By Kimana Zulueta-Fülscher, Head of International IDEA’s MyConstitution Programme.
Since independence from Great Britain, Myanmar/Burma has had three different constitutions. The first was signed immediately after independence in 1947, following the “Panglong Agreement” between the Burmese government and three different ethnic groups, the Shan, the Kachin and the Chin. It also aimed to enhance the autonomy of the so-called frontier or ethnic areas vis-à-vis the central government. After the 1962 military coup, two other constitutions entered into force in 1974 and in 2008, respectively. Both of these constitutions were decreed by the Myanmar armed forces (Saffin 2017, Seeking Constitutional Settlement in Myanmar, p. 8), though affirmed in nationwide referendums. The 1974 Constitution was based on the “Burmese Way to Socialism,” and the 2008 Constitution was based on the armed forces’ 2003 “Seven Step Roadmap to Disciplined Democracy.”
Setting the stage for limited democracy
While opening the space for multi-party democracy, the 2008 constitution also guaranteed key political powers to the Myanmar armed forces. These powers include a de facto veto power over constitutional amendments, as their current 25 percent representation in both houses of parliament leaves proposed amendments dependent on the agreement of the armed forces (articles 109(b), 141(b), 436). It effectively guarantees the armed forces 25% of seats in all region and state parliaments (article 161(d)), and the power to appoint ministers to three key ministries — Home Affairs, Defence, and Border Affairs – (article 232(b,ii), which gives the armed forces control over all security institutions, including police, intelligence, and prisons. Critically, these arrangements also guarantee the independence of the military from civilian control (see article 6(f), for instance).
Since the 2008 constitution entered into force, there have been two general elections (2010, 2015), and three bi-elections (2012, 2017, 2018). The National League for Democracy (NLD) – the party led by Daw Aung San Suu Kyi – did not run in the 2010 elections, but ran in the bi-elections in 2012, and onward. In 2015 the NLD won the general elections by a landslide.
Amending the 2008 constitution
Because of the critical role that the armed forces played in the constitution-building process (Saffin 2017, p. 22) that led to the 2008 constitution, and because the armed forces ensured their consent would be critical for any future reforms, the political (but also the armed) opposition has made constitutional reform one of its main priorities. Some stakeholders, mostly Ethnic Armed Organisations, but sometimes also political parties more or less tenuously associated to them, have argued for a total replacement of the 2008 constitution. Other stakeholders, now also the NLD, argue for a major amendment of the constitution. But even the military-backed government of the Union Solidarity and Development Party (USDP), in office from 2010 to 2015, saw the need to initiate an amendment process in 2013, which raised hopes across Myanmar and beyond for a more democratic constitution, but resulted in almost no change to the 2008 constitution.
After the 2015 elections, it took the NLD three years to materialize its own campaign promise that referred to the need for constitutional reform. The process is still ongoing, but the prospects for significant change are uncertain. The armed forces and USDP representatives seem for the most part to favour the status quo, sometimes by proposing changes to the constitution that they know the NLD will not accept if not accompanied by other structural reforms. For instance, the USDP has proposed that the (state/region) Chief Ministers should be elected by the state/regional parliaments. The NLD in turn has been reluctant to agree to this proposed change, arguing that while the armed forces hold up to 25 percent of region/state members of parliament, the election of the Chief Ministers by the region/state parliaments would be less than democratic.
Opening the process to the public
Still there seems to be some path-dependency between the first and the second amendment processes that may explain key differences between the two processes, but also similarities as to their outcome.
In 2013, the USDP initiated the first amendment process by presenting 51 amendment proposals in the form of a bill to the Union Parliament, which then established a 109-member Parliamentary Joint Committee for Review of the 2008 Constitution to consider the bill. Interestingly, the committee immediately opened the amendment process to the public, by inviting submissions for amendment proposals. The committee received more than 28,000 submissions, including more than 100 amendment proposals from the NLD, represented in parliament since the 2012 bi-elections (see Harding 2017, Irresistible Forces and Immovable Objects: Constitutional Change in Myanmar, pp. 71-82).
