"Non-democratic regimes often – but not always – seek to institutionalize their political domination and immunity through the enactment of a specifically designed constitutional document (Ginsburg and Simpser 2014). Military regimes, in particular, can use constitutional texts to strengthen the foundations of the political intervention of the armed forces (Feit 1972; Finer 1975; Stepan 1988). Likewise, when military juntas ultimately set in motion a transition from direct military rule to a civilian one, the armed forces are often tempted to control the constitution-drafting process and secure key legal prerogatives for the military institution under a new hybrid “post-junta” regime (Barros 2002, Croissant and Kamerling 2013; Chambers 2014; Negretto 2014). Myanmar2 offers a case of a dominant military institution using a constitutional drafting process and a new supreme law for its own corporate interests. Indeed, the constitution adopted in 2008 confers high levels of policy prerogatives upon the Burmese armed forces – or Tatmadaw – and embeds “praetorianism”3 in Myanmar’s polity in a way that the country’s two previous post-independence constitutions had not. Since it won its freedom from the British in 1948, Myanmar has produced three constitutions. The first postcolonial constitutional text was adopted in 1947, but its provisions were suspended after the coup d’état staged by General Ne Win in March 1962. A second constitution drafted by Ne Win’s military administration was passed in 1974, but was abrogated in September 1988 following a further coup d’état orchestrated by the Tatmadaw leadership. The third and latest constitutional document was promulgated in 2008 after a controversial drafting process that lasted 15 years. All three constitutional texts which Myanmar adopted in 1947, 1974, and 2008 were quite different in content and spirit. They were framed in different political contexts and under the supervision of different leaderships with divergent political agendas. Above all, they made very different references (if at all) to the role of the Tatmadaw as a major state institution and potential policy-maker. The texts adopted in 1947 and 1974 indeed aimed to neither entrench military rule nor institutionalize the political intervention of the armed forces. This chapter seeks to understand how and why the Tatmadaw has chosen to formulate its own constitutional vision in the early 1990s and thereafter establish a legal political system, which I define as “constitutional praetorianism.” Drawing on the extant literature on postcolonial Myanmar politics, this chapter first provides a comparative overview of the first two postcolonial constitutions of the country and examines why both documents bestowed a marginal role upon the Burmese military. The study then focuses on the country’s third constitution, which was adopted following a controversial referendum in 2008. It argues that the constitutional text embeds and institutionalizes praetorianism. As the literature on civil–military relations demonstrates, there are different levels of political intervention by the armed forces: they range from direct military rule to hybrid systems led by civilians, but in which the armed forces remain a powerful lobby (Egreteau and Jagan 2013; Bünte 2014). Building on this scholarship as well as on a series of interviews with Burmese parliamentarians and party leaders carried out in both Yangon and Naypyitaw (2013–2014), this chapter argues that the 2008 constitution serves three clear purposes for the Burmese armed forces. First, it manifests the Tatmadaw’s view of itself as a legitimate political and policy-making state actor following 60 years of regular and pervasive intrusion into Burmese postcolonial politics and public affairs. Second, it provides the military with legal instruments for a long-term policy intervention and influence. Third, it offers the armed forces and their personnel a form of self-insurance protecting soldiers from any form of prosecution and securing a much sought-after immunity for the leaders of the 1988 coup d’état. As long as this unhealthy policy influence of the army institution prevails, constitutionalism will not emerge in Myanmar. A thorough revision of the 2008 constitution remains highly unlikely. Despite the formation of a joint parliamentary committee tasked specifically to propose potential amendments, the first-ever attempt at reviewing the constitutional text was vetoed by the militaryappointed representatives in June 2015. Given the country’s historical and political legacies of military intervention, ethnic separatist insurgency, and political instability, I conclude this chapter with the bleak prospects for swift constitutional reform unless the Tatmadaw decides otherwise. Army and constitutions in Myanmar: a background A civilian supremacy in the 1947 constitution The 1947 constitution4 was designed to ensure a smooth – but quick – transfer of power from British colonial rule to an independent and, above all, legitimate Burmese civilian administration (Steinberg 2006: 199). Despite flaws, the constitution envisioned a federal state structure and a multi-party parliamentary system with competitive and regular elections to be held once independence