ABSTRACT
Introduction Non-democratic regimes often – but not always – seek to institutionalize their political domination and immunity through the enactment of a specifically designed constitutional document (Ginsburg and Simpser 2014). Military regimes, in particular, can use constitutional texts to strengthen the foundations of the political intervention of the armed forces (Feit 1972; Finer 1975; Stepan 1988). Likewise, when military juntas ultimately set in motion a transition from direct military rule to a civilian one, the armed forces are often tempted to control the constitution-drafting process and secure key legal prerogatives for the military institution under a new hybrid “post-junta” regime (Barros 2002, Croissant and Kamerling 2013; Chambers 2014; Negretto 2014). Myanmar2 offers a case of a dominant military institution using a constitutional drafting process and a new supreme law for its own corporate interests. Indeed, the constitution adopted in 2008 confers high levels of policy prerogatives upon the Burmese armed forces – or Tatmadaw – and embeds “praetorianism”3 in Myanmar’s polity in a way that the country’s two previous post-independence constitutions had not. Since it won its freedom from the British in 1948, Myanmar has produced three constitutions. The first postcolonial constitutional text was adopted in 1947, but its provisions were suspended after the coup d’état staged by General Ne Win in March 1962. A second constitution drafted by Ne Win’s military administration was passed in 1974, but was abrogated in September 1988 following a further coup d’état orchestrated by the Tatmadaw leadership. The third and latest constitutional document was promulgated in 2008 after a controversial drafting process that lasted 15 years. All three constitutional texts which Myanmar adopted in 1947, 1974, and 2008 were quite different in content and spirit. They were framed in different political contexts and under the supervision of different leaderships with divergent political agendas. Above all, they made very different references (if at all) to the role of the Tatmadaw as a major state institution and potential policy-maker. The texts adopted in 1947 and 1974 indeed aimed to neither entrench military rule nor institutionalize the political intervention of the armed forces. This chapter seeks to understand how and why the Tatmadaw has chosen to formulate its own constitutional vision in the early 1990s and thereafter establish
a legal political system, which I define as “constitutional praetorianism.” Drawing on the extant literature on postcolonial Myanmar politics, this chapter first provides a comparative overview of the first two postcolonial constitutions of the country and examines why both documents bestowed a marginal role upon the Burmese military. The study then focuses on the country’s third constitution, which was adopted following a controversial referendum in 2008. It argues that the constitutional text embeds and institutionalizes praetorianism. As the literature on civil-military relations demonstrates, there are different levels of political intervention by the armed forces: they range from direct military rule to hybrid systems led by civilians, but in which the armed forces remain a powerful lobby (Egreteau and Jagan 2013; Bünte 2014). Building on this scholarship as well as on a series of interviews with Burmese parliamentarians and party leaders carried out in both Yangon and Naypyitaw (2013-2014), this chapter argues that the 2008 constitution serves three clear purposes for the Burmese armed forces. First, it manifests the Tatmadaw’s view of itself as a legitimate political and policy-making state actor following 60 years of regular and pervasive intrusion into Burmese postcolonial politics and public affairs. Second, it provides the military with legal instruments for a long-term policy intervention and influence. Third, it offers the armed forces and their personnel a form of self-insurance protecting soldiers from any form of prosecution and securing a much sought-after immunity for the leaders of the 1988 coup d’état. As long as this unhealthy policy influence of the army institution prevails, constitutionalism will not emerge in Myanmar. A thorough revision of the 2008 constitution remains highly unlikely. Despite the formation of a joint parliamentary committee tasked specifically to propose potential amendments, the first-ever attempt at reviewing the constitutional text was vetoed by the militaryappointed representatives in June 2015. Given the country’s historical and political legacies of military intervention, ethnic separatist insurgency, and political instability, I conclude this chapter with the bleak prospects for swift constitutional reform unless the Tatmadaw decides otherwise.
