Reforming Myanmar’s 2008 Constitution: a key element to the country’s democratic transition - Foundation Office Myanmar
The landslide victory of the National League of Democracy (NLD) during the 2015 elections against the Union Solidarity and Development Party (USDP), the military backed-party in Myanmar, was celebrated across the country but also worldwide, as a symbol of democracy triumphing over decades of military rule.
However numerous obstacles remain to be faced by the civilian government in its quest for consolidating democracy. One of these obstacles might well be the 2008 Constitution of Myanmar. One may wonder, how is amending Myanmar’s Constitution, key to the democratic reform process of the country?
Although Myanmar started its political transition in 2011 and is currently led by a civilian government, the 2008 Constitution, enacted by the Tatmadaw (the Burmese military), remains the country’s supreme law. The Constitution was written with the main purpose of safeguarding the Tatmadaw’s power over the country. For example, it forbids any Myanmar citizen with a foreign spouse or children from running for president. This led to the post of ‘State Counsellor’ to be created by the civilian government in 2016, enabling Aung San Suu Kyi to be the de facto leader of the country.
It automatically attributes the positions of Minister of Home Affairs, Minister of Defense and Minister of Border Affairs to members of the military. This consequently grants the Tatmadaw with the final decision-making related to conflicts at the border areas of the country such as in Rakhine. Furthermore, the Constitution guarantees 25% of parliamentary seats to members of the military as well as the necessity of at least 75% of votes in Parliament to pass legislation, and thus, including one to amend the Constitution.
Two strategies for Myanmar’s democratization and political reform could be envisaged by the stakeholders favorable for change. The first one being to abolish the 2008 Constitution and replacing it with a new one. The second possibility would be keeping the 2008 Constitution and amending it.
In their research “Schedule Two of the 2008 Constitution: Avenues for Reform and Decentralization and Steps Towards a Federal System” supported by KAS Myanmar in 2018, authors Mael Raynaud and Tinzar Htun explain why amending the Constitution is the viable option for further reforms in the country’s political and democratic transition.[1]
Firstly, the authors have found that those against amending the Constitution are a minority and that a majority of stakeholders, including amongst the Bamars (the most numerous ethnicity in the country), ethnic democracy groups, as well as members of the military, are in favor of amending the Constitution. The democratic process is more likely to succeed when it assembles a larger part of the population.
The second argument to the statement that amending the Constitution is the way forward for Myanmar’s continued democratic transition, is that it would otherwise take at least a decade before a new Constitution is written. The democratic transition should not be stalled in the meanwhile.
Finally, the authors argue that the debates around the amendments of the current Constitution are the same as those of a new Constitution, thus making a point that the advocates defending only the latter should anyhow participate in the discussions.
Indeed, talks on amending the Constitution, which a few years back was deemed to be an impossible goal, have finally taken effect: in February 2019, the Charter Amendment Committee was created. Such committee is in charge of discussing whether the Constitution needs any amendments following which the Parliament has the authority to approve or reject. The 45 representatives which compose the Committee include independent Members of Parliament (MP), MPs from the NLD, from the USDP as well as from ethnic parties.
Amongst the 3 765 recommendations suggested by the Committee, numerous issues were addressed such as the role of the Tatmadaw and the distribution of power between the central and regional governments. Whilst the military and USDP MPs first declared the creation of the Charter Amendment Committee as unconstitutional and did not participate in the talks, they later also submitted proposals which include forbidding Myanmar people with family members with foreign citizenship from becoming ministers.
In August 2019, the Parliament approved of the Committee’s report on amending the Constitution. However, it is during the drafting of the bill by the different party representatives forming the Committee that will be decided which recommendations of the report to maintain.
The Constitution amendment process having started in the last two years of the NLD’s term, such development can be seen as a political move from the party. Indeed, amending the Constitution garners strong public support. According to the International Republican Institute (IRI) out of 4 020 people surveyed, 80% support amending the Constitution. [2]
Should the bill be approved, Aung San Suu Kyi would fulfill one of her campaigns promises, increase her party’s chances of victory during the country’s next general elections in 2020 all whilst strengthening the power of the civilian government for the coming years.
