The 2021 military coup serves as an impetus for reflection regarding Myanmar's 2008 Constitution.
The Tatmadaw attempted to justify its actions by reference to the 2008 Constitution, arguing that the civilian government's failure to address the military's concerns over voter fraud in the November 2020 national elections met the requirements of Article 417 for a state of emergency, and that in a state of emergency Article 418 placed executive, legislative, and judicial powers in the Commander-in-Chief of the military, with Article 419 then allowing the Commander-in-Chief to form a State Administrative Council (SAC) comprised of military officers to run the country.6 The Tatmadaw's claims were met with international and domestic criticism, challenging both its claims of voter fraud and its legal reasoning.7
The present analysis conducts a review of the Myanmar 2008 Constitution, with the purpose of informing constitutional debates regarding Myanmar in the wake of the February 2021 military coup.
In keeping with the thematic calls organising the collective contributions in the larger volume, the analysis seeks to identify the causes directing the nature of the 2008 Constitution, the processes that drove the constitution-making process towards such nature, the substance in text resulting from those processes, and the resulting issues in implementation.Anti-Coup Protesters Against Myanmar Junta' (Irrawaddy, 30 April 2021), available at www.irrawaddy. com/news/burma/ethnic-armed-groups-unite-anti-coup-protesters-myanmar-junta.html; Rebecca Ratcliffe and Anonymous Reporter, ‘Rise of Armed Civilian Groups in Myanmar Fuels Fears of Full-Scale Civil War' The Guardian (1 June 2021), available at www.theguardian.com/world/2021/ jun/01/rise-of-armed-civilian-groups-in-myanmar-fuels-fears-of-civil-war.
5Myanmar Now, ‘NUG Establishes “Chain of Command” in Fight Against Regime' (Myanmar Now, 31 October 2021), available at www.myanmar-now.org/en/news/nug-establishes-chain-of- command-in-fight-against-regime; Burma News International Multimedia Group (BNI), ‘National Unity Government: Domestic Unity & EAOs Involvement Key to Success' (Burma News International Multimedia Group, 26 April 2021), available at www.bnionline.net/en/news/nation-unity-government- domestic-unity-and-eaos-involvement-key-success; United States Institute of Peace (USIP), ‘A New Myanmar Forum Aims to Unite Democratic Forces' (United States Institute of Peace, 3 November 2021), available at www.usip.org/publications/2021/11/new-myanmar-forum-aims-unite-democratic-forces.
6 Reuters, ‘Statement from Myanmar Military on State of Emergency' (Reuters, 1 February 2021), available at www.reuters.com/article/us-myanmar-politics-military-text-idUSKBN2A11A2.
7See, eg, Noel Thibaut, ‘Unconstitutionality of the 2021 Military Coup in Myanmar' (IDEA, 2022), available at www.idea.int/sites/default/files/publications/unconstitutionality-of-the-2021-military-coup- in-myanmar.pdf; International Commission of Jurists, ‘Myanmar: Military Coup d'Etat Violates Principles of Rule of Law, International Law, & Myanmar's Constitution' (International Commission of Jurists, 8 February 2021), available at www.icj.org/myanmar-military-coup-detat-violates-principles-of-rule-of- law-international-law-and-myanmars-constitution/; Melissa Crouch, ‘The Power & Ambition Behind Myanmar's Coup' (The Age, 1 February 2021), available at www.theage.com.au/national/the-power-and- ambition-behind-myanmar-s-coup-20210202-p56yor.html; Frontier Myanmar, ‘“The Constitution Is Invalid Now”: NLD Patron Fires Back at Military' (Frontier Myanmar, 1 February 2021), available at www.frontiermyanmar.net/en/the-constitution-is-invalid-now-nld-patron-fires-back-at-military/. The following sections in the analysis roughly follow the order of the aforementioned themes. The first section clarifies the causes and processes behind the 2008 Constitution by looking back to its origins and development. The second section outlines the substance of the 2008 Constitution through a summary of notable provisions in its text. The third section focuses on implementation, and argues that constitutional deliberations in Myanmar need to address environmental issues as an underlying contributor to ongoing tensions between the military and ethnic minorities in the country. The conclusion finishes with a summary of the findings from disparate sections.
In discussing Myanmar's identity politics, some note should be given to its fractious nature, with divergent perspectives resulting from the country's existence as a complex agglomeration of diverse peoples.[1049] British colonial administration left a divisive legacy of categorising peoples by ‘race’, which carried into postindependence classifications based on ‘national races' or ‘ethnic nationalities' that furthered the marginalisation of minorities.[1050] The 2008 Constitution uses the label ‘national races',[1051] although such language is challenged by calls to apply ‘indigenous peoples', with its international connotations to self-determination resonating with a number of Myanmar minorities.[1052] The following sections hold no allegiance to any of the aforementioned terms, and use the labels ‘ethnic groups’ ‘ethnic minorities', and ‘minority peoples' interchangeably in general reference to Myanmar's diverse peoples.
I.