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Authoritarian Straitjacket or Vehicle for Democratic Transition?: The Risky Struggle to Change Myanmar’s Constitution
... The military was able to control the entire process of drafting the 2008 constitution: it defined the basic principles of the constitution and dominated the discussions in the National Convention (1993-1996; 2003-2007), in which handpicked military delegates formed the majority. The 'praetorian constitution of 2008' consequently not only 'reflects the military's view of how civilianized rule should work once direct military rule is ended' (Egreteau 2017a, 122), but was also designed to be a permanent and lasting framework that conditions and limits politics and makes it extremely risky for political actors to bring about constitutional change-it has thus become an 'authoritarian straitjacket' (Crouch 2020). ...
... The military was able to control the entire process of drafting the 2008 constitution: it defined the basic principles of the constitution and dominated the discussions in the National Convention (1993-1996; 2003-2007), in which handpicked military delegates formed the majority. The "praetorian constitution of 2008" consequently not only "reflects the military's view of how civilianized rule should work once direct military rule is ended" (Egreteau 2017a, 122), but was also designed to be a permanent and lasting framework that conditions and limits politics and makes it extremely risky for political actors to bring about constitutional change -it has thus become an "authoritarian straitjacket" (Crouch 2020). Having secured parliamentary representation, the NLD no longer acted as an anti-system opposition party. ...
This chapter discusses the institutional foundations of democratic erosion and breakdown in Myanmar. The military coup of February 2021 ended a decade of power-sharing between the military and the National League for Democracy (NLD). This chapter argues that Myanmar´s special form of hybrid presidentialism, which was created by the 2008 constitution, conditioned the transition to civilian rule but also provided the basis for later military dissatisfaction, ultimately leading to a military coup. Since the constitution was never carried by an overarching elite compromise and key actors could not agree on the rules of the political game, power-sharing between the military and the civilian arms of the government became increasingly precarious after 2015. Perilous not in the Linzean sense of an increasing polarization between executive and legislature, and not as increased conflict between political parties, but as growing antagonism between the civilian and military arms of the government. Aung San Suu Kyi and the NLD increasingly used informal mechanisms to govern, which not only eroded the constitutional framework imposed by the 2008 constitution, but also led to growing dissatisfaction on the part of the military.
Constitutions are an important feature of many authoritarian regimes. But what role do they in fact perform in processes of authoritarian regime stabilization and legitimation? Much of the contemporary literature focuses on authoritarian constitutionalism in transitions away from constitutional democracy. This article considers the opposite scenario: pre‐emptive constitution‐making as a mechanism of authoritarian constitutionalism to contain a potential transition toward constitutional democracy. This is illustrated through the case of Myanmar. Since the 1960s, Myanmar has experienced successive periods of direct military rule without a constitution, followed since 2011 by a new constitution. Adding to the comparative literature on constitutions in authoritarian regimes, this article explains how pre‐emptive constitution‐making limits a transition to liberal democracy and contributes to authoritarian‐regime resilience. This article further identifies “military‐state” constitutionalism as a variation of authoritarian constitutionalism in Myanmar. The case of Myanmar offers comparative insights into the ways constitutions are used to contain transitions to constitutional democracy and illustrates the varieties inherent in authoritarian constitutionalism.
In 2012, Myanmar experienced another tumultuous year of reform. Executive, legislative, and civic institutions advanced, but public administration and the judiciary remained largely unchanged. While some ethnic relations improved, others descended into bitter conflict. Economic and social development was patchy. Links with the U.S. and its allies strengthened considerably.
Scholars have generally assumed that courts in authoritarian states are pawns of their regimes, upholding the interests of governing elites and frustrating the efforts of their opponents. As a result, nearly all studies in comparative judicial politics have focused on democratic and democratizing countries. This volume brings together leading scholars in comparative judicial politics to consider the causes and consequences of judicial empowerment in authoritarian states. It demonstrates the wide range of governance tasks that courts perform, as well as the way in which courts can serve as critical sites of contention both among the ruling elite and between regimes and their citizens. Drawing on empirical and theoretical insights from every major region of the world, this volume advances our understanding of judicial politics in authoritarian regimes.
