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Human Rights Through The Rule of Law

Constitution Drafting: Only When Women Create the Constitution Can the Constitution Create Democracy

In January 2006, the Global Justice Center was invited to lead a three-day training session on constitution drafting for the Women's League of Burma's "Seminar on Gender Perspective on Constitution Drafting Process." This seminar was the most extensive of several seminars and courses led by GJC President Janet Benshoof as well as other GJC staff and collaborators on the use of international law to advocate for women's political rights. Immediately following the January 2006 training, members of the WLB attended a constitutional conventional at which they advocated for the use of quotas for women in government positions.

The GJC emphasized that international law applies to the process and product of constitution drafting. As the democratically-elected government operating in exile undertakes to draft a new constitution for Burma, the Women's League of Burma (WLB) has worked to ensure that women are involved in the constitution-drafting process and that the constitution follows international law and protects women's rights. The constitution drafting process by the pro-democratic movement in exile is also an opportunity for the pro-democratic movement to rectify the SPDC's disregard for international law and rule of law by creating a constitution that will incorporate international human rights concepts and protect democratic principles. The GJC advises the WLB on how they can use international law to ensure that women are adequately represented from the outset of what will truly be a crucial document in the future of a more democratic Burma. Furthermore, GJC has worked with the WLB to demand that the resulting constitution is one that will promote and protect women's rights, ensuring that women have their rightful place as an integral part of a democratic Burma.

True equality cannot be had until women are fairly represented in all aspects of the government and the government building process.

The GJC training and other research, including a paper by a GJC intern, "The Effect of International Law on the Women of Burma's Right to Representation on the Constitution Drafting Committee and within the Federal Government" led to the publication by the WLB's Constitution-Drafting Team of "Constituting our Rights," available in English (PDF) and Burmese (PDF).

As the result of the training, the WLB successfully advocated for the inclusion of a 30% quota for women in the Draft Constitution for a Democratic Burma.

The training on Constitution Drafting included:

• Redefining Democracy
• Strategic Reasons for Drafting a Model Constitution
• Women's Right to Participate in the Constitution Drafting Process
• Drafting a Constitution that Promotes Gender Equality
• Other Constitutions Providing for Affirmative Measures for Gender Equality Quotas

Redefining Democracy

Global Justice requires a new definition of democracy itself and the concept of how democracy is defined was a fundamental part of drafting a Constitution for a democratic Burma.

Democracy in 2006 includes:

1. Right to self-development as an individual
2. Right and duty to be part of the systems that govern your life both public and private
3. Right to live in society as an equal

And governments have an obligation under international law to ensure equality rights. Read more about the vision of the Global Justice Center and the vision of a new form of democracy.

Strategic Reasons for Drafting a Model Constitution

• Create a model for gender equality and all rights in Burma and elsewhere and ally with global women's groups to join in this effort
• To use a draft constitution which promotes true equality as opposed to the SPDC's constitution
• Use United Nations resolutions and international treaties to demonstrate the SPDC's violation of international law
• Encourage allies to denounce the SPDC's national convention to legitimize a lawful constitution of the people
• Take advantage of the affirmative rights granted under UNSC Resolution 1325 and demand their enforcement

Women's Right to Participate in Constitution Drafting

The Burmese government in exile and pro-democracy movement is in the process of drafting a new constitution for a democratic Burma, to contrast that of the SPDC. Under international law, women have a right to be included in this process. Burma is a signatory to numerous international treaties, including the Convention on the Elimination of All Forms of Discrimination Against Women and the International Convention on Civil and Political Rights. (View a full list of Burma's international obligations). The United Nations has also promulgated a number of resolutions and declarations relevant to Burma. (General Comment on Article 25 of the ICCPR and Universal Declaration of Human Rights (Article 21).

At the time of the GJC-led Seminar in January 2006, two of the 15 delegates on the FCDCC were women. Global Justice Center trainers worked with the delegates to empower and inform them in order to make them stronger advocates within the delegation.

Even so, the women on the delegation continued to face gender bias and discrimination from fellow delegates. The GJC worked with the women to improve their self-esteem through role-playing and coping techniques. In addition, GJC Staff educated the women on the process of Constitution Drafting, CEDAW and Security Council Resolution 1325. Based on these international treaties and resolutions, the GJC advocated for increased female representation on the FCDCC Constitution drafting committee.

The fourteen major pro-democracy/ethnic groups working in exile from Burma.

Drafting a Constitution that Promotes Gender Equality

The goal of the GJC Seminar became to draft a model constitution for Burma to present to the FCDCC and place before the global community. This Constitution for a new Federal Union of Burma would:

• Be based on a process of full, open and equal participation from all ethnic, gender, religious and other groups in all transitional and drafting processes.
• Comply with all international human rights instruments binding on the Union of Burma and affirmatively seeks to promote these rights in the document.

Incorporating true equality and democracy into the constitution requires:

1. Affirmative measures to enforce women's right to participate in the governance of their country—including within the judiciary. The GJC and WLB added an article to the Constitution instituting quotas in all aspects of the government. (View article.)
2. A recognition of the historical discrimination against women. Together the GJC and WLB drafted a preamble for the constitution that reflected the history of Burma. (View preamble.)
3. Recognition of international law as above domestic law. Looking to South Africa as an example, the GJC and WLB added a provision to the draft constitution on the use of international law in constitutional interpretation. This article would ensure that CEDAW is incorporated fully into domestic law in Burma. (View article.)

Other Constitutions Providing For Affirmative Measures For Gender Equality

Several countries have dealt with the gender divide by including within their constitutions provisions guaranteeing women affirmative rights.

• The Ugandan Constitution, Article 33, provides that "women shall have the right to affirmative action for the purpose of redressing the imbalances created by history, tradition or custom."
• The Indian Constitution of 1947, Article 15, and the Bangladeshi Constitution of 1972, Article 28, allow specifically for affirmative action for women.
• The South African Constitution, Section 9, provides that "legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken," and requires the government to promote equality. The South African constitution is founded on the ideal of "the achievement of equality" which "includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be take."

Quotas

Article 4 of CEDAW requires affirmative actions for reaching equality, including temporary special measures. One of the most common and arguably the most effective affirmative measure for reaching equality in women's representation is the implementation of quotas. According to International IDEA (Institute for Democracy and Electoral Assistance) and Stockholm University's Quota Project, 92 countries have some type of quota. Quotas can be found in constitutions, legislation, or for political parties. Quotas are rarely instituted, however, in the judicial branch. The Global Justice Center is focused on changing the way quotas have been implemented, to ensure that women are included in all decision-making bodies, including the courts.

The Global Justice Center supports the use of quotas as a means to rectify past discrimination and ensure participation. At the Seminar on the Importance of a Gender Perspective in Constitution Drafting, the participants reviewed the methods of implementing quotas and arguments for and against quotas. This preparation enabled them to successfully advocate for an inclusion of a 30% quota for women in all levels of government.

More information on Quotas soon to come in the Legal Tools Section of this website...

© 2007 Global Justice Center