was granted on January 4, 1948 (Inlow 1948; Maung Maung 1959). There were no nonmilitary functions assigned to the Burmese armed forces, nor any specific prerogative for the wider security forces enshrined in the document. The weakness of the Burmese military forces in the last months of colonial rule may explain this lack of involvement in constitutional drafting. Since the early 1940s, the Soldiers, state, and constitutions in Myanmar 119 driving force behind the Burmese independence struggle had been the Burma Independence (and, from 1943, National) Army (BIA/BNA) under the aegis of a young military officer, Aung San. Yet, despite the glory inherited from several years of anti-colonial and then anti-Japanese fighting, it was not the nascent Tatmadaw that was asked to frame the first charter of the country after the end of the war in 1945. Rather, the Anti-Fascist People’s Freedom League (AFPFL) – a loose coalition of political parties, charismatic politicians, and pre-war student activists – took up the task. At that time, the Tatmadaw was a fragile body, illequipped to form a powerful policy lobby. It also had to face myriad rival private armies and ethnic militias operating throughout the country (Callahan 2003: 115–116). Therefore, its senior officers, themselves bogged down in inter-ethnic dissension, could not ensure a crucial role for the military in shaping the new state structures. A civilian committee of legal, political, and academic experts gathered in 1946 to draft a new constitution. A constituent assembly was elected in April 1947. It discussed several drafts prepared by the committee. The final one was eventually adopted on September 24, 1947 – two months after Aung San’s assassination. Despite shortcomings and flaws, the constitutional text provided legitimacy to the newly created state, but interestingly not to the actors who participated in the independence struggle – the Tatmadaw in particular. This underscored some initial efforts by the AFPFL to keep the military out of politics. Aung San himself had relinquished his own military positions early on. This was not without debate, though. As highlighted by Maung Maung (1959: 146–147), in one of the first constitutional drafts submitted to the Constituent Assembly in June 1947, one article proposed the creation of a special “Defence Council.” Through this non-elected body the President of the Union would have exercised “the supreme command of the armed forces.” But the proposal was dropped at Aung San’s own suggestion. Thus, in the final text, the Burmese armed forces were not granted any special place: they had to remain subordinate to the post-independence elected civilian authorities. Besides, to avoid the maintenance of competing private armies, the right to raise and maintain national military forces was then vested exclusively in the elected Parliament seated in Rangoon (Article 97 of the 1947 constitution). The first post-independence constitutional framework lasted less than 15 years. During the 1950s, the raging civil war between Myanmar’s central government and myriad ethnic and communist insurgencies propelled a more cohesive Tatmadaw into broader non-military policy roles. Under the charismatic leadership of General Ne Win, uncontested army chief from 1949, the Tatmadaw soon transformed itself into a disciplined and unified corporate institution, increasingly willing to discuss policy issues and civilian affairs (Callahan 2003). Above all, it started to openly highlight its legitimate role as guardian of the nation and its institutions against an array of centrifugal insurgencies, but also external threats – a common trend observed among coup-prone armed forces in the rapidly decolonizing world at that time. A mere decade after the country’s independence, Maung Maung indeed noted: “the role of the [Defense] Services 120 R. Egreteau as a guardian of the constitution and servant of the people has [now] been clearly defined and deeply impressed on all officers and men by General Ne Win” (Maung Maung 1959: 146). The 1974 constitution: drafted by, but not for, the Tatmadaw A first political intervention of the Tatmadaw was staged in September 1958. General Ne Win then formed a caretaker military administration at the invitation of U Nu, leader of the civilian government since February 1957. Sanctioned by Parliament a month later, this caretaker government – a perfect example of a short-lived praetorian intrusion into politics – lasted a year and a half. The military hierarchy kept its initial promises to hold national elections, and then withdrew to its barracks in April 1960 (Butwell 1961). However, a full-fledged military coup was ultimately staged by Ne Win on March 2, 1962. Less than two years after the caretaker administration was disbanded, the Tatmadaw clearly stepped in – this time without any invitation from the civilian authorities. The 1947 constitution was not abrogated per se, but gradually all its fundamentals were nullified. Unlike in 1958, Parliament was dissolved a day after the coup, and the Supreme Court and the High Courts of the country were disbanded. A socialist revolution was then imposed, one that could not be defined by a constitution, but rather by well-oiled propaganda and ad