Towards a new state in Myanmar

72
Towards a new state in Myanmar
Michael Lidauer
Introduction
The state in Myanmar has gone through several incarnations since pre-
colonialtimes.1
Afterdecadesofmilitaryrule(1958–60,1962–74,1988–
2010) and/or one-party-regime (1974–88), the 2008 Constitution of
the Republic of the Union of Myanmar establishes the basis for new gov-
ernmental institutions and new modes of governance. This constitution
– the third for the country following those from 1947 and 19742
– has
been heavily criticized by democracy activists and opposition parties
inside the country and by the international community for not meeting
basic international standards for democratic governance. The strong
role of the military, in particular the provision for reserved seats in the
legislature, has been especially criticized. In fact, the question whether
to accept the new constitution as a preliminary framework – that could
provide a transitional pathway, opening a window of opportunity for
opposition forces to re-engage in politics – was a question of principle
for political parties prior to the 2010 elections. These elections were
held on the basis of the new constitution. Several parties split over this
question, some deciding on a boycott while splinter groups or newly
founded parties decided to contest the polls.
Yet, the new constitution and all associated questions have to be
viewed in historical context. Public protests in 1988 had brought about
theendofGeneralNeWin’sregimeandthecomingtopowerofthemili-
tary State Law and Order Restoration Council (SLORC), later renamed
the State Peace and Development Council (SPDC). The protestors had
1. For historical accounts of these transformations until today, see for example Taylor (2009).
2. For a comparison of the three constitutions by a legal practitioner from Myanmar, see The
New Light of Myanmar, 27 October 2013, Volume XXI, Number 194, online: <http://
issuu.com/npedaily/docs/27.oct_.13_nlm>, accessed on 28 October 2013.

73
demanded free multi-party elections. These polls were held in 1990 and
led to the victory of the newly founded National League for Democracy
(NLD) led by Daw Aung San Suu Kyi. However, immediately prior to
the polls, SLORC announced that it would only hand over power to a
civilian government after a new constitution had been written.3
This
process lasted for two decades. A national convention was installed to
draft the new constitution, but was suspended in the mid-1990s, and
only reconvened after the proclamation of the ‘Roadmap to Democracy’
in 2004.4
The seven-step roadmap – vague in its formulation, not es-
tablishing a clear timeline, and not convincing many outsiders about its
earnest intentions – foresaw the completion of the new constitution, the
holding of general elections, and the transfer of power to a new govern-
ment. Following the plan of the roadmap, a national referendum was
held in May 2008 only few weeks after Cyclone Nargis had devastated
the country. According to the results of the referendum the new con-
stitution was overwhelmingly accepted, but many witnesses spoke of
intimidation and undue influence by the authorities.5
Unwilling to adopt this new framework and holding on to the ‘stolen’
election results of 1990, the NLD, under Aung San Suu Kyi, and some
other parties decided to boycott the 2010 elections. Their principle
of non-collaboration with the military elite and the condemnation of
the new constitution were also upheld. The international community
largely followed the same principles and from the outset condemned
the electoral process, which was allegedly marred with fraud. However,
President Thein Sein’s unexpected launch of political and economic
reforms during his first year in office changed national and international
perspectives about the ongoing transition. The unforeseen by-elections
of 2012, in which Aung San Suu Kyi and the NLD were convinced
to participate and during which the national election administration
tried to run a more transparent process than in 2010, served as a ‘rite-
de-passage’ for the country.6
The NLD won 43 out of the 45 seats in
competition; Suu Kyi became a member of parliament, and the chair
of the parliamentary ‘Rule of Law and Peace and Stability Committee’;
3. Tonkin (2007).
4. Online: <http://www.ibiblio.org/obl/docs/KMWroadmap104.htm>, accessed on 19 Oct-
ober 2011.
5. Fink (2009): 109ff; cf. Taylor (2009): 487–506.
6. Lidauer (2012).

