Myanmar: The Military is Supreme, The Constitution is not?

1.0 INTRODUCTION

Myanmar's constitution is a fascinating blend of historical, military influence in an ethnically diverse society. In order to truly grasp the essence of the Burmese constitution, it is important to explore and unfold the historical journey of the country, particularly its colonial history and the political waves that followed.

Myanmar, once known as Burma, was under British rule from 1885 until 1948.[1] During this time, the British introduced significant changes, dismantling the traditional power structures and leaving a lasting impact on the country. Post-independence, Myanmar's political landscape was far from stable. In 1962, the military, or Tatmadaw, seized control in a coup, establishing a regime that maintained a tight grip on the nation's governance. This military dominance continued, with the Tatmadaw ensuring their influence was embedded in the very fabric of the constitution.[2]

Currently, Myanmar isn't just about its military history; it's a tapestry woven with the threads of over 135 ethnic groups. From the Burman majority to minorities like the Shan, Kachin, Chin, and Rohingya, this variation brings both richness in diversity and complexity.[3] Comparing Myanmar's constitutional framework to other nations, particularly considering its colonial past, is intriguing. The British colonial administration abolished the monarchy, separated religion from state affairs, and introduced new legal systems. These changes set the stage for the modern constitutional framework but also opened the door to division and challenge.

2.0 HISTORICAL BACKGROUND AND CONSTITUTIONAL EVOLUTION

Myanmar had a complex history of interplay between parliamentary democracy and military dominance, beginning with the Constitution of 1947. Modern Myanmar has three constitutions: the Constitution of 1947, the Constitution of 1974, and the Constitution of 2008. This segment will delve further into the history, structure, and impact of each constitution, highlighting their influence on Myanmar's political development.

2.1 Founding 1947 Constitution

The 1947 Burma Constitution was founded to honour the Panglong Agreement by adopting the principle of federalism, which granted different levels of autonomy to various ethnic groups. This approach was designed to align each group’s needs, according to their demands and perceived capacity for self-government.

The 1947 Burma Constitution was developed through consultations led by General Aung San. These discussions involved leaders from the Chin, Kachin, and Shan peoples, collectively known as the Citizens of the Frontier Areas. In return for their cooperation, these groups were promised full autonomy in internal matters, which was later recognised in Paragraph 7 of the Constitution.[4] This provision granted them rights and privileges which are regarded as fundamental in democratic societies. However, following the assassination of General Aung San and members of the cabinet in Rangoon, the Anti-Fascist People’s Freedom League (AFPFL), led by the U Nu took over the role and responsibility in completing the 1947 Burma Constitution.[5] The document was later ratified on 24th September 1947,[6] and came into force starting on Burma's Independence Day, 4 January 1948.[7]

The constitution of Burma incorporates both unitary and federal systems. It features a bicameral legislature, responsible for legislative matters, comprising the Chamber of Deputies and Chamber of Nationalities.[8] The three states of the Union, which are Chin, Kachin and Shan were granted specific powers and maintained separate councils and ministers. However, these states were not fully autonomous as the central legislature held overarching authority.[9]

Myanmar’s constitution was intended to embody the “Panglong spirit” reflecting the promise made in the Panglong Agreement, however, it did not last long.[10] Unfortunately, the 1947 Constitution left a problematic legacy where it created a weak central government, incapable of maintaining national unity and territorial integrity.[11] These weaknesses caused divisions among Myanmar's minority groups, leading to demands for secession and statehood, which threatened national unity.[12] In 1962, the Constitution was suspended as the military Revolutionary Council, led by General Ne Win overthrew the constitutionally elected civilian government, partly in reaction to concerns over aspirations for greater autonomy.[13]

2.2 Military Takeover and the 1974 Constitution

The military, which once played a prominent role in Burmese politics since independence, had its power limited over the years as the government was responsible for most of the country's affairs. Many military leaders, including General Ne Win, believed that U Nu's government was weak and ineffective. They believed the military should be more central in governing the country. On March 2, 1962, the military, led by Ne Win carried out a coup d’état, imprisoning U Nu and establishing the Revolutionary Council of the Union of Burma.[14] Since then, the country was ruled by decree with no constitutional basis for 12 years.

