Why Deny The Obvious Child?

Why Deny The Obvious Child?

By Saneitha Nagani

While lwas reading a news article from The lrrawaddy on Daw Aung San Suu Kyicommenting on how difficult it will be to amend Burma's 2008 Constitution, lwas also listening toPaul Simon's song, "Why Deny The Obvious Child?" ln that article, "Aung San Suu Kyi Says

(The lrrawaddy, 10 May 2013) Daw Suuwas reported to have said that, "At present, the constitution is the most difficult constitution in theworld to amend, the most difficult. lf we want to amend the constitution, we have to change theprocess of amendment." The lyrics of the songs gave me a flash right in front of my eyes whichthen gels into an idea what Daw Suu might have to do about amending the constitution. lamsure Daw Suu is well aware of 'lateralthinking' or'thinking outside the box' and such a thingcalled'the path to least resistance'.

Some legal scholars mentioned that, "The legitimacy of the operation of the constitutionalsystem relies on the concept of 'the rule of law': Iaws are 'legitimate'when they are made by arepresentative parliament, protected by a court and implemented by an accountable executive.They must also have been generated and issued through agreed and transparent processes.The rule of law is associated with ideas of 'due process' and 'naturaljustice,, which suggeststhat all decisions must align with a generalised notion of law being applied in a just manner. Theconcept of the rule of law developed as part of the common-law tradition of the English.,,

The 1947 Constitution gave a simple process in amending the Gcl6rtitution. Article s 20T, ZOB,209 and 21a gave the process of amending the Constitution in a simple process. Article 207provided that 'Any provision of this Constitution by way of variation, addition, or repeal in themanner hereinafter provided" According to Article 208 proposals for amendment shall have to bein the form of a Bill initiated by either Chamber and passed by both. After passing the Bill itshould be considered by both Chambers in a joint sitting. The Billshallbe deemed to have beenpassed by both Chambers in the joint sitting only when not less than two-thirds of the thenmembers of both chambers have voted in its favour. ln accordance with Article 210 the Bill beingpassed in accordance with the relevant provisions it shallthen be presented to the presidentwho shallsign and promulgate it into law. However, not a so simple process was provided toamend the 2008 constitution and there may be three ways to get it amended.

First, the 2008 Constitution have been drafted by the previous military regime as a legaldocument which would guide the country and its people on the 'roadmap' towards ,displicineflourishing democracy.' However, not only the process in which it was drafted was flawed but theway it was adopted also was lacking in legitimacy. When the regime gave the reason forreneging on their promises not to honour the result of the elections and to refuse handing overpower to the party, the National League for Democracy (NLD), that won the elections in alandslide was that the elections was only to elect representatives to the National Convention

which will then 'draft'the constitution for the government to take over power. Breaking their ownpromise the regime stacked the Convention, not with the representatives elected by theirrespective constituents but with the 'yes men'who neither represented their constituents norhave the courage to stand up to the truth. To add insult to the injury the draft was then adopted inthe aftermath of the 'Cyclone Nargis' and with the rigging of votes of the people who have gonethrough their worst natural disaster in their whole lives.

Second, if and when the Constitution was lacking in legitimacy, not only in its drafting andadoption process but also In its contents, then there is no good reason why we should not scrapit altogether? lguess not. Then Daw Suu, where is the difficulty in 'amending'? Why deny theobvious Daw Suu? When a constitution does not have the features on what a constitution shouldhave and when the whole country, with the exception of the military and its sponsored party theUnion Solidarity Development Party (USDP), was against then scrapping it will be the interest ofthe country and its people. According to Suri Ratnapla, "The term 'constitution' has acquired atleast three different meanings. ln the most common sense terms, it means a text that has theforce of the paramount law in that it prevails over every other law that is in conflict with it. In asecond sense, 'constitution' means the actual system of government in a country at a given timein history. This is a'living ' as opposed to the paper constitution. lt is ascertained not simply byreading the paramount text, but also by consulting supplementary legislation, conventions,relevant judicial precedents and bystudying the less formal political, economic, moralandcultural constraints that shape the system of government. ln philosophical literature, we find athird meaning of 'constitution': namely, the idea of a government subject to limitations that havethe capacity to withstand momentary currents of opinion or political will through a combination ofinternal mechanisms, supporting institutions and culture. ln the latter sense, a constitutionrepresents the realisation of a value or ideal identified by the terrt-s'constitutionalism' and'constitutional government'. Thus only a certain kind of constitution could be regarded as aconstitution in the philosophical sense."

According to Richard Miles, a Policy Research Analyst at the Western Australian Department ofTraining and Employment, writing in Alternative Law Journal in April200 mentioned that, "Aconstitution is fundamentally about providing sufficient political power to government to performthe will of the people and, at the same time, limiting the power to ensure that the people's libertyis not compromised. lf a constitution is insufficiently entrenched, the government may attempt tochange the mechanisms that limit its power and the abuse of the people's liberty could follow.For this reason, it is important that in any democracy, the following condition is met: the politicsof constitutional change should be separated from the realm of normal politics." Certainly not asa 'safeguard against prosecution' of the military leaders in the previous regime for their crimes;gross human rights abuses, war crimes, crimes against humanity or even genocide.

Thirdly, Daw Suu may find it very difficult to amend the 2008 Constitution but if she were at leastpragmatic if not realistic she could easily scraped it with the help of her beloved military. No oneneeds to be reminded that she was the only person that was invited to the mllitary parade heldon the commemoration of the 'Tatmadaw Day' not only as a civilian but also as a woman. The

military may not have the ability to draft a good constitution but they are sure to have the

experience of 'scrapping' constitutions; not just one but two constitutions - one drafted by the

others at Burma's regaining its independence in 1948 and one by them acting in their role as

members of the defunct Burma Socialist Program Party (BSPP) in 1974. The people will neither

blame Daw Suu nor the military for doing the honour. lf the former apartheid South Africa could

do away with their constitution, why cannot Burma do away with hers?

The leading Australian legal scholars wrote in the introduction of their book on the constitutional

systems in the Asia-Pacific region that, "ln the twentieth century, government was based on the

philosophical presuppositions of modernity: sovereignty resided in the people, and the legitimacy

of states rested on adherence to the rule of law, the holding of periodic elections, and the

maintenance of democratic values that maximised the freedom of the individual," There was no

mentioned of the military having a special role premised on belief that the centrality of the military

to the existence of the state itself.

While some constitutions are considered as 'living documents'the one drafted by the previous

military regime may have to be considered as one that was already'dead in the water' since it

was drafted by a flawed process and adopted in a referendum that was held under duress and

against the wishes of the people. The value of the document is not fit enough to be used as 'toilet

paper'. Worth less than the paper that it was printed on. Putting a little bit of faith in the good

nature of the people, the former Senior General Than Shwe and his gang of criminals should rest

assured that even with the amendment of the 2008 Constitution or the scrapping of it totally and

a new one drafted, adopted, and given life they could still live out the rest of their miserable lives

with the ill-gotten loot they have managed to steal. The life sente-nce of anxiety, fear and

sleepless nights should be enough for them as punishment. -"€

Why deny the obvious Daw Suu? As lonce saw in a movie a soldier giving advice to another

soldier having difficulty in executing an enemy soldier he said, "Just close your eyes, think of

England and pull the trigger." lsn't it obvious Daw Suu? END