—Andrew Harding, National University of Singapore, and Nyi Nyi Kyaw, Myanmar Studies Programme, ISEAS – Yusof Ishak Institute and National University of Singapore
The rigidity of the 2008 Constitution of the Republic of the Union of Myanmar (‘the Constitution’) is rightly notorious, and this rigidity has been proven at least three times through failed attempts to reform it in 2013, 2014, and 2019–2020. The supreme law of Myanmar, which was adopted in 2008 and has been in operation since 2011, is the end result of authoritarian constitution-making at the behest of the Myanmar military (‘the Tatmadaw’) without popular consultation and participation. The long journey of militarised constitution-making started in 1993 and ended in 2007 with numerous delays and suspensions, during which time Burma/Myanmar was under military rule, which ultimately lasted from 1988 until 2011.[1]
Despite its militarised, unpopular back-story, the Constitution, we would admit, gives substantial power back to the people and ethnic minorities that used to live under the repression of the Tatmadaw and of the Bamar[2] majority, respectively. This is evident most of all in the 2015 election victory by Daw Aung San Suu Kyi’s National League for Democracy (NLD). But the democratic transfer of power is not by any means optimal, and the Constitution continues to be viewed by most of the people as a constitution of the Tatmadaw by the Tatmadaw for the Tatmadaw, and by ethnic minorities as a constitution of the Bamar by the Bamar for the Bamar.[3]
We argue that the failure of all three attempts to reform the Constitution lies in what we term Myanmar’s praetorian constitutionalism, in which the Tatmadaw directly participates in and influences the legislative and executive organs of state, and in the fact that the control mechanisms it is given cannot, in effect, be removed via constitutional process without the approval of the Tatmadaw itself. Any constitutional reforms, we argue, need to reduce or remove the power of the Tatmadaw. This proposition defies the Tatmadaw’s basic logic, which is that it must remain in a position of preeminent power; constitutional reform would in its view harm its interests, and the Constitution was drafted with this consideration foremost. The Constitution, as we will explain, creates a perennial elephant trap for democratic advancement, out of which it seems impossible for the constitutional system to free itself. The recurrent failure of three attempts at reform (we concentrate here on the process concluded in March 2020) provide strong evidence for the existence of such a trap. The three episodes also draw attention to an unfortunate fact about the process of constitutional reform in Myanmar, namely that both the legislative approach and the political-mobilisation approach seem unable to effect constitutional reform, due to the existence of the elephant trap of the rigid amending formula and the entrenched praetorian constitutionalism associated with it. In this piece we report on the constitutional amendment processes and develop our argument as follows. First, we describe and explain the rigidity of the Constitution. Second, we trace and analyse the three constitutional reform attempts – the first and third being parliamentary and the second extra-parliamentary, or popular. Third, we get to the heart of the issue, that is praetorian constitutionalism, and show how the uneasy, unequal power relationship between the Tatmadaw and the people, on the one hand, and between the Bamar majority and ethnic minorities on the other hand, creates and sustains praetorian constitutionalism.
The Rigidity of the 2008 Constitution
It has been repeatedly observed that Myanmar has a very rigid constitution, and that this makes constitutional reform especially difficult.[4] While constitutional entrenchment is not always a bad thing (we consider that its efficacy depends on the context), the combination of a transition process and a rigid constitution can be at least unfortunate, and at worst a rank contradiction. Myanmar’s 2008 Constitution was greeted almost derisively by international observers[5] due to the stranglehold placed on it by the Tatmadaw’s insistence on having 25% representation in both houses of the legislature as well as in the 14 state and regional assemblies, combined with a process for constitutional amendment that requires more than a 75% majority in both houses to effect a constitutional amendment. For the most important constitutional provisions it is further required that a majority of registered voters approve the amendment in a referendum.[6] In addition, the Tatmadaw has power to control three crucial portfolios in the government,[7] as well as holding one of the three Vice-President positions[8] (and even control the presidency if its nominee obtains the highest number of votes in the parliamentary presidential electoral college[9]), and having the possibility also to exercise emergency powers.[10] While many of those who initially cast derision on the Constitution were taken by surprise at subsequent developments resulting in the NLD taking power following the 2015 general election,[11] constitutional rigidity has continued to be an important issue, constantly debated in Myanmar ever since the constitution came into effect. The Constitution was designed to facilitate the continuance, under the guise of reform, of a military veto preventing fundamental change, and military immunity for wrongs committed both previously and subsequently. In that respect, the constitution-makers, one supposes, have not been disappointed. There is of course also the possibility of a return to full military rule via constitutional coup d’état under a pretext of emergency in the event that it is decided to bring the system of ‘discipline-flourishing democracy’ to an end,[12] a decision that might well depend on the Tatmadaw’s continued ability in practice to exercise praetorian control.
