The Long Struggle for Constitutional Change in Myanmar
| Author | Andrew J Harding,Nyi Nyi Kyaw |
| DOI | 10.1177/0067205X221087457 |
| Published date | 01 June 2022 |
| Date | 01 June 2022 |
| Subject Matter | SPECIAL ISSUE (PART 1): CONSTITUTIONAL STRUGGLES IN ASIA |
Special Issue (Part 1): Constitutional Struggles in Asia
Federal Law Review
2022, Vol. 50(2) 192–205
© The Author(s) 2022
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DOI: 10.1177/0067205X221087457
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The Long Struggle for Constitutional
Change in Myanmar
Andrew J Harding*and Nyi Nyi Kyaw**
Abstract
The rigidity of the 2008Constitution of the Republic of the Union of Myanmar is rightlynotorious, as
this rigidity was proven at least three times through failed attempts at reform. Despite these failed
attempts, the military disputed the results of the election held in November 2020, and conflict
ostensiblyover that issue led to a military coup on 1 February2021. This coup purported to have been
undertaken constitutionally as an ‘emergency’but was the object of popular rejection. In this article,
we focus on the struggle over constitutionalism that had its origins in earlier attempts to achieve
democracy.In our focus on the current natureand implication of ‘constitutionalstruggle’in Myanmar,
we make use of analysis based on factualdata collected by the secondauthor, located in Mandalay,one
of the epicentresof struggle against the military andtheir actions following the coup. Ourargument is
that this ‘praetorianconstitutionalism’in Myanmarabsent a pre-agreed pact between the militaryand
the civilian defies the basic logic of democratic or liberal constitutionalism and hence is unconsti-
tutional in both spirit and text. This explains how a constitution drafted in order to protect the
positionand privileges of the military was ultimatelyin effect rejected by thatsame military. The article
will argue that the praetorian constitutionalism of Myanmar during 2010–21 contains a necessarily
built-in struggle between the civilian and the soldier that remains unresolved.
Received 20 July 2021
The 2021 Coup
In the early hours of 1 February 2021, a young woman in Naypyidaw was recording a workout
video. She exercised oblivious to the fact that she was capturing for posterity an event that turned out
to be unique in the history of Asian constitutional struggle, as behind her a line of heavy military
vehicles was proceeding down the 20-lane highway leading to Myanmar’s parliament building.
1
The Tatmadaw,the Myanmar military, was fulfilling what had been threatened several times during
the previous few weeks by mounting a coup d’´
etat to oust from office the elected National League
*Professor of Law at the National University of Singapore, Singapore, The author may be contacted at lawajh@nus.edu.sg.
**Fellow at the Kulturwissenschaftliches Institut Essen (KWI)/Institute for Advanced Study in the Humanities, Germany.
1. See BBC News, ‘Myanmar Fitness Instructor Accidentally Captures Coup Unfolding’(YouTube, 4 February
2021) <https://www.youtube.com/watch?v=yEHiTjViicE>.
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