LEGAL ISSUES ON BURMA JOURNAL No

LEGAL ISSUES ON BURMA JOURNAL No. 4, OCTOBER 1999
BURMA LAWYERS' COUNCIL

Burma's Future Constitution

Comparing and contrasting democracy and human rights provisions in two draft Burmese constitutions from an international perspective

Jeremy Sarkin

Associate Professor and Deputy Dean, Law Faculty, University of the Western Cape, South Africa; BA LLB (Natal), LLM (Harvard), LLD (UWC); attorney of the High Court of South Africa, attorney at law in the State of New York, USA

Introduction

Burma, or Myanmar, has been undemocratic for many years. The military government has been responsible for many human rights abuses. Thousands of people have been killed, injured, tortured, forcibly relocated or detained without trial, while others have fled the country. The rights of free speech, the press, assembly, association, and privacy are largely absent. The government has repressed various indigenous ethnic minorities, such as the Karen, Shan, Mon, Chin and Kachin. The regime also has a policy of forced labour that specifically targets ethnic minorities.

Burma's first constitution of 1947 is perceived to have been a failure because it did not resolve the issue of the rights of ethnic communities, and as a result tensions escalated.

Burmese history over the last 40 years is a litany of military coups. The first coup occurred in 1958. Elections, however, were held in 1960 but in 1962 the military again seized power. Many people particularly of Indian and Pakistani descent were expelled and all foreigners were denied citizenship. Various insurrections have occurred. In 1974 a second constitution was enacted after another coup by the military. This constitution was seen by many to be an instrument of authoritarianism. As a result of the growth of the opposition forces mass demonstrations occurred all over the country in 1988. A great many people were killed by government troops. The insurrection grew and again the military intervened and took the country. The new government announced that they would negotiate with the opposition and that there would be elections.

Democratic elections were finally held in 1990 and were won by the opposition, the National League for Democracy (NLD). However, the military refused to accept the result and demanded a new constitution before handing over power.

The military government was formerly known as the State Law and Order Restoration Council or SLORC, and is now known as the State Peace and Development Council (SPDC). The SPDC established a National Convention to write a new constitution. The National Convention is seen by many in Burma as a tactic to delay handing over power to a democratic government. It does not meet for long periods of time and the appointments to it and its procedures have been criticized as undemocratic.

After the 1990 elections, the opposition groups also began drafting a constitution to ensure that when a democratic government is finally established, democracy and human rights will be entrenched and that there will be checks and balances on the exercise of state power.

This article will examine both the government and opposition draft constitutions to determine which provisions are more likely to create a workable democracy, protect and promote human rights, permit economic growth, inspire confidence from international investors and ensure internal stability. It also locates the drafts within international constitutional practice.

Process

There are two vital components of drafting a constitution. The first is the process by which it is done and the second is the substance of the text itself. Not only must the constitution contain provisions that enhance democracy and build respect for human rights, but the process of designing and drafting the constitution must also be democratic. Otherwise whatever constitution is drafted, no matter how democratic it is in reality, it will not be owned by all the people in the country. This is critical because respect for the law and the legal system is crucial if the success of a peaceful, democratic, human rights-based society is to be assured.

A legitimate drafting process is crucial because a constitution and bill of rights can constitute a major force for national unity. They are instruments that can assist in nation building and achieving national reconciliation. The symbolic importance of such instruments and their potential to foster common goals and aspirations depends greatly on the degree to which the drafting process has been inclusive and legitimate. Inclusivity can inspire a sense of national ownership, whereas a constitution resulting from a non-inclusive process can be a source of tension and further division. Thus a carefully planned inclusive constitutional drafting process must be designed. It must as far as possible seek to obtain consensus and should not be rushed.

