2008 Constitution: A Tool for Continuing Military Control of the Country
By Aman Ullah
On 4 January 1948, the Union of Burma achieved independence. The people of Burma ceased the subjects of the British and became independent citizens of the independent country.
A constitution for this new sovereign independent republic was adopted on 24 September 1947 by a constituent assembly, which was drafted around the same time as the Universal Declaration for Human Rights.
The 1947 constitution provided safeguards for fundamental rights. Under this constitution, the people of Burma irrespective of “birth, religion, sex or race” equally enjoyed all the citizenships rights including the right to express, right to assemble, right to associations and unions, settle in any part of the Union, to acquire property and to follow any occupation, trade, business or profession”. Their homes were secure, their roads were safe, their properties were protected and their justices never denied at the court.
The country entertained a competitive political party system and a free press. The Supreme Court was made the guardian of human rights and was given the power to preserve them through issuing directions in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. No one is master or subject, all are citizens. For fourteen years civil society was allowed to flourish.
However, on 2 March 1962, General Ne Win, the Commander-in-Chief of the Burma Army, with sixteen other senior military officers, staged a coup d’état, arrested the then Prime Minister U Nu, the then President Sao Shwe Thaik, and several others, and declared a socialist state to be run by their Union Revolutionary Council (RC).
Ne Win justified the seizer of power on three grounds: the fear that U Nu would permit the secession of the Shan State; the worsening economic conditions; and failure of the constitutional government to transform the promise of socialism into a reality.
General Ne Win suspended the 1947 constitution and its federal system, dissolved the bicameral parliament with its state and federal representatives, established a centralized command structure, and essentially ruled via personal decree. Under the RC, General Ne Win headed the cabinet and concurrently held “supreme legislative, executive, and judicial authority.” Sixteen other high-ranking officers took over the various ministries. The RC formed five State Supreme Councils, with central military figures in each. These councils replaced the state governments, which, under the preceding civilian governments, had enjoyed some limited autonomy.
Following a referendum on a new constitution at the end of 1973, the government proclaimed it and it was adopted on January 3, 1974. The 1974 Constitution failed to afford the independent judiciary. Although there was a chapter dealing with fundamental freedoms, these freedoms were heavily qualified and contingent upon fundamental duties. Human rights have neither been institutionalized nor protected.
For 50 years, the iron fist did indeed have a strong and direct grip on civil society. The military was in command, either directly or through its surrogate institution, the Burma Socialist Programme Party. The private sector and civil society were under the pervasive ideological and personal control of one dictator — Senior General Ne Win, who also concurrently served as president and BSPP chairman.
On 18 September 1988, the military staged a coup for the third time in Burma’s modern history. It formed the State Law and Order Restoration Council (SLORC), which was renamed the State Peace and Development Council (SPDC) in November 1997. Immediately following the coup, all “organs of state power,” as defined by the 1974 constitution, including the Pyithu Hluttaw, the Council of State, the Council of Ministers, and the People’s Councils at sub-national levels were abolished. There was no longer a constitution or a parliament.
The SPDC, has decided to hold elections in 2010 to choose a civilian government under the 2008 constitution, which was adopted by force and fraud. The Constitution guarantees the power of the Tatmadaw in its section on “Basic Principles”—a clear sign that the framers thought the role of the Defence Services to be fundamental.
The 2008 Constitution, the country’s third and current constitution, was published in September 2008 after a referendum.
The Tatmadaw (Myanmar Armed Forces) retain significant control of the government under the 2008 constitution. 25% of seats in the Parliament of Myanmar are reserved for serving military officers. The ministries of home, border affairs and defence have to be headed by a serving military officer. The military also appoints one of the country’s two vice presidents. Hence, the country’s civilian leaders have little influence over the security establishment.
On 9 April 2008, the military government of Myanmar (Burma) released its proposed constitution for the country to be put to a vote in a public referendum on 10 May 2008, as part of its roadmap to democracy. The government did not allow Cyclone Nargis to delay the referendum which took place as scheduled except in the delta areas affected by the cyclone. The constitution is hailed by the military as heralding a return to democracy, but the opposition sees it as a tool for continuing military control of the country.