hoc legislation enacted by the military rulers (Badgley 1962; Cady 1965). The 17-member Revolutionary Council formed by Ne Win in March 1962 began to shape the new state institutions and ideology through the release of various official documents and policy statements.5 These included the “Burmese Way to Socialism” (April 1962) and the “The System of Correlation of Man and His Environment” (January 1963), which both outlined the official ideology of the Burma Socialist Programme Party (BSPP). The core objective of this newly formed legitimate political party was to mobilize and educate the Burmese population about the revolution and to pave the way for a socialist democracy under the monitoring of the Revolutionary Council (BSPP 1963; Taylor 2009: 298–300). According to the original Revolutionary Council’s statements this had to be fulfilled during a “transitional period.” Once the socialist revolution was deemed secure, the civilianization of the regime, installed in 1962, could be initiated, and the disbanding of the Revolutionary Council prepared – but not before. For that, conditions were deemed more favorable by Ne Win – then Chair of the BSPP – in the late 1960s. An observer of the time, Jon A. Wiant, argued that the BSPP could not long remain the sole instrument of the Tatmadaw or of its core leadership gathered in the Revolutionary Council (Wiant 1973: 182). Progressively, the need for the institutionalization of a civilian power and the withdrawal of the armed forces from the front scene – and therefore a new constitution – appeared obvious to the military top brass and to Ne Win himself. During a BSPP party meeting in 1965, Ne Win made his first public speech about the need for transition to civilian rule (Nakanishi 2013: 112). Therefore, a constitution-making process which claimed to involve the Burmese people was Soldiers, state, and constitutions in Myanmar 121 gradually initiated. In 1969, Ne Win asked a panel of civilian experts to make recommendations on new state institutions. For the first time since the 1962 coup, the regime openly hinted at a possible termination of the revolutionary moment imposed by the army seven years before. In September 1971, a 97-member committee convened. Its aim was to draft the new constitutional text (Moscotti 1977: 7). The process, however, was still heavily influenced by the military leadership. Indeed, one-third of the committee comprised high-ranking officers. Fifteen subcommittees were formed but all were headed by a member of the still active Revolutionary Council. Yet, the latter was openly looking for a way to bestow some sort of legitimacy upon the whole process. Ne Win, as well as the members of the 15 subcommittees, toured the country for months between 1971 and 1973, coordinating thousands of meetings with representatives of the people, the peasantry, the workers, and the armed forces in their barracks (Arumugam 1975: 41). The well-orchestrated organization of mass meetings and public consultations aimed to enlist people’s suggestions on each successive constitutional draft which had been prepared by the committee. In fact, it was a ritualistic and theatrical exercise purported to confer upon the document the necessary popular legitimacy that Ne Win was seeking for the post-Revolutionary Council regime (Steinberg 2006: 183). Ne Win and other army leaders had long considered the 1947 constitution to be the product of a handful of elite lawyers, foreign legal experts, and Burmese politicians (Moscotti 1977: 4). By involving mass consultations of the people or at least giving the impression that the Burmese population had been involved in the constitutional process, Ne Win sought a broader legitimacy for the new state institutions. The fourth constitutional draft was eventually submitted to a national referendum in December 1973. It was claimed that over 90 percent of Burma’s eligible voters approved the constitutional draft in a tightly controlled vote. The new constitution6 was then promulgated on the twenty-sixth anniversary of the country’s independence, namely January 4, 1974. A month later national elections were held, as the new constitutional text envisioned a (single-party) parliamentary system. Once the unicameral People’s Assembly (or Pyithu Hluttaw) was convened, a few weeks after the elections the transfer of power from the military-run Revolutionary Council to a civilian government dominated by the sole BSPP became effective. Ne Win was elected president, and on March 4 he nominated the new members of his Cabinet, all civilians.7 As long-time Burma watcher Josef Silverstein then noted, Burma entered a new phase of “constitutional dictatorship” (Silverstein 1977: 35). The 1974 constitution indeed offered the military-run Revolutionary Council and the armed forces a tool to withdraw from the direct policy-making process by institutionalizing the authoritarian rule of a single and trusted political party, the BSPP (Silverstein 1974). The text allowed the concentration of power in the sole hands of party members and their local representatives. Nonetheless, in the late 1970s, most of them happened to be active Tatmadaw officers seconded to the party bureaucracy or retired military officers (Nakanishi 2013: 108–109)..."