At present the National Convention drafting process in Burma is highly problematic. It is seen to be a "farce and a sham to camouflage a constitution drafted by the military to entrench its own role in the future political affairs of Burma". The representatives elected in 1990, as well as other true leaders of the people, have been excluded from the process. The few participants in the National Convention who are representative of the population have little opportunity to express their true views. This is because the rules of the Convention limit free expression. Various other institutional constraints on criticizing the Convention ensure that the military remains in control of the Constitution drafting process.

The National Convention issued its draft (constitutional principles) in 1998. Entitled 'Detailed Constitutional Principles Approved by the National Convention'. It is modeled on the failed Indonesian experiment.

However, instead of trying to cling to power, the National Convention should negotiate a real transition to democracy with the opposition parties in Burma. In the first phase of transition all parties could agree on a process for governing the country while representatives elected in a free and fair election draft a constitution for the country. In the second phase of the transition, the new constitution would come into effect.

Already such an opposition constitutional drafting grouping and process exists. It has already embarked on a constitutional drafting process. This alliance, made up of a wide range of groups, is called the National Council of the Union of Burma (NCUB). They published their Proposed First draft of a (Future) Constitution of the Federal Union of Burma in December 1997

Electoral system

At the core of any democracy is its electoral system. Free and fair elections are the key to the transition to a democratic, human rights-based society. Not only must elections be free and fair but they must also be seen by all to be free and fair and therefore nothing should occur to undermine the credibility of the elections.

The type of electoral system is probably one of the most crucial aspects of a democracy. Various types of electoral systems exist, from individual constituency systems to those where there is proportional representation. In proportional representation, a particular party enjoys the percentage of representation in the legislature in accordance with the percentage of the national vote that it has received.

The NCUB principles in article 29 provide that every citizen shall have the right to vote, to be elected in periodic elections. It is provided that the elections shall be "general, free, equal, direct and secret." Representatives shall serve for four years with half being elected every two years.

The National Convention model proposes that 75 per cent of each legislature should be elected, with the remaining 25 per cent of all seats being reserved for the military. This is completely undemocratic. In addition, the Chief of Staff of the Defence Force, who is not even appointed, or accountable, in terms of the constitution, determines which members of the military receive seats.

Furthermore, neither draft Constitution makes mention of which electoral system is proposed to ensure free and fair elections. There is no protection of the rights necessary to ensure that free political campaigning and organising can occur. This is crucial because elections in transitional societies are often the source of major difficulties for a variety of reasons. A key question is whether there is sufficient trust in the process itself and whether the body responsible for organizing and counting the votes is perceived to be independent and capable. A system that appears faulty or nonindependent could lead to chaos and violence and could compromise the legitimacy of elections. There is also a need to ensure an election is free, fair and open. Thus, the independence of the body (or commission) that runs the election is vital to ensure that the electoral process is legitimate and fair. This independence should be provided for, and safeguarded, in the constitution. In particular it is vital that the Commission's appointment and dismissal procedures are carefully designed to ensure independence and that there is no room, or even a perception of room, for political manipulation of the electoral process. If either the process of establishing the electoral commission, or the structure of the commission itself, is seen to lack credibility, the consequences should not be underestimated.

A decision ought also to be taken, and constitutionalised, in regard to registration of voters, to avoid the possibility of electoral fraud or vote rigging. There are three general models of voter registration systems internationally: (1) where the onus of responsibility to register voters falls entirely on the government, and a universal list of voters is drawn up from identity documents or through a census; (2) where government agencies such as welfare bureaus or driver's licence offices register voters and update registrations automatically; and (3) where citizens must register themselves. Of the three systems, automatic registration through a list of citizens (option 2) is the most comprehensive and the least expensive to compile and update. It is also cost effective because the list may be used for other governmental purposes in addition to voter registration (e.g. census keeping, health care benefits, statistical analysis, etc.). Lists are permanent, and are constantly updated as citizens become eligible, move, or become ineligible. Some countries using automatic registration systems include Mexico, Finland, Germany, Switzerland, and Sweden. These countries have achieved nearly universal voter registration. Whatever registration system is agreed on must be constitutionalised to avoid dispute, litigation and possible violence.