BURMA/MYANMAR – WHERE NOW?
74
and the international community began to re-engage with Myanmar,
most visibly with the alteration, suspension and ultimately end of most
sanctions against the military junta. However, the question of the just-
ness of the 2008 constitution remains and is part of the ongoing political
discourse ahead of the next general elections expected in late 2015.
The new state – separation of powers and electoral system
The 2008 constitution shapes a hybrid system of government that bor-
rows many features usually found in presidential systems. The Union
Government is headed by the President and includes the two Vice-
Presidents, the Ministers of the Union, and the Attorney General of the
Union. The constitution vests considerable powers in the office of the
President,inparticularthroughitspowersofappointment.ThePresident
appoints the ministers – three of whom (Defence, Home Affairs and
Border Affairs) upon nomination by the Commander-in-Chief of the
armed forces – and other members of the executive. The parliament has
to formally approve the appointment of the Ministers of the Union, the
Attorney General and the Auditor-General of the Union (but not their
deputies or other governmental positions specified in the constitution).
Separation of powers in Myanmar – executive authority (based on 2008 constitution)

75
The parliament cannot object to appointments ‘unless it can clearly be
proved that the person concerned does not meet the qualifications’. The
President himself is not directly elected, but by an electoral college of
the Pyidaungsu Hluttaw (the bicameral National Assembly) including
military appointees. Once elected for a term of five years, the President
does not need to have the backing of a parliamentary majority, and the
incumbent can only be removed through an impeachment process.
Symmetrically to the executive, the parliament also has a fixed
term of five years and cannot be dissolved by the President. The 2008
constitution foresees a bi-cameral National Assembly, the Pyidaungsu
Hluttaw, consisting of the Amyotha Hluttaw (House of Nationalities or
Upper House) and the Pyithu Hluttaw (House of Representatives or
Lower House). Each house has a Speaker and a Deputy Speaker who
are responsible to convene and supervise hluttaw sessions and the work
of parliamentary committees. Both speakers of the Upper and Lower
Houses act as Speaker of the full Pyidaungsu Hluttaw, each for half of
the legislative period. The constitution also foresees degrees of decen-
tralization with the establishment of 14 sub-national assemblies in seven
Regions and seven States, and with the establishment of six smaller self-
administered areas (see below).
The electoral system largely derives from constitutional provisions.
Like other former British colonies, Myanmar has inherited a first-past-
the-post (FPTP) system based on single-member constituencies. FPTP
usually favours large nationwide influential parties as well as parties
with a strong support base in particular constituencies, and tends to
disenfranchise smaller parties and parties with a scattered support base.
This system determined the outcome of the 1990 polls, which saw the
NLD emerge as the overwhelming winner, and enabled the then newly
founded Union Solidarity and Development Party (USDP) to establish
analmostone-partyrulein2010whentheNLDboycottedtheelections.
It also led to the NLD succeeding in sweeping the 2012 by-elections,
opening the door to a possible transfer of power in 2015 if the FPTP
system remains. These swings highlight the potential winner-takes-all
effect of FPTP. The potential for such radical electoral changes is exac-
erbated by the fact that almost all state institutions proceed directly or
indirectly from the same general elections, taking the above-mentioned
presidential appointments into account. As a consequence, the whole

76
Separation of powers in Myanmar – legislature (based on 2008 constitution)
governance structure of the country is at stake in one single election
every five years.
Looking at the judiciary, the 2008 constitution establishes a Supreme
Court, High Courts of the Regions and States, courts of self-administered
areas and lower-level administrative units, as well as a Constitutional
Tribunal and a Court-Martial responsible for members of the Tatmadaw
(armed forces). The Supreme Court is headed by the Chief Justice of the
UnionwhoisnominatedbythePresidentandapprovedbythePyidaungsu
Hluttaw similar to Union Ministers and the Attorney General. While the
constitution foresees a procedure of direct petition to the Supreme Court
for the protection of fundamental rights, it appears that this procedure
is too remote and expensive for ordinary citizens. It is also disconnected
from the process in lower courts, and therefore could not serve to infuse
the whole judicial system. In addition, it seems that this procedure cannot
serve to protect electoral rights, since the decisions of the Union Election
Commission (UEC) are not subject to appeal.7
7. EEM (2012: 12).

