Myanmar: 2008 Constitution A Major Impediment In Transition To Democracy? – Analysis

By C. S. Kuppuswamy

The 2008 Constitution has again come under focus with the disqualification of Yangon Chief Minister and former Lt General Myint Swe for the post of the Vice President after it was found out that his son had taken Australian citizenship. Sec 59 (f), Chapter III of the 2008 Constitution which stipulates the qualifications for the President and the Vice Presidents reads “shall he himself, one of the parents, the spouse, one of the legitimate children or their spouses not owe allegiance to a foreign power, not be a subject of a foreign power or citizen of a foreign country.” At the time, the Constitution was drafted, it was widely believed that this section was aimed at precluding Aung San Suu Kyi from taking up the post of President.

With the 2015 election not too far away and with the distinct possibility of the National League for Democracy (NLD) doing well in the elections – Will the Constitution be amended to enable Suu Kyi to lead the country?

Historical Background

This (2008) is the third Constitution of the country after the 1947 and 1974 constitutions.

The 1947 Constitution, adopted by the Constituent Assembly on 24 September 1947, came into effect on attaining independence on 4 January 1948. The country was named the Union of Burma and a bi-cameral legislature was established with a multi-party system. The aspirations of ethnic minorities had not been fulfilled even though the option to secede after 10 years was enshrined in the Constitution. This Constitution was abrogated by the Socialist Revolutionary Council in 1962.

The 1974 Constitution was drafted by a commission appointed by the Burma Socialist Programme Party (BSPP) under Ne Win. This Constitution was adopted after a referendum in January 1974. The country was a unitary state with a unicameral legislature and a single party system. The BSPP was dissolved and the 1974 Constitution abrogated in 1988 by the SLORC.

2008 Constitution

The 2008 constitution was drafted over a period of 14 years and 11 months from January 1993 to December 2007 by a National Convention constituted by the SPDC. The Constitution was adopted by a controversial referendum (with 92% in favour) in May 2008 when the country was ravaged by a Cyclone code named “Nargis”. For this reason some opposition groups call this as the Nargis Constitution.

The salient features of the 2008 Constitution are:

a) Presidential system of governance with a bicameral legislature
b) A legislature at the state/regional level (for the first time in the country’s history)
c) An all-powerful National Defence and Security Council
d) Procedure for declaring a state of emergency
e) A very restrictive procedure for amending the Constitution
f) Establishment of Self-administered Divisions and Zones for some ethnic groups

This Constitution is heavily loaded in favour of the Tatmadaw (Defence forces) giving it a national political role with 25% of the seats reserved in the central and state legislatures and immunity for all actions earlier taken by the military junta (as SLORC and SPDC) under Section 445 – Chapter XIV (Transitory Provisions).

The National Defence and Security Council is the most powerful body under the Executive branch of the Union Government with the President, Vice-Presidents, the speakers of both houses, the C-in-C, the Deputy C-in-C of the Defence Services and ministers( presently Army Officers) of some key departments as members (Sec 201 of Chapter V-Executive). A study of the Constitution will reveal that on a number of instances the president has to act in co-ordination with or on the recommendations of this council.

The Commander-in-chief of the Defence Forces has been endowed with sweeping powers when a state of emergency is declared in the country or in a state as per the provisions in Chapter XI of the Constitution.

The 2008 Constitution has deprived the ethnic minorities of their aspirations further by providing very limited autonomy and with scant regard to federal principles agreed to in the Panglong Agreement between Aung San and some ethnic nationalities.

The procedure for amendment of most provisions of the Constitution (chapter XII) is very restrictive in that it requires the approval of “more than 75% of all the representatives of the Pyidaungsu Hluttaw (Union legislature – both houses) after which in a nation-wide referendum only with the votes of more than half of house who are eligible to vote”. It is for this reason some commentators are of the view that the Constitution should be drastically revised rather than amended.

Some views on the 2008 Constitution

“The leading role of the military in the new constitutional order means that change cannot come without at least some of the generals being on board. But the reality is that the military is today the only institution in Myanmar with actual power. No constitutional or political framework could exist that did not have its confidence. A transition away from military rule can only happen if that institution does not feel that its fundamental interests are threatened.” – International Crisis Group Asia Report – “Myanmar: Towards the Elections” 20 August 2009.

“However, if one reads the 2008 constitution carefully, Myanmar will not become a genuine democracy any time soon, but rather a thinly disguised authoritarian state that the US and the West can cynically live with to counterbalance China’s influence.” – Bertil Lintner in his article “The Limits of Reform in Myanmar” (AT online 18 January 2012)

“Thus on fundamental issues facing Myanmar, the constitution is most likely to fail the people. And the difficulties in the transition from its faulty principles and structures to a more democratic and equitable society are deliberately embedded in the constitution.” – Yash Ghai, Professor Emeritus, University of Hong Kong in his “The 2008 Myanmar Constitution: Analysis and Assessment.

“However, the 2008 constitution only strengthens the rule of the military dictatorship. It establishes the National Defense and Security Council (NDSC) is the most powerful institution in which the commander-in-chief (C-in-C) of the Defense Services and his deputies dominate…… So long as it (NDSC) continues to exist as a constitutionally instituted body, which exercises rigid centralization, Myanmar will only achieve superficial democracy in accordance with the 2008 Constitution.” – Aung Htoo (AT online 17 July 2012).

“On the Constitution, I think it should be left up to people in Burma whether the Constitution should be amended or revised. However, if democracy is intended to be the ultimate result of this whole reform process, it is pretty obvious that some things need to change. Of the two most immediate that struck me, the first one is the most obvious one that the military appoints a quarter of seats in parliament—at a minimum that needs to be phased out. Secondly, there is a provision in the Constitution that essentially legitimates a military coup in a state of emergency with the chief of the defense forces seizing political power.” Larry Diamond – Stanford University democracy scholar, in an interview to The Irrawaddy (24 July 2012).

Conclusion

The NLD, led by Aung San Suu Kyi, while contesting the by elections in April 2012 has been harping on three main issues—the reform of the rule of law, amendment to the constitution and building national reconciliation. In the first week of August 2012, she was approved to chair the newly formed Committee for Rule of Law and Stability. However she is yet to reveal her strategy for amending the constitution.

The transition to democracy will be complete only when there is peace through national reconciliation with ethnic minorities. Though some minor concessions have been made to the ethnics under the 2008 Constitution such as regional parliaments, Self-administered Divisions and Self-administered Zones, the bulk of their aspirations remain unfulfilled. Based on the “Panglong” spirit of equal rights and equal representation, the constitution has to be amended to give them more autonomy.

A media report indicates that ten leaders of Democratic and Ethnic alliance met the Chairman of the Election Commission and have submitted a proposal for introduction of proportional representation instead of the present “first-past-the post system” to enable independent and minority parties win seats in the parliament easily. This proposal merits consideration as it will help the ethnic minorities. The constitution has to be amended accordingly.

Indonesia took more than a decade for its transition to democracy and even to-day there is a former general as President of the nation. The participation of the military in the political affairs was gradually reduced to nil. In the same manner Myanmar should phase out the 25 % reserved quota for military in the legislatures over a definite period of time by a constitutional amendment.

As a first step the highly restrictive procedure for amendment of the constitution has to be amended to facilitate the transition process to democracy unless of course a total revision of the 2008 constitution is taken up.

President Thein Sein has often hinted that he will not seek a second term as President. After all the hard work done by him on the reform process appreciated by one and all and with his rapprochement with the opposition there is apprehension as to how things will work out on completion of his term. The opposition will therefore have to get the constitution amendment process initiated and completed before the 2015 elections.