The Trouble with Constitutional Change in Myanmar

In March, Myanmar’s parliament held a series of votes around proposed amendments to the country’s military-enacted constitution. Several key proposals were rejected. While the outcome was all but assured given the military’s continued control in the legislature and the state apparatus more generally, it nonetheless reinforced the obstacles that exist with respect to substantive and substantial constitutional reform in the Southeast Asian state.

While Myanmar has technically moved from decades of military rule to a civilian-led government under Aung San Suu Kyi’s National League for Democracy (NLD), which secured power in elections in 2016, the military in fact still retains significant influence in the country, including an extensive business empire with more than 140 companies and the official control of three government ministries – defense, border, and home affairs.

One of the ways in which the military’s control manifests itself is with respect to Myanmar’s constitution. The latest constitution, Myanmar’s third, was drafted in 2008 by the-then ruling junta. It has provisions that enable the military to retain significant power, including an effective veto in the legislature by reserving 25 percent of legislative seats for the military and requiring amendments to reach a 75 percent majority to pass. The constitution also bans individuals whose spouse or children are loyal to foreign countries from becoming president or vice president – a clause believed to be directed at Suu Kyi, whose late husband and two sons are British citizens.

When the NLD came to power following the 2016 elections, one of its agenda items was amending some of these provisions as part of wider constitutional change. The process began with a vote in parliament to create a committee on constitutional amendments last year, and is expected to continue into this year right up to when Myanmar heads into general elections in late 2020.

From March 10 to March 20, voting was held on a slew of amendments to the military-drafted constitution, marking the closing chapter in the NLD’s most recent push to realize one of its key campaign promises from back in 2015.

But after the first few days of voting, it was clear that most of the major constitutional amendments would not be successfully passed, even though they did have significant and at times majority support. Notable examples in this regard included a proposal to strip the army of its majority on a committee that can declare a state of emergency and hand power to the army chief – another effective veto for the military – and an amendment to make constitutional change easier by incrementally reducing the necessary threshold from three-quarters of members of parliament to two-thirds. Only a couple of less controversial proposals – including changing the written term for “disabled” in Burmese – received approval.

Predictably, in justifying their steadfast opposition to the amendments, military-aligned lawmakers and officials maintained that the military’s control remained necessary for preserving the country’s peace and stability. Typifying this sentiment, Myanmar’s military chief Min Aung Hlaing, who is himself said to harbor political ambitions, said in an interview with Japanese newspaper Asahi Shimbun in February ahead of voting that Myanmar was “still overcoming a lot of hardships,” including continued ethnic conflict and political instability, and required “a stable march to multiparty democracy.” He added that the military’s effective veto would only end “if every sector is secured,” effectively suggesting that this would be a long-term prospect without any sort of deadline.

To be sure, the grim fate of constitutional reform comes as no surprise. The military’s control in the legislature makes the passage of major amendments all but impossible. Previous attempts at constitutional reform also suffered a similar fate: one in 2015 saw only the adoption of modest proposals, such as the slight dilution of a clause that had specified a presidential candidate had to be well-acquainted with political, economic, administrative, and military affairs by changing the word “military” to “defense.”

Yet the developments in March are not without significance. The failure of the NLD to deliver on a key campaign promise that is personally important to Suu Kyi and her political position is an important reminder of the limits to civilian governance in Myanmar despite the historic elections that brought the Suu Kyi-led opposition to power back in 2016. Despite some concessions Suu Kyi has made to the military and her alignment with the security establishment on some issues, including the treatment of the Rohingya Muslims, this fundamental civil-military divide in Myanmar remains vast. Indeed, it was no coincidence that this round of constitutional reform saw the introduction of some amendments from military-aligned lawmakers in response to signal their discontent. The military’s proposed amendments included transferring the presidential power to elect chief ministers to regional legislatures, where the military also retains its 25 percent seat stranglehold.

The constitutional conundrum is only expected to get more complex in the future. If the NLD does secure a re-election win this year, patience will continue to wear thin about its inability to deliver on earlier election promises to consolidate support. Though constitutional amendment is only one among the NLD’s promises and is far from its most important – there is lingering discontent on other scores as well, including the failure to address ethnic issues and some backsliding of rights – constitutional amendment nonetheless remains important symbolically because it is one of several ways that the NLD can use the formal mechanisms of government to indicate a desire to move forward in spite of military disapproval.

Of course, this does not mean that future constitutional amendments are impossible. In fact, the broad banner of constitutional reform has always concealed the fact that even though proposals that touch on military control may be unlikely to pass, there are others, such as on political appointments and power-sharing mechanisms, that may be relatively more palatable. But it does suggest that the path to constitutional reform is likely to continue to be a rocky one, and that those looking to major constitutional changes as a sign of democratic progress in Myanmar should temper their expectations accordingly for the foreseeable future.