Once regarded as mere pawns of their regimes, courts in authoritarian states are now the subject of considerable attention within the field of comparative judicial politics. New research examines the ways in which law and courts are deployed as instruments of governance, how they structure state-society contention, and the circumstances in which courts are transformed into sites of active resistance. This new body of research constitutes an emergent field of inquiry, while simultaneously contributing to a number of related research agendas, including authoritarian durability and regime transition, human rights, transitional justice, law and development, and rule-of-law promotion. Moreover, this research offers important insights into the erosion of rights and liberties in "consolidated democracies."
Today, most military regimes have either given way to some form of democracy or been transformed into another form of authoritarianism. This article formulates a framework for the analysis of the detachment of militaries from politics and applies it to the case of Burma/Myanmar, which is an example of deeply entrenched military rule. It is argued that after the retreat from direct rule the military is still in control, although the regime has embarked on a series of reforms that have liberalized the political system. The article identifies the internal dynamics within the military regime as a prime motive. External factors played only an indirect role, as the growing dependence on China was seen as a threat among nationalistic circles. The military decided to bridge the internal impasse and end the external isolation only after it consolidated its own power, finally allowing the leadership succession to run smoothly.
If anything is more surprising than Burma's recent adoption of democratic reforms, it is that military rule lasted so long without such reforms in the first place. This article considers this paradox from both a country-specific and comparative-theoretical perspective, and argues that both perspectives are essential for analysing Burma's uncertain reform process as it unfolds or unravels. It portrays the top-down reform process as one of double-edged détente between the ruling Tatmadaw and its internal rivals as well as its external critics. This détente is inherently fragile because it rests on the current regime's confidence that democratization will produce neither serious instability nor even its own decisive defeat. Events that shake the Tatmadaw's 'victory confidence' and 'stability confidence' should thus pose the greatest risk that reforms will be stalled or reversed.
It is widely believed that autocratic regimes cannot limit their power through institutions of their own making. This book presents a surprising challenge to this view. It demonstrates that the Chilean armed forces were constrained by institutions of their own design. Based on extensive documentation of military decision-making, much of it long classified and unavailable, this book reconstructs the politics of institutions within the recent Chilean dictatorship (1973–1990). It examines the structuring of institutions at the apex of the military junta, the relationship of military rule with the prior constitution, the intra-military conflicts that led to the promulgation of the 1980 constitution, the logic of institutions contained in the new constitution, and how the constitution constrained the military junta after it went into force in 1981. This provocative account reveals the standard account of the dictatorship as a personalist regime with power concentrated in Pinochet to be grossly inaccurate.
Collective violence wracked Myanmar from 2012 to 2014. Overwhelmingly, Buddhists attacked Muslims. This article categorises the violence as “communal,” in so far as it consisted of recurrent, sporadic, direct physical hostility realised through repeated public expressions that Muslims constitute an existential threat to Buddhists. It advocates for interpretive modes of inquiry into the violence, as well as into the practices of interpretation enabling it. Eschewing methods aimed at producing a purportedly coherent picture of what happened, interpretive research raises questions about conventional readings of violence, and seemingly self-evident categories for its analysis. But as the articles in this special issue show, interpretivists do not repudiate the search for factual truth. The contributors all make strong truth claims, but claims recognising that factual truths are always contingent. They establish these claims by attending variously to the processes, narratives, histories and typologies that have contributed to the production of communal violence in Myanmar.
The idea of “national races” or taingyintha has animated brutal conflict in Myanmar over who or what is “Rohingya.” But because the term is translated from Burmese inconsistently, and because its usage is contingent, its peculiar significance for political speech and action has been lost in work on Myanmar by scholars writing in English. Out of concern that Myanmar’s contemporary politics cannot be understood without reckoning with taingyintha, in this article I give national races their due. Adopting a genealogical method, I trace the episodic emergence of taingyintha from colonial times to the present. I examine attempts to order national races taxonomically, and to marry the taxonomy with a juridical project to dominate some people and elide others through a citizenship regime in which membership in a national race has surpassed other conditions for membership in the political community “Myanmar.” Consequently, people who reside in Myanmar but are collectively denied citizenship – like anyone identifying or identified as Rohingya – pursue claims to be taingyintha so as to rejoin the community. Ironically, the surpassing symbolic and juridical power of national races is for people denied civil and political rights at once their problem and their solution.
