The Constitution of Myanmar

A Contextual Analysis

Melissa Crouch

• Publisher: Hart Publishing
• Year: 2019
• ISBN:
  9781509927364
• Edition: 1
• Topic: Law
• Subtopic: Public Law
• Index: Law

This timely and accessible book is the first to provide a thorough analysis of the 2008 Constitution of Myanmar (Burma) in its historical, political and social context. The book identifies and articulates the principles of the Constitution through an in-depth analysis of legal and political processes and practises, particularly since the 1990s. The core argument of this book is that the 2008 Constitution is crucial to the establishment and maintenance of the military-state. The military-state promotes the leadership role of the military in governance based on a set of ideological commitments and a centralised form of organisation based on the concept of the Union. The book develops this argument by demonstrating how the process of constitution-making and the substance of the 2008 Constitution contribute to its lack of credibility and fuel demands for reform. The vision offered by the 2008 Constitution and its associated institutions has been the subject of fierce contestation, not least, for example, due to concerns over the militarisation of the state. This book is animated by debates over fundamental ideas such as the nature of democracy, the possibility of peace and federalism, the relationship between the executive and the legislature, relations between the Union government and sub-national governments, debates over judicial independence and the oversized role of the Tatmadaw (armed forces). Central to the future of the Constitution and the military-state is the role of the Tatmadaw, which will be a key determinant in any potential shift from the present highly centralised, partly-democratic Union to a federal or decentralised democratic system of governance.

1

Introducing Myanmar’s 2008 Constitution

Cyclone Nargis – Social, Geographic and Economic Context – Constitutional Codification – The Military-state

The opulent Defence Services Museum in the capital Naypyidaw praises the military’s response to natural disasters such as Cyclone Nargis. In one section, the display features pictures of the military delivering aid to cyclone-affected communities. Yet Myanmar’s 2008 Constitution is haunted by the humanitarian tragedy, regime obstinance, and political defiance surrounding Cyclone Nargis. On 2 May 2008, the most dangerous and destructive cyclone in the history of Myanmar hit the Irrawaddy delta region of lower Myanmar. Part of the tragedy is that there is no credible acknowledgment of the victims. Conservative estimates suggest 130,000 people died, while other sources claim that the human life toll was as high as 200,000.¹ In addition, over 2.5 million people were seriously affected by the cyclone, many injured, without shelter, their rice paddies ruined just before harvest, communities irreparably affected.² Part of the tragedy lies in the fact that the scale of the human impact could have been reduced. The international community expressed deep frustration at the Tatmadaw’s (armed forces) initial refusal to accept humanitarian aid and disaster assistance. Ten long days after the cyclone first hit, on 12 May 2008, the United Nations Secretary-General Ban Ki-moon expressed his grave concerns for victims of the cyclone and denounced the military regime for its unacceptable response to the suffering of its people in this crisis. Even once the Tatmadaw began distributing aid, there were reports of less than a quarter of the actual need being met, and serious allegations of the misuse of aid materials, such as selling on the black market. Meanwhile, parallel to the cyclone crisis, the carefully planned constitutional referendum, part of the general’s roadmap to democracy, went ahead on 10 May in areas not affected by the cyclone, and on 24 May in areas that had been affected. Humanitarian imperatives caused by the worst cyclone in Myanmar’s recent history would not deter or derail the Tatmadaw’s plans to approve the Constitution, a text that at the time few had even seen or read.

Ten years after the constitutional referendum, the dubious circumstances of the referendum are just one of many reasons why the 2008 Constitution faces a credibility deficit. Both the process of constitution-making and the substance of the Constitution are contested. The validity of the 2008 Constitution of the Republic of the Union of Myanmar (‘the Constitution’) is questioned because of the authoritarian circumstances of its drafting during some of the darkest years of military rule (1993–2007). The process was controlled by the military regime and participation was highly circumscribed. The Constitution is criticised for the way it privileges the Tatmadaw, such as the qualified system of democracy it establishes, with some legislative seats reserved for the Tatmadaw.

In this book, I explain why the constitution-making process, its substance and implementation are the reason many local actors discredit the Constitution. The debate over the legitimacy of the Constitution was originally so polarised that in 2010 the National League for Democracy (NLD), the primary pro-democratic political party, boycotted the first elections under the new Constitution. While the NLD later agreed to enter the new political and constitutional system by running in the by-elections of 2012, there remains reluctance on the part of pro-democratic actors to attribute any validity to the Constitution.

