The Military’s Role in Sub-National Institutions: An Obstacle to Federalism in Myanmar

Jesse Hartery outlines some of the institutional barriers to federalism in Myanmar.

When international observers and media outlets discuss Myanmar’s constitutional structure, they largely focus on the military’s role in national institutions. While the 2008 Constitution (the “Constitution”) does leave an important place for military officials in governing the Southeast Asian state at the federal level[1], it is important to recognize that the same document gives them an equally pervasive role in sub-national institutions. I am acutely aware that the constitutional structure imposed[2] in 2008 is not the only obstacle to federalism in Myanmar. That said, the following will shine a light on some of the very real barriers that exist from a strictly constitutional standpoint.

Myanmar is divided into 21 areas at the sub-national level, including: seven Regions (Ayeyarwady, Bago, Magway, Mandalay, Sagaing, Tanintharyi, Yangon), seven States (Chin, Kachin, Kayah, Kayin, Mon, Rakhine, Shan), one union territory (the capital city of Nay Pyi Daw) and six self-administered zones or divisions (Danu, Kokang, Naga, Pa’O, Pa Laung, Wa). The governance models of these areas differ: Regions and States have legislatures (known as Hluttaws in Burmese), Nay Pyi Daw is under the direct administration of the President, but day-to-day functions are carried out on the President’s behalf by the Nay Pyi Daw Council, and self-administered zones are administered by a leading body that consists of at least ten members and includes State or Region Hluttaw members and nominated members from the military (sections 49-50 and 56 of the Constitution).[3] The ethnic Bamar are the majority in the seven Regions and the union territory, while the seven States and six self-administered zones are primarily inhabited by ethnic minorities. For the purposes of this contribution, I will focus on the governance structure of the States and Regions.

While the federal phenomenon comes in many shapes and sizes, there is nevertheless a list of indicators of federal status. Among the indicators of importance to the following analysis, we find: (1) two sovereign orders of government, each of them acting directly on its citizens; and (2) a constitutional division of legislative and executive powers.[4]

The following is only concerned with the participation of the military in the legislative and executive branches of government at the sub-national level. It does not discuss the division of legislative powers or the limits that should or should not be imposed on the exercise of legislative action through a supralegislative bill of rights. In that sense, I am only concerned with how the branches of government are conceived in a federal state. This discussion is important since Myanmar is transitioning to democracy and is looking to amend its Constitution to adopt one built on federal principles.[5]

At the outset, it is important to emphasize that it is antithetical to democratic governance to have active military officials serve at the helm of government departments and as unelected members of legislative bodies. Liberal democracy has at its core the principle of civilian control of the military – that is, institutions of government should be controlled and overseen by democratically elected officials. In that sense, Myanmar’s institutional structure fails to meet some essential attributes of democracy (see namely section 20 of the Constitution).[6]

These problems are compounded in Myanmar’s attempts at implementing a federal structure. Federalism entails giving control over certain subjects to local populations. It is a way to dilute the dangers of majoritarian rule found in unitary states by dividing power between the centre and the sub-national entities. It allows local populations to chart a course of their own on issues of a local or private nature. When the military plays a role in these sub-national legislatures and governments, it necessarily has centralizing effects and inhibits local autonomy.

The military’s role in the legislative branch at the sub-national level is identical to that found in the national legislature. It holds 25% of seats and therefore plays a role in the adoption of legislation. To be precise, section 161 of the Constitution of Myanmar provides that the Commander-in-Chief appoints military representatives equal to one-third of the elected members. As in the central legislature, this poses serious problems for a political party that obtains an absolute majority of elected seats in the legislature. In order to obtain an absolute majority in the legislature as a whole, a party must obtain at least 67% of the elected seats – a difficult task in any democracy. If they fail to do so, they may have to negotiate with military officials to get legislation passed.

The military’s role in the executive branch is equally important. Firstly, the military is afforded one seat in each local cabinet of ministers. The Minister for Border and Security Affairs in each State and Region, who must be an active member of the military, is essentially appointed by the Commander-in-Chief (section 262 of the Constitution). This ensures the military’s constant presence at the cabinet table. Secondly, the federal Ministry of Home Affairs controls the public service of each State and Region through the General Administration Department (“GAD”), a structure that pre-dated the 2008 Constitution (section 260 and paragraph 10(a) of the Union Legislative List of the Constitution).[7] This Ministry is one of the three departments in the federal Cabinet afforded to military members on appointment by the Commander-in-Chief. This means that while there may be local cabinet ministers, the administrative apparatus tasked with executing the laws of each State and Region is controlled by officials from the central Ministry of Home Affairs. In that sense, the State and Region executives are not entirely sovereign as is generally expected in a federal state. There is no strict division of executive authority between the orders of government.