In 1974, the military institutionalized its rule by enacting a new constitution that shifted the regime from a military dictatorship to a unified one-party dictatorship.[15] This shift marked a transfer of power from the Revolutionary Council to the Burma Socialist Program Party (BSPP), which was also led by General Ne Win. This can be seen in Article 11 of the Constitution,[16] where the BSPP is the only political party that is legally recognized for dominating all the three branches of government.

The 1974 Constitution also introduced a new territorial organization made up of seven states and seven divisions, and introduced the concept of formal equality between states and divisions.[17] The states and divisions had limited power, as all legislative powers were exercised by the unicameral legislature at the central level. The judiciary was under the control of the party, and the establishment of independent institutions was prohibited.[18] Over five decades of military rule, Ne Win and his successor military leaders rejected any ideas of autonomy or federalism, insisting on a strong Bamar-dominated unitary state.[19]

In 1988, nationwide popular protests calling for democracy toppled the one-party regime. A new military command, the State Law and Order Restoration Council (SLORC) took over, suspended the 1974 Constitution and ruled the country without a constitutional framework.[20]

2.3 The 2008 Constitution and Its Unique Power- Sharing Model

After seizing power in September 1988, the military, under the State Law and Order Restoration Council (SLORC), suspended the 1974 Constitution. In June 1989, the SLORC officially changed the English name of the country from Burma to Myanmar. The SLORC attempted to implement reforms for a new constitution in 1990 and 1993, but ongoing conflict delayed the process, leaving Myanmar without a constitution until 2008.[21]

The 2008 Constitution solidified the military’s central role in Myanmar politics, granting special privileges, immunities, and representation in state institutions, such as the legislature and the cabinet.[22] It established a 'Union system’ that includes seven regions, seven states, and one Union territory (the capital Naypyitaw) as outlined in Article 49 of the 2008 Constitution.[23]

The Constitution separated the roles of president and Commander-in-Chief, with the latter exercising substantial autonomy from the government. This can be exemplified based on Article 232(b)(ii), where the Commander-in-Chief was given authority over the appointment of these ministries—defense, home affairs, and border affairs—ensuring military control over these matters.[24]

Myanmar’s bicameral legislature, the Pyidaungsu Hluttaw, consists of Pyithu Hluttaw, representing the people and townships and also Amoyotha Hluttaw, representing the states and regions.[25] According to Article 119 of the Constitution, both chambers were elected at the same time for a five-year term.[26] One of the key features of the legislature is that 25% of seats in both chambers, as well as in state and regional legislatures, are reserved for the military and appointed by the Commander-in-Chief.[27] This gave the military veto power over constitutional amendments, which required a supermajority of 75% of the votes in the Union legislature to pass any changes.[28]

The 2008 Constitution also established a unified judicial system. The judiciary is controlled at the union level, with no division of power between different levels of government. As outlined in Article 293 of the Constitution, the judiciary consists of the civil courts, the courts-martial and the constitutional tribunal of the Union.[29]

3.0 MILITARY ABOVE THE LAW

The Monday that Senior General Min Aung Hlaing took the position of acting president was a sorrowful day for the citizens of Myanmar.[30] Previously, he had been the Commander-in-chief of Myanmar’s Tatmadaw, since 2011. With him as acting president, the Tatmadaw has reached its peak of power and domination. Every six months, he, as the Prime Minister, renews the state of emergency. Hence, ensuring the military remains in control.[31] With the 2008 Constitution legitimising their actions, the Tatmadaw is supreme.

3.1 Reserved Powers

3.1.1 Emergency Powers

During a declared state of emergency, the Tatmadaw can assume government control. The supreme commander of the Tatmadaw, known as 'Commander-in-chief', is granted “full executive and judicial authority”.[32] The declaration of emergency subjugates the government to the authority of the military, essentially removing any mechanism for independent review. Consequently, the military and Commander-in-Chief’s actions go unchecked during this period. The Constitution does not outline a specific duration of a declaration of emergency. This, paired with the vague and broad definition of ‘emergency’, empowers the military. The abuse of this flaw in the Constitution renders the country under a state of emergency indefinitely.

