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Discipline-Flourishing Constitutionalism: An Update on Myanmar’s Quasi-Constitutionalized Politics

When Tom Ginsburg and Zachary Elkins first released their Comparative Constitutions Project data, Myanmar (formerly known as Burma)* was one of only two countries that lacked any sort of constitutional document (the other being the U.K.). Since 1962, the country had been ruled by a military regime. In 1988, a younger generation of officers seized power and suspended the 1974 Constitution. The junta held national elections in May 1990, but reneged when Noble Laureate Aung San Suu Kyi’s National League for Democracy (NLD) won over 80% of the seats. Rather than recognize the results, the junta announced that the election winners would form a National Convention to draft a new constitution. However, when the convention finally met in January 1993, only 99 of its 702 delegates had been elected – the rest were appointed by the junta to “represent” workers, intellectuals, and ethnic minorities. Convention delegates were presented with a completed constitutional draft and banned from publicly criticizing it. After a few years, the NLD boycotted the proceedings entirely.

In late 2007, the convention finally released a draft of the constitution, incidentally making Myanmar’s constitutional drafting process the second longest in history (Kenya has the longest). The government scheduled a referendum on the constitution for May 10, 2008. According to official figures, 98.12% of voters turned out and 92.48% voted in favor of the constitution - a suspicious tally, especially so soon after a category 5 storm, Cyclone Nargis, devastated lower Myanmar. Last November’s election for the parliament was only marginally more credible. Opposition groups alleged that the pro-junta Union Solidarity and Development Party (USDP) relied upon “advanced ballots” and widespread vote buying to tip the balance in its favor. In the end, the USDP won 76.5% of all contested seats.

Much of the criticism surrounding the 2008 Constitution has focused on the role of the Myanmar Armed Forces (tatmadaw). The military appoints a quarter of the MPs in the state and national legislatures. The tatmadaw commander-in-chief is a particularly powerful figure. While the president can appoint the commander-in-chief, the constitution provides no mechanism through which to remove him. The constitution allows the tatmadaw to “independently administer and adjudicate” all matters pertaining to the armed forces, potentially removing it from any legislative or judicial oversight. Moreover, the president is required to consult with the commander-in-chief regarding appointments to the Ministries of Defense, Home Affairs, and Border Affairs.

While the military’s power under the constitution is worrisome, given Myanmar’s history it was certainly not unexpected. From the beginning, it has been clear that the tatmadaw would refuse to hand power over to liberal democrats. The constitution itself claims it will produce a “discipline-flourishing democracy” (Chapter I, § 6(d)), not a liberal democracy. Even so, Myanmar’s new government is not simply a reincarnation of the military regime in civilian guise. Rather, the constitution distributes power across several new constitutional institutions.

Perhaps most surprisingly, the 2008 Constitution is the first in Myanmar’s history to create state-level governments (even the democratic 1947 Constitution had established a unitary state). This alone represents a stark break from the past. Myanmar, one of the most ethnically diverse countries in the world, has been plagued by regional rebellions. Almost immediately after Myanmar declared independence in 1948, the Karen and Communist insurgents waged war on the central government and nearly overran the capital. Several of these groups succeeded in carving out de facto enclaves along Myanmar’s borders. The military has taken advantage of the situation and raised the threat of “national disintegration” to justify its continued hold on power. To senior military officers, the word “federalism” remains anathema.

Yet, given the reality, some level of federalism proved unavoidable. The constitution divides jurisdiction between the Union Legislature (Pyihtaungsu Hluttaw) and over 15 locally elected state-level governments.** The Hluttaw retains authority over defense, foreign affairs, and judicial administration, as well as some local matters such as education and tourism. Moreover, the budget process is highly centralized. However, the states do possess jurisdiction over local finance, commercial activities, and agriculture, as well as local projects. More importantly, the states might just provide a unique forum for constitutional dialogue about ethnic issues. In last November’s election, the USDP won an outright majority in only one of the seven “ethnic” states – ethnic parties, sometimes pro-junta, won the remainder. This guarantees that ethnic issues will be raised locally, even if not nationally.

