We all have heard the news: a new constitution has been drafted by a so-called “National Convention” these days. Without the participation of any of the democratic forces and based on -to put it mildly-questionable principials (for example-that the president of the country must come from military background) it has been seen by the international community not as a chance to reform, but as a pathetic sham aimed at enshrining military rule.

It already become pretty obvious why this Convention happened in the first place: the junta wanted to gain legitimacy. But can a sham constitution do this? Let’s analyse the facts!

There is this distinction often used in law and pollitcal science between what is “legal” and what is “legitimate”. When we say that something is legal, we mean that it is in agreement with a certain law, and that’s all about it. Logically, the reverse is also true: something which is illegal is in disagreement with a certain law.

The question of legitimacy, however, is different. Some pollitical scientists defin legitimacy as concordance with a higher principle, such a, for example, human rights and liberties. Others put it down to the public oppinion: an action is legitimate if people believe that the person who did the action in cause is entitled to do it. Also, an order is legitimate if the person or institution that issued it is recognised as having the authority to give that order. Following the same logic, a government is legitimate if people believe it is legitimate and if it is in agreement with people’s needs, rights and liberties.

From now on, we can notice that the notions of “legal” and “legitimate” may not coincide; and the present situation in Burma is a strong example of a case where they don’t. For instance, the junta does have laws in order to justify the imprisonment of pollitical prisoners or the Military Intelligence’s interference into people’s private life, so we can say that these are legal actions according to the present laws, though they are obviously not legitimate, because neither are they in agreement with basic human rights ( the right to freedom of speech, freedom of assembly, the right to privacy, to a fair trial and the list may go on and on…) neither do people believe the government has the right to do this. On the other hands, the actions of pollitical dissidents are illegal, but they are perfectly legitimate.

As we can see, it is up to the State to make laws, and therefore to decide what is or isn’t legal. If the government is a legitimate-one, it is likely that the laws it decides upon would be in agreement with people’s will and with their conceptions of the state role-and therefore would be legitimate measures. On the contrary, illegitimate governments which maintain themselves trough sheer force instead of recognised autority need , in order to maintain themselves, to take illegitimate measures which go against basic human rights and liberties, such as , say, interference into people’s private life and censorship of information sources. Providing that they have an organ of repression strong enough to cut down any attempt at revolt, no one can actually stop them from promoting measures which go agains basic liberties, from making them legal and, by extention, from making the prevalation of liberties illegal. But, obviously, this does not mean that, out of a sudden, the government’s action will become legitimate and the prevalation of human rights will become illegitimate.

Coming back to the question of this new constitution, aimed at enshrining military rule: of course a sham constitution voted trough sham elections can make the rule of the junta, with all its abuses, legal. But it will never, ever make it legitimate.