3.1.2 Non-Subordination

The lack of civilian oversight is a key theme within the Tatmadaw’s governance of Myanmar. There is a lack of independent checks and balances, allowing for a military with overreaching power. As a result, the military is not subordinate to the country in which it means to serve.

It is ironic that the military is so far removed from the government, despite it being in control. Aside from budgetary independence, the Tatmadaw also administers and adjudicates its own affairs.[33] In the United States, the military is ultimately accountable to civilian leadership. Congress and the executive branch oversee their affairs.[34] The Tatmadaw, however, is not subject to oversight by any civilian institution. It has complete autonomy in its decisions.

The Tatmadaw operates according to its own judicial system. One that is especially for military personnel.[35] Furthermore, it is shielded from civilian courts, raising concerns about impunity. Specifically, civilians have no legal means to challenge military actions. This gives way to widespread abuses to occur, including ethnic cleansing against the Rohingya and violence against civilians.[36]

3.2 Civilian Governance

To protect their special powers, the Tatmadaw are given the authority to participate in national political leadership roles.[37] This allows them to intervene in civilian governance. Specifically, whenever it perceives a threat to the constitution, national stability, or unity. But without specific guidelines, the Tatmadaw are free to use anything as an excuse to intervene. Any instability is perceived to be a 'threat to the nation'. As a result, the Tatmadaw has embedded itself deeply within Myanmar's political landscape. The Tatmadaw's influence extends across all levels of government, even at the regional and state levels.[38] By appointing military officers to administrative bodies at these levels, the Tatmadaw ensures their influence runs from top to bottom.

The invasion of military influence knows no bound. Even the highest decision-making body for security and defence matters isn't unreachable. Of the 11 members of the NSDC, the Commander-in-Chief of defence services appoints 5 members and controls 6 votes.[39] Effectively, the Tatmadaw has overwhelming influence over critical national policies.

4.0 CHALLENGES AND CONTROVERSIES

The challenges of the Myanmar Constitution’s amendments highlight the complexities and hurdles in reforming a legal framework deeply rooted in authoritarian control. These challenges not only reflect the tensions between military dominance and democratic aspirations but also expose structural barriers that hinder equitable governance. At the same time, controversies surrounding human rights violations remain a pressing concern, with both international watchdogs and domestic advocates calling for justice and accountability amidst ongoing violations.[40] The segments below will further explore these two critical issues, shedding light on their implications for Myanmar's future.

4.1 Rigidity of the Amendment Process

Adopted in 2008, Myanmar’s 2008 Constitution has been the subject of significant debate and controversy, particularly for its rigidity and the exceptionally high barriers to amendments. To approve a proposal for amendment, over 75% of the Members of Parliament (MPs) must vote in favour—a supermajority far exceeding the two-thirds requirement seen in many other countries.[41] On top of that, 25% of the parliamentary seats are reserved exclusively for the military under Article 109(b) of the Constitution.[42] This article grants the Commander-in-Chief of the Armed Forces the authority to directly appoint military MPs, ensuring their unelected but guaranteed presence in both the Upper and Lower Houses. This provision effectively acts as a veto power for the military, as their 25% bloc alone can block any constitutional amendment by preventing the 75% supermajority required for approval. By controlling a quarter of the legislature, the military has a structural advantage that shields its interests from civilian oversight and severely limits the scope for democratic reforms.[43] While this threshold is ostensibly designed to ensure broad consensus, it has, in practice, rendered meaningful constitutional reform nearly impossible.

In a politically fragmented parliament with diverse ideologies and conflicting interests, achieving such an overwhelming level of agreement is exceptionally difficult. Even widely supported reforms can be blocked by a relatively small minority, creating legislative gridlock and stifling progress. A notable example of this occurred in January 2020, when the National League for Democracy (NLD), led by Aung San Suu Kyi, proposed an amendment to reduce the military's reserved seats in Parliament.[44] The proposal sought to gradually cut the military’s 25% share to 15% in 2020, 10% in 2025, and 5% in 2030. Despite receiving support from over 60% of legislators, the amendment failed to meet the stringent 75% threshold, effectively halting the reform.

