Myanmar 2008 Constitution
Eddie Boyum
The 2008 Constitution, the country's third constitution,[2] was published in September 2008[3] after a referendum, and came into force on 31 January 2011.[4] Under this current constitution, the Tatmadaw (Myanmar Armed Forces) retain significant control of the government, even before their coup of 2021. 25% of seats in the Parliament of Myanmar were reserved for serving military officers. The ministries of home, border affairs and defense were headed by a serving military officer.[5][6] The military also appointed one of the country's two vice presidents.[7] Hence, the country's civilian leaders have little influence over the security establishment.[5][6]
Before independence, Myanmar had two quasi-constitutions, The government of Burma Act, 1935[8] and Constitution of Burma under Japanese occupation, 1943.[9] After independence, Myanmar adopted three constitutions in 1947,[10] 1974[11] and 2008.[12] The 2008 constitution is the present constitution of Myanmar.
Upon taking power in September 1988, the military, under the guise of the State Law and Order Restoration Council (SLORC) suspended the 1974 constitution.[21][22] The SLORC called a constitutional convention in 1993, but it was suspended in 1996 when the National League for Democracy (NLD) boycotted it, calling it undemocratic.[22] The constitutional convention was again called in 2004, but without the NLD.[22] Myanmar remained without a constitution until 2008.[22]
On 9 April 2008, the military government of Myanmar (Burma) released its proposed constitution for the country to be put to a vote in public referendum on 10 May 2008, as part of its roadmap to democracy. The constitution is hailed by the military as heralding a return to democracy, but the opposition sees it as a tool for continuing military control of the country.
At the time of its release, foreign media often incorrectly alleged that the constitution barred Aung San Suu Kyi from holding public office because of her marriage to a British citizen;[23] in fact, she would only be barred from the office of President, under the disqualification of those who have a spouse or children who are foreign citizens. There is no similar disqualification for any other public office.
The National League for Democracy, which is led by Aung San Suu Kyi, was not allowed to participate in the creation of the constitution,[29] and urged citizens to reject[30] the constitution which it labelled as a "sham." The referendum itself passed the 2008 Constitution,[31] but was generally regarded as fraudulent by the opposition party and those outside of Burma.[32]
The SPDC reported a heavy turnout on both dates, with few voting irregularities. Opposition groups say the turnout was comparatively light, with many reported cases of voting irregularities, such as premarked ballots, voter intimidation, and other techniques to influence the outcome of the referendum.[33]
In spite of its earlier opposition to the 2008 constitution, the NLD participated in the 2012 by-election for 46 seats and won a landslide victory, with Aung San Suu Kyi becoming a member of parliament, alongside 42 others from her party.
The ruling party and opposition parties have acknowledged that amendments are needed. The 2008 constitution reserves 25% of seats in parliament for members of the military, with the most powerful posts given to active-duty or retired generals.
The Myanmar Constitution has 15 chapters. Chapters 4, 5, and 6 concern the separation of powers between the legislature, judiciary, and executive. Due to over 50 years of military rule, the Constitution of Myanmar is dominated by the military, with 25% of the seats in both houses of the Assembly of the Union (Pyidaungsu Hluttaw) reserved for military representatives. Proposed changes to most parts of the constitution must be approved by more than 75% of both houses of the Assembly of the Union. For some others it must do so then go to a referendum. When the referendum is held, the changes must be approved by at least 50% of the registered voters, rather than 50% of those voting.[34] A 194-page booklet containing the text in Burmese and English is available to download.
On 29 January 2019, the Union Parliament established the 45-member Joint Parliamentary Committee for Constitutional Amendment (JPCCA), representing all parties in the Union Parliament, including armed forces. This committee was to draft a report by 17 July 2019 suggesting a set of specific constitutional amendments. The report, which was submitted to the Union Parliament on time, included more than 3000 amendment proposals.
Neither the USDP nor representatives from the armed forces presented any proposals within the committee. Both groups were critical of the process, ostensibly on procedural grounds. Instead, they presented five separate amendment proposals directly to the Union Parliament. The Union Parliament then established a second ad hoc parliamentary committee to deal with some of these proposals, but this committee ended up suggesting that these amendment bills should be considered by the JPCCA. This was approved by parliament on 4 September, at which point the second ad-hoc committee ceased to exist.
