Implementation Issues for the 2008 Constitution

The nature of Myanmar's 2008 Constitution suggests a political system wherein democratic processes, such as popular elections and parliamentary legislation, occur within a space determined by military oversight.

A. Intersectional Status of Environment in Myanmar Politics

As a political issue in Myanmar, the environment holds an intersectional position vis-a-vis the ongoing tensions between the military-controlled state and the coun­try's ethnic minorities. The struggles between the state and ethnic groups have persisted with varying degrees of intensity since Myanmar's independence in 1948, fomenting a continual state of conflict between the military and various ethnic armed organisations (EAOs).^[1092] There is, however, a geographic component to the conflicts that mark their connection to natural resources. To begin, Myanmar's diverse minorities largely reside in rural areas lying towards the country's borders, particularly in upland territories that under British colonial rule main­tained forms of culturally distinct governance patterns with traditional rulers.^[1093] Post-independence many of them sought differing degrees of sovereignty, with aspirations that have continued to manifest themselves in the current efforts of EAOs to operate quasi-state systems in those areas.^[1094] The distribution of minority peoples coincides with the distribution of natural resources, which also lie predom­inately within Myanmar's frontiers.

The conjunction of natural resources and the lands of minority peoples poses inter-related points of contestation regarding economic and political control. With respect to economics, Myanmar's natural resources are a major source of foreign export revenues, with major examples being minerals mining, which compose an estimated 50 per cent of government income; oil and natural gas industries, which constitute approximately 40 per cent; and timber, which contributes more than two per cent.^[1097] The significance of such revenue streams makes them the focus of multiple forces that include a Myanmar state seeking to accumulate and centralise control to build state income; military elites and their cronies intent on accumulating land to amass natural resource wealth; EAOs trying to seize the same lands to expand their own enterprises; and local communities struggling to maintain their livelihoods.⁵⁷ With respect to politics, the scale of natural resources revenues makes them an instrument in a zero-sum competition for political domi­nation, in that whoever gains control over a natural resource secures its revenues at the expense of other actors. Specifically, in Myanmar's armed conflicts, natu­ral resources wealth enables weapons acquisitions,⁵⁸ so that any party that seizes land benefits from 1) increasing potential natural resource revenues that can fuel their own weapons purchases, while simultaneously 2) denying opponents natural resources revenues that can build their respective combat capacities.

In addition, the location of natural resources also serves as a point of cultural struggle. Land acquisitions in remote areas by the state, military elites, or cronies entails dispossession of territories from minority peoples.⁵⁹ The consequences of dispossession are a loss of livelihoods and subsistence for local communities dependent on the ecosystem services for food, water, housing, and trade provided by their surrounding environments. Further, it entails a suppression of cultural practices associated with traditional lands, including customary forms of land tenure, and a corresponding weakening of cultural identity.⁶⁰ As a result, conflicts for land also involve conflicts for culture.

camp aigns/oil-gas -and-mining/myanmarjade; Kevin Woods, ‘Commercial Agriculture Expansion in Myanmar: Links to Deforestation, Conversion Timber, & Land Conflicts' (Forest Trends, 12 March 2015), available at www.forest-trends.org/publications/commercial-agriculture-expansion- in-myanmar-links-to-deforestation-conversion-timber-and-land-conflicts/; Buchanan et al (n 54).

⁵⁷Yukari Sekine, ‘Emerging “Agragarian Climate Justice” Struggles in Myanmar' (2021) Journal of Peasant Studies 48, 517; Saturnino Borras Jr, Jennifer Franco and Zau Nam' Climate Change & Land: Insights from Myanmar' (2020) World Development 129, 1; Diana Suhardiman, ‘The Contested Terrain of Land Governance Reform in Myanmar' (2019) Critical Asian Studies 51, 368; South (n 52); Graham Prescott et al, Political Transition & Emergent Forest-Conservation Issues in Myanmar' (Conservation Biology, 2017) 1, available at https://conbio.onlinelibrary.wiley.com/doi/full/10.1111/cobi.13021; Einzenberger (n 54); Stefan Bachtold, ‘The Rise of An Anti-Politics Machinery: Peace, Civil Society, & the Focus on Results in Myanmar' (2015) Third World Quarterly 36, 1968; Kramer (n 55); Ferguson (n 52); Myo Ko Ko, ‘Current Situation of Indigenous Peoples & Natural Resources in Myanmar' (blog entry, 21 July 2014), available at https://iep.berkeley.edu/node/9715; Buchanan et al (n 54); Callahan (n 52).

