi's eligibility, she clearly meets conditions b), c), and e). Come 2010, condition a) my be used to disqualify her (grounds with which Derek Tonkin concurs - after all, she supports sanctions) as may the military requirement in condition d). Condition f) clearly puts her out of the running due to the nationality of her sons (and their spouses - surely a patently bizarre Constitutional requirement?). It is condition g) that presents the real barrier, and the fundamentally anti-democratic heart of the new Constitution.

Eligibility for election to the Pyithu Hluttaw and Amyotha Hluttaw (the two National representative assemblies) is defined by a common set of requirements (apart from age, which is at least 25 for the former and at least 30 for the latter - condition a) below). They are:


32. In connection with prescribing of the qualifications of the Pyithu Hluttaw representatives,

– Persons who possess the following qualifications have the right to stand for election as Pyithu Hluttaw representatives:

[a]

(b) being a citizen born of parents both of whom are also citizens;

(c) having settled in the Union of Myanmar for at least 10 consecutive years up to the

time of being elected Pyithu Hluttaw representative; Exception—‘The period of staying abroad with the permission of the government shall be deemed to have settled in the Union.

(d) possessing qualifications prescribed in the election law.


Condition d) is sufficiently vague to allow for considerable future manipulation, but more importantly there is a list of circumstances which preclude an individual from standing for election. These are:


33. In connection with those who have no right to stand for election as Pyithu Hluttaw representatives,

The following persons shall not have the right to stand for election as Pyithu Hluttaw representatives:

(a) person serving prison term, having been convicted by the court concerned for having committed an offence;

(b) person still within the period the authorities have prescribed that he or she has no right to be elected as Pyithu Hluttaw representative for having been punished for a commitment of offence that makes him or her lose qualifications required of a Pyithu Hluttaw representative before or after the State Constitution comes into force;

(c) persons adjudged to be of unsound mind as provided for in the relevant law;

(d) person who has not yet been cleared from being declared destitute;

(e) person owing allegiance to a foreign government, or a subject of a foreign government or a citizen of a foreign country;

(f) person who is entitled to rights and privileges of a subject of a foreign government, or a citizen of a foreign country;

(g) person who obtains and makes use or member of an organization that obtains and makes use of money, land, housing, building, vehicle, property etc. directly or indirectly from a foreign country’s government, or religious organization or other organizations;

(h) person who commits or abets or member of an organization that commits or abets acts of inciting, making speeches or issuing declarations to vote or not to vote misusing religion for political purpose;

(i) members of a religious order;

(j) civil service personnel;

proviso: The expression shall not apply to Tatmadaw member Hluttaw representatives.

(k) person who obtains and makes use or member of an organization that obtains and makes use of State funds, land, housing, buildings, vehicles or property directly or indirectly;

proviso: (1) The expression ‘State funds’ does not apply to pension or allowances officially granted by the State for services rendered for the benefit of the State.

(2) The expression ‘land, housing, buildings, vehicles and property belonging to the State’ does not apply to State-owned land, housing, buildings and apartments, other buildings and apartments, State-owned air-craft, trains, vessels and motorcars and property etc. which have been permitted by the State to be used under an existing law or as required by duty or leased from the State on payment;

(l) person still within the period the authorities have prescribed that he or she has no right to be elected as Pyithu Hluttaw representative for commission of an unlawful act or for failure to act in conformity under the election law making him or her lose qualifications required of a Pyithu Hluttaw representative before or after the State Constitution comes into force.


Several of these conditions are fairly standard (e.g. c), d), e), f), j), k)) but some are striking in their implications. Condition h) would appear to render anyone who has been involved in political activity ineligible to stand for parliament, and indeed would appear to make political activity in the traditional sense impossible - the very activity of politicking would prevent achievement of the desired end! [the clumsy drafting re misuse of religion is a post-September 2007 addition that is absent from the Detailed Principles document circulated earlier] .Condition g) tightens the noose on the NLD and other anti-regime groups, but also appears to disenfranchise those individuals in receipt of aid, post-Nargis. That presents an acute dilemma for the pro-engagement forces: the act of engagement may well directly hamper the development of democracy by disenfranchising the engagees! Conditions b) and l) complete the barrier by permitting discretionary (and retrospective) action to disenfranchise individuals.