Nonetheless, hope for what we view as much-needed reform continues to push against this rigidity, and in pursuance of its reform agenda the NLD moved forward a constitutional amendment process in 2020. This was not the first such exercise, as constitutional amendments were also debated in 2013, and the push for reform continued politically in 2014. As we shall see, much the same thing happened in the first few months of 2020, reinforcing the ‘rigid constitution’ syndrome.[13]
The 2013 Amendment Process
Aung San Suu Kyi and her 42 NLD MPs had been sitting in Parliament since the NLD won 43 of the 44 seats it contested in the by-elections of April 2012. Despite the popularity of her and, by extension, her party, the NLD constituted a negligible parliamentary minority. In the broader context of Myanmar politics, by mid-2013 the country found itself embroiled in seemingly unstoppable intercommunal or interreligious violence that spread like wildfire from Rakhine State in 2012 to other parts of Myanmar in 2013, in a high tide of anti-Rohingya or anti-Islam/Muslim Buddhist extremism.[14] In this context in February 2013 President U Thein Sein, leader of the Union Solidarity and Development Party (‘USDP’), a Tatmadaw-associated party, then in government, announced a parliamentary constitutional amendment process, and Parliament initiated this in July 2013. The democratic camp, led by Aung San Suu Kyi and her supporters, viewed the move as superficial in its intention and unresponsive to popular demand.
The process of constitutional change commenced promisingly, however, with a great deal of public input. A Parliamentary Joint Committee for Review of the 2008 Constitution (PJCRC), consisting of 109 persons, was appointed in July 2013 under the chairmanship of the Deputy Speaker of Parliament, inviting submissions and receiving reportedly more than 28,000 ‘advice letters’ by the postponed closing date of 31 December 2013. These letters emanated from citizens, lawyers, political parties, the civil society, government departments, and the Tatmadaw. Altogether there were more than 300,000 individual suggestions. The NLD itself, then in opposition, proposed more than 100 amendments. More than a third of the suggestions made related to the amendment process itself. Other notable topics were section 59(f) and the constitutional role of the Tatmadaw, with many focusing also on federalism or decentralisation.[15] The agenda for constitutional reform has in fact changed little since 2013.
Unfortunately, the PJCRC was required to report back to parliament within a month of the close of submissions, so that it was able only to organise them statistically rather than process or analyse them in any meaningful way. Parliament then appointed a Committee for the Implementation of the 2008 Constitution Amendment (CICA), consisting of 31 members, including the Vice-Chairs of both houses and seven military personnel, and a further nine MPs from minority areas, who were empowered to attend and make suggestions. The CICA was mandated to draft the amendments, but in doing so to ask for advice and suggestions from the government and representatives of regions and states, the judiciary, political parties, and legal experts. The actual result of this process, in itself quite impressive in its democratic breadth, was only one minor change to the text of the constitution in relation to qualifications of the President and the two Vice-Presidents that state that the three office-holders must have knowledge of ‘political, administrative, economic, and military’ matters of the Union of Myanmar.[16] The word ‘defence’ was substituted for ‘military’. Despite the parliamentary approval of that extremely minor amendment, it has not in fact been put to a referendum to date, which further exposes the rigidity of the 2008 constitution. While distinguishing between major and minor provisions for the purpose of amendment displays some logic, rigidity is in effect applied even to minor amendments to major provisions. The referendum process is both expensive and quite unnecessary for such purposes.