⁵⁸ Lizzette Marrero, ‘Feeding the Beast: The Role of Myanmar's Illicit Economies in Continued State Instability' (2021) International Affairs Review, available at www.iar-gwu.org/print-archive/3jbhl8ch7 1kydhndufw0nnmnqngroq; International Crisis Group, ‘Fire & Ice: Conflict & Drugs in Myanmar's Shan State' (International Crisis Group, 8 January 2019), available at www.crisisgroup.org/asia/south- east-asia/myanmar/299-fire-and-ice-conflict-and-drugs-myanmars-shan-state; United Nations Office of Drugs & Crime, Transnational Organized Crime in Southeast Asia: Evolution, Growth, & Impact (United Nations Office of Drugs & Crime, 2019), available at www.unodc.org/documents/southeasta- siaandpacific/Publications/2019/SEA_TOCTA_2019_web.pdf.

⁵⁹ Sekine (n 57); Suhardiman (n 57); Einzenberger (n 54); Kramer (n 55); Ferguson (n 52); Ko Ko (n 57); Buchanan et al (n 54).

⁶⁰ Liljeblad (n 11); Borras et al (n 57); Kramer (n 55).

The consequences of the above struggles for the environment are significant. Historically, Myanmar's environment was noted as hosting extensive natural resources involving forests, biodiversity, fishing, minerals, petroleum, natural gas, and agriculturally fertile land.⁶¹ The country's environment, however, is suffering from unsustainable trade in flora and fauna, growing mining and petrochemical industries, and rising pollution and waste production.⁶² The scale of damage is reflected in the losses to forests and fisheries, with the country's forest cover declin­ing from approximately 77 per cent in 1950 to roughly 42 per cent in 2020⁶³ and the pelagic fish stocks decreasing by almost 90 per cent between 1980 and 2019.⁶⁴ The environmental degradation has been fuelled by the ongoing contestation between the military and ethnic minorities, with natural resources used by both as primary sources of revenue enabling wealth generation and weapons acquisitions.⁶⁵ It has also been exacerbated by attendant transnational organised crime, which has bridged the consumption of Myanmar's environmental resources to multi-sector supply chains tying trafficking in timber, wildlife, and gemstones with trafficking in weapons, narcotics, and humans across Asia.⁶⁶

⁶¹ Stephen McCarthy, ‘Ten Years of Chaos in Myanmar: Foreign Investment & Economic Liberalization Under the SLORC-SPDC, 1988-1998' (2000) Pacific Affairs 73, 233; C Sudhakar Reddy et al, ‘Quantifying & Predicting Multi-Decadal Forest Cover Changes in Myanmar: A Biodiversity Hotspot Under Threat' (2019) Biodiversity & Conservation 28, 1129; Madhu Rao et al, ‘Biodiversity Conservation in a Changing Climate: A Review of Threats & Implications for Conservation Planning in Myanmar' (2013) AMBIO 42, 789.

⁶² World Bank, Country Environmental Analysis Synthesis Report (World Bank, 2019), available at www.worldbank.org/en/country/myanmar/publication/myanmar-country-environmental-analysis; David Raitzer et al, Achieving Environmental Sustainability in Myanmar (Asia Development Bank, 2015), available at www.adb.org/sites/default/files/publication/177586/ewp-467.pdf; Environmental Investigation Agency, ‘Organised Chaos: The Illicit Overland Timber Trade Between Myanmar & China' (Environmental Investigation Agency, 17 September 2015), available at https://eia-international. org/report/organised-chaos-the-illicit-overland-timber-trade-between-myanmar-and-china/; Rao et al (n 61).

⁶³ Zaw Naing Tun, et al, ‘Patterns and Drivers of Deforestation and Forest Degradation in Myanmar' (2021) Sustainability 13, 75; Reddy et al (n 61).