However numerous obstacles remain to be faced by the civilian government in its quest for consolidating democracy. One of these obstacles might well be the 2008 Constitution of Myanmar. One may wonder, how is amending Myanmar’s Constitution, key to the democratic reform process of the country?
Although Myanmar started its political transition in 2011 and is currently led by a civilian government, the 2008 Constitution, enacted by the Tatmadaw (the Burmese military), remains the country’s supreme law. The Constitution was written with the main purpose of safeguarding the Tatmadaw’s power over the country. For example, it forbids any Myanmar citizen with a foreign spouse or children from running for president. This led to the post of ‘State Counsellor’ to be created by the civilian government in 2016, enabling Aung San Suu Kyi to be the de facto leader of the country.
It automatically attributes the positions of Minister of Home Affairs, Minister of Defense and Minister of Border Affairs to members of the military. This consequently grants the Tatmadaw with the final decision-making related to conflicts at the border areas of the country such as in Rakhine. Furthermore, the Constitution guarantees 25% of parliamentary seats to members of the military as well as the necessity of at least 75% of votes in Parliament to pass legislation, and thus, including one to amend the Constitution.
Two strategies for Myanmar’s democratization and political reform could be envisaged by the stakeholders favorable for change. The first one being to abolish the 2008 Constitution and replacing it with a new one. The second possibility would be keeping the 2008 Constitution and amending it.
In their research “Schedule Two of the 2008 Constitution: Avenues for Reform and Decentralization and Steps Towards a Federal System” supported by KAS Myanmar in 2018, authors Mael Raynaud and Tinzar Htun explain why amending the Constitution is the viable option for further reforms in the country’s political and democratic transition.[1]
Firstly, the authors have found that those against amending the Constitution are a minority and that a majority of stakeholders, including amongst the Bamars (the most numerous ethnicity in the country), ethnic democracy groups, as well as members of the military, are in favor of amending the Constitution. The democratic process is more likely to succeed when it assembles a larger part of the population.
The second argument to the statement that amending the Constitution is the way forward for Myanmar’s continued democratic transition, is that it would otherwise take at least a decade before a new Constitution is written. The democratic transition should not be stalled in the meanwhile.
Finally, the authors argue that the debates around the amendments of the current Constitution are the same as those of a new Constitution, thus making a point that the advocates defending only the latter should anyhow participate in the discussions.
Indeed, talks on amending the Constitution, which a few years back was deemed to be an impossible goal, have finally taken effect: in February 2019, the Charter Amendment Committee was created. Such committee is in charge of discussing whether the Constitution needs any amendments following which the Parliament has the authority to approve or reject. The 45 representatives which compose the Committee include independent Members of Parliament (MP), MPs from the NLD, from the USDP as well as from ethnic parties.
Amongst the 3 765 recommendations suggested by the Committee, numerous issues were addressed such as the role of the Tatmadaw and the distribution of power between the central and regional governments. Whilst the military and USDP MPs first declared the creation of the Charter Amendment Committee as unconstitutional and did not participate in the talks, they later also submitted proposals which include forbidding Myanmar people with family members with foreign citizenship from becoming ministers.
In August 2019, the Parliament approved of the Committee’s report on amending the Constitution. However, it is during the drafting of the bill by the different party representatives forming the Committee that will be decided which recommendations of the report to maintain.
The Constitution amendment process having started in the last two years of the NLD’s term, such development can be seen as a political move from the party. Indeed, amending the Constitution garners strong public support. According to the International Republican Institute (IRI) out of 4 020 people surveyed, 80% support amending the Constitution. [2]
Should the bill be approved, Aung San Suu Kyi would fulfill one of her campaigns promises, increase her party’s chances of victory during the country’s next general elections in 2020 all whilst strengthening the power of the civilian government for the coming years.
[1] Mael Raynaud and Tinzar Htun, Schedule II of the 2008 Constitution: Avenues for Reform and Decentralization and Steps towards a Federal System, (Myanmar: Konrad-Adenauer-Stiftung Ltd., 2018), https://www.kas.de/c/document_library/get_file?uuid=bfad1bfa-8dc9-f8e0-f62c-0a618d4b14b4&groupId=252038.
[2] Swe Lei Mon, “Public strongly favours amendments: IRI”, The Myanmar Times, 3 October 2019, https://www.mmtimes.com/news/public-strongly-favours-amendments-iri.html.