Given that Suu Kyi would have to meet these criteria as well as the specific requirements for the Presidency, it is clear that she could not be eligible to be Head of State. But nor could any NLD member or any political activist aspire even to be a member of the National assemblies (which adds a further block on Suu Kyi re the Presidency as the President is chosen from among 3 Vice Presidents who are in turn chosen by each Hluttaw and the Tatmadaw representatives). But the problem is much more fundamental, as those eligible for the State and Region Hluttaws must meet the same criteria, as must nominees for the positions of Union Ministers, Attorney and Deputy Attorney-General, Auditor and Deputy Auditor-General, Chairman and members of the Union Civil Service Board and Justices of the Supreme Court. Furthermore, the requirements are replicated for all of these functions at the State/Region level.

In other words, those active in political activity will be locked out of political power at every significant level. The 25% quota for the Tatmadaw is nothing in terms of a block to democracy compared to this wholesale exclusion. The idea that this Constitution represents in any way a step forward on a road to democratisation is a fantasy in the minds of some and a lie issued from the mouths (and pens) of others.


3 comments:

abceasyas123 said...

Unless Mr Tonkin has cozied up to the junta so much that he has taken on Burmese citizenship, I believe to be TECHNICAL about things -- and that is clearly HIS preference -- he mislabeled his article "Burmese Perspectives." In fact, it would have to be accurately labeled "Perspectives on Burma." He is not Burmese is he?

abceasyas123 said...

Oh, I forgot to comment on Mr Tonkin's comment: "I would myself be cautious in deriding the 98.12% turnout."

I actually laughed out loud reading that one. Who is he kidding? I'd like him to explain how 98.12 percent of the people turned out when at the time of Yangon and the Delta voting, more than 1.5 million people had no food, water, or shelter for six weeks. They claimed the turnout in the Delta was about 92 percent or so.

According to Mr Tonkin, Maslow's hierarchy of needs should be turned on its head in Burma.

The Burmese people elevate their civic duty to vote now above physical survival!

Ridiculous. Try reading a newspaper or two (e.g., NY Times article below) to see how votes were counted. Even with this kind of blatant fraud, his belief in 98 percent turnout is a joke.

Oh wait, perhaps I should quote Mr Tonkin back to himself: "I suspect a lack of intellectual integrity whenever allegations are accepted uncritically as
facts, however bizarre and lacking in credibility they may be."

I couldn't have said it better myself with regards to his comment to be cautious deriding the 98.12 percent turnout.

I guess it is fair to say by his own criteria that we should suspect a lack of intellectual integrity. Because it is clear accepting these numbers is both "bizarre" and "lacking in credibility."

Easy to prove it too! I would challenge him to provide even a SINGLE credible organization which found those numbers credible. And while he is at it, please let me know even a SINGLE country which publicly endorsed those turnout figures.

If he can't, then I'd suggest he failure to reject the turnout figures on their face is bizarre.

--

May 28, 2008

When It Comes to Politics, Burmese Say, Government Is All Too Helpful

By THE NEW YORK TIMES

MEE LAUNG KWIN, Myanmar — As the fisherman sat mending cyclone-damaged nets in his riverside hut here on Saturday, he said he had not known it was the day he and other residents of the Irrawaddy Delta were supposed to vote on the new military-backed Constitution.

But the fisherman, 54, did remember that a village leader affiliated with the ruling junta told him and his neighbors a few days earlier that he had already marked ballots for them and sent them to the regional authorities.

“He said he made the right choice for us,” the fisherman said with a shrug. “So we said, ‘O.K., no objection.’ ” The fisherman’s name was not used because of the possibility of retaliation by the government.

In Yangon, more than 60 miles northeast of his delta village, an official at a government-run company said the 1,000 or so workers there had not voted either: the company marked ballots for them as well.

“This was my first chance to exercise my right to vote, but the government did it for us without our knowledge,” said the official, in his late 30s. “None of our staff dared say that we wanted to vote ourselves. This is standard in Myanmar.”

The same thing happened at the military-run company where his wife works, he said.

At least 135,000 people are dead or missing since a cyclone struck Myanmar, formerly Burma, on May 3, in the world’s biggest natural disaster since the Asian tsunami in 2004. For the junta that runs the country, however, politics has consistently trumped aid, local residents said and some government officials acknowledged.

On Tuesday, officials allowed foreign aid workers to travel to the hardest-hit areas of the Irrawaddy Delta for the first time. But the numbers reaching devastated coastal communities were still tiny — fewer than 20 by some estimates — suggesting that the government was still determined to keep an iron grip on the provision of aid.

The United Nations estimates that 1.5 million people who survived the cyclone are still struggling to find food and clean water and that the death toll could rise sharply unless supplies reach them soon. But the Burmese government claims that it can handle relief work by itself and that foreign nations should instead provide billions of dollars to help the junta rebuild the country later.

