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
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:
(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.