Burma’s 2008 Constitution: A Critical Analysis1
Introduction
The constitution is the supreme law of the land that grants rights to the people while
prescribing and limiting the power of the government. It gives the government legitimacy and
separates the power of governmental bodies. According to the UN Declaration of Human Rights
Article 21, the will of people shall be the basis of the government. Thus, the constitution, which
gives legitimacy to a government, should be based on the will of people.
When looking at the 2008 Burma constitution, we can see that it is totally different from the
will of civilians; its main fault is that it grants the military legitimacy. In addition, it cannot solve
the long-running ethnic armed conflicts, and it does not fulfill the will of ethnic minorities.
Therefore, we have to change the current constitution if we want our country to be peaceful,
democratic, and to have equal rights for different ethnicities. If we study the current
constitution, it will become clearer why it is unsatisfactory.
When studying the constitution, we must analyze the drafting process and the content, which
describes the laws. We can then determine whether the constitution is fair and good or not.
Concerning the 2008 Burma constitution, I will first describe the constitution-making process.
History of Burma’s 2008 constitution
When drafting the constitution, there should be transparency, and the individuals involved in
this process should be the representatives of the people. People should be included from
political parties, non-government groups (civil society organizations) and international observer
groups. The constitution is not only for the government but also for the civilians because it is
the “deal” between the government and civilians. During this process, there should not be any
suppression of any groups or individuals if we want a good and fair constitution. Finally, there
should be a referendum.
During the drafting of the 2008 constitution, armed ethnic groups were invited to discussions
under the regime’s control, and some strong ethnic groups (such as the Karen National Union
and the Kareni National Progressive Party) did not accept the ceasefire agreement. Most armed
groups joined the military junta at that time, but only because of their weak conditions. After
the 2008 referendum and 2010 election, the ceasefire agreement between the Kachin
1
The views expressed in this paper are those of the author and do not necessarily represent the views of
Educational Initiatives.
Independence Organization and the government broke-down, and we can say that the
unacceptable constitution was a contributing factor to this instability. All of the main members
of the National League of Democracy party, which is the main opposition party, were under
arrest. Some ethnic representatives, who had won in the 1990 election, had fled abroad
because their security was threatened, and some were under arrest. No civilian representatives
were involved. It was clear that the constitution drafting process was designed and managed by
the military regime.
After drafting this constitution, the regime called for a referendum while the country was
suffering from the effects of Cyclone Nargis. In ethnic areas especially, people did not receive
enough information about the referendum because of very weak civil based organizations and
repressive media laws. Furthermore, during ratification in the referendum, votes were widely
manipulated.
Because of the facts mentioned above, we can see that the 2008 constitution making process
was not free, fair and inclusive and it was also governed by the will of regime, not the will of the
people.
The problematic laws of the 2008 Burma constitution
The constitution will be continue to be controversial and problematic due to the lack of
involvement of representatives of all levels of society, representatives of different ethnicities,
and representative of different regions during the constitution drafting process. As mentioned,
the 2008 Burma constitution was designed only by the previous military junta and is full of
problematic laws.
Fundamental rights
The constitution of every country describes the fundamental rights and duties of the citizens.
Depending on it, we can decide how the government treats its citizens, and how the laws
guarantee the rights of citizens.
Concerning the right to citizenship, there is a problem in the 2008 Burma constitution. It says
that in Chapter (8) Section.354(a) Person born of parents both of whom are nationals of the
Republic of the Union of Myanmar. This raises questions such as, “what about the child of a
Burmese citizen and a non-Burmese citizen?” and “what about people who have been living in
Burma since the colonial era?” In the age of globalization, this law is out of date and we can see
the kinds of problems it causes in the recent events in Arakan State.
Regarding freedom of media and expression, the right to assemble and the right to association,
the constitution mentions in Chapter (8) Section. 354 (a),(b) and (c) adding ‘not contrary to the
laws’, but without abolishing the suppressive laws of the previous regime. Therefore, any group
who wants to assemble or found an association has to register under repressive laws, and the
process is very long. The result is that most organizations do not want to register and they can
be arrested at any time.
Chapter(8) Section. 354 –Every citizen shall be at liberty in the exercise of the following rights,
if not contrary to the laws, enacted for Union security, prevalence of law and order,
community peace and tranquility or public order and morality:
a. To express and publish freely their convictions and opinions;
b. To assemble peacefully without arms and holding procession;
c. To form associations and organizations
Additionally, one big problem for citizens’ security is in Chapter (1) Section- 20 (b) The Defence
Services has the right to independently administer and adjudicate all affairs of armed forces
and (d)The Defence Service has the right to administer for participation of the entire people
in Union Security and Defence. This means that the military has full power to judge and to
detain all citizens without respecting individual rights.