The 2014 Amendment Movement
This movement, simply known in Myanmar as the ‘Section 436 movement’, was spearheaded by the NLD and the 88 Generation (Peace and Open Society) (the ‘88 Generation’), arguably the second most popular (ex)-student-led democratic-opposition network. The two parties announced on 4 May 2014 that they would cooperate to have section 436 amended.[17] President Thein Sein warned on 15 May that constitutional amendment should be done through a parliamentary process.[18] Parliament Speaker and USDP chair Shwe Mann had also warned in January that speedy constitutional amendment would lead to political instability.[19] In the same month Thein Sein also issued a secret directive to cabinet ministers and their deputies about potential riots over constitutional reform.[20] But the NLD and 88 Generation proceeded to implement their campaign that included: a nationwide signature campaign;[21] a series of live high-profile constitutional amendment talks in major cities; media interviews; and protests across the country.[22] At those talks, media interviews, and protests, leaders and campaigners castigated the 2008 constitution as a document that entrenched the political role of the military. For example, Aung San Suu Kyi told her supporters in Naypyidaw on 27 May, ‘[The constitution] says that if we don’t have approval from the army representatives in parliament, we can’t make any changes to the charter’.[23]
From 27 May to 13 August, the joint campaign collected 4,953,093 signatures that demanded the amendment of section 436 and sent the signatures to parliament.[24] The campaign had been publicly dismissed by Shwe Mann in early July,[25] and also apparently fell on the deaf ears of President U Thein Sein. Mandalay-based monk Wirathu spread a rumour that a Buddhist female worker at a teashop in Mandalay was raped by its two Muslim male owners, and Mandalay was rocked by interreligious violence on 1–2 July.[26] That ugly violence effectively gave a stern warning to the section 436 movement that Myanmar might face, again, religious violence, which had not occurred since late 2013. Interreligious tensions were boiling, and, ignored by Thein Sein and Shwe Mann, the NLD and 88 Generation had abandoned their campaign by August 2014.
The attention of the NLD soon shifted to the next general elections that would be held in November 2015, but still pledged constitutional reform. Although the NLD won in the 2015 elections in a landslide, it took the ruling party about three years to keep its promise of reform.
The 2019-20 Amendment Process
The constitutional amendment process was initiated by the NLD in February 2019.[27] A Joint Parliamentary Committee for Constitutional Amendment (JPCCA) was set up with 45 members representing all parties in the Union Parliament, including the Tatmadaw. The composition of the JPCCA and the number of recommendations put forward by respective members of the JPCCA were as follows.[28]
Table 1: JPCCA (Membership and Recommendations)
| No. | Political Party/Group/Affiliation | Number of Members | Number of Recommendations Made |
| 1. | NLD | 18 | 114 |
| 2. | Military | 8 | 0 |
| 3. | USDP | 2 | 10 |
| 4. | Shan Nationalities League for Democracy (SNLD) | 2 | 1,112 |
| 5. | Arakan National Patty (ANP) | 2 | 858 |
| 6. | Mon National Party (MNP) | 1 | 641 |
| 7. | National United Democratic Party | 1 | 462 |
| 8. | Zomi Congress for Democracy | 1 | 53 |
| 9. | Ta’arng (Palaung) National Party | 1 | 178 |
| 10. | National Unity Party | 1 | 17 |
| 11. | Wa Democratic Party | 1 | 0 |
| 12. | Kokang Democracy and Unity Party | 1 | 40 |
| 13. | Kachin State Democracy Party | 1 | 111 |
| 14. | Lisu National Development Party | 1 | 26 |
| 15. | Pa-O National Organization | 1 | 140 |
| 16. | Independent | 1 | 3 |
| Total | 43[29] | 3,765 |
Despite this, only proposals presented by the NLD were approved by the JPCCA. Other parties such as the USDP and the Tatmadaw representatives disagreed with the process and submitted separate amendments directly to parliament. The JPCCA looked at suggestions from other sources: the Supreme Court and other judicial organisations, state and regional executives and parliaments, self-administered zones and divisions, ethnic affairs ministers, and legal experts. However, the JPCCA did not approve any of the suggestions from these sources. In particular, proposals submitted by ethnic political parties relating to federalism, and the recognition of the identity of the groups they represent, did not find favour with the JPCCA. The proposed amendments that were examined further fell into two categories: first, proposals by the NLD, which focused on demilitarisation; and secondly, proposals from the Tatmadaw and the USDP, which focused on advancing federalism.