Constitutional supremacy

Unfortunately, the National Convention draft has no section dealing with the operation of the law and whether it is proposed that parliament or the constitution be supreme. This omission, whether purposeful or not, is problematic and ought to be rectified, as clarity is crucial. Obviously, in a state that has experienced as many problems as Burma, constitutional supremacy is needed. However, that cannot occur unless the structure and appointment processes to the courts are redesigned. This question will be examined later.

In the NCUB draft constitution, the supremacy question is dealt with by a number of provisions. It is mainly dealt with in Article 13, which states that the constitution "shall be the supreme law of the Federal Union." However, it is not clear whether the courts will be able to strike down laws or actions inconsistent with the constitution and the rights contained therein. The supremacy of the constitution and the rights it contains over other laws and administrative actions ought therefore to be clarified and stated more forcefully and directly. Thus, an additional provision ought to be added in Article 13 stating: "All laws and actions taken inconsistent with the constitution shall be invalid".

The independence of the judiciary from the executive and legislative arms of government is fundamental to the separation of powers and therefore to the establishment of a democratic system of government. This principle is particularly important in a constitutional democracy, where a court has the power to overturn legislation and declare executive acts unlawful.

Constitutional amendment

A Constitution should not easily be susceptible to amendments. If parliament is able to make changes easily this effectively makes parliament supreme. Such a practice could be used to manipulate the result of court cases which parliament is unhappy with and thus undermine the democratic process. A process to amend the constitution ought nevertheless to be included, but it should ensure that amendments are not rash and easily achieved.

Again the National Convention draft is silent about constitutional amendments. On the other hand the NCUB draft constitution provides in article 149 for such a process. Procedurally the amendment must be introduced in either the People's Assembly or the National Assembly by at least one third of the representatives of that Assembly. The other Assembly, the Federal Government and all Member States must then be notified and may submit their comments within 45 days. The amendment will then pass if "at a joint session...the amendment...[is]...carried by a vote of two thirds of the representatives of each assembly." While the different states in the federation are permitted to comment on the amendment, they have no role to play in the adoption of the amendment. Thus, the process is not sufficient to guard against hasty constitutional amendments when a particular problem is perceived to exist.

In the United States, for example, a process to amend the constitution involves both special majorities in Congress and the agreement of 75 per cent of the 50 states.

Thus, it is recommended that, in addition to the two-thirds majority the supporting vote of a number of states (two thirds or three quarters) should be required in the constitution. Other mechanisms that should be included are procedures for eliciting the views of the public and mandatory time lapses.

Appointment to and function of the courts

Independent and impartial adjudication is essential to a free and democratic society. Without the independence of the judiciary the rule of law and the protection of fundamental rights will be jeopardized. This independence should preclude any interference by the executive, legislature or political parties, because the safety and happiness and peace of every community depend[s] largely on the confidence that people have in the judiciary. Citizens should feel that their rights are safe under the law, and that the judiciary hand down wise and impartial judgments. Thus, a country must have a dynamic and independent judiciary, selected by an independent process. Judges must enjoy security of tenure. Legitimacy and respect for the courts must be nurtured, for without it the rule of law cannot operate. Where governments do not respect the judgments of the courts, human rights will not exist.

The judge's political independence is crucial in the outcome of a particular case, particularly in constitutional adjudication. The question of how, and by whom, judges are appointed is therefore of utmost significance.

The National Convention draft states that there shall be a Supreme Court, High Courts of the Regions, High Courts of the States, Courts of the Autonomous Divisions, Courts of the Autonomous Zones, District Courts, Township Courts, other Courts, established according to law, military Courts and the Constitutional Tribunal. It is also stated that the Supreme Court, "without prejudice to the Constitutional Tribunal and the Military Court, is the Union's highest Court". What is meant by this provision is unknown as no powers are laid down for any of the courts. No delineation is made as to whether constitutional supremacy exists or not, or which court has what jurisdiction. All that is provided is that "the duties, powers and rights of the Chief Justice of the Union and the Justices of the Supreme Court of the Union shall be regulated by law".