Over the weekend, military leaders pressed ahead with the vote on the new Constitution, which would prolong their rule by, among other things, allotting 25 percent of parliamentary seats to the military.

Saturday’s referendum in Yangon, Myanmar’s main city, and the Irrawaddy Delta, the regions most affected by the cyclone, took place after two weeks of delay. The rest of the country voted May 10, as scheduled, just a week after the storm. Even before the final round of balloting, state radio said that round could not reverse the Constitution’s approval because 92.48 percent of the 22 million eligible voters had already voted for it on May 10. In any case, The New Light of Myanmar, the state-run newspaper, reported Tuesday that voters in Yangon and the Irrawaddy Delta had affirmed the Constitution by an even more resounding 92.93 percent.

Critics said the referendum as a whole was a sham.

In the days before the Saturday referendum in Yangon, homeless cyclone victims taking shelter in schools and other public buildings were evicted to make room for polling places. In four delta villages visited Saturday, villagers gave the same answer: The government had voted for them; they did not even get to see the ballots.

“We are not interested in voting; we are starving for food,” said a villager at Zee Phyu Chaung, a delta hamlet where those interviewed were aware that Saturday was referendum day. “Our village leader voted for us two days in advance, and we don’t know how he voted.”

Such stories did not surprise the Yangon government official, who compared living in Myanmar to “living in a prison with a very big border.”

The man spoke in English during an interview arranged on the condition that his name and personal details not be disclosed for fear of government retribution for criticizing the junta to outside journalists.

Interviews with Burmese farmers and fishermen in the Irrawaddy Delta and with businessmen and officials revealed the frustration and quiet perseverance of people in this poor and politically repressive country.

The official and several businessmen in Yangon said the government’s attitude toward its people was best illustrated by the discrepancy between its swift and harsh reaction to a popular uprising led by Buddhist monks last September and its foot-dragging in aiding victims of Cyclone Nargis.

“You saw what happened in 1988 and last September,” the official said, referring to the junta’s bloody crackdowns on pro-democracy demonstrators. “In other countries, if you stand up against the government, you may get tear gas. Here you get the bullet. I have a wife and a child to support. I can’t risk my life.”

When asked about his future, the official pulled on his cigarette and mentioned what other young, relatively well-educated Burmese call “voting by foot.”

“If you can’t fight it, if you can’t reform it, it leaves you with just one option: leaving this country and going abroad to find a decent job and give your child a better future,” he said.

That is not easy. As is the case with other officials, his passport is held by the government. If he wants to travel abroad, he must apply to have his passport returned, a process that he said takes two months, assuming it is successful, and requires a fair amount of bribes. “Otherwise, all government officials would emigrate,” he said. “We Burmese are born oppressed.”

The signs of that oppression are pervasive, even in the Internet cafes of Yangon, where young people in crowded rooms play computer games and exchange news and photos of the cyclone’s victims with friends overseas.

Employees are deft at helping customers bypass government firewalls to visit foreign Web sites. When a user logs out, the computer usually shows a notice reminding him to erase all his Internet download history, a bizarre snippet of life in a society where one Yangon businessman said “fear is a dominant motivator in everyday life.”

Derek said...

The BEW team said: "The claim that the Constitution is not designed to prevent Suu Kyi following a Mandelaesque path to the Presidency, that technically, legally (whatever that means in Burma) she could still end up as Head of State is used as a tool to paint regime opponents as misinformed and, more usually, purveyors of deliberate anti-regime misinformation (the terms 'anti-regime' and 'misinformation' being virtually synonymous among sections of the pro-engagement cheer squad). As usual, this piece of sophistry in fact reveals itself to be the product of either ineptitude or deliberate dissembling."

I made no such claim at all. What I said was that Daw Aung San Suyu Kyi was clearly disqualified from becoming President (Head Of State) because she had two sons who were British, while I had no doubt she would be disqualified from standing as a candidate for parliament because she would be disqualified on other grounds.

As regards abceasyas123, if he only read on what I said, he would have seen that I gave an explanation for the 98.12%, which was just like the 99.60% - it was reached by illegal means, namely "proxy" vting which means officials filling in voting forms, which is wehat happened. But the 98.12% is not important. What is important is the 92.48% alleged to have voted yes which absolutely no one outside Burm a has accepted. As I have said elsewhere (article on www.networkmyanmar.org ): "Had the declared result in favour been 72.48%, or even better 52.48%, few countries would have troubled to challenge the result, but 92.48% has found absolutely no takers."

So there we are. Is there really any disagreement between us? The result was fraudulent.