⁶⁴ World Bank (n 62).

⁶⁵ Jason Miklian and Ralf Barkemeyer, ‘Business, Peacebuilding, Violent Conflict, & Sustainable Development in Myanmar: Presenting Evidence from a New Survey Dataset' (2021) Journal of Asia Business Studies, available at www.emerald.com/insight/content/doi/10.1108/JABS-11-2020-0428/ full/html; Vanda Felbab-Brown, Myanmar Maneuvers: How to Break Political-Criminal Alliances in Contexts of Transition (United Nations University, 2017), available at http://collections.unu.edu/view/ UNU:6423; Gillian Cornish and Vlado Vivoda, ‘Myanmar's Extractive Industries: An Institutional & Regulatory Assessment' (2016) Extractive Industries & Society 3, 1075.

⁶⁶ William Moreto and Daan Van Uhm, ‘Nested Complex Crime: Assessing the Convergence of Wildlife Trafficking, Organized Crime, & Loose Criminal Networks' (2021) British Journal of Criminology XX, 1, available at www.researchgate.net/profile/William-Moreto/publication/ 350637483_Nested_Complex_Crime_Assessing_the_Convergence_of_Wildlife_Trafficking_ Organized_Crime_and_Loose_Criminal_Networks/links/606b2688458515614d3a20c4/Neste d-Complex-Crime-Assessing-the-Convergence-of-Wildlife-Trafficking-Organized-Crime-and- Loose-Criminal-Networks.pdf; United Nations Office of Drugs & Crime, World Wildlife Crime Report (United Nations Office of Drugs & Crime, 2020), available at www.unodc.org/documents/ data-and-analysis/wildlife/2020/World_Wildlife_Report_2020_9July.pdf; Xiaobo Su, ‘Fragmented Sovereignty & the Geopolitics of Illicit Drugs in Northern Burma' (2018) Political Geography 63, 20;

B.

The position of the environment as a core component within Myanmar's domestic politics points to a need for attention, with its intersectional status in the conflicts between military and EAOs calling for matching status in Myanmar's political and legal discourses. The persistence of Myanmar's environmental degradation and ethnic conflicts, however, indicate the inadequacy of the political system set by the 2008 Constitution in resolving the connections between both problems.

As a topic, the environment is addressed in various ways through Myanmar's 2008 Constitution and existing environmental laws. Within the 2008 Constitution, the environment is explicitly set among the core principles of the state, with the Basic Principles in Chapter 1 stating in Article 45 that the ‘Union shall protect and conserve the natural environment'.⁶⁷ The duty, however, is not accompanied by language demarcating the limits of state action towards the envi­ronment, with Chapter 1, Article 37 instead making the state ‘the ultimate owner of all lands and natural resources' with powers to make laws for extraction and use of natural resources.⁶⁸ The law-making power is emphasised by additional language in Chapter 1, Article 96 and Schedule 1, which together give the Pyidaungsu Hluttaw (or Parliament) authority for making laws regarding the environment.⁶⁹

The 2008 Constitution's expansive allocation of authority to the state over the environment contrasts with its language regarding citizens and the environment. Specifically, Chapter 8, which addresses the rights and duties of citizens, requires in Article 390 that ‘every citizen has the duty to assist the Union in carrying out... environmental conservation',⁷⁰ which implies an orientation for citizens to comply with the state on environmental matters. Chapter 8 provides no direct language regarding rights of citizens to the environment,⁷¹ meaning that there is no consti­tutional protection for the environment by citizens against harmful actions from the state or other non-state actors. The 2008 Constitution affords a measure of indirect language in terms of citizens' rights to life and personal freedom,⁷² which conceivably might extend to life and personal freedom associated with enjoy­ment of the environment; rights to settle or reside in any place,⁷³ which could be extended to mean a right to inhabit any place in the environment; and rights to

Felbab-Brown (n 65); Vanda Felbab-Brown, Enabling War & Peace: Drugs, Logs, Gems, & Wildlife in Thailand & Burma (Brookings, 2015), available at www.brookings.edu/wp-content/uploads/2016/07/ Policy-paper-7-webv5-1.pdf.