To make things worse, the GAD not only staffs the office of the Chief Minister and the administrative state more broadly, but also offers support to the State and Region legislatures. At the top of this bureaucratic hierarchy, we find the Executive Secretary of the State or Region, an individual who is ultimately accountable to the federal Ministry of Home Affairs. In essence, both the legislative and executive branches of the States and Regions depend on the GAD to function. This is simultaneously an affront to local autonomy and the separation of powers.

The latter set up (the GAD staffing the legislative branch) is arguably unconstitutional. Section 260 of the Constitution states that “the General Administration Department of the Region or State is the Office of the Region or State Government concerned.” In other words, the Constitution makes no mention of the GAD’s role in the legislative branch at the sub-national level. Rather than a constitutional change, ensuring a clear separation of powers will seemingly require a clarification of the Constitution. Of course, a challenge before the Constitutional Tribunal would also be an acceptable route. However, the Tribunal has been particularly weak since the 2012 crisis when all its members resigned en masse, before facing formal impeachment for rendering a judgment in President v. Pyidaungsu Hluttaw with which the national legislature disagreed.[9] Whatever one’s position might be on the underlying legal issue in that case, the reaction to the decision and subsequent amendments to the 2010 Constitutional Tribunal Law have invariably weakened the Tribunal’s ability to act as a serious check on power.

Finally, there are three types of emergencies outlined in the Constitution[10]: (1) when it is not possible to carry out administrative functions in certain areas (sections 40(a) and 410 of the Constitution); (2) when there is a situation that endangers “lives, shelter or property of the public” (sections 40(b), 412 and 413(a) of the Constitution); and (3) when there is a threat of disintegration of the union, national solidarity or loss of national sovereignty (sections 40(c) and 417 of the Constitution). In type-one emergencies, legislative and executive functions of the States and Regions are handed over to the President. In type-two emergencies, a military administrative order might be warranted, which transfers all administrative and judicial powers to the Commander-in-Chief. Type-three emergencies transfer all legislative, executive and judicial powers, at both the national and sub-national level, to the Commander-in-Chief. In addition, all legislative bodies are suspended. The first two types of emergencies require the approval of the national legislature within 60 days (section 212 of the Constitution). Type-three emergencies are immediately submitted to the national legislature, but do not seem to require sustained legislative oversight considering these bodies are suspended (sections 417, 418 and 421 of the Constitution). Moreover, as legal scholar Melissa Crouch has noted, the constitutional text seems to suggest that the declaration of emergencies is not subject to judicial review, which is particularly worrying.[11]

Evidently, type-two and -three emergencies leave an imposing role for the military at the sub-national level. The broad language of type-three emergencies, and the possible abuse it could generate, is particularly problematic. It is important to note, however, that these emergencies must be declared by the President of Myanmar after conferring with the National Defence and Security Council. This Council is composed of 11 members, a majority of which are military officers (sections 201, 410, 412 and 417 of the Constitution). While there is some safety in the fact that a civilian President, currently a member of the NLD, ultimately bears responsibility for declaring an emergency, it does not remove the serious attack on sub-national autonomy that such a declaration entails and the sweeping control afforded to the military.

All these issues, added to the fact that the Chief Minister of each State and Region is appointed by the central quasi-civilian government, demonstrate that the obstacles to federalism in Myanmar are significant. I have tried to shine a light on some of the constitutional problems that exist by demonstrating that the military continues to have a pervasive role at the sub-national level. As I mentioned at the beginning, the federal phenomenon comes in many shapes and sizes. India, for example, has traditionally been considered “quasi-federal” because of its important centralizing features, namely through the existence of the All-India Services and the emergency powers provided to the central government, subject of course to legislative (composed of a second chamber with members indirectly elected by the elected members of State legislatures) and judicial oversight since the judgment in S.R. Bommai v. Union of India. In addition, India has historically had vocal Chief Ministers willing to push back against these centralizing features.[12] Other federations, like Canada, stick closely to a constitutional model that emphasizes mutual sovereignty. In Myanmar, however, when Phyo Min Thein, the Chief Minister of Yangon Region, dared criticize the military’s role in state institutions, his comments were swiftly labeled “reckless and confrontational”, and he was forced to apologize.[13] This is not the way to run a country respectful of local leadership.