The Constitution further entrenches military power through Article 232,[45] which mandates that key ministerial positions—specifically, the Minister of Home Affairs, Minister of Defense, and Minister of Border Affairs—must be nominated exclusively by the Commander-in-Chief of the Armed Forces. These nominations are binding, ensuring that these critical ministries are automatically filled by active-duty military personnel. This provision solidifies the military’s control over crucial aspects of governance, including national security, law enforcement, and border management, effectively granting them autonomy within the government structure.[46]

This arrangement has profound implications for Myanmar's governance. The Ministry of Home Affairs, for example, oversees the police force and local administration, giving the military direct influence over domestic security and regional governance. Similarly, the Ministry of Defense controls the armed forces, and the Ministry of Border Affairs handles ethnic and border issues, areas often tied to conflicts with ethnic minorities. These powers allow the military to dominate both domestic and external security policies, sidelining civilian oversight and maintaining their supremacy in state affairs.

Myanmar's 2008 Constitution is deliberately structured to entrench military dominance, making meaningful constitutional amendments exceedingly difficult. Through the aforementioned provisions, the Constitution not only perpetuates legislative gridlock but also undermines Myanmar's prospects for a fully democratic political system.

4.2 Human Rights Infringement 

According to the Universal Declaration of Human Rights (UDHR),[47] human rights are rights that all people have, regardless of their nationality, place of residence, or any other status. Simply put, these rights are the rights we have simply because we exist as human beings and not because a state chooses to grant them.[48] With that being said, Myanmar has long been condemned for its widespread human rights abuses. The military regime's disregard for these universal rights has led to extensive abuses, including the repression of political freedoms, discrimination against ethnic minorities, and the denial of basic needs for its citizens. 

Contrary to Malaysia’s relatively peaceful and harmonious dynamic among various ethnic groups, Myanmar, with its over 135 distinct ethnic groups, has been a long-standing source of tension and conflict. A key example of this ethnic strife is the systematic persecution of the Rohingya, a Muslim minority group. Especially after General Ne Win came to power in Burma as Prime Minister in 1962, the Rohingya community has been increasingly held hostile by the authorities. The Rohingya Muslims had always been targeted by large-scale violence on the basis of ethnicity regularly by the government, which prompted the religious minority community to flee persecution by leaving for other countries, such as Bangladesh. One such operation is Operation Dragon King, officially Operation Nagamin, which aimed to separate the nationals from alleged non-nationals or illegal immigrants, which allegedly resulted in widespread rape, destruction of villages and arbitrary arrest. This triggered the first significant influx of Rohingya refugees into Bangladesh in 1978. In 1982,[49] a new and more restrictive Citizenship Law was enacted coupled with its 1983 Procedures, replacing the 1948 Union Citizenship Act, further eroding their citizenship rights by codifying legal discrimination against the community. 

The nail in the coffin came on 21 January, when the deaths of three Muslim villagers—who were allegedly collaborating with authorities to round up militants from previous raids—were blamed on Rohingya insurgents, reportedly receiving assistance from Islamists abroad. This sparked further violence.[50] On 25 August, the government announced that 71 people had been killed in attacks attributed to militants. The Arakan Rohingya Salvation Army (ARSA) claimed responsibility for the attacks, stating that they were “taking defensive actions" due to the government-imposed blockade on Rathedaung, a town in Rakhine State,[51] which had been starving the Rohingya community for over two weeks.[52] 

The widespread human rights violations in Myanmar have not been limited to the persecution of the Rohingya. The military regime has consistently oppressed political freedoms and suppressed any form of dissent. Political activists, journalists, and human rights defenders face arbitrary detention, torture, and even extrajudicial killings. These abuses are a direct violation of the UDHR, which enshrines the rights to freedom of expression, peaceful assembly, and participation in government. The regime’s systematic disregard for these basic rights has not only perpetuated the suffering of ethnic minorities like the Rohingya but has also stifled the aspirations of the general population, preventing Myanmar from progressing toward a peaceful and democratic future.