⁶⁷ Myanmar Constitution 2008, Art 45.

⁶⁸ ibid Art 37.

⁶⁹ ibid Art 96 and Schedule 1, Art 6.

⁷⁰ ibid Art 390.

⁷¹ ibid Ch 8.

⁷² ibid Art 353.

⁷³ ibid Art 355.

own and use private property,^[1098] which may be viewed as including ownership and use of parts of the environment held as private property. But such readings of the language in the 2008 Constitution are attributions to its text and hence hold no assurances regarding citizens' rights vis-a-vis the environment.

Of additional relevance to the country's conflicts between the state and EAOs, comparable issues also arise with respect to the relationship between the state and minority peoples. Similar to the statement of rights for citizens, the 2008 Constitution dedicates language to the status of minority peoples, using the term ‘national races' in presenting state duties to support minority cultures, solidar­ity, and development;^[1099] granting self-administration in areas held by a number of minorities;^[1100] reserving legislative representation in region and state-level parlia­ments for minority representatives;^[1101] and specifying rights of citizens to exercise minority cultures.^[1102] In regards to the environment, the 2008 Constitution identi­fies the legislative authority of minority self-administered zones as encompassing environmental conservation^[1103] and legislative authority of region and state-level parliaments as covering a number of environmental matters such as agriculture, fishing, energy, gemstones, and botanical and zoological gardens.^[1104] It is possible to construe indirect association between the environment and minorities to the extent that the references to minority cultures involves their respective uses of environmental features and the provisions on minority development encompass use of natural resources. But similar to the observations for environmental rights for citizens, such indirect connections are inferences outside the text of the 2008 Constitution that provide weak grounds for minority rights over the environment. In addition, the same hierarchy of authority for citizens also applies for minorities in terms of the 2008 Constitution placing them subordinate to the state's supreme position of ownership and law-making over land and natural resources.^[1105] The latter point is emphasised in the 2008 Constitution Schedule 3, which requires minority self-administered zone laws for the environment align with national environ­mental laws.^[1106] Moreover, the scope of ‘national races' is limited, with Myanmar recognising only 135 national races,^[1107] leaving minorities outside those categories bereft of potential group rights tied to the environment.

The weakness in the 2008 Constitution in addressing the rights of citizens and minorities leaves the state largely free to exercise its law-making powers over envi­ronmental governance. Myanmar hosts a corpus of laws for the environment, with a suite covering issues as diverse as climate change, biodiversity, forestry, trade in flora and fauna, protected areas, energy, mining, pollution and waste, fishing, and agriculture.^[1108] With respect to laws passed after the ratification of the 2008 Constitution, there is a variation in approaches regarding rights and governance. Some are consistent with the centralised state-centric approach illustrated by the orientation of the 2008 Constitution and historically employed by the Myanmar military junta in its struggles with ethnic minorities. An example is the 2012 Environmental Conservation Law, which prescribes a national ministry with powers to monitor and limit other ministries from environmental damage, issue environmental management work plans, and set rules and procedures for environ­mental conservation.^[1109] Other laws maintain the focus on state authority but allow a measure of decentralised power, with the example of the 2012 Vacant, Fallow, and Virgin Lands Management Law (VFV Land Law) and its 2018 Amendment, which imposes a permit system for economic use of land deemed abandoned or unused through a national Central Committee and subordinate state and region­level Management Committees.^[1110] Some laws go further to recognise rights for non-state actors, as illustrated by the 2018 Conservation of Biodiversity and Protected Areas Act (CBPA) and its accompanying 2019 Community Forest Instructions (CFI), which provide for state collaboration with non-governmental organisations, community subsistence rights in forests, community forest tenure rights, and rights to participate in decision-making for management plans and procedures.^[1111]

The expression of the above laws, however, accords environmental rights and governance with tenuous status. Legislation is susceptible to the disposition of parliaments, with parliamentarians holding discretion to issue new laws that may amend or supersede previous ones. Such scenarios occurred during the period of civilian leadership from 2010-2020, during which time Myanmar issued a number of new environmental instruments that replaced prior laws, with legal surveys indicating the passage of up to 25 environment-related legislative items within that time period that amended or replaced earlier Myanmar acts.^[1112] As a result, in the absence of constitutional guarantees, the expression of rights and governance in any legislation is ephemeral and vulnerable to change.