The lack of property rights causes significant problems for the people of Burma. According to
Chapter (1) Section.37 (a) The Union is the ultimate owner of all lands and all natural
resources above and below the ground, above and beneath the water and in the atmosphere
in the Union. And now, the problem is that ‘land confiscation’ is happening nationwide.
Because of these problematic laws, the lives of Burma citizens are not safe and the constitution
says nothing about the rights of indigenous people, minorities, children and disabled.
Executive
The military is still in the strongest position because they are independent, they are still the
main rulers of the country, according to Chapter (1) Section 20 (b), (e) and (f). These sections
are also totally different from Section (4)The Sovereignty power of the Union is derived from
the citizens and is in force in the entire country and Section 6 (d)Flourishing of a genuine,
disciplined multi-party democratic systems . The constitution states that:
Chapter (1)Article 20
(b) The Defence Services has the right to independently administer and adjuicate all
affairs of armed forces.
(e) The Defence Services is mainly responsible for safeguarding the non-disintegration
of the Union, the non-disintegration of National solidarity and the perpetuation of
sovereignty.
(f) The Defence Services is mainly responsible for safeguarding the constitution.
This means that neither civilians’ representatives nor the president can be involved in the
decision-making affairs of the armed forces. The most dangerous aspect of this law is that the
military can stage a coup at any time with the justification that it is preventing the
disintegration of the union, the disintegration of national solidarity and the breaking of the
perpetuation of sovereignty. It also means that the president and all parliament members lack
the power of the military.
Furthermore, the constitution ensures that only the president can appoint the Commander-inChief of the Defence Services with the proposal and approval of the National Defence and
Security Council (Chapter (7) Section -342). Additionally, in Chapter (5) Section-201, five of the
eleven positions in the National Defence and Security Council are filled by representatives of
the military.
Section-232(b) (1) In order to appoint the Union Ministers, the President shall obtain a list of
suitable Defence Services personnel nominated by the Commander-in-Chief of the Defence
Services for Ministries of Defence, Home Affairs and Border Affairs. In formation of the
National Defence and Security Council, it includes a vice- president, Commander-in-Chief of
the Defence Services, Deputy commander-in-chief of the Defence Services, Minister for
Defence, Minister for Home Affairs and minister for Border Affairs. This means that the
military always has five officials in the decision making positions concerning national security.
Parliament or Legislation
The military is strong not only in the executive bodies but also in the legislative bodies. The
military is allowed to be involved in all legislative bodies without having been elected: the
Pyithu Hluttaw, the Amyotha Hluttaw, the state Hluttaw and the regional Hluttaw. According to
Section 74 (a) and (b), 25 percent of the Parliament is composed of military representatives.
Article74(a)The Pyidaungsu Hluttaw comprises the folloing two Hluttaws:
(a)In accord with the provisions of Section 109, the Pyithu Hluttaw formed with
Hluttaw representatives elected on the basis of township as well as popolation and
Hluttaw representatives being the Defence Services Personnel nominated by the
Commander-in-Chief of the Defence Services.
(b)in accord with the provisions of Secdtion 141, the Amyotha Hluttaw formed with
Hluttaw representatives elected in equal numbers from Regions and States and
hluttaw representatives being the Defence Services Personnel nominated by the
Commander_in_ Chief of the Defence Services.
Article109. The Yithu Hluttaw shall be formed with a maximum of 440 Hluttaw
representatives as follows;
Article109. The Yithu Hluttaw shall be formed with a maximum of 440 Hluttaw
representatives as follows;
(b) Not more than 110 Pyithu Hluttaw representatives who are the Defence Services
personner nominated by the Commander-in-Chief of the Defence Services in accord
withthe law.
The Amyotha Hluttaw shall be formed with a maximum of 224 Hluttaw
representatives as follows;
(b)56 Amyotha Hluttaw representatives who are the Defence Services personnel
nominated by the Commander-in-chief of the Defence Services in accord with law, four
representatives from each Region or State inclusive of relevant Union territories.
At the state level;
o Article 14.The Pyidaungsu Hluttaw,The region Hluttaw and the state Hluttaws
include the Defence Services personnel as Hluttaw representatives nominated by
the Commander-in-Chief of the Defence Services in numbers stipulated by this
Constitution.
As the constitution was drafted under the suppressive regime, there are also some indirect
sections that oppress opposition parties. In Chapter(10) Section 404, A political party shall:
“(a) set the objective of non-disintegration of the Union, non-disintegration of national
solidarity and perpetuation of sovereignty” and “(b) be loyal to the State.” This indirectly
means that political parties can be accused of being disloyal if they question the state.