The situation reached a critical point with the military coup on February 1, 2021, which marked a significant escalation in human rights abuses. The Tatmadaw detained civilian leaders, including Aung San Suu Kyi, and declared a state of emergency, effectively ousting the democratically elected government. This triggered nationwide protests, which were met with violent crackdowns by security forces. Reports indicate that thousands of civilians were arbitrarily arrested, detained, and tortured. The military used disproportional force, including live ammunition, tear gas, and water cannons, resulting in numerous deaths and injuries among peaceful protesters.[53] These actions exposed the military’s blatant disregard for human rights and the rule of law.

In an effort to suppress dissent, the military regime imposed severe restrictions on freedom of expression, assembly, and the press. Journalists, activists, and ordinary citizens who voice opposition have faced harassment, arrest, and imprisonment.[54] The junta has shut down independent media outlets, restricted internet access, and enacted draconian laws to stifle free speech. The 2021 coup intensified these efforts, with the military increasingly targeting social media platforms and communication channels to control the flow of information and suppress opposition. These measures reflect a broader strategy by the military to maintain its grip on power by silencing any form of dissent and undermining democratic processes, thereby deepening the human rights crisis in the country.[55]

Myanmar’s human rights crisis serves as a stark reminder of the consequences of unchecked authoritarianism and ethnic discrimination. The suffering of its people, particularly marginalized communities, highlights the urgent need for global solidarity and action. Only through comprehensive and coordinated action can Myanmar move towards a future where human rights are respected and upheld for all its citizens.

5.0 CONCLUSION

Myanmar’s constitutional history reveals a complex and often troubling interplay between democracy and military influence. From the hopeful beginnings of the 1947 Constitution, which aimed to honour the Panglong Agreement and promote federalism, to the authoritarian control entrenched by the 1974 Constitution, and finally to the military-dominated power-sharing model established in 2008, it is clear that the military has consistently positioned itself as the ultimate authority in Myanmar’s governance.

The 2008 Constitution firmly entrenched the military’s dominance in Myanmar’s political system, granting it unparalleled privileges and control over critical state institutions.[56] The ongoing struggle between democratic ideals and military dominance highlights the challenges Myanmar faces in building an inclusive and equitable system of governance. While the people have repeatedly called for democracy, the structural barriers within the current framework make progress difficult. Moving forward, addressing these barriers and fostering unity among Myanmar’s diverse communities, especially in the nation’s constitutional framework itself, will be critical to achieving a stable and democratic future.

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[16] Constitution of The Union of Burma 1974 (Burma). 

[17] See Footnote 15.     

[18] Marciel, S. (2021, Aug 16). Myanmar Probably Needs a Military . . . Just Not the One It Has. Air University. Retrieved from 

<https://www.airuniversity.af.edu/JIPA/Display/Article/2747519/myanmar-probably-needs-a-military-just-not-the-one-it-has/>. Site accessed on 21 December 2024.

[19] See Footnote 18.

[20] Egreteau, R. (2017). Parliamentary development in Myanmar: An Overview of the Union Parliament, 2011-2016. The Asian Project. 

[21] Facts and Details. (2014, May). Myanmar's "Roadmap To Democracy": Constitutional Convention, Cyclone Nargis And Elections In 2010. Facts and Details. Retrieved from <https://factsanddetails.com/southeast-asia/Myanmar/sub5_5b/entry-3027.html>. Site accessed on 22 December 2024.

[22] See Footnote 11.

[23] Constitution of the Republic of the Union of Myanmar 2008 (Myanmar), art. 49.

[24] See Footnote 15.

[25] See Footnote 15.

[26] Constitution of the Republic of the Union of Myanmar 2008 (Myanmar), art. 119.

[27] See Footnote 15.

[28] See Footnote 21.

[29] Constitution of the Republic of the Union of Myanmar 2008 (Myanmar), art. 293.

[30] Associated Press News Wire (2024, July 22). The leader of Myanmar's army government is named acting president so he can renew state of emergency. independent.co.uk. Retrieved from <https://www.independent.co.uk/news/ap-myanmar-bangkok-aung-san-suu-kyi-security-council-b2583975.html>. Site accessed on 24 December 2024. 

