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The Long Struggle for Constitutional Change in Myanmar

Published online by Cambridge University Press:  01 January 2025

Andrew J Harding Open the ORCID record for Andrew J Harding [Opens in a new window]  and
Nyi Nyi Kyaw
Andrew J Harding*
Affiliation:
National University of Singapore, Singapore
Nyi Nyi Kyaw
Affiliation:
Kulturwissenschaftliches Institut Essen (KWI)/Institute for Advanced Study in the Humanities, Germany
*
The author may be contacted at lawajh@nus.edu.sg.
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Abstract

The rigidity of the 2008 Constitution of the Republic of the Union of Myanmar is rightly notorious, as this rigidity was proven at least three times through failed attempts at reform. Despite these failed attempts, the military disputed the results of the election held in November 2020, and conflict ostensibly over that issue led to a military coup on 1 February 2021. This coup purported to have been undertaken constitutionally as an ‘emergency’ but was the object of popular rejection. In this article, we focus on the struggle over constitutionalism that had its origins in earlier attempts to achieve democracy. In our focus on the current nature and implication of ‘constitutional struggle’ in Myanmar, we make use of analysis based on factual data collected by the second author, located in Mandalay, one of the epicentres of struggle against the military and their actions following the coup. Our argument is that this ‘praetorian constitutionalism’ in Myanmar absent a pre-agreed pact between the military and the civilian defies the basic logic of democratic or liberal constitutionalism and hence is unconstitutional in both spirit and text. This explains how a constitution drafted in order to protect the position and privileges of the military was ultimately in effect rejected by that same military. The article will argue that the praetorian constitutionalism of Myanmar during 2010–21 contains a necessarily built-in struggle between the civilian and the soldier that remains unresolved.

Type
Special Issue (Part 1): Constitutional Struggles in Asia
Information
Federal Law Review , Volume 50 , Issue 2: Special Issue (Part 1): Constitutional Struggles in Asia , June 2022 , pp. 192 - 205
Copyright
Copyright © 2022 The Author(s)

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References

1. See BBC News, ‘Myanmar Fitness Instructor Accidentally Captures Coup Unfolding’ (YouTube, 4 February 2021) <https://www.youtube.com/watch?v=yEHiTjViicE>.

2. Nick Cheesman, ‘Post-legalism and the Fear of Politics: Understanding Myanmar’s Contradictory Coup’, ABC Religion and Ethics (Web Page, 9 February 2021) <https://www.abc.net.au/religion/post-legalism-and-myanmars-contradictory-coup/13135576>.

3. Constitution of the Republic of the Union of Myanmar 2008 (Myanmar), s 60 (‘2008 Constitution’).

4. To avoid tedious repetition, the word ‘purported’ is used here only once, but it should be understood that all of the Tatmadaw actions referred to in the context of the coup were purportedly lawful, carried out in the style or with the appearance of legality, but were in fact, for reasons discussed below, incontestably unlawful and contrary to the 2008 Constitution.

5. ‘Myanmar Descends back into Dictatorship as Military Declares State of Emergency’, Myanmar Now (online, 1 February 2021) <https://www.myanmar-now.org/en/news/myanmar-descends-back-into-dictatorship-as-military-declares-state-of-emergency>.

6. See SAC Orders Nos 8, 26, 43, 46/ 2021. Order No. 26/2021 — Appointment and Duty Assignment of Deputy Governors of Central Bank of Myanmar (State Administration Council, Myanmar, 4 February 2021); Order No. 46/2021 — Appointment of Central Bank of Myanmar members (State Administration Council, Myanmar, 10 February 2021). For a summary of orders and new laws made by the SAC since 1 February 2021, see Julian Barendse et al, ‘Myanmar Legal MHM Limited Newsletter - March Issue’ (2 March 2021) Myanmar Legal MHM Limited Newsletter <https://www.lexology.com/library/detail.aspx?g=824df089-0519-4d36-ba0d-2a14343276cf>.

7. ‘Daw Aung San Suu Kyi to go on Trial at Special Court in Naypyitaw’, The Irrawaddy (online, 10 May 2021) <https://www.irrawaddy.com/news/burma/daw-aung-san-suu-kyi-to-go-on-trial-at-special-court-in-naypyitaw.html>.

