Constitutionalism Before Constitutions: Burma's Struggle to Build a New Order

In the wake of the constitutional fiasco in Iraq, many have come to believe that constitutional processes should begin only after the essential wounds have been healed.1 If the wounds have not been healed, the constitutional regime will simply break down. Worse, the constitution might give the world and some inhabitants of the country the illusion that the mission has been accomplished. Perhaps worse still, once one constitutional experiment has gone awry, people might lose their faith in constitutionalism, and future constitutions might become more difficult. The moral of the story is that social integrity should precede constitution making - drafting should not begin too soon. That conventional wisdom implicitly adopts a particular, fairly narrow conceptualization of the constitutional process: a state-supported, nationwide, formal process of constitution drafting undertaken in the expectation that the resulting document will govern the country in the relative near term.2 But the experience of Burma suggests that a different conceptualization is useful in some contexts: the social integration that precedes formal drafting should itself be conceived as a constitutional process. In at least some cases - and Burma is one - seeking trust, integration, and unity in the abstract may be neither useful nor even possible. Instead, a reconciliation process should seek, quite specifically, to find constitutional common ground well before drafting begins; it should be oriented toward developing a shared constitutional vision that will provide the warring sides with reason to commit to the new proposed regime. As the contending sides come to realize that they might share specific and concrete constitutional desires, they also come to realize that cohabitation might be possible. The moral of the story is that constitution making (broadly defined) is part and parcel of the creation of social integrity and not merely its consequence. For years to come, Americans will inevitably mine the experience in Iraq for lessons learned. However, it is possible to overread these lessons. Some, for example, might insist that the imbroglio in Iraq means that Americans should never seek to promote democracy abroad. In fact, though, the experience of the Iraqi War might more realistically suggest that America should find better ways to promote democracy abroad. Similarly, for constitution writing, the lesson of Iraq is not merely that the narrow version of constitutional process should not begin too soon; it is also that the broader version of constitutional process should not begin too late. In a sense, this Article is a report from the field - reflections based on experience working with the Burmese democracy movement since 2000 and intensively since 2003. At this point, the constitutional-design literature contains fairly elaborate analyses of various substantive topics including the likely effects of different electoral systems,3 of degrees of judicial independence,4 and of styles of executive government.5 But the literature contains much more limited examinations of the process of constitution making, particularly on securing the participation of all major stakeholders, developing widespread agreement on constitutional fundamentals, encouraging good faith negotiation, and, above all, sustaining a sense of possibility. To help add to the knowledge base, this Article offers a description of the current constitutional process in Burma. My observations are limited to Burma; others may decide whether they are applicable in other contexts. Part I offers an overview of the constitutional history of Burma to the year 2000. Part II explains the constitutional processes going on today - not only the military government's "roadmap to democracy" but also the democracy movement's alternative process (or processes, depending on your perspective). As will become plain, the two processes are very different: the junta's roadmap has yielded a written constitution that will shortly become the law of the land but which lacks all legitimacy. …