In this book, I emphasise that the Constitution is not new, but rather many of its key features were part of military propaganda published in books and State-run newspapers as early as the 1990s. In this regard, I measure the age of the Constitution from the 1990s, rather than since formal enactment in 2011. This reperiodisation of constitutional law emphasises the origins of the core principles and structure of the Constitution and how the substance of the Constitution is seen as closely related to the former military regime. The foundations of the Constitution were articulated, enacted and embodied through military rule since this time. For example, as I will show, in the 1990s the Tatmadaw began its propaganda campaign of the Three Main National Causes, which function as the three meta-principles of the military-state (Chapter 3). To a local audience, these principles are not new and did not first appear in the Constitution. Instead society has been socialised in these principles for several decades and there is a strong association between these three meta-principles and direct military rule. Since 2011, the political structures of the Constitution have come to life, although these institutions are animated and held in place by the foundations laid by the previous regime.

Many aspects of the Constitution remain highly contested. There is significant debate over the meaning and nuance of key ideas such as democracy, federalism and the military. What precisely is ‘disciplined’ democracy? How can ‘genuine’ federalism be achieved? Different interest groups use the semantic debate over ‘democratic federalism’ or ‘a federal democratic system’ as tactical manoeuvres in the process of constitution-making. The most frequent questions that arise relate to whether the Constitution is federal in nature, whether the Constitution can actually be amended and the role of the Tatmadaw.

The crisis of credibility and the contestation over constitutional principles reoccur throughout the course of this book. In the chapters that follow, I explain key ideas articulated in the Constitution and illustrated in practice. I begin by setting the social, economic and cultural context in which the Constitution governs. The Constitution is important because it is a key part of the establishment and maintenance of the military-state in Myanmar. I briefly introduce the contours of the military-state, which include the leadership role of the military in governance, its military ideology, and the principle of coercive centralism.

I.CONSTITUTIONAL CONTEXT

The place known today as Myanmar has long captured and captivated the attention of the international community. The country has been the subject of famous poems and novels, from Rudyard Kipling’s Mandalay,³ an iconic ode to the beauty of the place and its people, to George Orwell’s novel Burmese Days,⁴ a scathing critique of the colonial enterprise of which Orwell was a part. These writings express the beauty and distinctiveness of the cultures and peoples of Myanmar, and its complex history, even if these traditions and ways of life are at times idealised and romanticised in the western imagination. Many human rights advocates admired and were, at least until 2017, attracted to Aung San Suu Kyi, Nobel Laureate winner, former political prisoner and author of Freedom from Fear.⁵

Yet there are another parallel set of writings that document decades of atrocities and flagrant abuses of individual and collective rights in Myanmar. There are a persistent series of reports both from local civil society groups and international advocacy organisations documenting forced labour, armed conflict, mass displacement, the use of landmines, the illegal drug trade, torture, disappearances, corruption, arbitrary detention, and the jailing of political dissidents. During the northern Rakhine State conflict that began in 2016, Suu Kyi was implicated in the alleged genocide of the Rohingya, blurring the lines between black and white for human rights advocates.⁶ Myanmar’s Constitution is required to govern over this captivating landscape and people in an environment where armed conflict and violence are normalised.

Three features of the social, economic and geographic environment combine to offer a challenging environment for constitutional rule. These features include the country’s socio-cultural diversity with a mix of religions, peoples and traditions; a disparate and difficult geographic terrain to govern; and serious socio-economic concerns including severe poverty, displacement, and significant education gaps.

The Constitution operates within a highly diverse social environment, although does not cater to a vision of a multicultural society, but rather offers a crude categorisation of the population. These categories have a homogenising effect and oversimplify issues of ethnic, religious and cultural identity. A clear majority of the population, 89 per cent, identify as Buddhist according to the 2014 census. Buddhists in Myanmar adhere to Theravada Buddhism, like its neighbours – Thailand, Cambodia, Sri Lanka and Laos. This population count needs to be viewed with some caveats. Over one million Rohingya were not permitted to participate in the census, so the claim that 2.3 per cent of the population are Muslim is a conservative figure. The remainder of the population includes 6.3 per cent Christian, 0.5 per cent Hindu and 0.8 per cent animist. The people are also extremely diverse ethnically, although the census is primarily concerned with maintaining the government’s radicalised divisions rather than reflecting or fostering actual diversity. Most of the population are ethnic Burman, with other major ethnic groups including the Shan, Karen, Kachin, Kayah, Mon, Rakhine and Chin (see Chapter 7). The government recognises 135 ethnic groups, although many people do not fit into these categories and it is not uncommon for identity cards to show hyphenated identities (for example, ‘Bamar-Shan’). The official language of the Constitution and the courts is Burmese, although an estimated 100 languages are spoken in Myanmar.⁷ Many aspects of the Constitution and the makeup of the government indicate the dominance of ethnic Burman Buddhists over other people groups in Myanmar. These features of social diversity, and persistent concerns of ‘Burmanisation’ of minority groups are a challenge to address in future constitutional reform.

