Unprincipled discrimination and dignity

by Min Ko Moe
Mizzima News
01 January 2009

"Respect for human dignity implies commitment to creating conditions under which individuals can develop a sense of self-worth and security. True dignity comes with an assurance of one's ability to rise to the challenges of the human situation." --* Aung San Suu Kyi

"Human beings are born free, equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood." --* Article 1, Universal Declaration of Human Rights

The unequal opportunities and rights embodied in the 2008 Myanmar Constitution disregards the universal recognition that humans being born free, with equality in dignity and rights. The new Constitution is structured in a hierarchical chain-of-command with military personnel as the first class, male citizens as the second and female citizens as the third. The principles of equality in opportunity and justice in the political, social and economic spheres are ignored, leaving those citizens who posses less opportunities and rights as constantly under assault whenever conflicting claims prevail. This Constitution does not uphold the spirit of brotherhood and sisterhood and claims the dignity and rights of civilian citizens are inferior to those of military personnel – who in reality are forgetting their roles as public servants.

In introspection, the drafting of the Constitution in the National Convention was not in accordance with democratic methods, even though the creation of a democratic state is the purported aim of the military clique. A democratic method demands a decision by discussion, argument and persuasion. However, state Law No. 5/96 forbids civilian citizens to exercise their consciousness in the making of the supreme law of the land. According this law, any person whose action is construed as criticizing the National Convention format, designed by the military government, shall be imprisoned for a term of a minimum of five years and a maximum of 20, and may also be liable to a fine. Democracy does not believe in the suppression of thought, the suppression human consciousness. Based on this law, it is doubtful that the National Convention was convened by genuine representatives of freedom loving people. Would genuine representatives of the people codify a Constitution which disregards their inherent dignity and rights? Moreover, it is improbable that democratic citizens agreed to authorize that 25 percent of seats in the state assembly be reserved for military representatives. Simply put, the 2008 Constitution was made by those who are not genuine representatives of the people.

Gender justice plays a vital role in modern nation-state building. Gender justice means women must be permitted to exercise full participation in the decision making process and fully participate alongside men in all walks of life in the pursuit of equitable and practical solutions to issues of family and society. Men and women should have equal choices and rights in a democratic society. Equal choices protect the human dignity of women, and human civilization has evolved with the progress of the human consciousness. Yet, Burma today is an ancient world in which human relations are defined by status.

Respect for the dignity of women is a prerequisite if we want to build a society of justice in which all human beings have equal democratic choices pertaining to development. Equality in dignity and rights between men and women is recognized in the Universal Declaration on Human Rights. However, Article 352 of the 2008 Myanmar Constitution reads:

"The Union shall, upon specified qualifications being fulfilled, in appointing or assigning duties to civil service personnel, not discriminate for or against any citizen of the Republic of the Union of Myanmar, based on race, birth, religion, and sex. However, nothing in this Section shall prevent appointment of men to the positions that are suitable for men only."

This is a contradictory provision. By specifying 'positions that are suitable for men only', the text clearly implies that women are prohibited from holding certain positions in civil service. This prohibition insults women who are also members in a family of human beings. In the field of politics, political justice is also violated by Article 352. Political justice means the absence of any arbitrary distinction between man and woman in the political sphere. Yet, according to this provision, women in Burma are not allowed to fully participate in the political system, the sense of self-worth of women being disrespected. The Constitution's embodiment of unequal opportunities based on gender in the matter of public employment is not consistent with the democratic ideal. If the purpose of the military clique was to forbid women from holding the highest political office of the state, they should open their eyes and recognize the great women leaders of the world. It is, therefore, unreasonable discrimination to treat women as inferior. This discrimination makes a mockery of the progress of human civilization and the democratic ideal.

Accountability is another backbone of the democratic state. Without accountability, implementation of constitutional provisions and public policies could easily deviate from public interests and universal justice. In a genuine democratic society and state, the functioning of good governance and the rule of law are directly controlled by the notion of accountability. This concept implies that those in authority can be called upon to answer questions about their rule. And ultimately, accountability infers that the people can dispose of those governing if the law and historically given rights and obligations are not respected.

However, the notion of accountability imbedded in the 2008 Constitution does not apply to military representatives, but rather only to elected representatives. An example of unprincipled discrimination is on display in Article 38 (b) of the Constitution, which states: "Electorate concerned shall have the right to recall elected people's representatives in accord with the provisions of this Constitution." Such a provision spells out that only elected 'people's representatives' from the 75 percent of Hluttaw (Parliament) seats up for general election can be recalled by the electorate. The provision does not apply to the 25 percent of 'reserved military representatives' who are not elected by the people; a group which may not represent the desires of the electorate as they are nominated by the Commander-in-Chief of the Defence Services and therefore accountable to the Commander-in-Chief, not to the people.

Without the power of democratic accountability for the people, who are the primary unit of the State, the claim of the military in creating a democratic political system is nothing short of a lie. In other words, Burma would become a constitutional dictatorship by transforming itself from a de-facto government to a de-jure government. But any form of dictatorship is defective because there is no assurance that the interests of the dictators will always coincide with the interests of the community. To date, the conflicts in interests between military personnel and civilians have too often been solved by employing coercive force without care for the dignity and personal integrity of the citizens. The nature of the State remains unchanged under the new Constitution, in that military personnel are sovereign and bestowed with the right of sovereignty immunity.

In order to explicitly grant equality in dignity and rights, the current Constitution must be amended. However, the constitution is very rigid regarding the prospect for amendment. Provisions 436 (a) and (b) in Chapter 12 of 'Amendment of the Constitution', state the necessary requirement of support from 'more than seventy-five percent of all the representatives of the Pyidaungsu Hluttaw' if the constitution is to be amended. According this provision, even the collective political decision of the 75 percent of elected representatives is not sufficient to guarantee amendment – as at least some, or one, military representatives must be persuaded to support the motion. It would appear that the role of elected representatives of the people under the Constitution is therefore nothing but to submit to the whims of the military clique.

Unprincipled discrimination as enshrined in the 2008 Myanmar Constitution reverses the trend of progress in human civilization and forbids space for the assurance of one's ability to rise to the challenges of the human situation. A hierarchical social order is the outcome of the Constitutional arrangement, in which justice is only for the strong. Unequal opportunity under unprincipled discrimination is the order of the day. Unprincipled discrimination is also a matter of the allocation of political values. In this sense, unequal opportunity in enjoyment of rights implies unequal opportunity in wielding political power. Political power without accountability is dangerous to the dignity of the governed. The dignity of those allotted less political power is always in danger of violation because their role in the decision making process of the State is constitutionally confined. Without political power, it is difficult to realize the fruits of political power. And without the fruits of political power, one's dignity is frequently under assault. Is the right to dignity a fundamental right? Being human, no one loves to be discriminated against.

Dignity is inherent in all human beings, irrespective of sex, race, religion, status, nationality or place of birth. However, a commitment to equally safeguarding the dignity of all citizens under the 2008 Constitution is not inclusive because the preamble embodies only the eternal principles of justice, liberty and equality. Excluding the principle of fraternity is absurd because fraternity assures the dignity of individuals and the unity of the Nation as well as the spirit of brotherhood and sisterhood. Without fraternity, the functioning of justice, liberty and equality will not be in harmony. A fraternity cannot, however, be installed unless the dignity of all of the State's members is maintained. Whenever dignity and the rights of individuals are not equal with others, some kind of discrimination occurs. However, a change in political system through the 2008 Myanmar Constitution, to ensure gender justice, equality in democratic rights and choice, non-discrimination and human dignity, can only be achieved with the blessing of the existing military clique.