Potential resolution of the preceding issues may be found through reference to discourses of environmental constitutionalism. On a basic level, the concept of environmental constitutionalism involves a view of the environment as deserv­ing of constitutional attention, with a logic that constitutional expression provides a higher level of protection relative to more typical legal arrangements.^[1113] The discourse on environmental constitutionalism falls along a spectrum between ‘thin’ and ‘thick’ extremes. ‘Thin’ constitutionalism looks at constitutions as instru­ments prescribing rules of governance, the power of government, and substance of the state.^[1114] ‘Thick’ constitutionalism, in contrast, goes beyond ‘thin’ notions by adding considerations of values and rights which help to determine legality and legitimacy in a political order.^[1115] Further, ‘thin’ environmental constitutionalism concerns itself with the rules of governance for the environment, including the institutions, functions, and procedures for the conduct of decisions, disputes, and responsibilities of state and non-state actors regarding the environment.^[1116] ‘Thick’ environmental constitutionalism, however, extends such issues with further statements of values regarding treatment of the environment, rights with respect to the environment, rule of law to enable the exercise of those rights, and the consequent directives arising from the aforementioned components for state action.^[1117]

Applied to the content of the 2008 Constitution, an environmental consti­tutional approach would note its positioning of the state relative to people and minorities, with the 2008 Constitution favouring state authority over their respec­tive rights regarding the environment. With respect to environmental matters, the 2008 Constitution is less a rights-based instrument and more a duties-based one that reinforces popular obedience to state authority. The absence of environ­mental rights in the 2008 Constitution places it outside of ‘thick’ conceptions of environmental constitutionalism, which look to an inclusion of rights and values with respect to the environment within the bodies of constitutions.^[1118] The provisions on state duties for environmental conservation may be construed as reflecting values helping to determine the legitimacy of state activities involving the environment, but they are countered by additional provisions that empower the state with ownership and exploitation of natural resources and compel citizens to obey consequent state actions. Such focus on the capacities of state authority move the 2008 Constitution towards notions of ‘thin’ environmental constitu­tionalism, which disregard considerations of rights or values in favour of a more restrictive focus on the powers and substance of the state.^[1119] The 2008 Constitution, however, represents a weak form of thin environmental constitutionalism, in that it does little to address the concept’s additional expectation for statements setting rules of governance alongside the delineation of state capabilities. As a result, from the perspective of environmental constitutionalism, Myanmar’s ongoing difficul­ties of the environment vis-a-vis military-ethnic contestation is driven by the 2008 Constitution’s anaemic treatment of the environment, with its language providing little clarity in determining the legitimacy or limits of state actions.

The consequent implication is that the intersectional problems posed by the environment and military-ethnic tensions could be mitigated through ‘thicker’ language in the 2008 Constitution. In particular, environmental constitution­alism perspectives would prescribe changes in the text of the Constitution that more directly state the limits of state powers over the environment and more clearly delineate the rights of people and minorities in regards to the envi­ronment. Such changes would help to delegitimise state actions to harm the environment, including military policies that use natural resources. They would also empower ethnic minorities with greater control over the environ­ment within their respective territories. In the absence of the aforementioned changes, the prognosis under environmental constitutionalism approaches is for further struggles between the military and ethnic minorities over natural resources.

Unfortunately, the prospects for reforms in the text of the 2008 Constitution are low. The scale of unrest in the wake of the February 2021 military coup provides little space for constitutional amendment, with the military regime engrossed on a campaign to maintain its power against pro-democracy resistance encompassing communities across Myanmar’s heartland and ethnic minority lands. The coup re-ignited conflicts between the military and multiple EAOs, reducing the likelihood of a military-controlled state conducting constitutional amendments enabling ethnic minority rights. Even if conditions conducive to an amendment process were to arise, the threshold of 75 per cent within the Parliament would leave the 25 per cent block of military parliamentarians in a position to deny an amendment. Hence, the 2008 Constitution has few avenues towards prescriptions reflecting ‘thick’ environmental constitutionalism.

IV.