77
The military remains an important political and economic actor, both
based on its self-conception as protector of the country’s unity since
independence and the position of power gained and maintained over
the last five decades. The 2008 constitution states in its basic principles
that the ‘Defence Services [are] to be able to participate in the National
[sic] political leadership role of the State’ and gives substantial power
to the Tatmadaw in the governance of the country. This role is realised
among others through a close consultative relationship between the
President and the Commander-in-Chief in the appointment procedures
ofgovernmentalofficials,andthroughstrongmilitarypowersinastateof
emergency.Themilitarycaninterveneincaseofdangerforlifeandprop-
erty of people in particular parts of the country, and the Commander-in-
Chief ‘has the right to take over and exercise state sovereign power […]
if there arises a state of emergency that could cause disintegration of the
Union, disintegration of national solidarity and loss of sovereign power
or attempts therefore by wrongful forcible means such as insurgency
or violence.’ In states of emergency, the National Defence and Security
Council8
can suspend the constitution and take over the governance of
8. The National Defence and Security Council consists of the President, the two Vice-
Presidents, the Speaker of the Pyithu Hluttaw, the Speaker of the Amyotha Hluttaw, the
Commander-in-Chief of the Defence Services, the Deputy Commander-in-Chief of the
Defence Services, the Minister for Defence, the Minister for Foreign Affairs, the Minister
for Home Affairs, and the Minister for Border Affairs.
Separation of powers in Myanmar – judiciary (based on 2008 constitution)

78
the country, or of parts of the country, until a new government is elected
and a new administration is formed. The President can also transfer ex-
ecutive, legislative and judicial powers temporarily to the Commander-
in-Chief. Most prominently, however, the constitution reserves 25% of
seats in the houses of the Pyidaungsu Hluttaw and in each of the Region/
State assemblies for members of the army. The logic of the constitution is
therefore not one of democratic control of the security sector but rather
of an inbuilt role of the security sector in governance.9
All major execu-
tive personnel of the new state, starting with President Thein Sein, have
been members of the Tatmadaw. While the senior military leadership
seems to support the course of reforms, the army remains a ‘black box’,
and its position towards future reforms or eventual radical changes to
government following elections is not foreseen.
Questions of decentralization
In 1931, the British colonial administration counted 135 ethnic groups
based on differentiation by language. The SLORC maintained this figure,
although others today speak of a number below a hundred. Population
figures are currently uncertain and will only become clearer when the
results of the 2014 census are fully published. As the census deals with re-
ligious, ethnic and other forms of identity, these data are politically highly
sensitiveandhavethepotentialtocausepoliticalturmoil.Afterdecadesof
highly centralized rule, the ‘lack of state strength and penetration are key
factors that continue to influence the country’s transition’.10
Beyond the
grip of the SLORC/SPDC and previous regimes, local authority was at
least partly embodied by customary leaders, non-state political actors or
non-state armed groups, but also religious and other civil-society organi-
zations have provided services that the state could not provide, including
in the areas of health and education.11
At the same time, requests for some
kind of ‘ethnic’ autonomy or decentralization from largely ‘Burman’ cen-
tral governments reach back to before the country’s independence.
The 2008 constitution established a multi-tier administrative struc-
ture that forms a unitary framework, despite the fact that the creation
9. DRI (2013): 9f.
10. Nixon et al (2013): 7. Well-researched and detailed information on local governance in
Myanmar is still rare. A valuable exception is the MDRI/TAF report, Nixon et al. (2013),
which also serves as reference for this sub-section.
11. Lorch (2007).