8. Order No. 2/2021 (State Administration Council, Myanmar, 1 February 2021); Order No. 23/2021 — Appointment and Duty Assignment Justices for Supreme Court of the Union (State Administration Council, Myanmar, 4 February 2021); Order No. 24/2021 — Duty Termination from Justices of Supreme Court of the Union (State Administration Council, Myanmar, 4 February 2021); Order No. 37/2021 — Appointment and Duty Assignment of Union Minister (State Administration Council, Myanmar, 8 February 2021).

9. ‘Statement from Myanmar Military on State of Emergency’, Reuters (online, 1 February 2021) <https://www.reuters.com/article/myanmar-politics-military-statement-idUSKBN2A11A8>.

10. ‘Myanmar Military Junta Sets Curfews, Crowd Controls, After Days of Mass Protests’, Radio Free Asia (online, 8 February 2021) <https://www.rfa.org/english/news/myanmar/protest-curfews-02082021193910.html>.

11. Dominic Faulder, Gwen Robinson and Marwaan Macan-Markar ‘Failed State: Myanmar Collapses into Chaos’, Nikkei Asia (online, 14 April 2021) <https://asia.nikkei.com/Spotlight/The-Big-Story/Failed-state-Myanmar-collapses-into-chaos>.

12. ‘Amid Coup, Myanmar’s NLD Lawmakers Form Committee to Serve as Legitimate Parliament’, The Irrawaddy (online, 8 February 2021) <https://www.irrawaddy.com/news/burma/amid-coup-myanmars-nld-lawmakers-form-committee-serve-legitimate-parliament.html>.

13. ‘CRPH Announces Line-up of Interim “National Unity Government”’, Myanmar Now (online, 16 April 2021) <https://www.myanmar-now.org/en/news/crph-announces-lineup-of-interim-national-unity-government>.

14. Sai Wunna ‘Tatmadaw Abolishes NLD’s Peace Mechanism’, Myanmar Times (online, 9 February 2021) <https://www.mmtimes.com/news/tatmadaw-abolishes-nlds-peace-mechanism.html>.

15. Thant Myint-U, The Hidden History of Burma: Race, Capitalism, and the Crisis of Democracy in the 21st Century (W. W. Norton, 2020) ch 2.

16. ‘”You Messed With the Wrong Generation,” Myanmar’s Youth Tell Coup Makers’, The Irrawaddy (online, 15 February 2021) <https://www.irrawaddy.com/news/burma/messed-wrong-generation-myanmars-youth-tell-coup-makers.html>. This article’s explanation of use and blockage of social media is especially revealing.

17. See Federal Democracy Charter (Myanmar, 2021), especially ch II ‘Members of the Charter’.

18. Cheesman (n 2).

19. Ibid. The author describes the claim of validity as ‘laughable’. See generally Nick Cheesman, Opposing the Rule of Law: How Myanmar’s Courts Make Law and Order (Cambridge University Press, 2015). Sam Zarifi, Secretary General of the International Commission of Jurists, stated that ‘the Myanmar military’s actions violate even the flawed Constitution that the military itself imposed in 2008’: see ‘Myanmar: Military Coup d’état Violates Principles of Rule of Law, International law and Myanmar’s Constitution’, International Commission of Jurists (online, 8 February 2021) <https://www.icj.org/myanmar-military-coup-detat-violates-principles-of-rule-of-law-international-law-and-myanmars-constitution/>. Melissa Crouch states that ‘the military’s claims to legal validity are hollow’: Sebastian Strangio, ‘Melissa Crouch on Myanmar’s Coup and the Rule of Law’, The Diplomat (online, 23 March 2021) <https://thediplomat.com/2021/03/melissa-crouch-on-myanmars-coup-and-the-rule-of-law/>. See generally Melissa Crouch, The Constitution of Myanmar: A Contextual Analysis (Hart Publishing, 2019) (‘The Constitution of Myanmar’).

20. Announcement No. 266/2020 — Announcement on the Final List of Elected Hluttaw Representatives in 2020 Multiparty General Election (Union Election Commission, Myanmar, 17 November 2020).

21. Cheesman (n 2). See also ‘Myanmar’s Election Reflected the People’s Will, Monitoring Group Says’, Reuters (online, 17 May 2021) <https://www.reuters.com/world/asia-pacific/myanmars-election-reflected-peoples-will-monitoring-group-says-2021-05-17/>. For the integrity of the 2015 election, see Bridget Welsh ‘Contesting the Rules: Myanmar’s 2015 Election and Electoral Integrity’ in Andrew Harding and Khin Khin Oo (eds), Constitutionalism and Legal Change in Myanmar (Hart Publishing, 2017) 105; Crouch, The Constitution of Myanmar (n 19) ch 4.