The reason why the USDP opened the amendment process to the public could be twofold: first, the fact that the USDP might have been genuinely open to constitutional reform, and second, the fact that the USDP might have wanted to signal to the public that it was open to its suggestions and to building a responsive government, i.e. that the elected USDP government was no longer to be associated with the previous military regime.
Possibly for lack of time, the committee was unable to deal with the content of the submissions – it had approximately one month to draft the report and submit it to the Union Parliament. The committee only drafted a statistical report. A second committee was established thereafter in order to transform the USDP amendment proposals and the 28,000 submissions from the public into a total of 6 amendment bills, which were then voted by the Union Parliament one by one. 5 out of those 6 proposals were voted down, and only one very minor amendment was passed.
A representative rather than a participatory process
Fast forwarding to 2019, the NLD decided not to present amendment proposals, but to establish a 45-member Joint Parliamentary Committee for Constitutional Amendment, which would represent all parties in the Union Parliament, and would come up with amendment proposals to be considered by the Union Parliament; these proposals would then be transformed into an amendment bill also voted by the Union Parliament at a later date. No public deadlines exist for the bill to be drafted.
One can assume that the NLD is aware that amendments will need not only the support of the USDP, but crucially also the support of the armed forces representatives to come into force. The armed forces, and also the USDP, have at least initially been reluctant to engage in the constitutional amendment process, and in fact disagreed with the way the committee had been established on procedural grounds.
The NLD initially focused on having broad representation within the committee, including members of all parties represented in the Union Parliament, also the armed forces. The NLD had also decided that the committee should be smaller in size than the 2013 committee, likely as this would facilitate discussions. Critically, the NLD also decided that rather than immediately opening the process for submissions from the broader public, it would keep the process within parliament, at least at the beginning. Aware of the relative disappointment of the first amendment process, the NLD have possibly tried to manage expectations amongst the public via limiting its initial involvement in the process.
Some possible consequences of process design
The lack of public participation was cause of concern for specific groups, particularly the Ethnic Armed Organizations. These groups have repeatedly voiced their uneasiness about this inner-parliamentary process not being connected to the peace process, but rather working in parallel. There are no formal mechanisms whereby what would be decided as part of the peace negotiations would feed into this particular amendment process.
Perhaps the opposite is also true. Should any amendment(s) be agreed upon by all parties, and if and only if this amendment(s) is structural in nature, it has the potential to positively affect the peace process. Structural (or major) amendments agreed by all parties would necessarily strengthen democratic institutions and processes, as these types of amendments would be the only ones all parties could agree to. Strengthening democratic institutions and processes would in turn, in and of itself, assist any transition towards federalism. For major/structural amendments to be agreed on, it appears that reform-minded parties within parliament will need to find a way to assuage the armed forces and persuade them that reform is also in their interest.
Kimana Zulueta-Fülscher, PhD, is International IDEA’s Head of the MyConstitution Programme, located in Yangon (Myanmar). Previously, Kimana was the Senior Programme Officer in International IDEA’s Constitution-Building Programme, based in The Hague, Netherlands, and coordinator of the task team on conflict sensitivity. Her research and work focuses on comparative constitutional process and design, with a special emphasis on constitution-building processes in fragile and conflict-affected settings. She is also the former head of the Democracy, Conflict and Security unit, where, amongst others, she managed a project on the nexus between organized crime and politics, and developed International IDEA’s institutional policy on mainstreaming conflict sensitivity.
Before working for International IDEA, Kimana was a senior researcher at the German Development Institute / Deutsches Institut für Entwicklungspolitik (DIE) where she worked and published in the area of political transformation in fragile contexts. Earlier she worked for the European Partnership for Democracy in Brussels; she was a post-doctoral fellow at the EUISS, Johns Hopkins University and Harvard University; she was a researcher in the democratization department of the European think tank FRIDE, a political risk analyst for Exclusive Analysis in its Western Europe division, and an international elections observer for both the OSCE/ODIHR in Kazakhstan and Armenia, and the OAS in Mexico.
Kimana has a PhD in Political Science and International Relations from the Universidad Autónoma de Madrid, Spain (2007). She is part of the German civilian expert pool for peace operations since 2011, and part of the United Nations Development Programme Crisis Response Roster on Governance and Constitutions since 2017.