As far as the Supreme Court is concerned, the draft provides for the appointment of a minimum of seven and a maximum of eleven justices. More precision about the number of judges is needed to avoid problems and the perception of executive interference in the courts. It is further provided that the State President shall appoint the Chief Justice and other justices of the Union, with the approval of the Union Assembly. The National Convention draft states that the Union Assembly shall not have the right to reject candidates for Chief Justice or Justices of the Supreme Court submitted by the State President, unless there is concrete evidence to prove that the candidate fails to possess qualifications specified by the Constitution. This provision places a large burden on the legislature and is very problematic. It attempts to ensure that a nomination will be accepted except in very unusual circumstances. This completely undermines the independence of the judiciary and goes against every notion of separation of powers.

A similar situation exists in Canada, where the government is solely vested with the appointment power for the Canadian Supreme Court. Discussion on judicial nominees happens behind closed doors and increases the politics in the selection of Supreme Court judges. The Canadian appointment process has been criticized because the lack of transparency and accountability clouds merit selection. The benefits of such a system are that appointments can be made speedily and efficiently, without divisive public hearings. However, the judicial appointment process receives no review either by an independent judicial selection committee or by the legislature and/or electorate. With these safeguards absent, the risk of political patronage remains high. This can undermine public faith in the credibility and independence of the Court and increase the likelihood that lesser qualified candidates will be chosen.

It is critical to remember that constitutional systems must take into account the circumstances of a particular country. Thus, even though the Canadian model of appointment has its flaws, it works in Canada because of the Canadian context. Canada is largely a homogenous country, where the only major division is around language rights for the minority French speakers. This division is recognised and appointments to the Supreme Court ensure that French speakers from Quebec are represented.

Burma, on the other hand, has a large ethnic diversity. Its legacy of ethnic tension means that methods need to be found to de-politicize the court. In a democratic Burma, the appointment of judges directly by the executive could exacerbate the tensions that already exist. It is an essentially undemocratic appointment method, which violates the separation.

Thus, the model set out by the National Convention is highly problematic.

The model, on the other hand, employed in the NUCB draft is a much more democratic alternative. NCUB draft Article 97 provides that there shall be nine Federal Supreme Court members appointed by the Federal President proposed by the Federal Prime Minister and approved of by the Federal Congress. This model follows to a large degree the process used in the United States, where the President nominates a candidate and then confirmation occurs after senate hearings. An advantage of the American system is the public interplay of the legislature and the executive, as both critically evaluate the merits the of Supreme Court candidates chosen by the President. However, this is a problematic process because it allows politicians to select candidates based on the candidates' attitude to particular policy issues. The American appointment process, and therefore the NCUB model, inevitably becomes highly politicised, with political considerations playing a part in judicial restructuring. This may lead to a decrease in public confidence in the legitimacy of the court's decisions. For example, in the United States, Ronald Reagan appointed almost only conservatives to the court during his eight-year presidency. This conspicuous attempt to redirect the court was understood by Supreme Court Judge Harry Blackmun, author of the Roe v Wade abortion decision, who noted in June 1992 in Planned Parenthood v Casey that

"I am 83 years old. I cannot remain on this court forever, and when I step down, the confirmation process for my successor may well focus on the issue before us today [abortion]".

Such an overt politicisation of the appointment process ought to be avoided in Burma.