79
of decentralized legislature could suggest dimensions of federalism. At
the sub-national level, the territory comprises 14 administrative units
(seven Regions and seven States), each with a Region/State assembly.
The rationale behind this division is based on the assumption that
Regions are predominantly inhabited by ethnic Burmans and States
predominantly by the name-giving national minorities (Chin, Kachin,
Kayah, Shan, Kayin, Mon, Rakhine and Shan). Otherwise, there is no
institutional difference between Regions and States. In addition to
the States, the 2008 constitution allows for self-administered areas for
‘National races with [a] suitable population’.12
The constitution makes one step towards decentralization in creat-
ing the directly elected Region and State assemblies, yet the executive
power at sub-national level remains in the hands of the central govern-
ment. This is illustrated in particular by the nomination of Region/State
Chief Ministers by the President, and by the reliance of the Regions and
States on officers of the General Administration Department (GAD),
a department of the military-led Ministry of Home Affairs, for their
administration. The Chief Ministers participate in the Region/State
hluttaws to which they are elected or appointed but they are accountable
only to the President, not to their assemblies. Military influence is also
given through the structure of the Ministry of Border Affairs. However,
the actual impact on decentralized governance of military representa-
tives in Region/State legislatures and executives is currently unclear.
The potential new political space in Regions/States has to date only
been explored in limited ways. Schedule Two of the 2008 constitution
lists eight sectors of governance over which the decentralized govern-
ment has legislative powers,13
but the specified responsibilities are
narrow and exclude such major areas as health and education. Many
significant departments and ministries remain centralized, although re-
forms are ongoing in Naypyidaw to give more autonomy to Regions and
States. Some Region/State governmental departments have to report to
their local government and some have to report to government at Union
12. The self-administered areas comprise five self-administered zones (Naga, Danu, Pa-O, Pa
Laung and Kokang) with 2–3 townships each, and one self-administered division (Wa)
with six townships. All self-administered areas are governed by a Leading Council with a
Chair; the Tatamadaw is integrated into these councils.
13. Finance and Planning; Economy; Agriculture and Livestock Breeding; Energy, Electricity,
Mining and Forestry; Industry; Transport, Communication and Construction; Social
Sector; and Management.

80
Yangon
Mandalay
Naypyitaw
YANGON
REGION
TANINTHARYI
REGION
AYEYARWADY
REGION
BAGO
REGION
MAGWAY
REGION
KAYAH
STATE
MANDALAY
REGION
(NORTH)
(SOUTH)
(EAST)
CHIN
STATE
SAGAING
REGION
KACHIN
STATE
C H I N A
I N D I A
CHINA
Frontier claimed by China
LAOS
T
H
A
I L A N
D
BANGLADESH
SHAN STATE
R
AKHINE
STATE
MON
STATE
KAYIN
ST
A
TE
Naga SAZ
Pa Laung SAZ
Kokang SAZ
Wa SAD
Danu
SAZ
Pa-O SAZ
0 250 500
Kilometers
© NIAS Press 2014
SAD
SAZ
Self-Administered Division
Self-Administered Zone
Map 2: Regional administration
Note that the Bamar heartland is divided
into Regions whereas the minority areas on
Myanmar’s margins are denoted as States.

81
level, or have to do so for certain areas of their responsibilities. Thus
the independence of the administration in Regions and States remains
ambiguous. The restricted decentralization of political power is further
limitedbyadministrativeandfiscalweaknesses.However,itappearsthat
public interest and awareness in sub-national dimensions of governance
are increasing, not only among minorities and ‘ethnic parties’ but also
among localized factions of other parties, civil-society organizations and
the media. This underlines the need for a more comprehensive policy
on decentralization. Further attention will also have to be drawn to local
governance beyond Region/State level where a new law governing ward
and village tract administration was enacted in early 2012. For the first
time this allows direct elections of local leaders.14
Elite contestations and demands for constitutional reform
Whileitremainsclearthatdecision-makingisstillhighlycentralizedand
characterized by top-down hierarchies with little room for accountabil-
ity and participation, the emergence of the new state also brings about
new contestations at the elite level. The development of the Pyidaungsu
Hluttaw is one of the most surprising elements of the ongoing transi-
tion. Prior to the inauguration of the new government, the composition
of the parliamentary chambers at Union level15
offered little expectation
that parliament might become a powerful institution, let alone a real
debating house. Yet, observations during the first half of the ongoing
legislative period have shown that there are continuing debates between
the USPD majority and the minority of non-USDP MPs. Members of
Parliament do not always vote along party lines, and the military MPs do
not always vote as one block.16
The Speaker of the Lower House, Thura
Shwe Mann, has not only promoted this development, but he has also
challengedtheofficeofthePresidentbydemandingstrongerrolesforthe
parliament.17
This contestation has already led to the resignation of the
Constitutional Tribunal over a dispute about the status of parliamentary
committees in September 2012, and has continued since then, also with
14. Kempel (2012).
15. ForthecompositionofthePyidaungsuHluttawindetail,seeMCMBookPublishing(2013).
16. See Kean (2014) for fuller details.
17. The relationship between the two is even more delicate due to the fact that Shwe Mann
held a higher-ranking military position than Thein Sein in the SPDC regime (see p. 47
and p. 52).

