The Constitution of Myanmar: A Contextual Analysis

Description

This timely and accessible book is the first to provide a thorough analysis of the 2008 Constitution of Myanmar (Burma) in its historical, political and social context. The book identifies and articulates the principles of the Constitution through an in-depth analysis of legal and political processes and practices, particularly since the 1990s. The core argument of this book is that the 2008 Constitution is crucial to the establishment and maintenance of the military-state. The military-state promotes the leadership role of the military in governance based on a set of ideological commitments and a centralised form of organisation based on the concept of the Union. The book develops this argument by demonstrating how the process of constitution-making and the substance of the 2008 Constitution contribute to its lack of credibility and fuel demands for reform. The vision offered by the 2008 Constitution and its associated institutions has been the subject of fierce contestation, not least, for example, due to concerns over the militarisation of the state. This book is animated by debates over fundamental ideas such as the nature of democracy, the possibility of peace and federalism, the relationship between the executive and the legislature, relations between the Union government and sub-national governments, debates over judicial independence and the oversized role of the Tatmadaw (armed forces). Central to the future of the Constitution and the military-state is the role of the Tatmadaw, which will be a key determinant in any potential shift from the present highly centralised, partly-democratic Union to a federal or decentralised democratic system of governance. Preface Acknowledgements Table of Contents Abbreviations States and Regions of Myanmar Table of Cases Table of Legislation 1. Introducing Myanmar's 2008 Constitution I. Constitutional Context II. Constitutional Codification and the Constitutional Tribunal III. The Constitution in a Military-State IV. Organisation of the Book 2. The Origins and Content of the 2008 Constitution: An Overview I. Parliamentary Democracy and the 1947 Constitution II. Ne Win's 'Burmese' Socialism and the 1974 Constitution III. The Military and Constitution-making: 1990s–2000s IV. The Preamble and the Basic Principles of the Constitution V. Conclusion Futher Reading 3. The Military: The Pre-eminence of the Tatmadaw in Governance I. The Three Main National Causes II. The Commander-in-Chief III. Forces Affiliated with the Tatmadaw IV. The National Defence and Security Council V. States of Emergency VI. Tatmadaw Watchmen in the Legislature VII. Courts Martial VIII. Conclusion Further reading 4. The Electoral System and Limits on Political Participation I. Political Parties and Candidates II. The Right to Vote and Run for Office III. The Proposal for Proportional Representation IV. The Administration of Elections V. The Resolution of Electoral Disputes VI. Complaints Against Legislators: The Right to Recall VII. Conclusion Further reading 5. The Legislature I. The Union Legislature: A Tricameral System II. The Loyalties, Privileges and Responsibilities of Legislators III. The Scope of Legislative Power IV. Conclusion Further reading 6. The Executive I. The President as Head of the Union II. The Centralising Mandate of the Union Government III. Constitutional Commitments to a Market Economy IV. Aung San Suu Kyi and the Office of the State Counsellor V. The Administration of Union Territories VI. Conclusion Further reading 7. Subnational Governance, Federalism and Ethnic Recognition I. Territorial Representation: States and Regions II. Sub-National Legislative Representation of National Races III. Special Governance Arrangements for Six Areas IV. Conclusion Further reading 8. The Judiciary as an Administrative Institution I. The Union Supreme Court II. Sub-national Courts in a Unitary Judicial System III. The Constitutional Tribunal IV. Conclusion Further reading 9. Constitutional Duties and the Contingency of Rights I. The Status of International Law and Conventions II. The Pre-eminence of Duties III. Constitutional Writs in the Supreme Court IV. The National Human Rights Commission V. Conclusion Further reading 10. The Peace Process and Constitutional Change I. The Peace Process: Normalising Debates on Federalism II. The National Ceasefire Agreement: Peace in the Military-State III. The 37 Principles as Constitutional Foundation IV. The Process and Procedure of Constitutional Amendment V. Proposals for Constitutional Reform VI. Conclusion Further reading 11. Conclusion I. The Centrality of the Constitution to the Military-State II. Implications for Comparative Constitutional Inquiry Glossary Index