These two sets of proposals are not of course in principle contradictory; indeed, in our view both types of reform are urgently needed. Nonetheless they reflect very different priorities.
Seven bills – two emanating from the JPCCA and five emanating from the USDP and the Tatmadaw, were then sent for review to Parliament’s Joint Bills Committee, which reported on 5 February 2020. Parliament then deliberated on the seven bills, which between them proposed a total of 135 amendments, voting on 10–20 March 2020. Ultimately only four minor amendments were passed. Extremely minor and perhaps even negligible, the first three changed the term ‘disabled’ in sections 32 (a) and (b) and 344, while the fourth sought to remove a redundant phrase in section 262 (a). [30] Among these minor amendments, that of section 32 requires a referendum, as in the case of the 2013 process. Concerned with the cost of holding a US$11 million referendum for less than a handful of negligible amendments, parliament voted on 20 May 2020 to indefinitely postpone the amendment.[31] Despite the high profile of the 2019-2020 process and intense debates prior to the vote between NLD MPs and many ethnic-party MPs, on the one hand, and USDP MPs and Tatmadaw representatives on the other, the sheer fact that the process did not produce any significant or even minor constitutional reforms, indicates the extent of entrenched praetorian constitutionalism, to which we now turn.
Praetorian Constitutionalism
In our submission this threefold narrative of efforts towards constitutional change since 2013 proves the case that praetorian constitutionalism is deeply entrenched in Myanmar.
A combination of constitutional rigidity and conflicting priorities as between the civilian government and the Tatmadaw has resulted in a situation where the constitutional apparatus, including notably the constitutional amendment process itself, is dominated by the Tatmadaw’s veto over change, effectively exercised in all three instances we have examined. The only way forward is a trade-off involving changes delivering a reduction in the role of the Tatmadaw as significant progress along a simultaneous path of peace-building and federalisation that guarantees the rights of ethnic and religious minorities. These issues are practically – and not just as a matter of negotiation – deeply linked. So long as the armed ethnic groups have little faith in the constitutional process (and little has occurred that would encourage such faith), the Tatmadaw feels obliged and legitimated in safeguarding the union and its sovereignty. Only successful and extensive devolution of powers to the ethnic regions would reduce tension and justify, from the standpoint of the Tatmadaw, a relaxation of its grip. From the NLD and ethnic minority standpoint only a relaxation of the Tatmadaw’s grip would facilitate the devolution of powers. No doubt there are many in the Tatmadaw who would not surrender its powers, just as there are many in the NLD who would not surrender centralised administrative powers to ethnic regions. But progress on both fronts at once seems to be the only hope for a consensus leading to constitutional change of any importance. It is to be hoped that such progress, in addition to provisions on federalism and demilitarisation, would embrace section 436 too, rendering the ongoing process of change more open and viable than it has been.
