Burmese way of filibuster

by Ngun Cung Lian
Wednesday, 28 October 2009 13:31

(Commentary) On May 10, 2008 the military junta ruling Burma held a constitutional referendum to approve a new constitution. Perhaps the results of the referendum were fixed, making the result a foregone conclusion, but that fails to excuse the junta from holding the referendum in the wake of Cyclone Nargis which had carved a swath of destruction across the nation, leaving about 140,000 dead or missing and millions of lives otherwise ruined. The referendum passed the constitution as the supposed voters starved because the junta denied them access to international relief efforts. It should come as no surprise that the new constitution, “approved” by the people, should work only to further entrench the violently oppressive junta rather than create democracy, as claimed.

I have no doubt that those giving legal advice to the Burmese generals throughout the national convention to draft the new Burmese constitution (we’ll call it the Nargis Constitution) were aware of the filibuster power traditionally exercised by the US senate. Unlike the US filibuster system, however, Burmese legal scholars have retooled the filibuster to serve as a new means of protecting the military [leadership] and their family members. For reasons explained below, I have chosen to refer to this as the "Burmese Way of Filibuster."

The designers of the new constitution, which is set to enter into force after the 2010 general election, have reversed the conventional practice of filibustering and adopted this new Burmese method. To understand the newly adopted Burmese way of filibuster, it is necessary to examine parliamentary make-up and voting procedure under the new constitution. Key to the system is the implementation of an appointment mechanism that reserves 25% of parliamentary seats of both houses of parliament for military appointees. This provision, in concert with the new constitutional requirement that any amendment to the constitution, in whole or in part, as well as any important legislation must be approved by at least a 75% majority, is at the heart of the Burmese way of filibuster.

It would be prudent here to define the nature of Burmese military custom. The nature of the military relationship in Burma is, not surprisingly, top-down. Particularly, the relationship between the top and the bottom echelons is, however, more rigid than other militaries around the world. The nature of the relationship is captured quite clearly in a popular saying within the army: “Whatever I feed you, eat it; whatever I command you, do it; but never, ever, question me.” With this norm so firmly entrenched in Burmese military culture, there can be no doubt but that none of the military personnel sitting in the Union Parliament building would, or could, cast a vote against the will of the Commander-in-Chief. Couple this with the C-in-C’s ability to remove them from office or dismiss them from the military at any time and the extent of the military’s control starts to become clear.

Now, one can start to get a sense of just what the Burmese Way of Filibuster is: If the Commander-in-Chief appoints 25% of the members of parliament who, owing their positions to the top brass, all vote according to the command and instruction given to them from above, and a 75% majority is necessary to amend legislation, then neither the constitution nor legislation can be changed without the full support of the military. Historically, the American filibuster operated as a method by which a minority party could hijack (the word filibuster literally means “pirate” or “Free Boot”) the legislative process and block legislation by preventing a vote. Contrast this to the filibuster as practiced in the US senate today, whereby only 60 senators, out of 100, all of whom are beholden to their constituents, are needed to break a filibuster and force a final vote on legislation. Now we can begin to see how the Burmese way of Filibuster is an effective throwback to the sort of “tyranny of the minority” of the old style American filibuster disguised as a democratic counterpart to the system now in use.

Apparently oblivious to this glaring defect, the United Nations, along with a number of states acting individually as well as numerous prominent figures, has been focused on urging the military to release political prisoners and engage in free and fair elections. There is a general sense that this would be a step toward full democratization in Burma; however, this is a mistaken belief. No matter how “free and fair” the elections, Parliament could never overcome the Burmese way of Filibuster inherent in the recently adopted constitution.

My mentor-turned-colleague Professor David C. Williams testified recently before the US Senate Foreign Relations Committee saying, “Free, and fair general election[s] would not bring civilian rule to Burma.” This is because of the provision, which I have called the Burmese way of Filibuster, in the Nargis Constitution. The constitution has been fraudulently adopted, yet is nevertheless set to operate following what will undoubtedly be an extremely controversial election in 2010.

Cyclone Nargis claimed about 140,000 lives and devastated millions of people, including members of my own family. I now cannot imagine, as a human being, how many lives will be claimed and devastated by the junta’s Nargis constitution. History, undoubtedly, will be able to provide us an approximate figure, but then, isn’t it already too late?


Dr. Salai Ngun Cung Lian is an Assistant Director and Post-doctoral Fellow at Center for Constitutional Democracy in Indiana University Maurer School of Law.