The legislative branch is the Assembly of the Union Pyidaungsu Hluttaw, which is a bicameral legislature consisting of the 440-seat House of Representatives and the 224-seat House of Nationalities. Military (Tatmadaw) member delegates are reserved a maximum of 56 of 224 seats in the National Assembly and 110 seats of 440 in the People’s Assembly. This is similar to the former Indonesian and Thai constitution.
Moreover, the constitution further provides to the military as follow:
- Article 20(b) provides that the military will run its own show without being answerable to anyone: “The Defence Services has [sic] the right to independently administer and adjudicate all affairs of the armed forces.” The constitution defines the “affairs of the armed forces” so broadly as to encompass anything that the Tatmadaw might want to do.
- Article 6(f) provides that among the “Union’s consistent objectives” is “enabling the Defence Services to participate in the National political leadership role of the State.”
- Article 20(e) assigns the Tatmadaw primary responsibility for “safeguarding the non-disintegration of the Union, the non-disintegration of National solidarity and the perpetuation of sovereignty.
- Article 20(f) assigns the Tatmadaw primary responsibility “for safeguarding the Constitution.”
- Article 46 gives the Constitutional Tribunal power to declare legislative and executive actions unconstitutional, but it conspicuously omits the power to declare military actions unconstitutional.
- Article 232(b) (ii), the Commander-in-Chief will appoint the Ministers for Defence, Home Affairs, and Border Affairs. The military’s control over home affairs is especially ominous because it gives the Defence Services broad power over the lives of ordinary citizens in their daily lives. The military’s control over Home Affairs (as well as Defence and Border Affairs) will constitute a military fiefdom, not part of the civilian government in any meaningful sense. The Commander-in-Chief will have power to name the ministers without interference from any civilian official. The President may not reject the Commander-in Chief’s names; he must submit the list to the legislature.
- Article 232(c), the legislature may reject those names only if they do not meet the formal qualifications for being a minister, such as age and residence.
- Article 232(d), the legislature could impeach those ministers under Article 233, but the Commander-in-Chief would merely re-appoint a new minister acceptable to him.
- Article 232 (j) (ii) these ministers will continue to serve in the military, so they will be under orders from the Commander-in-Chief, not from the President.
- Article 20(b), the Tatmadaw has the “right to independently administer and adjudicate all affairs of the armed forces.”
- Article 20 provides: “The Defence Services has the right to administer for participation of the entire people in Union security and defence.” In other words, the military may forcibly enlist the whole citizenry into a militia so as to maintain internal “security.” And, again, the civilian government has no control over the military’s operations. After the elections, Burma will be a military dictatorship just as much as now.
- Article 436 changes to the charter require the approval of more than 75 percent of lawmakers in Parliament. As 25 percent of lawmakers are appointed by the military, it is impossible to make any changes without the military’s approval.
In short, during normal times, the Tatmadaw has constitutional power to do anything it wants without interference from the civilian government. But if it ever tires of the civilian government, it can declare a state of emergency and send everyone else home. On this subject, the constitution uses a bait and switch approach: in one section, it creates a process for declaring a state of emergency in which the civilian government will have a role; but in another section, it specifies that the military may re-take power entirely on its own initiative. Thus, in Chapter XI, the constitution provides for the declaration of a state of emergency in which the military would assume all powers of government as per Article 419, but it would require presidential agreement before the fact as per Article 417, as well as legislative ratification afterwards, under Article 421. But in Chapter I on Basic Principles, Article 40(c) provides for a very different, alternative process in which the Commander-in-Chief can act at his own discretion: “If there arises a state of emergency that could cause disintegration of the Union, disintegration of national solidarity and loss of sovereign power or attempts therefore by wrongful forcible means such as insurgency or violence, the Commander-in-Chief of the Defence Services has the right to take over and exercise State sovereign power in accord with the provisions of this Constitution.”
In other words, the Tatmadaw can seize control just as it did in 1962, and this time it will be legal. The whole constitution is based on a “wait and see” strategy: if the civilian government does what the Tatmadaw wants, then it will be allowed to rule; if not, then not.