Among many problematic issues surfacing in reformist Myanmar is a citizenship crisis with four main dimensions. First, in a state with fragile civil liberties, skewed political rights and limited social rights, there is a broad curtailment of citizenship. Second, Rohingya Muslims living mainly in Rakhine State are denied citizenship, and other Muslims throughout the country are increasingly affected by this denial. Third, designated ethnic minorities clustered in peripheral areas face targeted restrictions of citizenship. Fourth, the dominant Bamar majority concentrated in the national heartland tends to arrogate or appropriate citizenship. The result is growing social tension that threatens to undermine the wider reform process. To examine this crisis, the article sets Myanmar in a comparative context. In particular, it considers how multicultural states in the developed world have sought to manage a political switch from racial or ethnic hierarchy to democratic citizenship. Drawing on global experience with multiculturalism and enabling civic integration, it advances a series of policy options focused on rights, duties and identity. It argues for domestic political leadership, backed by global political support, to address Myanmar’s citizenship crisis.
This paper identifies and grapples with an increasingly important phenomenon: the use of mechanisms of constitutional change to erode the democratic order. A rash of recent incidents in countries as diverse as Egypt, Venezuela, and Hungary has shown that the tools of constitutional amendment and replacement can be used by would-be autocrats to create quasi-authoritarian regimes with ease. Rather than using military coups to create authoritarianism, actors rework the constitutional order with often subtle changes in order to make themselves difficult to dislodge and to disable or pack courts and other accountability institutions. This piece makes three contributions to the literatures on constitutional theory and international and comparative constitutional design. First, I draw on interdisciplinary research from law and political science, as well as examples from around the world, to describe these abusive constitutional techniques and to argue that they represent the major current and future threat to democracies worldwide. Second, I show that the major democracy-protecting mechanisms in international law and comparative constitutional law are obsolete – most of these tools are still aimed at older threats like coups and totalitarian movements, and are unable to effectively detect and deal with modern instances of abusive constitutionalism. Third, I bring together recent scholarship and case-law to suggest an agenda that is more effective against this new threat. This work pushes towards making constitutional change selectively rigid, allowing many alterations to occur rather easily while identifying certain kinds of change that are especially harmful to the constitutional order and holding them to higher standards. A consideration of the problem of abusive constitutionalism helps to improve these developing practices and offers important and controversial insights, such as the need for a doctrine of substantively unconstitutional constitutional amendments and for restrictions on the process by which an existing constitution may be replaced. The goal is to reframe the conversation about how the fields of comparative constitutional law and international law might best be leveraged to protect new democracies.
This article explains the ways in which power and factional struggles broke out and ended in post-independence Burma. In so doing, it argues that the key to a proper understanding of the situation resides in a careful examination of the internal power structure of an existing government. On the basis of the historical analysis as explicated in the article, it may be surmised that the existence of a hegemon that is able to mediate between factions while not relying on them in turn for his own influence and authority, yields a good possibility of a stable government. Conversely, the absence of such a hegemon results in an unstable government. Stability, however, being simply a condition, does not naturally predispose a hegemon towards virtuous governance.
This Essay, forthcoming in the Texas Law Review, examines constitutional workarounds, which arise (a) when there is significant political pressure to accomplish some goal, but (b) some parts of the Constitution's text seems fairly clear in prohibiting people from reaching that goal directly, yet (c) there appear to be other ways of reaching the goal that fit comfortably with the Constitution. The routes to the goal are workarounds. Finding some constitutional text obstructing our ability to reach a desired goal, we work around that text using other texts - and do so without (obviously) distorting the tools we use. Constitutional workarounds raise important questions about the Constitution and constitutional theory. They can occur only if the Constitution is in some sense at war with itself: One part of the text prohibits something, but other parts of the text permit it, and the Constitution itself does not appear to give either part priority over the other. And, to the extent that workarounds occur when there is political pressure to accomplish a goal blocked by parts of the Constitution's text, workarounds place under severe pressure the idea that a constitution is a form of commitment to avoid improvident actions that we are inclined to take because of perhaps passing political considerations: The first bit of text expresses our commitment not to do something in response to immediate political pressures, but the workaround allows us to succumb to those pressures. The Essay offers a simple classification of workarounds - true, fraudulent, and contested - and then discusses the prerequisites for workarounds, which include general agreement that the constitutional texts obstructing action no longer make much sense and, perhaps related to the existence of such agreement, some substantial degree of bipartisan agreement that using the workaround is constitutionally appropriate. The Essay concludes with some thoughts about the implications of workarounds for constitutional theory.