One model to consider is the German one, where judges serving on the constitutional court serve for a non-renewable twelve-year term. The German Court (Bundesverfassungsgericht) is divided into two senates, each with their own jurisdiction. The First Senate rules upon the constitutionality of legislation and, through the process of Verfassungbeschwerden, citizens may petition constitutional complaints directly to the court. The Second Senate's jurisdiction covers all constitutional issues dealing with criminal and civil procedures, as well as jurisdiction over political cases (i.e. disputes between government branches and political parties as well as election complaints) and all issues of substantive law.

The two houses of parliament appoint half of the justices to the Court but a different process is employed in each house. The Bundestag has a twelve-person Judicial Selection Committee (Wahlmännerausschuss) whose composition is relative to political party strength in the house. Eight votes are required to approve a justice for the Court. The Bundesrat operates as a whole to elect justices, with two thirds of the house needed to appoint. Constitutional Court Justices often represent a wider variety of life experiences than other German judges. Each candidate is further expected to have scholarly publications. The advantage of the German system is that value is placed on diversity and legal scholarship. In addition, the media attention that the process generates ensures that the process is politically accountable to major interests of German society.

Another model is that used in South Africa, where are appointed by the President from a list supplied to him by the Judicial Services Commission (JSC). Unfortunately, the legislature and executive make up a large percentage of the members on the JSC, with representatives of the judiciary and lawyers' bodies making up the balance. This system carries the danger of political appointments, particularly in view of the fact that decisions in the JSC are taken by simple majority. The public may also be excluded from JSC hearings. A far more democratic method would be to decrease the number of politicians on the JSC and increase the role of civil society.

From this overview, it is clear that in a democracy judicial appointment procedures should be designed to prevent undue political influence. Political parties in parliament clearly have an interest in which judges are appointed as parliament itself is subject to the scrutiny of the court. If the provisions rely on the goodwill of the decision-makers, without providing adequate checks, decisions might be made for reasons other than merit. Thus, the NCUB should rethink its proposed appointment procedure.

While the NCUB constitution states that judges shall be appointed regardless of race, religion, colour or sex, the grounds upon which discrimination ought not to be permitted could be made much more explicit. A useful section in the South African Constitution, which could be imitated in Burma, is the section which enjoins the JSC to "have regard to the need to constitute a court which is independent and competent and representative in respect of race and gender". This is obviously crucial in ethnically-diverse Burma.

Article 104 of the NCUB draft provides that the term of judges expires when judges request it, when they are permanently incapable of performing their duties, if they commit an act of gross misconduct, or when they reach the age of 75 years. However, the danger of such long terms is that the law may not keep in line with the rest of society. It is far preferable to set a term limit of about 12 years for the highest court. This term should not be renewable. Judges should also retire in rotation, so that new judges can learn from judges with experience.

Civil society should play a role in appointments and this role should be constitutionalised. The public's involvement in the process is crucial for the legitimacy of the process. Holding appointment proceedings in public ensures that appointments are conducted without fear, favour or prejudice and constitutes a fundamental check to the exercise of power. In practice, the public should be given the opportunity to make nominations, attend interviews, recommend questions and lodge objections to proposed candidates. While a new parliament may encourage public participation, the principles should be constitutionalised to ensure that they are adhered to at a later stage when the euphoria of the transition subsides.

A bill of rights

In an ethnically diverse country such as Burma, which has experienced major human rights abuses, a bill of rights provides important safeguards. As Judge Jackson of the United States has said, the purpose of a bill of rights is to:

"withdraw certain subjects [issues] from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections".

Given the challenges presented by Burma's transition to democracy, it needs a constitution that offers maximum protection for human rights to ensure that there is no discrimination on the grounds of ethnic, religious or other differences. While the entrenchment of constitutional supremacy is a useful method of safeguarding a democracy, a bill of rights is a necessity to protect individuals and groups against human rights abuse.

The National Convention's draft contains no human rights protections.