Suggested citation: Andrew Harding & Nyi Nyi Kyaw, Myanmar’s Constitutional Impasse: The Constitutional Amendment Process in 2020, Int’l J. Const. L. Blog, Nov. 12, 2020, at: http://www.iconnectblog.com/2020/11/myanmars-constitutional-impasse-the-constitutional-amendment-process-in-2020/
[1] Janelle Saffin, “Seeking Constitutional Settlement in Myanmar”, in Andrew Harding and Khin Khin Oo (eds), Constitutionalism and Legal Change in Myanmar (Oxford: Hart Publishing, 2017); Nyi Nyi Kyaw, “Putting their guns on the scale: Constitution-making in Burma/Myanmar under military command,” Chinese Journal of Comparative Law 7(2) (2019): 309–332.
[2] The Bamar are the ethnic majority in Myanmar that is also home to several other ethnic minorities such as the Kachin and the Kayin. According to the 1983 census, the second last census, Myanmar has a Bamar majority (69 per cent) and numerous minorities: Kachin (1.4 per cent), Kayah (0.4 per cent), Kayin (6.2 per cent), Chin (2.2 per cent), Mon (2.4 per cent), Rakhine (4.5 per cent), and Shan (8.5 per cent).
[3] Nyi Nyi Kyaw, “Myanmar’s pluralist constitution: Nation-building versus state-building,” in Jaclyn Neo and Bui Ngoc Son (eds), Pluralist Constitutions in Southeast Asia (Oxford: Hart Publishing, 2019).
[4] M Crouch, The Constitution of Myanmar: A Contextual Analysis (Oxford: Hart Publishing, 2019), ch.10.4; A Harding, ‘Irresistible forces and immovable objects: Constitutional change in Myanmar’, ch.4 of A Harding and Khin Khin Oo (ed), Constitutionalism and Legal Change in Myanmar (Oxford: Hart Publishing, 2017).
[5] See, e.g., Yash Ghai, ‘The 2008 Myanmar Constitution: Analysis and assessment’, Burma Library, 2008, <https://www.burmalibrary.org/docs6/2008_Myanmar_constitution–analysis_and_assessment-Yash_Ghai.pdf>, accessed 5 November 2020.
[6] Constitution, s 436 (a).
[7] Ibid., s 232(b)(ii).
[8] Ibid., s 60(c).
[9] Ibid., s 60(e). If not, the nominee becomes one of the Vice-Presidents.
[10] Ibid., ss 418–420.
[11] B Welsh, ‘Contesting the rules: Myanmar’s 2015 election and electoral integrity’, ch.6 of Harding and Khin Khin Oo, above n.5; Crouch, above n.5, ch.4.5.
[12] Constitution, ss 418–420.
[13] International IDEA, Constitutional Amendment Bills in Myanmar, 27 January 2020: International IDEA Interim Report, March 2020 (Stockholm: IDEA, 2020), <http://constitutionnet.org/sites/default/files/2020-03/constitutional-amendment-bills-in-myanmar.pdf>, accessed 1 November 2020.
[14] Nyi Nyi Kyaw, ‘Islamophobia in Buddhist Myanmar: The 969 movement and anti-Muslim violence’, in Melissa Crouch (ed), Islam and the State in Myanmar: Muslim-Buddhist Relations and the Politics of Belonging (Delhi: Oxford University Press, 2016), 183–210.
[15] M Crouch and T Ginsburg, ‘Between endurance and change in South-East Asia: the military and constitutional reform in Myanmar and Thailand’, Annual Review of Constitution-Building Processes, No.4, International IDEA, 2015, <https://www.idea.int/sites/default/files/publications/chapters/annual-review-of-constitution-building-processes-2015/annual-review-of-constitution-building-processes-2015-chapter-4.pdf>, accessed 5 November 2020.
[16] Constitution, s 59(d). for further discussion of this controversial provision, see A Harding, ‘The debate concerning Section 59(f) of Myanmar’s 2008 Constitution: A Gordian knot of rule of law, democracy and the application of problematical constitutional provisions’, Editorial Note, in Harding and Khin Khin Oo, above n.5.
