- Constitutionalism and Legal Change in Myanmar ed. by Andrew Harding
2017. Constitutionalism and Legal Change in Myanmar. Oxford and Portland: Hart, 312 pages; ISBN 1849467900
For nearly thirty years, since Burma's military regime nullified the 1990 election results and commenced a decades-long Constitution-drafting process that produced the country's current central charter in 2008, the "constitutional question" has dominated the country's political discourse. While debate rages over the Constitution's affordances—as those condemning it as pre-empting true democracy contest those who insist that it can be navigated to positive ends—the sheer glut of discussion makes the dearth of scholarly legal analysis noteworthy. Constitutionalism and Legal Change in Myanmar addresses this gap, providing the first book "in English on constitutional law or constitutionalism in Myanmar since" 1961 (Harding, v). More importantly, each of the volume's thirteen chapters tackles the central question of affordances: what can be done within the legal architecture manufactured by a military-drafted Constitution? While acknowledging that Burma's constitution is profoundly flawed, the authors argue that it should be engaged not as a "final product. . . but rather as a basis for further development" (Harding, vii). But development in what direction? Such is both the enabling factor of this volume and the quandary that lurks implicit within it: can Burma's Constitution be a tool that leads an unraveling of its own authoritarian aspects? Or will it, conversely, capture those trying to use it, undermining democracy through its fundamental limitations? [End Page 150]
An Exceptional Constitution
In addressing this issue, many of the volume's essays feature scholars wrestling with the legal, and ultimately philosophical, concept of the exception: exceptions inscribed in the Constitution's fabric, extrajudicial exceptions to those exceptions, and finally the exceptions the authors see as necessary to undermine such "exceptional" aspects.
The most obvious exception is, as Myint Zan puts it, the way the Constitution "authoriz[es] a formal, constitutional takeover by the military" (Myint Zan, 31). Renshaw adds associated corollaries, in which "applications to the Supreme Court may be suspended in times of war, foreign invasion or insurrection,"and that the military is made immune from prosecution (Renshaw, 221, 231). Renshaw also points out that rights, such that they are, are only constitutionally guaranteed for citizens, meaning that those denied citizenship—such as the Rohingya—are ineligible for protections.
While much has been made of the constitutional exceptions, Crouch identifies a different one, arguing that "the more immediate, everyday threat" to society lurks in the Code of Criminal Procedure, which includes an emergency exception that "gives a magistrate the power to issue an order for stability and social control" (Crouch, 161). Crouch demonstrates that while "the text characterizes this power as judicial. . . [and] temporary," she shows that the executive has appropriated it, amounting to martial law that "no longer respects temporal bounds" (Crouch, 167). In other words, those in power have even arrogated the power to execute multiple exceptions to the exception.
This "double exception" is also illustrated by Nardi and Khin Khin Oo's respective articles on the 2012 Constitutional Tribunal impeachment debacle, in which 301 MPs dismissed all nine members of the Tribunal for having voted to restrict parliament's ability to form committees. This action not only undermined a critical "check and balance" mechanism but was also blatantly unconstitutional: [End Page 151] decisions made by the Tribunal are meant to be final and not subject to appeal. Nardi argues that this exception was made because "relatively few civilian politicians had a stake in the 2008 Constitution as it was written, much less in a mechanism that would enforce it" (Nardi, 188).
Eliminating Exceptions to Exceptions with Exceptions?
However, eliminating such exceptions—by amending the Constitution—appears virtually impossible, given the military's retention of an effective veto (amendments require greater than 75% ratification and it preserves 25% of the seats). In his chapter, Harding points out that the Constitution's key parts are even more difficult to amend than the common 25%/75% gloss conveys: some command a referendum, which "requires organizing the equivalent of a general...