Substance of the 2008 Constitution
The substance of the 2008 Constitution adheres to the preceding themes, with the text reflecting a mixture of democratic principles and provisions that preserve a dominant position for the military in the state.
To begin, the 2008 Constitution claims to create a ‘multi-party democratic system’[1076] with defined legislative, executive, and judicial branches following separation-of-powers and checks- and-balances.[1077] The legislative branch is comprised of a bicameral Parliament with elected members that deliberates and passes bills through majority vote.[1078] The executive is led by a President, who enacts bills passed by Parliament into law.[1079] The judiciary contains the Supreme Court appointed by the President.[1080] Accompanying the prescription of institutions are assertions of principles for justice, liberty, and equality, along with recognition of rights including freedom of expression, freedom of assembly, freedom of conscience, freedom of religion, privacy, and participation in politics.[1081]The preceding elements of democracy, however, are qualified by provisions protecting military authority. In the legislature, the 2008 Constitution accords the Tatmadaw 25 per cent of the seats in both chambers of the Parliament.[1082] In the executive, the 2008 Constitution reserves to the Commander-in-Chief control over the police, border security, and military forces[1083] and requires military officers to be appointed as the Ministers for Defense, Home Affairs, and Border Affairs.[1084] In addition, the 2008 Constitution requires that amendments be passed with a margin of 75 per cent of the Parliament, effectively giving the 25 per cent of seats held by the military a veto block over constitutional reforms.[1085] Further, Article 445 of the Constitution grants immunity for any member of the military for actions in service of their duties.[1086] More ominously for civilian leadership, the 2008 Constitution also contains provisions for military seizure of state power, with Articles 40 and 417-420 providing for states of emergency in which the Tatmadaw Commander-in-Chief can assume executive, legislative, and judicial powers and eliminate all rights, including those prescribed by the 2008 Constitution.[1087]
The scope of such powers was illustrated by the February 2021 military coup, in which the Tatmadaw removed the elected civilian leadership, declared a state of emergency, placed itself in control of the country, and unilaterally changed laws to suppress popular resistance.[1088] Tatmadaw actions included the suspension or elimination of citizens' rights such as free speech, free assembly, and privacy and the expansion of military powers including surveillance, arbitrary searches and seizures, and violence against unarmed civilians.[1089] For selected parts of the country, the military imposed martial law, effectively dissolving all civilian protections.[1090] The willingness of the Tatmadaw to undertake such efforts affirms its continuing posture towards the 2008 Constitution as an instrument of military authority, making whatever measure of democracy that may be read into Myanmar's 2008 Constitution an ultimately fragile construction.
Hence, with respect to substance, the consequent theme is one of a Constitution that preserves military rule.
Despite its components reflecting principles and rights evocative of liberal democracy, the 2008 Constitution included provisions that maintained a military presence with powers sufficient to either constrain elected civilian political leaders or displace them entirely. As proven by the February 2021 military coup, the 2008 Constitution created a political system wherein the visage of democracy was an instrument of military authority.III.