The NCUB draft does, in chapter 2, contain a chapter on Basic Rights. However, the rights section ought to become more detailed and contain greater specificity. The division between those rights that belong to Burmese citizens and those that belong to people in Burma who are not citizens, is far too rigid and too heavily weighted against people who are not citizens. While most countries have rights that are not available to individuals who are not citizens (such as the right to vote), the NCUB draft constitution permits only citizens to form and participate freely in associations, to move freely in Burma, and to choose their residence, trade or employment. At present in Burma there are people who are not citizens of a state who reside in a state lawfully. These individuals should also be entitled to the protections of the majority of rights enshrined in the Constitution.

The NCUB draft states that, with regard to the right to a fair trial, a person charged with an offence shall have the right to be informed quickly of the specific charge, to be tried within a reasonable time, not to be compelled to be a witness in proceedings against a person in respect of the same offence, to enjoy a defence in accordance with the law or through legal assistance of his or her own choice, and to be tried in a language which he or she understands or have the proceeding interpreted. The draft constitution also provides that all proceedings shall be open to the public, and that a person shall only be tried for an offence which existed when it was committed. No penalty that is degrading to human dignity is permitted, and a person acquitted of an offence shall not be retried, nor can anyone be punished more than once for the same offence. However, the constitution should lay down more rights for people arrested, detained, or accused of a crime. Firstly, the right to remain silent is absent from the draft. Individuals must have the right to be informed promptly of the right to remain silent and must be informed of the consequences of failing to remain silent. The constitution should also provide that they an accused may not be compelled to make any confession or admission that could be used in evidence against them. Accused persons should have the right to challenge the lawfulness of the detention in person before a court. If a court finds the person's detention to be unlawful, the person must be released. The person must be informed of the charge with sufficient detail to reply to the charge. He or she must also have access to sufficient time and facilities to prepare a defence. The accused should have the right to be present at the trial. Some countries provide that there is a right to have a legal practitioner assigned to an accused person by the state at the expense of the state.

At present the NCUB draft in article 21(b) provides that "no person in the Federal Union shall be detained or imprisoned save pursuant to a law." This provision is too wide, and could allow the state to detain individuals for the wrong reasons for long periods. The constitution should also provide that an accused person should be presumed innocent until proved guilty, that they are entitled to apply for bail and must be allowed to adduce and challenge evidence. A convicted person should have the right to the least severe of the proscribed punishments if the punishment for the offence has been changed between the time at which the offence was committed and the time of sentencing. An accused person should have the right of appeal to, or review by, a higher court. Any evidence obtained in a manner that violates the rights contained in the Bill of Rights should not be admitted if its admission would render the trial unfair.

The right to equality should be a key provision of Burma's constitution, given the previous lack of equality. At present the NCUB draft constitution prohibits discrimination on the basis of national or social origin, religion, social status, political opinion, language, sex, age, colour or race. It is recommended that a much wider group be protected by this article, including discrimination on the grounds of gender and sex, pregnancy, marital status, ethnic, national or social origin, sexual orientation, disability, conscience, belief, culture, and birth.

At present the NCUB draft reads that "no person shall be subjected to torture, cruel, inhumane or degrading treatment". The word "punishment" should also be added to this sentence. Punishment that contravenes any of these provisions ought to be outlawed. While there is a provision that states that "no penalty degrading to the human dignity of the individual shall be imposed" this applies only to penalties imposed by the courts, not to punishments which may be meted out elsewhere.

Also absent from the NCUB draft is a limitations clause. In essence a limitations clause provides that there may be circumstances that require the limiting of rights and attempts to provide strict limits to the manner and extent of any such limitation. This is an important provision as all rights are not inalienable or absolute. The NCUB draft seems to state that certain rights are inalienable. The draft provides that "these rights shall under no circumstances be encroached upon or withdrawn". These rights include equality before the law, the right to life, freedom of thought and belief, human dignity, the right not to be enslaved or suffer forced labour or torture, cruel, inhumane or degrading treatment. However, other sections state that these rights are limitable. The section which is relevant is article 15(d) which states: "If the implementation of the basic freedoms mentioned in this article contravenes basic democratic principles or affects public health or morality, the Congress of the Federal Union may enact laws restricting these rights." Article 15(d) is problematic, because it places too much emphasis on parliament rather than the courts. It does not provide a mechanism for deciding how and when rights can and should be limited.