Additionally, without abolishing suppressive laws, the constitution again oppresses opposition
parties under Section (407). If a political party infringes one of the following stipulations, it shall
have no right of continued existence:
(a) having been declared an unlawful association under the existing law;
(b) directly or indirectly contacting or abetting the insurgent group launching armed
rebellion against the Union or the associations and persons determined by the Union
to have committed terrorist acts or the association declared to be an unlawful
association;
(c) directly or indirectly receiving and expending financial, material and other
assistance from a foreign government, a religious association, other association or a
person from a foreign country;
The National League for Democracy can be dissolved at any time because it has met with many
ethnic insurgent groups. Even though they have met with these groups for peaceful purposes,
they can be accused of disloyalty to the state.
Judiciary
The involvement of legislative bodies is weak regarding the formation of the National Defense
and Security Council. Section 301 states that only the president can nominates candidates, and
the legislature cannot refuse the person nominated unless they can clearly prove that he or she
is not qualified for the post.
According to the 2008 constitution, the judiciary is weak because there is an untouchable group
protected by the constitution. There is a section giving special protection to the previous
regime, and the military is given some special power. There should be a process of transitional
justice if the government wants genuine change and stability in the country. In section 420-The
Commander-in-Chief of the Defence Services may, during the duration of the declaration of a
state of emergency, restrict or suspend as required, one or ore fundamental rights of the
citizens in the required area. This law can be problematic if there is no respect of rights to life
or anti-torture rights. The decision should not be made only by the Commander-in-Chief in this
case.
The Immunity Clause grants amnesty to any previous officials who have committed any crime,
as long as the crime was committed as a result of their official duties. The military general who
committed war crimes, the chief of intelligence who arrested and tortured political dissidents,
the army commander who used forced labor for construction projects; all of them would be
shielded from any Burmese criminal or civil proceeding under the Immunity Clause. According
to Section 445: All policy guidelines, laws, rules, regulations, notifications and declarations of
the State Law and Order Restoration Council and the State Peace and Development Council or
actions, rights and responsibilities of the State Law ad Order Restoration Council and the
State Peace and Development Council shall devolve n the Republic of the Union of Myanmar.
No proceeding shall be instituted against the said Councils or any Member thereof or any
member of the Government, in respect of any act done in the execution of their respective
duties.
Power of the military
Many people may think that Burma has changed, but it becomes clear that the military is still
engaged in the political field and remains in power if one studies the 2008 constitution.
According to Section 74 (a) and (b), the military is directly involved in the parliament. The
military has the right to independently administer and adjudicate all affairs of the armed forces
and to administer for participation of the entire people in Union Security and Defence. The
main problem is that they are still mainly responsible for the country in accordance with the
provisions in the constitution. They can still take the country by staging a coup. Additionally, the
military will always have at least six seats in the powerful eleven-member National Defense and
Security Council.
As mentioned, the military still remains in power. Because the previous regime realized that the
citizens would not like too much involvement of the military in government bodies, they have
designed the system for amendment of the constitution rigidly.
Amendment
Accord with Section 436, the constitution can be amended only with the prior approval of more
than seventy-five percent of the representatives of the Pyidaungsu Hluttaw and a nation-wide
referendum with the votes of more than half of those who are eligible to vote. It means that
amending the constitution is almost impossible because 25 percent of the military is already
involved in the Pyidaunu Hluttaw.
Creating a better constitution
A constitution should represent all citizens. Rich or poor, black or white, Christian or Buddhist, it
does not matter, everyone should have the same rights under the laws of constitution. So, to
cover all people, the constitution should be based on the history of the country.
Burma is an ethnically rich country. Historically, agreements between ethnic minorities and the
Burmese government have been based on ‘federalism.’ According to Article-10 of the 1947
constitution of Burma, the regions, which signed the Panglong agreement, had a right to
separate from Central Burma if they were not satisfied after ten years of federation. But in
1962, the country and the government fell under control of the military, led by General Nay
Win. Many representatives of ethnic minorities were then arrested, and many ethnic armed
groups appeared nationwide to fight for their rights.
Under the military regime, there have been widespread human rights violations not only in
frontier areas but also in urban areas. All civilian property was nationalized and Burma became
one of the world’s most impoverished countries under the Burma Socialist Programme Party.
There were intermittent protests against the military rule; in 1964, 1974, 1975, 1976 and 1977,
but they were all quickly and violently suppressed with overwhelm force. In 1988, protests led
by Yangon students started again and spread throughout the country. This uprising also ended
with the bloody military coup by the State Law and Order Restoration Councils (SLORC).
During the crisis, Daw Aung San Su Kyi emerged as a national icon, and the military junta
arranged the election of 1990. The National League for Democracy party won 53% of the vote
and won 392 out of 492 contested seats in the parliament, but, the military again suppressed
everything that could have developed from these democratic achievements. Some
representatives had to flee the country to avoid arrest, and Daw Aung San Su Kyi and the
leaders of the NLD were arrested or forced into exile.
