Protect or Respect: Burma’s constitutional challenge

The wording of an oath is the pawn in a dangerous power game  in Burma as newly elected democracy leader Aung San Suu Kyi flexes her muscles. Her party the National League for Democracy refused to allow its newly elected members to be sworn in at the parliamentary opening in Naypyidaw yesterday. The party made an overhaul of the Constitution one of its principal promises in the recent by-election but the ruling party is refusing to change the oath. Suu Kyi claims this is not a boycott but rather just “waiting for the right time to go” to parliament. The catch is they need to sit in parliament to have any chance of getting their reforms through and some are questioning whether Suu Kyi has picked the right issue to make a stance on. (photo: AFP/File, Ye Aung Thu)

The stand-off comes several weeks after the by-elections which saw the NLD win 40 of the 44 seats it contested. The victory was seen as a transformative moment in Burmese politics but the party remains a small minority in both the upper and lower house of parliament. The by-elections and the gradual opening of Burmese democracy have been driven by president Thein Sein who came to office in March 2011 as the former prime minister and handpicked successor of Than Shwe.

Both Shwe and Sein are military men but the US used the promotion of the latter to press for reforms. In return the US would ease its crippling sanctions and urge its allies to do the same. Sein released Suu Kyi from house arrest and released political prisoners in exchange for diplomatic relations.  Sein gave his first foreign interview in January to the Washington Post and said they not only wanted to engage with the NLD but also with the 11 ethnic groups Burma was at war with. During the interview, Sein brought up the constitution to defend the right of the president to appoint the commander in chief of the armed forces. But Wapo did not follow up with a question of the validity of that constitution.

Burma has been independent since 1947 but its original constitution was torn up the military when Ne Win who came to power in a 1962 coup. The generals orchestrated a second constitution in 1974 but even that was too liberal for the military rulers who seized power in 1988 and they abolished it with along with the offices of cabinet, judiciary and local councils. They ruled without a constitution until 2008 forced to enact new under a supposed “roadmap to democracy”. Outside observers judged it a sham, not least because it reserves a quarter of all seats for the military and prevented Suu Kyi from attaining the presidency due to her non-Burmese husband. 

But the issue Suu Kyi is most worried about now is the oath to defend that constitution.  The NLD wants the oath to be reworded from “abide by and protect the Constitution” to “abide by and respect the Constitution.”  Burmese activist Min Zin said the NPD were picking the wrong battle to fight on.  “Vowing to uphold and abide the constitution does not mean that the opposition can't try to amend it later,” Zin said. “A quick look at the texts of other countries' oaths of office shows that words like uphold and even defend are commonly used, but such language has never prevented anyone from proposing constitutional amendments.”  

The question is why Suu Kyi is making an issue out of it now. She would have been aware of the oath of office prior to the election and should have mentioned it in the campaign. A more likely reason would be to try to slow down the West’s normalisation of relations until there is more substantive progress. On the same day as the parliamentary boycott, the EU agreed to suspend most of its sanctions against Burma for a year.  

Burmese exiles say the West is going too fast. Soe Aung of the Forum for Democracy in Burma said the EU has suspended sanctions knowing that its own benchmarks on Burma have not been met: the unconditional release of all political prisoners and a cessation of attacks against ethnic minorities.  The suspension allows European companies to invest in Burma, which has significant natural resources and borders economic giants China and India. British PM David Cameron said changes were not yet irreversible, “which is why it is right to suspend rather than lift sanctions for good.” Yet it seems highly unlikely that once opened, big business would allow the door to be shut again. Only the immense counterweight of Suu Kyi’s public profile stands between the Burmese Government and Western spoils of commerce without the inconvenience of a public reckoning.