A limitations clause is intended to address situations that require rights to be limited in relatively minor ways to facilitate the normal functioning of society. The most likely instance where the limitation clause would come into effect would be a situation where two or more rights are in conflict, and some aspect of a right or rights might have to be limited in order to ensure maximum protection of all rights. Thus, the right to life is limitable in cases of self-defence, or police use of deadly force or even possible for issues such as abortion and euthanasia. A limitations clause safeguards rights from undue limitation, particularly by the government.

The limitations clause should state that rights may only be limited in terms of a law of general application, and only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. Any limitation must take into account all relevant factors, such as the nature of the right, the importance of the purpose of the limitation, the nature and the extent of the limitation, the relation between the limitation and its purpose, and if there is a less restrictive means to achieve the purpose.

The Human Rights Commission

In contrast, the NCUB draft contains a provision establishing a human rights commission. Article 31 states that "Every person whose human rights have been violated shall have the right to seek protection by the Human Rights Commission." The establishment a Human Rights Commission would be an important step towards the promotion of human rights in Burma. However, the draft gives the Federal Congress the power to establish the commission. This is problematic as the functions ought to be constitutionalised to ensure that the commission is not subject to the will of the legislature and its ability to amend the functions of the commission. The major function of such a Commission should be to promote human rights through a variety of methods: education and raising community awareness; making recommendations to parliament; reviewing legislation; and, importantly, investigating alleged violations of fundamental rights and assisting those affected to secure redress. These objectives and the powers of the Commission ought to be contained in the constitution as the commission plays an oversight role over parliament and thus it is likely that parliament will not be robust in granting vast functions and powers to such a body.

The process to appoint commissioners in the NCUB draft should also be revisited. At present Article 129 states that the "Federal Prime Minister shall establish Human Rights Commission consisting of seven members whom the Federal Congress has consented to". How this is to happen is not stated. If an independent procedure before the parliamentary procedure is not established then there is the likelihood that commissioners whose political leanings broadly represent those of the political parties in parliament will be appointed at the expense of individuals with a human rights commitment.

A far better approach would be for parliament to appoint an independent panel, comprised of non-political individuals from the human rights field, to make nominations to the Federal Congress. After the panel has made its recommendations, Parliament must appoint the individuals. Only if there are sufficient human rights reasons for not appointing a candidate should a candidate be rejected. Parliament should vote on candidates by a simple majority support. If a high degree of support for the candidates is necessary then political trading between parties occurs so that each party can obtain candidates that reflect its ideological positions.

State of emergency

It is imperative that the Constitution explicitly make provision for when, how and what safeguards there ought to be before a state of emergency is declared. This is because the state has extensive powers to limit human rights during an emergency and because human rights violations are more likely to occur in periods or war or revolt.

Again unfortunately the National Convention draft is silent on the question of a state of emergency.

Article 142 of the NCUB draft provides that "on request of the Federal Government, the Federal President shall declare the state of emergency for the territory either of the whole Federal Union or part of it". Here the meaning of the term "the Federal Government" is unclear. Which particular structure? The cabinet? Because of the extreme nature of this event it is important that such a provision should not permit one individual on his or her own to declare a state of emergency. The declaration should require at least a consultation with the cabinet or a few senior members of the cabinet, if convening parliament is not possible. Admittedly, there will be times when the state of emergency has to be declared quickly (for example, in attack by another country). However, many governments use states of emergencies for the wrong reasons, in order to undermine and negate the democratic process. Therefore, sufficient safeguards must be built in to protect the state and its citizens against its misuse.