82
the effect of delaying some attempts at reforms by the President. On
his side, President Thein Sein has undertaken government reshuffles on
several occasions to strengthen his course of reforms. It is said that he
has no high ambitions for a second term.
The capacities of MPs, however, are still not very well developed, and
requirements to pass vast numbers of new bills are a great challenge for
the legislature. One political issue still unresolved is the question of the
electoral system, which impacts the future composition of the parlia-
mentary houses. The subject of a possible electoral system change from
FPTPtoaproportionalsystem(PR)wasalreadydiscussedafterthe1990
electionsbutre-surfacedafterthe2012by-electionswhensmallerpoliti-
cal parties approached the Union Election Commission and President
U Thein Sein on this issue. The question whether the electoral system
can be changed without constitutional amendments was brought before
the Constitutional Tribunal by the UEC Chairman in summer 2012, but
no response was received prior to the Tribunal’s resignation. In October
2013, the UEC Chairman reminded the parliament of this open ques-
tion, emphasizing that the Union Election Commission cannot decide
over the electoral system and that the issue would need to be addressed
in good time if any change should be implemented prior to 2015. In
June 2014, the question finally reached the parliament and the Amyotha
Hluttaw agreed to discuss a proposal for the introduction of PR. The
NLD and ethnic parties with local strongholds are in favour of keeping
FPTP, while the USDP and smaller parties without strong local support
bases favour a change.18
With the results of the 2012 by-elections in
mind, it is surprising that the topic was not already dealt with earlier by
the USDP. The question of electoral system choice has the potential to
be part of a political deal when it comes to constitutional amendments.
As outlined in the introduction, demands for constitutional reform,
or for another constitution altogether, have accompanied the emerging
new state since before its inception. For many observers, however, the
motion to formally review the constitution in parliament came as a
surprise when it was proposed by senior USDP MPs in March 2013.
On 25 July, a Constitutional Review Committee with 109 members
was installed; its composition reflected that of the Pyidaungsu Hluttaw
18. The question was hotly debated in Naypyidaw at the time of writing, including by Thura
Shwe Mann and Daw Aung San Suu Kyi who both reached out to ‘ethnic’ MPs to win their
support and find an agreement.

83
and had a USDP majority. Despite hopes for intensified public debates
on the part of opposition parties and civil-society organizations, the
Committee decided to operate quietly but was open to receive recom-
mendations from inside and outside parliament. Thousands of indi-
vidual proposals were compiled in a report by the end of January 2014
and have subsequently been dealt with by a follow-up committee, the
31-member Constitutional Amendment Implementation Committee.
This committee studies the clustered proposals in detail and gives
recommendations to parliament about constitutional amendments. In
parallel, the NLD launched a public information campaign about the
2008 constitution and a discussion process with ethnic parties about
possible amendments. In May 2014, having not received a positive
response on her repeated demands for a quadripartite elite meeting be-
tween the President, the Speaker, Commander-in-Chief Senior General
Min Aung Hlaing and herself, Aung San Suu Kyi started to take a more
confrontational stance with the organization of mass rallies, backed by
the 88 Student Generation.
Some ethnic parties and formerly armed non-state actors still hold
the position that a new constitution should be rewritten altogether.
Meanwhile, many leading opposition figures agree that article 436
– which establishes the conditions to change substantial parts of the
constitution, prescribing a 75% majority in parliament followed by a
national referendum – should be amended as a priority. One of the most
Parliamentary complex in Naypyidaw (photo: Marie Ditlevsen)