In the meantime, the JPCCA had requested inputs from six different sectors (the Union Government, the Supreme Court and other judicial organizations, state/region executives and parliaments, self-administered zones/divisions, ethnic affairs ministers, and legal experts). While allegedly only some of these sectors submitted proposals, it appears that the JPCCA did not approve any of them.
The Speaker of the Union Parliament then submitted the seven bills (two from the JPCCA, and five from the USDP and the armed forces) to the Joint Bills Committee for review, and the latter submitted its report on 5 February 2020, suggesting the use of secret voting within parliament. A fiery parliamentary debate then ensued from 25 February to 5 March 2020 on the substance of the amendments, followed by a voting process that ended on 20 March 2020, and yielded only three very minor amendments.
What now? Coronavirus-willing, elections will be held at the end of 2020, and constitutional amendments will again move to the back burner. Despite a general disappointment about the amendment process, expectations were low to begin with, and the impact on the elections will likely be minimal. A revived (though delayed) peace process may motiviate the parties to resume amendment negotiations, but the key to their success remains with the Myanmar armed forces.
The National Unity Government (NUG), made up of ousted members of the elected government and other public figures, has held a broad coalition of pre-existing ethnic resistance organizations together through the promise of a federal democracy. The Jan., 2023 statement reinforces that pledge.
The fourth position makes clear that the NUG and their allies are going for broke, seeking the defeat of the military. They will not negotiate with the military en bloc, though they are pragmatic enough to cut deals with individual leaders.
Upon the military defeat and surrender, a phased transitional process at both the national and local level is outlined, as is the role of a transitional government and the drafting of a new constitution.
It appears that the onus for establishing local governments will fall on the ethnic armies, as we have already seen with the Karenni in eastern Myanmar. It is less clear the role that various ethnic armies who did not participate in the Spring Revolution will have in establishing local governance.
The signatories included the Chin National Front, the Karen National Union, and the Karen National Progressive Party. The Kachin Independence Organization and members of the Three Brotherhood Alliance were not signatories, though obviously the door remains open to them.
No reason was given as to why they did not sign. But in the key western state of Rakhine, the Arakan Army does not fully trust the NUG, which they view as being too dominated by ethnic Bamar NLD members. Of all the ethnic armies, they have shown the most desire for independence and are now discussing confederation rather than a federal union.
The closer opposition forces come to defeating the military, the more that the ethnic armies may begin to mistrust the Bamar-dominated NUG. The NUG must constantly reinforce its commitment to a new federal charter that enshrines a substantial devolution of political and economic power.
Zachary Abuza is a professor at the National War College in Washington and an adjunct at Georgetown University. The views expressed here are his own and do not reflect the position of the U.S. Department of Defense, the National War College, Georgetown University or Radio Free Asia.
Add your comment by filling out the form below in plain text. Comments are approved by a moderator and can be edited in accordance with RFAs Terms of Use. Comments will not appear in real time. RFA is not responsible for the content of the postings. Please, be respectful of others' point of view and stick to the facts.
On 1 February 2021, the Myanmar military staged a coup and unconstitutionally declared a national state of emergency, transferring all state powers to the commander-in-chief. The pretext for the coup was unproven allegations of electoral fraud in the 8 November 2020 general elections, which saw the governing NLD winning 79.5 per cent of the elected seats in the Union parliament, and most seats in the state and region assemblies.
However, this arrangement was not accepted by all stakeholders. Some ethnic groups considered that this federal arrangement did not fulfil the commitment for full autonomy in internal administration for the Frontier Areas agreed upon in the Panglong Agreement. In 1961, ethnic leaders held a series of conferences on federalism and submitted constitutional amendment proposals to parliament to provide greater autonomy to the states. Notably, proposals included rearranging the division of legislative powers between the Union level of government and the states, and restructuring the upper house of Union parliament so that each state would have equal (rather than proportional) representation. These discussions were put to a halt in March 1962, when the military under General Ne Win staged a coup, partly in reaction to concerns over aspirations for greater autonomy.
c80f0f1006