Also noteworthy, the 2008 Constitution does not provide for a strong executive. Than Shwe, the general who had ruled Myanmar since 1992, officially retired earlier this spring. One might suspect that the president would fill the power vacuum. Under the constitution, the Pyihtaungsu Hluttaw forms an electoral college to appoint the new president. The president also serves as chairman of the National Defense and Security Council, which has the authority to declare a state of emergency. However, both institutionally and personally the presidency is surprisingly weak. The president lacks any constitutional authority to veto legislation – he can only provide non-binding comments. Moreover, the general elected to serve as president, Thein Sein, seems to lack a strong power base of his own

The constitution also establishes relatively powerful leaders within the Hluttaw. MPs in the People’s chamber (Pyithu Hluttaw) and the Nationalities chamber (Amyotha Hluttaw) each elect a speaker. These speakers supervise legislative sessions and will likely play an important role in shaping the legislative agenda. More ominously, the constitution requires that the speaker approve the arrest of any MP, providing him with valuable leverage. One powerful general widely touted as Than Shwe’s “heir,” Thura Shwe Mann, surprisingly ended up as the Pyithu Hluttaw Speaker rather than as president or commander-in-chief.

The lack of a clear center of power was not an oversight. Political analysts suspect Than Shwe deliberately diffused power under the constitution as an insurance mechanism. Having arrested two of his predecessors, Than Shwe appreciates the risks of retirement. By creating competing centers of constitutional power, it seems he believes he can keep the political elite dependent upon him for guidance. More importantly, with several veto players, the constitution should prevent the new government from uniting against him. It is probably no coincidence that the ambitious Shwe Mann and Tin Aung Myint Oo were relegated to serve as Pyithu Hluttaw Speaker and Vice President, respectively, while President Thein Sein and Commander-in-Chief Min Aung Hlaing are regarded as loyal to the former senior general. Many politicos in Myanmar predict that the 2015 elections will pit these four men in a contest for the presidency.

Finally, the 2008 Constitution reintroduces constitutional review after a hiatus of 40 years. During the 1950s, the military complained that judicial activism was hampering its counterinsurgency effort. Revealingly, in 2007 then-Prime Minister Thein Sein advised an audience of judges that “administrative and judicial systems cannot operate separately but need to be in harmony to be able to protect public interests.” The new Constitutional Tribunal appears designed to avoid repeating the “mistake” of its activist predecessor. The president and speakers of both chambers of the Pyihtaungsu Hluttaw each nominate three justices to the bench. The justices serve only for five years. Moreover, the president or a quarter of either Hluttaw chamber can initiate impeachment proceedings against justices for “high treason,” “misconduct,” or simply “inefficient discharge of duties.”

If not for love of judicial activism, Myanmar’s constitutional drafters must have had some ulterior motivation for creating this new institution. The constitution grants the tribunal jurisdiction over inter-branch and inter-state disputes, although only government officials can submit petitions directly. As such, it seems the bulk of the tribunal’s early caseload will consist of jurisdictional disputes between the different branches and layers of the new regime. Because justices are appointed by the Union government and subject to such short terms, they will be inclined to invalidate any troublesome state laws that infringe upon elite preferences. In short, constitutional review might provide the military elite with an additional mechanism to ensure that the new system does not stray far from its vision of a “discipline-flourishing” constitutionalism.***

* In 1988, the military junta changed the country’s official English-language name from “Burma” to “Myanmar,” nominally because the latter is a better translation. However, many who do not accept the military’s legitimacy refuse to acknowledge the change. Throughout this article, I use “Myanmar” not to suggest any political sympathies, but rather because that is how the country’s name appears in the 2008 Constitution.
** Technically, there are 7 States, 7 Regions, the Naypyitaw capital territory, and several self-administered zones. The States tend to fall along the country’s periphery and contain most of the country’s ethnic minorities, while the Regions cover the central dry zone. The self-administered zones are essentially capitulations to several ethnic insurgent militias that have already carved out spheres of autonomy from the state.
*** I refer readers to my article in the latest issue of the Australian Journal of Asian Law for further analysis of Myanmar’s constitution and the Constitutional Tribunal

--Dominic J. Nardi, Jr. is a Ph.D. student in the University of Michigan Political Science Department. He has a J.D. from Georgetown University Law Center and an M.A. in Southeast Asian Studies from Johns Hopkins SAIS.


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