22. Andrew Harding and Nyi Nyi Kyaw, ‘Myanmar’s Constitutional Impasse: The Constitutional Amendment Process in 2020’, Blog of the International Journal of Constitutional Law (Blog Post, 12 November 2020) <http://www.iconnectblog.com/2020/11/myanmars-constitutional-impasse-the-constitutional-amendment-process-in-2020/>.

23. Cheesman (n 2).

24. 2008 Constitution (n 3) s 417.

25. Again, to avoid repetition, all of the actions discussed in this and the immediately following paragraph were unlawful acts, and words such as ‘detained’ are not to be read as indicating any form of legality.

26. 2008 Constitution (n 3) s 60.

27. Ibid ss 421(b), 425.

28. ‘Myanmar army pledges new elections after one-year state of emergency; Suu Kyi urges public to protest’, Straits Times (online, 2 February 2021) <https://www.straitstimes.com/asia/se-asia/myanmar-leader-aung-san-suu-kyi-detained>. It should be noted that the 1962 coup resulted in the Tatmadaw remaining in power until 1988, and the 1988 coup resulted in them remaining in power until 2011.

29. OBA Mie ‘Myanmar’s Human Rights Violations and ASEAN’s Response’, The Diplomat (online, 13 May 2021) <https://thediplomat.com/2021/05/myanmars-human-rights-violations-and-aseans-response/>.

30. 2008 Constitution (n 3) s 421.

31. ‘Who Has Been Arrested in Myanmar Since the Military Coup?’, The Irrawaddy (online, 12 February 2021) <https://www.irrawaddy.com/news/burma/arrested-myanmar-since-military-coup.html>.

32. Since the ‘emergency’ has not been declared for reasons relating to the pandemic, as has occurred in Malaysia, there should be no bar to Parliament meeting due to public health concerns.

33. 2008 Constitution (n 3) s 418(a).

34. Ibid s 420.

35. Ibid s 432.

36. Pwint Htun ‘Beyond the Coup in Myanmar: “In accordance with law” — How the Military Perverts Rule of Law to Oppress Civilians’, Just Security (online, 28 April 2021) <https://www.justsecurity.org/75904/beyond-the-coup-in-myanmar-in-accordance-with-the-law-how-the-military-perverts-rule-of-law-to-oppress-civilians/>.

37. 2008 Constitution (n 3) s 429.

38. Cheesman (n 2).

39. Crouch, The Constitution of Myanmar (n 19) ch 10.4; Andrew Harding ‘Irresistible forces and immovable objects: Constitutional change in Myanmar’ in Andrew Harding and Khin Khin Oo (eds), Constitutionalism and Legal Change in Myanmar (Hart Publishing, 2017) 71.

40. Myint-U (n 15) 47ff.

41. Janelle Saffin, ‘Seeking Constitutional Settlement in Myanmar’, in Andrew Harding and Khin Khin Oo (eds), Constitutionalism and Legal Change in Myanmar (Hart Publishing, 2017); Nyi Nyi Kyaw, ‘Putting their guns on the scale: Constitution-making in Burma/Myanmar under military command,’ (2019) 7(2) Chinese Journal of Comparative Law 309.

42. Myint-U (n 15) 81ff.

43. ‘Aung San Suu Kyi’s party confirmed winner in Myanmar election’, Al Jazeera, 13 November 2020.

44. Harding and Nyi Nyi Kyaw (n 21).

45. 2008 Constitution (n 3) section 436(a).

46. Ibid sections 60 and 232(b) (ii).

47. Andrew Harding, ‘Constitutional amendment and problems of transition in Myanmar’ (2019) 14 Journal of Comparative Law 157. <https://www.irrawaddy.com/election/news/constitutional-change-could-trigger-political-instability-shwe-mann>.

48. Melissa Crouch, ‘States of Legal Denial: How the State in Myanmar Uses Law to Exclude the Rohingya’ (2021) 51(1) Journal of Contemporary Asia 87.

49. She is currently prevented by the terms of this notorious section. For further discussion of this controversial provision, see Andrew 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 Oo (n 37).

50. 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 (Oxford University Press, 2016) 183.

51. 2008 Constitution (n 3) s 59(d).

52. Yen Saning, ‘NLD, 88 Generation to Hold Rallies, Nationwide Campaign for Constitutional Reform’, The Irrawaddy (online, 5 May 2014) <https://www.irrawaddy.com/news/burma/nld-88-generation-hold-rallies-nationwide-campaign-constitutional-reform.html>. The account that follows is largely based on Harding and Nyi Nyi Kyaw (n 21).

