Causes and Process behind the 2008 Constitution

An historical overview of the origins for the 2008 Constitution informs considera­tions of the causes and processes that formed it. Generally, the 2008 Constitution is the product of a military-controlled process begun in the wake of the August 1988 protests, when the military announced in September 1988 the suspension of the previous socialist-oriented 1974 Constitution and the formation of the State Law and Order Restoration Council (SLORC).^[1053] As part of a stated agenda to restore stability, SLORC held a nationwide election in May 1990 hosting 93 polit­ical parties competing for 479 seats in a unicameral Parliament.^[1054] The military sought to influence the election in favour of the military-backed National Unity Party (NUP) by detaining opposition party leaders and prominent political dissi­dents, restricting political gatherings, and pre-publication suppression of political literature.^[1055] Despite such efforts, the election resulted in a defeat for the Tatmadaw: the National League for Democracy (NLD), led by Daw Aung San Suu Kyi, won an overwhelming 392 parliamentary seats.^[1056] The military’s preferred NUP, in contrast, achieved only 10 seats.^[1057]

In the days after the May 1990 election outcome, SLORC declared that it would not return power to civilian government until a new constitution was drafted,^[1058] effectively disconnecting the conduct of civilian elections from the project of constitution-making.

The military’s goals for continued domination behind a veneer of democratic language became apparent in the years after the commencement of the National Convention, with SLORC conducting a campaign to nullify election results, remove elected members of Parliament, and de-register political parties.^[1063] In 1996, SLORC issued a law that made criticism of the National Convention a felony punishable by imprisonment.

When the National Convention reconvened in 2004, it hosted an assembly that had expanded to 1,086 delegates but limited the number of represented politi­cal parties to 28 and hosted only 13 members who had won seats in the 1990 elections.^[1065] The National Convention culminated in 2007 with a statement of rules and principles for a new constitution, after which the SPDC selected members for a State Constitution Drafting Commission.^[1066] The Commission proceeded to operate with alacrity relative to the slow pace of constitution-making in the previous years, working between October 2007 and February 2008 to draft the new 2008 Constitution. Almost immediately afterwards, the SPDC issued a February 2008 Referendum Law to approve the constitution, with an announce­ment on 9 April 2008 that the national referendum would be held on 10 May 2008.^[1067]

The referendum process was criticised by international and domestic observ­ers as being flawed. Critics asserted that voters were given ballots pre-marked with ‘yes’ to approve the constitution, making it impossible to say ‘no’; voters were required to give their identification card numbers on their ballots, denying voters’ privacy; and voting stations divided ballot boxes for ‘yes’ votes separate from ‘no’ votes in full view of station monitors, exposing voters to intimidation.^[1068] In addition, critics also observed that the 2008 Referendum Law threatened impris­onment for anyone opposing the referendum, and further charged the SPDC with deploying pro-military vigilante groups to force people to vote for the 2008 Constitution.^[1069] Further, opponents argued that the timing for the referendum provided insufficient time for public discussion, with the period between the 9 April announcement and 10 May vote constituting a period of only five weeks.^[1070] Moreover, opponents noted an access problem, in that copies of the constitu­tion text were only made available to the public starting 9 April, and only via sale through Yangon bookstores in the Burmese language, creating hurdles for indigent people, the larger populace outside of Yangon, and ethnic minori­ties whose primary languages were not Burmese.^[1071] Compounding the issues was the impact of Cyclone Nargis, which crossed over Myanmar 2-3 May and caused a natural disaster with estimates of 140,000 casualties; 450,000 destroyed homes; damage to 75 per cent of health facilities; and economic losses equal to 21 per cent Myanmar's national gross domestic product.^[1072] The scale of harm from Nargis raised questions as to the capacities for popular voting, especially with the SPDC claiming that voter turnout exceeded 93 per cent of the national population.^[1073] Despite the criticism of the referendum, the SPDC announced on 29 May 2008 that the 2008 Constitution had been ratified with more than 92 per cent ‘yes' votes.^[1074]

In reviewing the above history, a number of themes become apparent regard­ing the causes and process associated with the 2008 Constitution. To begin, with respect to causes, the origins of the constitution-making process involved a mixture of inter-related motivations within the military: abandonment of a socialist era defined by a preceding 1974 Constitution, restoration of order amidst the tumult of the 1988 popular uprising against the military, and the achieve­ment of both aforementioned goals while maintaining military control over Myanmar's political system.

Such a direction raises deeper questions over rationale, in that SLORC could have addressed the trio of motivations with a transition entirely void of democratic signals, substituting socialism with outright military rule through force sufficient to impose order. In effect, SLORC could have created a system that would have protected that military power without the need for democratic principles like elections, legislatures, or civilian government. A potential explanation is offered by the work of Jonathan Chow, Leif-Eric Easley, and David Williams, who find that while Myanmar's military leaders did seek to solidify their power, they also sought to diversify their international relations beyond a problematic relation­ship with China, and that prospects to expand relations with a larger international community - particularly those in the West - required greater expression of language regarding democracy.^[1075] As a result, as much as the abandonment of a socialist era and the unrest of a popular uprising may have instigated SLORC, it was an attendant desire to seek legitimacy with a broader international commu­nity that moved SLORC towards a course of action exhibiting a theme of military rule shrouded beneath a veneer of democratic language.

With respect to process, the theme of military domination is also apparent. The constitution-making process involved the elimination of political resistance, exclusion of dissenting voices, restrictions on debate, and control over the draft­ing and ratification of the 2008 Constitution’s text. In doing so, SLORC sought to elevate pro-military constituents, including military officers, retired military lead­ers, and crony business partners; marginalise its political opponents, particularly the NLD and Daw Aung San Suu Kyi; and deny transparency and participation for the larger public. The insistence of SLORC to continue its constitution-making process through extended years of international and domestic criticism point to the military’s commitment to advance its interests without regard to the perspec­tives of others. The process that formed the 2008 Constitution, in effect, was an instrumental exercise by SLORC, and subsequently SPDC, to achieve the military goal noted above - a political system that enabled broader international legitimacy while preserving military control.

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