Blog of the International Journal of Constitutional Law

17 years and now…this?

The new Burmese constitutions is extraordinary on many levels. First, is the waiting-for-Godot quality of the process that produced it. It took about seventeen years from initiative to ratification to get the document out the door. That is far and away a record. True, other countries kick around the possibility of a new charter sometimes for years. But once a formal process is under way, it is usually a matter of a year or two for most countries.

Together with some help from one of our graduate students (Justin Blount), the CCP team conducted an analysis of a randomly selected group of 50 of the 800 or so historical constitutions. The average process time from formal beginning to formal promulgation was about a year and a half. Getulio Vargas’ self-serving 1937 constitution for Brazil took only a couple of weeks to remove the constraints on his reelection plans.

After 17 years, you would think that the Burmese authorities would take care to put the charter in force on a solid footing. They had every intention to do so, with a referendum set for a date in May 2008. Then comes the cyclone, seemingly a natural disaster of historic proportion (in retrospect, the damage was much less than was initially feared). The referendum was to occur n the midst of the fallout of the cyclone (at its peak, almost). Rather than postpone to vote, the authorities were determined to push their new creation through. And push it they did. The vote was, not surprisingly, a highly consensual one with very few reported “no” votes. But what an unglorious sendoff to a document so long in the making!

We have not yet analyzed the document in much detail, but it’s clear that 17 years did not produce a tight, bulletproof text. Right out of the gate, citizens noted a problem with the document, or at least the version that was available at the time of the referendum. That version stated that amendments to the draft needed to be approved by “all of the voters,” a seemingly impassible hurdle. Some suspected that this was indeed the intent of the drafters — after all, after 17 years, why not make the document impregnable! But Burmese authorities blamed the clause on a typo, saying that their intended provision called for a majority of voters to approve changes.

Something tells me that more twists, turns, and rough terrain lie ahead for this seemingly ill-fated document. I will keep you posted.


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