Ultimately, the Burmese people and their leaders will have to consider what model they prefer as constitutional discussions continue through the 21st century Panglong Conference. If Myanmar is truly committed to reconciliation with ethnic minorities and the spirit that brought Aung San to Panglong in 1947, it will need to meaningfully address these institutional barriers to local autonomy. As Harn Yawnghwe and B.K. Sen have previously explained, if Myanmar does ultimately fragment, the blame will lie solely on the shoulders of the military. Their failure to accept the spirit of Panglong and its emphasis on self-determination and democracy is the greatest threat to maintaining a unified Myanmar.[14]


Jesse Hartery is a law student at McGill University and a Research Assistant to Professor Johanne Poirier, the holder of the Peter MacKell Chair in Federalism. He is also a Judicial Law Clerk at the Superior Court of Québec. He has previously worked in the Crown Law Office at the Ministry of the Attorney General of the Province of Ontario (Canada). He holds an Honours B.A. in History and a Minor in Asian Studies from the University of Ottawa.

 

[1] See my recent article where I discuss this at length: Jesse Hartery, “Stuck in Myanmar’s Constitutional Straitjacket”, McGill International Review, July 28, 2017, online: https://www.mironline.ca/stuck-myanmars-constitutional-straitjacket/.
[2] “Burma: Reject Constitutional Referendum”, Human Rights Watch, May 17, 2008, online: https://www.hrw.org/news/2008/05/17/burma-reject-constitutional-referendum.
[3] Yash Ghai, “The 2008 Myanmar Constitution: Analysis and Assessment”, (2008), online: http://www.burmalibrary.org/docs6/2008_Myanmar_constitution–analysis_and_assessment-Yash_Ghai.pdf.
[4] Ronald Watts, Comparing Federal Systems, 3rd ed, Kingston: McGill-Queen’s University Press, 2008, 83.
[5] San Yamin Aung, “Myanmar President Reaffirms Commitment to Constitutional Reform”, The Irrawaddy, January 5, 2018, online: https://www.irrawaddy.com/news/myanmar-president-reaffirms-commitment-constitutional-reform.html.
[6] Jamie Tarabay, “Myanmar’s military: The power Aung San Suu Kyi can’t control”, CNN, December 6, 2017, online: http://www.cnn.com/2017/09/21/asia/myanmar-military-the-real-power/index.html.
[7] See also sections 2 and 61 of The Region or State Government Law, SPDC Law No. 16/2010;Kyi Pyar Chit Saw and Matthew Arnold, “Administering the State in Myanmar: An Overview of the General Administration Department”, The Asia Foundation, October 2014: https://asiafoundation.org/resources/pdfs/GADEnglish.pdf.
[9] Htin Kyaw Aye, “How the NLD can improve Myanmar’s democracy”, Frontier Myanmar, September 8, 2017, online: https://frontiermyanmar.net/en/how-the-nld-can-improve-myanmars-democracy.
[10] Ghai, The 2008 Myanmar Constitution: Analysis and Assessment, 21-39.
[11] Melissa Crouch, “The Everyday Emergency: Between the Constitution and the Code of Criminal Procedure in Myanmar”, in Andrew Harding and Khin Khin Oo, eds, Constitutionalism and Legal Change in Myanmar, Oxford: Hart Publishing, 2017.
[12] M.P. Singh and Rekha Saxena, “Intergovernmental Relations in India: From Centralization to Decentralization”, in Johanne Poirier, Cheryl Saunders and John Kincaid, eds, Intergovernmental Relations in Federal Systems: Comparative Structures and Dynamics, Don Mills: Oxford University Press, 2015, 251-252 and 254-255.
[13] San Yamin Aung, “Yangon Chief Minister Apologizes to Military Chief”, The Irrawaddy, July 27, 2017, online: https://www.irrawaddy.com/news/burma/yangon-chief-minister-apologizes-military-chief.html.
[14] Harn Yawnghwe and B.K. Sen, “Burma’s Ethnic Problem is Constitutional”, (2002) 11 L Issues on Burma J 51 at 54, online: http://www.ibiblio.org/obl/docs/LIOB-11.pdf.

Author: Jesse Hartery

Jesse Hartery is currently completing a joint degree in common law (LL.B.) and civil law (B.C.L.) at McGill University. He is a Research Assistant to Professor Johanne Poirier (the holder of the Peter MacKell Chair in Federalism) and a Judicial Law Clerk at the Superior Court of Québec. He has previously worked in the Crown Law Office at the Ministry of the Attorney General of the Province of Ontario (Canada). He holds an Honours B.A. in History and a Minor in Asian Studies from the University of Ottawa.