[17] Yen Saning, ‘88 Generation to hold rallies, nationwide campaign for constitutional reform’, 5 May 2014, Irrawaddy, <https://www.irrawaddy.com/news/burma/nld-88-generation-hold-rallies-nationwide-campaign-constitutional-reform.html>, accessed 1 November 2020.
[18] MNA, ‘Literacy is a national concern: President U Thein Sein’ New Light of Myanmar 16 May 2014, 3.
[19] Lawi Weng, “Constitutional change could trigger ‘political instability’: Shwe Mann”, Irrawaddy, 27 Jan 2014,
<https://www.irrawaddy.com/election/news/constitutional-change-could-trigger-political-instability-shwe-mann>, accessed 31 October 2020.
[20] Lin Thant, ‘Secret order by Burma President tells ministries to prepare for riots’, Irrawaddy, 6 February 2014, <https://www.irrawaddy.com/news/burma/secret-order-burma-president-tells-ministries-prepare-riots.html>, accessed 31 October 2020.
[21] For example, Kyaw Kyaw Thein, ‘Pôk ma 436 pyin sin ye ba kyaung a ye kyi [Why amending section 436 is important]’, VOA (Burmese), 9 June 2014, <https://burmese.voanews.com/a/burma-forum-constitution-amendment-movement/1932365.html>, accessed 30 October 2020; Than Lwin Htun, ‘Pôk ma 436 pyin sin ye ba kyaung a ye kyi [Why amending section 436 is important]’, VOA (Burmese), 12 May 2014, <https://burmese.voanews.com/a/burma-forum-consitution-amendment/1912400.html>, accessed 1 November 2020.
[22] For example, ‘Achekanupade pyin pe ye Kyonpyaw hma lu 500 nipa taung so sanda pya [About 500 people protest and demand constitutional amendment in Kyonpyaw]’, Radio Free Asia (Burmese), 3 March 2014, <http://www.rfa.org/burmese/news/constitution-amendment-protest-kyonpyaw-03032014105051.html>, accessed 31 October 2020, and ‘Pôk ma 436, pôk ma 59 (sa) ne (ga) pyin sin ye Kawlin hma sanda pya [Protests in Kawlin over amendment of section 436, section 59(f) and (d)]’, Radio Free Asia (Burmese), 27 April 2014, <https://www.rfa.org/burmese/news/constitution-2008-kualin-04272014142614.html>, accessed 31 October 2020.
[23] Win Naung Toe and Yadana Oo, ‘Suu Kyi urges public to ‘test parliament’ with charter change campaign’, Radio Free Asia, 27 May 2014, <https://www.rfa.org/english/news/myanmar/constitutional-reform-05272014184433.html/>, accessed 31 October 2020.
[24] Letter submitted to Parliament, dated 13 August 2014, on file with the authors.
[25] Ei Ei Toe Lwin, ‘U Shwe Mann dismisses NLD 436 campaign’, Myanmar Times, 7 July 2014, <https://www.mmtimes.com/national-news/10935-u-shwe-mann-dismisses-nld-436-campaign.html>, accessed 1 November 2020.
[26] Justice Trust, Hidden Hands Behind Communal Violence in Myanmar: Case Study of the Mandalay Riots, Policy Report, March 2015, <http://www.burmalibrary.org/docs21/Justice_Trust-2015-03-Hidden_Hands-en-to-rev1-red.pdf4>, accessed 30 October 2020.
[27] International IDEA, above n.14.
[28] Based on the Report of the JPCCA, dated 12 July 2019, on file with the authors.
[29] The Chairman and Deputy Chairman of the JPCCA are not counted as members of the committee, and they did not offer any recommendations.
[30] For details of the bills and the process, see International IDEA, above n.14.
[31] San Yamin Aung, ‘Myanmar Parliament indefinitely postpones referendum on charter amendments’, Irrawaddy, 21 May 2020, <https://www.irrawaddy.com/news/burma/myanmar-parliament-indefinitely-postpones-referendum-on-charter-amendments.html>, accessed 1 November 2020.
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