Citation: David C. Williams, Lessons of Experience in the Enterprise of Constitutional Design: Constitutionalism Before Constitutions: Burma’s Struggle to Build a New Order, 87 Tex. L. Rev. 1657 (June 2009)
I’ve been reading quite a bit recently about the various Burmese constitutions (1947, 1974, and 2008). However, I almost missed the democracy movement’s alternative constitution-drafting process. David C. Williams, Professor at Indiana University’s Maurer School of Law and head of the Center for Constitutional Democracy, has been working with ethnic minority groups and pro-democracy leaders for over a decade in order to help them draft alternative constitutions. As anybody who follows Burma knows, the Burmese military would never accept such documents. Indeed, as Williams acknowledges, these “constitutions” will never become legally binding documents. So why should Burmese politicians go through such constitutional exercises?
According to Williams, there have been four distinct phases in the Burmese democratic opposition’s constitutionalism. In the early 1990s, the National Coalition of the Union of Burma drafted a national, democratic constitution. However, many of the ethnic minority groups saw this draft as too Burman (as well as dominated by the Burma Lawyer’s Council). After this debacle, several groups began to draft their own state constitutions (which is when Williams and the CCD began their involvement). These ventures have varied widely in both form and substance, but have generally included some form of popular consultation and transparency.
The third phase involved an attempt to create one unified, national constitution. The democracy groups formed the Federal Constitution Drafting and Coordinating Committee to complete the task. Unfortunately, the FCDCC’s final product did not please its constituents. In particular, many thought the draft did not protect state governments nearly enough. Others simply thought it inconsistent and vague. As such, the groups are currently planning on holding “constitutional convention” this year in order to amend, alter, and rewrite the FCDCC draft into a more acceptable version.
Again, the question: why spend so much time and effort to write a constitution that will never become binding law? Williams provides some interesting observations based on his experience with the Burmese democracy movement. First, few Burmese have any experience with constitutions. While Burma was the first country in Asia to have a legal profession, today political elites in both the government and democracy movement lack the legal expertise necessary to draft a workable constitution. Indeed, the country hasn’t even had a constitution for the past 20 years. Simply going through the exercise of writing a constitution has helped democracy leaders understand the process and learn the skills of constitution-making.
Perhaps more importantly, Williams recognizes that Burma’s current problems stem from deep constitutional disagreements, particularly federalism and the status of ethnic minorities. He argues Burma’s future leaders must begin to think about these issues now rather than let them explode when the military junta does fall. In fact, because none of the political elites involved have a stake in governing under the constitution, they can focus more on constitutional ideas and design than on maximizing political power. It is unlikely any future democratic government would adopt the result of this process wholesale, but at least the leaders writing it will have thought seriously about constitutional issues.
Finally, these constitution-drafting exercises can help build trust among political elites. Whereas before, Williams describes ethnic minorities as hostile toward Burman constitutional proposals, and vice versa, the two sides have begun to envision a common future under a single constitution. Some of the participants decided they no longer needed extraordinary constitutional measures, such as the right of secession, in order to remain part of Burma. For example, all of the state constitutions had originally adopted an ethnically-based definition of citizenship. However, as the drafting process went on, they adopted a more neutral definition and guarantee all ethnic groups equal rights. Williams tells one moving story of how the Chin, having gone through these exercises, decided to no longer insist upon independence. If successful, this aspect of the project alone would reap huge benefits for a democratic Burma in the future.
As I’ve lamented before, the development community has not given enough attention or assistance to strengthening Burma’s legal capacity. Burmese students who study abroad often go into economics, development studies, political activism – but seldom law. Meanwhile, I know of no rule of law or legal-assistance programs in Burma to advise the government (although China has occasionally provided assistance on individual laws). This is a major problem precisely because so many of Burma’s development problems stem from the 50-year constitutional crisis. The country needs constitutional lawyers. In that light, I was delighted to read more about Professor Williams and CCD’s work training Burmese leaders. It definitely sounds like a worthwhile and important endeavor.
Having said that, I am a bit concerned that this alternative constitution-drafting exercise may reinforce the reluctance of the democratic opposition to participate in the government emerges from the 2010 elections. While the 2008 Constitution is many, many flaws (as I hope to detail in a later post), right now it is the only game in town. As the International Crisis Group
notes, there may well be room under the new constitution for the opposition to make slight gains, particularly in influencing Hluttaw debate and blocking certain measures. Furthermore, even under any democratic government, democratic leaders will need to work with the military. I worry that too much of a focus on alternative constitutions may inflame the military’s chronic distrust of the ethnic minority groups and democracy in general. These fears might be overblown (I seriously doubt Than Shwe sits in Naypyidaw fretting over the Chin Constitution), but nonetheless I think we do have to remind ourselves that the 2008 Constitution is probably here to stay.
Hopefully, the CCD’s constitution-drafting exercises will help prepare Burma for a time when the Burmese people can chose their own constitution. Burma would really benefit if the next constituent assembly includes members who already have experience in constitution-drafting. But in the meantime, I hope somebody develops a program to educate political elites and lawyers within the country about constitutional law.