84
important issues for ethnic parties is the direct election of State Chief
Ministers rather than their appointment by the President. Other major
issues at stake are the constitutionally enshrined emergency powers of
the military, the quota for military representation in the legislatures, and
the restrictions on presidential candidates that currently would not al-
low Daw Aung San Suu Kyi to stand in 2015. At the time of writing, it
appeared unlikely that the Constitutional Amendment Implementation
Committee will recommend changing the relevant article, 59(f). In
October 2013, Thura Shwe Mann openly said he is in favour of changing
the constitution to allow Suu Kyi to run, even though he has repeatedly
declared his interest to become the next president himself. Presidential
aspirations are also anticipated for Senior General Min Aung Hlaing.
However, even if many in the USDP and the military follow their leaders’
unlikely guidance on this issue, the difficulties to change the constitu-
tion will not go away easily as any substantial amendment will formally
require the above-mentioned 75% majority in parliament and a referen-
dum – unless the political will for compromise leads to the unexpected
findingofalegalloophole.Althoughunlikely,AungSanSuuKyi’srightto
standcouldbecomeatradingelementinexchangeforanelectoralsystem
change that could secure the USDP’s political survival.
Constitutional amendment debates have been overshadowed by
continued fighting in Kachin and northern Shan States, by the crisis in
Rakhine State and the growing anxiety about anti-Muslim violence, and
by the negotiations for a national ceasefire accord, possibly to be followed
by a structured political dialogue – of which constitutional reforms would
again form a part, discussed by more stakeholders than in parliament.
Given the demands for more political participation in the new state not
only from the NLD but also from many ethnic parties and leaders, all
elites will need endurance and creativity to deal with the political chal-
lenges ahead, as well as good will and belief in the cause of democratic
reforms for the process not to derail in electoral competition.
Author’s Note
This contribution builds upon a shorter version in German, Michael
Lidauer,‘WirddieVerfassungderVielfaltgerecht?–Verfassungsreformen
und Wahlsystem’, in Ute Köster, Phuong Le Trong and Christina Grein
(eds):Handbuch Myanmar.Berlin:Horlemann,2014,143–152.Amore

85
in-depth analysis of the electoral framework can be found in Michael
Lidauer and Gilles Saphy, ‘Elections and the Reform Agenda’, in Melissa
Crouch and Tim Lindsey (eds): Law, Society and Transition in Myanmar.
Oxford: Hart, 2014.
References
Democracy Reporting International (DRI) (2013): ‘Pluralism in Democratic
Constitutions’. Research Report, April 2013. Online: <http://www.
democracy-reporting.org/files/dri_research_report_pluralism_in_con-
stitutions.pdf>, accessed on 22 July 2013.
EU Election Expert Mission to Myanmar (EU EEM) (2012): ‘Final Report’.
Yangon and Brussels. Unpublished document.
Fink, Christina (2009): Living Silence in Burma. Surviving under Military Rule.
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edition. Silkworm Books, Chiang Mai & Zed Books, London & New
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Kean, Thomas (2014): ‘Myanmar’s Parliament: From Scorn to Significance’
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Kempel, Susanne (2013): ‘Local Governance: Monitoring and analysis of
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Lidauer, Michael (2012): ‘Democratic Dawn? Civil Society and Elections in
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Lorch, Jasmin (2007): ‘Myanmar’s Civil Society – a Patch for the National
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StateWeakness’. Südostasien aktuell, 26, 3, 54–88.
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Arnold:StateandRegionGovernmentsinMyanmar.MyanmarDevelopment
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