53. Myanmar News Agency, ‘Literacy is a National Concern: President U Thein Sein’ Global New Light of Myanmar (online, 16 May 2014) 3.

54. Lawi Weng, ‘Constitutional Change Could Trigger ‘Political Instability’: Shwe Mann’, The Irrawaddy (online, 27 Jan 2014).

55. Lin Thant, ‘Secret Order By Burma President Tells Ministries to Prepare for Riots’, The Irrawaddy (online, 6 February 2014) <https://www.irrawaddy.com/news/burma/secret-order-burma-president-tells-ministries-prepare-riots.html>.

56. See, eg, Kyaw Kyaw Thein, ‘Pôk ma 436 pyin sin ye ba kyaung a ye kyi [Why amending section 436 is important]’, Voice of America (Burmese) (online, 9 June 2014) <https://burmese.voanews.com/a/burma-forum-constitution-amendment-movement/1932365.html>; Than Lwin Htun, ‘Pôk ma 436 pyin sin ye ba kyaung a ye kyi [Why amending section 436 is important]’, Voice of America (Burmese) (online, 12 May 2014) <https://burmese.voanews.com/a/burma-forum-constitution-amendment/1912400.html>.

57. See, eg, Radion Free Asia (Burmese), ‘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) (online, 3 March 2014) <http://www.rfa.org/burmese/news/constitution-amendment-protest-kyonpyaw-03032014105051.html>; Radio Free Asia (Burmese), ‘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) (online, 27 April 2014) <https://www.rfa.org/burmese/news/constitution-2008-kualin-04272014142614.html>.

58. Win Naung Toe and Yadana Oo, ‘Suu Kyi Urges Public to ‘Test Parliament’ With Charter Change Campaign’, Radio Free Asia (online, 27 May 2014) <https://www.rfa.org/english/news/myanmar/constitutional-reform-05272014184433.html/>.

59. Letter from NLD and 88 Generation to Parliament, 13 August 2014, on file with the authors.

60. Ei Ei Toe Lwin, ‘U Shwe Mann Dismisses NLD 436 Campaign’, Myanmar Times (online, 7 July 2014) <https://www.mmtimes.com/national-news/10935-u-shwe-mann-dismisses-nld-436-campaign.html>.

61. 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>.

62. Sebastian Strangio, ‘Myanmar’s Constitutional Uncertainty’, The Diplomat (online, 21 July 2014) <https://thediplomat.com/2014/07/myanmars-constitutional-uncertainty/>.

63. International IDEA, Constitutional Amendment Bills in Myanmar, 27 January 2020: International IDEA (Interim Report, March 2020) <http://constitutionnet.org/sites/default/files/2020-03/constitutional-amendment-bills-in-myanmar.pdf>. The following passage is largely drawn from this IDEA report.

64. Report of the JPCCA, 12 July 2019, on file with the authors.

65. San Yamin Aung, ‘Myanmar Parliament Indefinitely Postpones Referendum on Charter Amendments’, The Irrawaddy (online, 21 May 2020) <https://www.irrawaddy.com/news/burma/myanmar-parliament-indefinitely-postpones-referendum-on-charter-amendments.html>.

66. Melissa Crouch and Tom Ginsburg, Annual Review of Constitution-Building Processes: 2015: Between Endurance and Change in South-East Asia: the Military and Constitutional Reform in Myanmar and Thailand (Report, 2016) <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>.

67. Andrew Harding, ‘Law and Development in its Burmese Moment: Legal Reform in an Emerging Democracy’ in Melissa Crouch and Tim Lindsey (eds), Law, Society and Transition in Myanmar (Hart Publishing 2014) 377.

68. See, Federal Democracy Charter (2021), drafted by the CRPH and assented to by those listed in ch II thereof: <https://crphmyanmar.org/wp-content/uploads/2021/04/Federal-Democracy-Charter-English.pdf>. These are elected parliamentarians; political parties; the Civil Disobedience Movement; the General Strike Committee; civil society organisations; and the Ethnic Armed Organisations.

69. 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 (Hart Publishing, 2019) 143.

70. Nyi Nyi Kyaw, ‘Democracy First, Federalism Next? The Constitutional Reform Process in Myanmar’ (2019) 93 Perspective 1 <https://www.iseas.edu.sg/images/pdf/ISEAS_Perspective_2019_93.pdf>.