The land mass that is now known as the country of Myanmar is a broad, rich and yet challenging terrain to govern. The country has a relatively large land mass in proportion to its population of 52 million, and is dwarfed by its two most populous neighbours, China and India. The country is edged by mountainous borderlands married to the flat plains of the dry centre that extend to tropical coastal areas. The most important and largest river is the Irrawaddy, running north to south. The rivers are a source of life and livelihood for many, although also pose a threat in the monsoon season. Flooding has been the cause of periodic humanitarian crises, such as the displacement in 2017 of 100,000 people. Rivers, as well as forests, brim with rare wildlife that are stalked by poachers and sold on the regional and global black market.

Myanmar shares a long expanse of borders with multiple countries, which means that issues from conflict and displacement to environmental degradation overlap with the concerns of its neighbours, including Bangladesh, Thailand, Laos and Cambodia. Not least among these neighbours are China and India, and certain pressures come with living between two rapidly growing economies and a burgeoning middle-class with increasing demands of consumption.⁸ Under years of military rule, Myanmar’s borders have been sites of significant illegal border trade, such as the annual black market in jade worth an estimated US$31 billion.⁹ Access to mountainous areas contribute to the difficultly of governing and have also provided cover to many insurgent groups. The highlands are sparsely populated and are home to many of the country’s ethnic minorities. The agency of these upland people groups and their relationship to central state power is encapsulated in James C Scott’s seminal exploration of upland resistance as the ‘art of not being governed’.¹⁰ The Constitution faces the challenges of attempting to rule these arbitrary borders and unruly landscape. The Constitution also reorients the country geographically and centralises power in a new capital centre: Naypyidaw (see Chapter 3).

The third contextual feature that presents a challenge for any government serving under the Constitution is the vulnerable nature of Myanmar’s contemporary socio-economic environment. Myanmar’s economy officially hit rock bottom in 1987, when the country was infamously designated Least Developed Country status. One reason why this label was such a source of shame is because this economic crisis came after the golden era of the early 1900s when Burma was known as the rice bowl of Asia for the scale of its exports to the region. This is no longer the case, and on any measure of economic status, health,¹¹ education or quality of life, Myanmar is found close to the bottom. Despite its poverty, the one global ranking Myanmar tops is in generosity.¹²

Inequality has become a major issue. Across the country, 33 per cent of people live below the poverty line. There are over one million internally displaced people.¹³ The levels of government spending on health are the lowest of any country in the world.¹⁴ Myanmar has the lowest life expectancy in all of the Association of Southeast Asian Nations (ASEAN), at just 66 years of age.¹⁵ The country has a high youth population and an emerging middle class. Child labour is high: of children aged 10–17, one-in-five are working instead of getting an education.¹⁶ Urban poverty is more severe than levels of poverty in rural areas. More than 35 per cent of children in Yangon are stunted in their growth.¹⁷ Many people survive on less than USD 0.86 per day. Agriculture is the main source of livelihood for up to 70 per cent of the population and most farmers have no access to credit. Land tenure security is a major concern. The past military regime placed significant pressure on farmers to plant certain crops deemed national priorities.¹⁸ Work for many is season dependent, and often there is no work available in the monsoon season (May to August). The Constitution does contain some significant aspirational pr...

Table of contents

• Cover
• Title Page
• Preface
• Acknowledgements
• Table of Contents
• Abbreviations
• States and Regions of Myanmar
• Table of Cases
• Table of Legislation
• 1. Introducing Myanmar’s 2008 Constitution
• 2. The Origins and Content of the 2008 Constitution: An Overview
• 3. The Military: The Pre-eminence of the Tatmadaw in Governance
• 4. The Electoral System and Limits on Political Participation
• 5. The Legislature
• 6. The Executive
• 7. Subnational Governance, Federalism and Ethnic Recognition
• 8. The Judiciary as an Administrative Institution
• 9. Constitutional Duties and the Contingency of Rights
• 10. The Peace Process and Constitutional Change
• 11. Conclusion
• Glossary
• Index
• Copyright Page