[31] See Footnote 30.

[32] Constitution of the Republic of the Union of Myanmar 2008 (Myanmar), art. 40(c).

[33] Constitution of the Republic of the Union of Myanmar 2008 (Myanmar), art. 20(b).

[34] Constitution of the United States, art. 1, sec. 8, clause 12 and 14, art. 2, sec. 2.

[35] Constitution of the Republic of the Union of Myanmar 2008 (Myanmar), art. 20(b) and 319.

[36] Human Rights Watch. (2022, Aug 24). Myanmar: No Justice, No Freedom for Rohingya 5 Years On. hrw.org. Retrieved from <https://www.hrw.org/news/2022/08/24/myanmar-no-justice-no-freedom-rohingya-5-years?>. Site accessed on 24 December 2024. 

[37] Constitution of the Republic of the Union of Myanmar 2008 (Myanmar), art. 6(f).

[38] Constitution of the Republic of the Union of Myanmar 2008 (Myanmar), art. 248.

[39] Constitution of the Republic of the Union of Myanmar 2008 (Myanmar), art. 201.

[40] Crouch, M. A. (2020). Authoritarian Straightjacket or Vehicle for Democratic Transition?: The Risky Struggle to Change Myanmar’s Constitution. In T. Ginsburg & A. Huq (Eds.), From Parchment to Practise: Implementing New Constitutions. Cambridge University Press. Retrieved from https://ssrn.com/abstract=3777656. Site accessed on 15 December 2024.

[41] Parameswaran, P. (2019, January 30). What’s in the New Constitution Change Push in Myanmar? The Diplomat. Retrieved from https://thediplomat.com/2019/01/whats-in-the-new-constitution-change-push-in-myanmar/. Site accessed on 16 December 2024.

[42] Constitution of the Republic of the Union of Myanmar 2008 (Myanmar), art. 109(b).

[43] Heugas, A. (2020). Myanmar’s Constitution Amendment Process in the Year 2020. Konrad-Adenauer-Stiftung. Retrieved from <https://www.kas.de/en/web/myanmar/laenderberichte/detail/-/content/myanmars-verfassungsaenderungsprozess-im-jahr-2020>. Site accessed on 16 December 2024.

[44] Asia Pacific Foundation of Canada. (2020). Myanmar’s Parliament Rejects Amendment to Restrict Military. Retrieved from <https://www.asiapacific.ca/asia-watch/myanmars-parliament-rejects-amendment-restrict-military.>. Site accessed on 16 December 2024.

[45] Constitution of the Republic of the Union of Myanmar 2008 (Myanmar), art. 232.

[46] Jowell, J. (2014, November). Executive Power in Myanmar. Bingham Centre for the Rule of Law. Retrieved from <https://www.binghamcentre.org/.> Pages 6–9. Site accessed on 16 December 2024.

[47] Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810 (1948).

[48] Office of the High Commissioner for Human Rights (OHCHR). (n.d.). What Are Human Rights? Retrieved from <https://www.ohchr.org/en/what-are-human-rights.>. Site accessed on 16 December 2024.

[49] Citizenship Law (Burma) 1982.

[50] Radio Free Asia. (2017, January 23). Three More Muslim Men Found Dead in Myanmar’s Maungdaw. Radio Free Asia. Retrieved from <https://www.rfa.org/english/news/myanmar/three-more-muslim-men-found-dead-in-myanmars-maungdaw-01232017154609.html.>. Site accessed on 16 December 2024.

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[54] Human Rights Watch. (2021, July 27). Myanmar: Junta Escalates Media Crackdown. Retrieved from <https://www.hrw.org/news/2021/07/27/myanmar-junta-escalates-media-crackdown>. Site accessed on 16 December 2024.

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[56] Mydans, S. (2007, 4 Sep). Myanmar Constitution Guidelines Ensure Military Power. The New York Times. Retrieved at <https://www.nytimes.com/2007/09/04/world/asia/04myanmar.html>. Site accessed on 22 December 2024.