Burma’s Military Blocks Constitutional Amendments

Burma’s Military Blocks Constitutional Amendments

March 30, 2020
Burma’s Military Blocks Constitutional Amendments
In mid-March, Burma’s military, the Tatmadaw, blocked
Article 436(a) requires that more than 75% of the members
several constitutional amendments introduced in Burma’s
of the Union Parliament approve a constitutional
Union Parliament. The amendments, proposed by State
amendment. With military officers constituting 25% of the
Councilor Aung San Suu Kyi and her political party, the
parliament, they have the power to block any changes.
National League for Democracy (NLD), would have
reduced the military’s role in government. The Tatmadaw’s
Key Constitutional Provisions Granting
opposition to governance reform may complicate U.S.
Military Special Powers
efforts to foster Burma’s transition to a democratic civilian
Article 20(b): Grants the military administrative and judicial
government and encourage an end to the nation’s civil war.
independence.
In addition, Aung San Suu Kyi has refused to consider
Article 20(c): Designates the Tatmadaw’s Commander-in-Chief
several constitutional amendments proposed by ethnic-
as “the Supreme Commander of all armed forces.”
minority political parties (EPPs)—to provide Burma’s
Article 40(c): Grants the Commander-in-Chief the ability to
regions and states more autonomy—which has fueled
“exercise State sovereign power” during an emergency that
questions about her support for the creation of the
could cause the disintegration of the Union of Burma.
decentralized federal state sought by many of Burma’s
ethnic minorities.
Article 60(b): Grants the military members of the Union
Parliament the authority to nominate one of the three
The blockage of the constitutional amendments, and other
candidates for President and the two Vice Presidents.
recent actions by the Tatmadaw, may elicit congressional
Article 109(b): Empowers the Commander-in-Chief to appoint
interest in action that would revise U.S. policy in Burma,
military officers to serve as 110 of the 440 members of the
such as the Burma Unified Through Rigorous Military
Pyithu Hluttaw (the Union Parliament’s lower chamber).
Accountability Act of 2019 (H.R. 3190) and the Burma
Human Rights and Freedom Act of 2019 (S. 1186).
Article 141(b): Empowers the Commander-in-Chief to appoint
military officers to serve as 56 of the 224 members of the
The 2008 Constitution
Amyotha Hluttaw (the Union Parliament’s upper chamber).
In 2003, Burma’s ruling military junta—the State Peace and
Article 201: Provides the Tatmadaw 6 members in the 11-
Development Council (SPDC)—began drafting the
member National Defence and Security Council.
country’s third constitution since independence in 1947, as
Article 232(b): Grants the Commander-in-Chief the right to
part of the SPDC’s “Seven-Step Roadmap for a Flourishing
nominate active military officers to serve as Ministers of
and Disciplined Democracy.” In 2008, the document was
Border Affairs, Defence Services, and Home Affairs.
purportedly ratified by 94% of voters in a national
Article 413(b): Permits the President to transfer “executive
referendum. The referendum’s results were condemned by
powers and duties and the judicial powers and duties” to the
many—including President Obama—as fraudulent.
Commander-in-Chief after a declaration of a state of
Critics of the 2008 constitution state that it allowed the
emergency.
SPDC to consolidate and preserve military power. Several
Article 419: If the President declares an emergency that could
key provisions give the military sweeping authority in the
cause the disintegration of the Union of Burma, the
government (see shaded box). Aung San Suu Kyi and the
Commander-in-Chief has “the right to exercise the powers of
NLD see the constitution as granting the military too much
legislature, executive, and judiciary.”
control over the governance of the country. Not only does it
Article 445: Provides immunity to members of Burma’s
give the military a large presence in the legislature, Article
previous military juntas, the State Law and Order Restoration
59(f) effectively prevents Aung San Suu Kyi from
Council (SLORC) and the State Peace and Development
becoming President, a measure ostensibly designed to keep
Council.
the office of the presidency “clear of foreign influence.”
In addition, the constitution does not provide for a

