Myanmar’s Failure in Constitution-making and the Promise of Remedy through Deliberative Constitution-Making

Tet Htut Naing N Tet Htut Naing

Myanmar's profound divisions and ongoing violence are caused in part by the absence of constitutional protections for minorities. More precisely, in a multiethnic country, the procedures used to draft constitutions are largely restricted to the ruling parties and military regimes. The constitution, which serves as the supreme law of a country and lays out the fundamental framework for its legal, political, and social systems, has failed to satisfy the political demands of Myanmar's various ethnic groups for federalism. The main cause of Myanmar's ongoing violent internal conflicts to continue is the lack of political resolution through constitutional solutions. Myanmar has adopted three constitutions since independence from the British Empire: the 1948 Constitution, the 1974 Constitution and the 2008 Constitution. These constitution-making processes were neither inclusive nor deliberative. Armed confrontations and the ongoing concerns of ethnic minorities resulted from the significant exclusion of civil society, political opposition parties, and ethnic minorities from meaningful involvement. The aim of this thesis is to review the three constitution-making processes and analyse how those processes excluded and discriminated the minorities against Myanmar’s ethnic minorities. All three constitution-making have a pattern: the process is limitedly inclusive, led by authoritarian leadership and systemically exclusionary. This pattern has shaped Myanmar’s constitutional history. The analysis was conducted using a conceptual lens based on constitutionalism and constitution-making. Three interlocking criteria were selected for the analysis: inclusivity, legitimacy and deliberation in institutional forums. Inclusive participation is an essential condition of legitimacy, and institutional forums are the required platforms for such participation. Together, these three criteria form a framework to assess Myanmar’s constitution-making process and its implications for the country’s future stability. Identifying the inadequacy of past constitution-making highlights the necessity of a new, inclusive, and egalitarian approach. Deliberative constitution-making process, I propose, is a possible remedy. It can accommodate the inclusivity, equality, consensus-building and legitimacy essential for durability of adopted constitution. Additionally, deliberative constitution-making can also deal with a deeply divided society by offering citizens the opportunity to engage in reasoned arguments about diverse interests to build a consensus.

Myanmar’s Failure in Constitution-making and the Promise of Remedy through Deliberative Constitution-Making

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