The tropical cyclone Nargris which struck the Burma Irrawaddy delta on 3 May and the incompetent military response for relief efforts did not prevent the government of Myanmar from carrying out on 10 May a referendum on a government-drafted constitution for the country. The referendum for the storm-hit delta, home for a quarter of the country’s population, is planned for 24 May.

The delta is populated largely by the Burman ethnic group which gave its name to the country. About 40 per cent of the total population are ethnic minorities who live in higher areas along the frontiers with Thailand, China, India, and Bangladesh. Population statistics in Burma are rough approximations.

According to some reports, the yes/no option on the constitution had already been marked “yes” so that all that had to be done was to put the ballot in the box. Thus, there is no doubt that “yes” will win. Few people understand the nearly 200-page constitution and commentary, and no effort has been made to explain its meaning. The country has been without a constitution since 1988, and this one was drafted largely because the United Nations thinks that constitutions are necessary for the rule of law. However for a constitution to be more than an unread document, it must reflect the needs of the times and agreement on basic values.

As Thomas Jefferson wrote “Some men look at constitutions with sanctimonious reverence and deem them like the ark of the covenant too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human and suppose what they did to be beyond amendment. I am certainly not an advocate of frequent and untried changes in laws and constitutions. But, I also know that laws and institutions must go hand in hand with the progress of the human mind. As new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also and keep pace with the times."

An earlier 1974 constitution had been abolished in 1988 when a partly renewed group of military officers pushed General Ne Win into retirement. General Ne Win had ruled Burma from 1958 to 1960 and then from 1962 to 1988 when a non-violent, democratic opposition came to the fore in a month of demonstrations, followed by the coming to power of a group of slightly younger military officers calling themselves the State Law and Order Restoration Council (Slorc) which had cracked down on the pro-democracy demonstrators.

There had been a first constitution drafted just prior to independence from the UK in 1947, largely influenced by English law and practice. It was a quasi-federal constitution with a good deal of authority given to the states where the national minority population live . This 1947 constitution was made largely non-operative by the insurgencies that broke out soon after independence led by militias belonging to national minorities fighting for the creation of independent states or greater autonomy within Burma. In addition, there was a strong insurgency of the Burmese Communist Party helped by the then new Communist government of China. In order to have a free hand to fight the insurgencies and to have direct power, the higher military took over in 1958 until 1960 and then from 1962 on.

By 1974 General Ne Win and his Burma Socialist Programme Party (BSPP) had been in power long enough that they felt that the country should have a constitution as most countries have constitutions. The 1974 constitution provided for a more centralized form of government, but there were seven states to represent seven major ethnic groups: Karen, Kachin, Kayah, Shan, Chin, Mon, and Arakanese. In addition there was a “heartland” of seven districts in which the Burman were in the majority and where real power lay. The constitution provoked no great changes in the arbitrary way in which Ne Win ruled, but the constitution did exist in case anyone asked on what basis the government was structured.

In 1988 with the new Slorc in power, in order to mark the shift in power, the 1974 constitution associated with Ne Win was abolished, and some talk of drafting a new constitution started. Some of the pro-democracy leaders of the 1988 demonstrations, fearing arrest by the military, left the capital Rangoon and went to Thailand or to the Thai-Burma frontier where they came into contact with the national minority insurgencies. Representatives of the pro-democracy groups along with the leaders of the ethnic minorities, some monks and especially students created an umbrella organization: the Democratic Alliance of Burma (DAB). The DAB sent representatives to Geneva to present their positions to the UN human rights bodies and to testify to abuses of human rights in Burma. As ideally human rights law is based on both the Universal Declaration of Human Rights and on national constitutions which safeguard human rights, my discussions with these DAB representatives turned to a new constitution for Burma. As I am, somewhat, a specialist on federal forms of government, my discussions with the Burmese concerned what could be a federal constitution for a democratic Burma. The Burmese and the representatives of the ethnic minorities knew what they did not want — a centralized state. They had a less clear vision of what forms a federal alternative would take. There was a need to have a clear vision of what people wanted and then to discuss the structures that a government should take.

In 1990, I was going to Cambodia to help set up some child welfare and educational projects and had to spend some time in Bangkok. I suggested to the Myanmar Mission to the UN in Geneva that I could go from Bangkok to Rangoon and lead a three-day seminar for persons who had been elected to Parliament on possible federal structures for the country. The Parliament, in practice, was never called into existence as the Slorc had been defeated by the unexpected victory of the National League for Democracy (NLD) led by Aung San Suu Kyi.
The seminar I proposed would have been structured around three themes: The Spirit of Federalism: Unity, Cooperation and Diversity - The Structures of Federalism: The State, the Region, the Person - The Tensions of Federalism: Flexibility in a time of rapid change: Economic challenges and political responses . This would not have been a constitution-drafting exercise but an effort to clarify the aspirations of different groups and to see if there were structures which could facilitate such aspirations. The Ambassador replied “You may perhaps be aware that there have already existed two constitutions in the Union of Myanmar, and hence our constitutional scholars have had considerable experience in such matters. Moreover, we are at present in the process of scrutinizing the basic constitutional principles and experiences of other states in order to obtain a better perspective of the successes and shortcomings of such undertakings. But admittedly, it is the citizens of Myanmar, who must discuss and decide for themselves as to the form and content of the new constitution to be drawn up. There exist some 135 national races in our country, and thus the new constitution must necessarily encompass the views and aspirations of all citizens, for which purpose coordination will be made among political parties, Hiuttaw respresentatives (the military), representatives of national races and the people.

“Although we thank you for your interest and your kind offer to hold discussions on the matter, we feel that it would be best if such discussions be confined to the people who would be directly affected — the citizens of the Union of Myanmar.”

A ‘national convention’ was hand-picked to write a constitution. In practice, it consulted no one. Members of the national convention were not allowed to discuss issues among themselves outside the rare periods in which the convention was in session. Members of the convention whose ideas were too independent were put in jail. Newspapers and media were not allowed to discuss issues of the convention. From 1991 to 2008 is a long time to draft a constitution. I do not want to say that it would have gone faster had the seminars I suggested been held, but 16 years of drafting is slow in any case, even with no debates.

The new constitution still calls for a centralized state which is basically unacceptable to the ethnic minorities. It gives a leading role and a form of veto to the military; it bans election to office of any Burmese married to a foreigner — a clause aimed at Aung San Suu Kyi whose late husband was an English specialist on Tibet and Burmese culture. Why the prohibition continues after the death of the foreign partner is not explained.

The 10 May referendum would be a comedy if so many Burmese were not suffering. Due to the September-October 2007 demonstrations, the 400,000 Buddhist monks will not be allowed to vote. Members of the ethnic minorities were rounded up to vote on a constitution which they do not understand. There has been no public discussion of the structure and provisions of the constitution.

Constitutions have played little role in the way in which Burma has been governed. The 2008 Third constitution is likely to be no different. Ultimately there is a need to discuss the ways in which a multi-cultural, multi-ethnic society can be justly governed. Unfortunately 10 May was not be a step in that direction.

René Wadlow is also editor of the online journal of world politics www.transnational-perspectives.org and an NGO representative to the UN, Geneva. Formerly, he was professor and Director of Research of the Graduate Institute of Development Studies, University of Geneva.