After 1990, the military juntas have tried to discuss national reconciliation with ethnic armed
groups according to their 7-point road map. Many signed the cease-fire with General Khin
Nyunt such as: the Kachin Defence Army in 1991, the Shan States Nationalities People’s
Liberation Party Organization in 1994, and the New Mon State Party and Democratic Karen
Buddist Army in 1995. Under the military junta, there were many cease-fire agreements with
different ethnic armed groups. But there were also failed agreements with some strong armed
groups, such as the Karen National Union and the Karenni National Progressive Party, that were
not resolved until the end of 2011.
The main problem is that the military has tried to influence the political field of Burma. They
want to govern the country with their repressive laws and they do not want to discuss
federalism. So, the country has been unstable, and poverty and human rights violations have
increased.
In 2008, another referendum was held in the wake of Cyclone Nargis. Consequently, the 2010
election was unfair because of the problematic laws in the 2008 constitution.
According to history, this constitution is unacceptable for Burma and it should instead be based
on:
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Fundamental rights
Indigenous and ethnic minorities’ rights
The parliament with representatives chosen from people
Reducing the military’s role in politics
Federalism
How other countries have changed their constitutions
As mentioned, the current constitution does not fulfill the fundamental needs of the citizens, it
does not grant ethnic minorities sufficient rights, and it is not based on history. The solution is
to change constitution, but it is almost impossible for Parliament alone to do this.
Looking at the rest of the world, constitutions granting adequate rights to citizens have very
rarely appeared under authoritarian regimes. The citizens of the Philippines lived under the
authoritarian regime of Markos, who drafted a 1973 constitution without representatives of the
people. This constitution was unacceptable for the country, and it was removed by the People
Power Revolution in 1986. There was not a strong opposition party, and the change was not led
by any politician, but the will of people changed not only the constitution but also the regime.
South Africa was also under such a kind of authoritarian regime, which was based on
discrimination. The regime had ruled the country since 1947 with the laws of apartheid, which
discriminated against black people. But, it was ended by the will of people in 1991. One thing
we can learn from South Africa is the plan made during their transition period to draft the
constitution. They encouraged people to participate during the process with three special
plans: a community liaison program, a media campaign and an invitation for written submission
from the people.
How the 2008 constitution can be changed
As with other countries, the 2008 Burma constitution is not unchangeable. At the present,
constitutional change means governmental change. People are tired of living under military
control, and there have been many demonstrations. Many ethnic armed groups and civil-based
organizations (activists’ groups) exist despite the suppressive military regime.
However, peoples’ movements have failed because of lack of communication, lack of unity and
weakness of beliefs. Normal citizens lack knowledge about democracy and human rights. They
do not have a chance to study under the oppressive military regime and they do not know their
fundamental rights. Thus, they do not know what to ask from the government.
Therefore, political parties and civil-based organization have the responsibility of educating the
public if they really want Burma to be democratic. As civil-based organizations, they should
educate people and advocate about human rights, electoral issues, democracy and the
constitution. They should also try to strengthen their organizations by collecting strong activists
from their communities and training them well. They may also have to communicate with each
other broadly to be ready for nation-wide movement. In the 2015 election, both civil-based
organizations and democratic opposition parties should try to win the election as much as they
can, to make parliament’s discussion more democratic.
Consequently, all democratic parties, such as the National League for Democracy and ethnic
parties, should start to cooperate and discuss plans for the future. Neither democratic parties
nor ethnic parties like the 2008 constitution. At present, some of their members are in
parliament, and they should try to abolish the repressive laws of Burma and establish a
dialogue with the military representatives to let them know the real situation in Burma and the
demands of its citizens. They should then be ready for the 2015 election.
Ethnic armed groups should remain committed to their goal of federalism. But during this
ceasefire agreement process, they should maintain their strength. They should also
communicate with political parties, civil-based organizations and citizens to know what people
want them to be. It is also important for all groups to be in touch with the media.
In 2015, the cooperation of civil-based organizations, ethnic parties and democratic parties will
be vital in winning the election. At that time, all different groups should be sufficiently strong
and ready to pressure the government.
Starting from 2016, networks of all civil-based organizations should lead a campaign for
constitutional change, the representatives of the citizens should pressure parliament fearlessly,
and the ethnic armed groups should demand their rights at the same time. However, all will
have to consider the differences between non-violent actions and armed revolution.
The strategy is difficult, but simple and effective. There will be torture under the suppressive
laws, but there is no paradise without sacrifice.
In conclusion, as mentioned, the change of the constitution is the change of the government
system, so all civil-based organizations, democratic parties and ethnic armed groups should
prepare now to be ready for the movement after the 2015 election. The people of Burma also
should think about “living in the future without hope,” or “fighting for hope.”