decentralized federal state in which the seven ethnic
The NLD’s Key Proposed Changes
states—Chin, Kachin, Kayah, Kayin, Mon, Rakhine, and
In 2015, the NLD won a supermajority in the Union
Shan—have the high degree of administrative autonomy
Parliament. After her 2016 appointment as State Counselor,
they seek. The lack of a decentralized federal state is one of
a newly created position similar to a Prime Minister, Aung
the major causes of Burma’s ongoing civil war, which dates
San Suu Kyi indicated that one of the new government’s
back to the Union’s formation in 1947.
top priorities was to amend the 2008 constitution. The NLD
launched its first attempt at constitutional reform in early
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link to page 2 Burma’s Military Blocks Constitutional Amendments
2019. Among the NLD’s 114 proposed amendments, its top
War and Peace
objectives were to (1) lower the number of military
Burma’s seven-decade-old civil war has been fought
members in the Union Parliament; (2) reduce the military’s
primarily over the rights of its ethnic minorities for equal
autonomy; (3) diminish the military’s role in the
treatment and relative autonomy. The 2008 constitution
government; and (4) remove the military’s ability to
provides neither, and the NLD’s refusal to put the ethnic
effectively veto constitutional amendments.
parties’ amendments to a vote enhances the view that the
NLD prefers a more centralized government.
Votes in Parliament
This lack of support by Aung San Suu Kyi and the
In a series of parliamentary votes in mid-March, virtually
Tatmadaw for ethnic minorities’ priorities may undermine
all of the NLD’s proposed amendments received majority
efforts to encourage more of Burma’s ethnic armed
support, but failed to gain the necessary approval of more
organizations (EAOs) to sign a ceasefire agreement. A 2015
than 75% of members, as the military block voted against
agreement between the military and 10 of the more than 20
them. Table 1 lists some of the key amendments.
EAOs calls for the establishment of a nationwide ceasefire
Table 1. Key Defeated Constitutional Amendments
before negotiations over constitutional reform can begin. To
Amendments must be approved more than 75% of members
date, most of the larger and more influential EAOs have not
signed the agreement. In addition, 2 of the 10 signatories—
Proposed Amendment: Article and
Vote to
the Karen National Union and the Reconstruction Council
Summary
Approve
of Shan State—have suspended their formal participation in
Revoke Article 59(f): removes the prohibition
62%
the ceasefire talks.
on someone with a foreign citizen spouse or
2020 Parliamentary Elections
children becoming President.
Aung San Suu Kyi’s 2015 electoral victory was achieved
Revoke Articles 338: removes the military’s
63%
largely as a result of widespread support from Burma’s
sole authority over all of Burma’s security

ethnic minorities, who voted for the NLD as a protest
forces.
against the Tatmadaw and its political party, the Union
Solidarity and Development Party (USDP). The NLD’s
Revise Articles 109(b) and 141(b): reduces the
62%
failure to amend the constitution and its rejection of ethnic
share of allocated seats for military officers
minority input may hurt the party’s prospects in the
over 10 years.
parliamentary elections expected in November 2020.
Revise Article 436(b): eliminates the military
64%
Many of Burma’s ethnic minority parties are trying to
members’ ability to block constitutional
create a united slate of candidates for the elections in hopes
amendments.
of winning a majority of their state’s seats in the Union
Revoke Article 445: eliminates immunity to past
62%
Parliament. This approach is modeled after the success of
members of Burma’s military governments.
the Arakan National Party (ANP) in the 2015 elections, in
Source: CRS Research
which the ANP won a majority of the Rakhine State seats.
If successful, the ethnic minority members of the 2020
The Ethnic Parties’ Proposed Changes
Union Parliament could control enough seats to force either
Various ethnic political parties also proposed draft
the NLD or the USDP into forming a coalition government.
constitutional amendments, but none were brought to a
Implications for U.S. Policy
vote. The Shan National Liberation Party, for example,
proposed an amendment to Article 261(b) that would allow
Since Aung San Suu Kyi and the NLD took power in 2016,
the region or state legislatures to elect their own Chief
U.S. policy has been based on an assumption that Burma is
Ministers, rather than having them appointed by the
transitioning to a democratic, civilian government. The
President. Many of the ethnic minority political parties in
actions of the Tatmadaw since—from rejection of proposed
parliament have condemned Aung San Suu Kyi’s coalition
constitutional amendments, to escalated fights against
for refusing to consider their proposed amendments.
several of the EAOs—suggest this premise is false, and the
Tatmadaw is not interested in political changes. The
Implications for Burma
escalated fight against the Arakan Army in Rakhine State is
The failure of the NLD and ethnic minorities to obtain
further complicating prospects for the safe return of more
parliamentary approval for their proposed constitutional
than 700,000 Rohingya who fled to Bangladesh in 2017 to
changes has implications for Burma’s potential transition to
escape Tatmadaw attacks.
democracy, the peaceful resolution of its long-standing civil
war, and for the upcoming 2020 parliamentary elections.
The failure of Aung San Suu Kyi and the Tamadaw to
consider constitutional changes proposed by ethnic parties
Democracy
may heighten tensions with the EAOs, undermining U.S.
The Tatmadaw’s rejection of the NLD’s amendments
efforts to help end the civil war.
indicates that it is unwilling to relinquish any power within
the government at this time, and raises concerns that it has
Michael F. Martin, Specialist in Asian Affairs
no intention of ever doing so. The NLD’s rejection of the
Kirt Smith, Research Assistant
amendments proposed by the ethnic minority parties also
IF11481
may indicate that Aung San Suu Kyi and her party do not
support the political decentralization that many observers
view as necessary to ending the country’s civil war.
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Burma’s Military Blocks Constitutional Amendments

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