Thus provisions in the constitution ought to state that any legislation enacted during a state of emergency in consequence of the state of emergency may derogate from the Bill of Rights only to the extent that the legislation is "consistent with Burma's constitution and Burma's obligations under international law applicable to states of emergency." While the declaration of a state of emergency may allow for the passage of laws or other actions that may derogate from aspects of the Bill of Rights, there ought to be specific restrictions on the nature and extent of any derogation. Derogations should be permitted to the extent strictly required by the emergency. Rights, and sections of rights, which cannot be derogated from, ought to be specifically listed in the constitution to guard against rights being derogated that are not necessary for the circumstances that the country faces.

The constitution should also require that a court interpreting the Bill of Rights apply international law including customary international law when reviewing laws or actions taken which limit rights or derogate from rights usually protected during times when no state of emergency exists.

The constitution should also provide that a state of emergency only be declared under limited circumstances. At present a state of emergency is permitted in terms of Article 140 when the Federal Union is attacked by external armed forces or such an attack is imminent, when massive destruction, death and injury resulting from natural disasters have occurred, or when the peace and security of the population are seriously threatened. This last clause dealing with peace and security could be widely interpreted and thus the circumstances required for a state of emergency should specify that the life of the nation must be threatened by general insurrection or disorder. There should be a provision that a state of emergency can only be declared if it is clear that such a declaration is necessary to restore peace, law and order.

Legislative oversight must be provided both in terms of the declaration of a state of emergency and over actions taken during the emergency. Article 142 provides that:

"the period of the state of emergency shall be stated in the aforesaid declaration and shall not exceed six months from the date of the declaration. Any prolongation, which may neither exceed six months, affords the approval of the Federal Congress."

This is highly problematic, as a declaration should only be effective for a maximum of 7 days after the declaration, or 14 days if, for example, the Chief Justice of the country also agrees that 14 days are necessary and that parliament cannot be convened. The state of emergency should only be extended beyond the 14 day period by Parliament and then only for a maximum of three months at a time. A resolution passed by twothirds majority in both houses, sitting separately to avoid any problems, should be required for an extension. A public debate in the Federal Congress should also be required before the adoption of any resolution extending a state of emergency.

The draft fortunately does allow for judicial oversight of actions taken by the state during the state of emergency. The constitution states: "in any state of emergency judicial power shall remain with the courts" and that "courts for special jurisdiction shall not be admissible". It should be clearly stated in the constitution that the Federal Supreme Court is allowed to rule on the validity of a declaration of a state of emergency or on any extension of the state of emergency. In addition, the court should be able to rule on the validity of any legislation enacted, or any other action taken as a result of the declaration of a state of emergency.

The constitution should also provide that all legislation must be published in national and state publications as soon as reasonably possible after the enactment of the legislation. The constitution should prohibit any Act of Parliament declaring a state of emergency, or any legislation enacted or other action taken as a result of the declaration to permit or authorise the indemnification of the state or any individual in respect of an unlawful act. During an emergency, the detention of an individual must be able to be reviewed by a court within 10 days. Unless the person's continued detention is necessary to restore peace and order, the court should be required to release the detainee.

To conclude, the NCUB's provisions on states of emergency could be substantially improved to prevent misuse of emergency powers.

Conclusion

This article has discussed the draft constitutions for Burma proposed by the National Convention, the body established by the ruling party, and that proposed by the opposition National Council of the Union of Burma. It has reviewed aspects such as the process of constitution of drafting, the electoral system, constitutional supremacy and amendments and appointments to and function of the courts, as well as a Bill of Rights, a Human Rights Commission and declarations of states of emergency.

The National Convention's constitution contains many strongly anti-democratic provisions and is silent on several key issues. In contrast, the NCUB's constitution attempts to create a democratic system, but includes several provisions that should be reworked to strengthen democratic checks and balances and prevent future state abuse of power.