Pre-emptive Constitution-Making: Authoritarian Constitutionalism and the Military in Myanmar

Abstract

Constitutions are an important feature of many authoritarian regimes. But what role do they in fact perform in processes of authoritarian regime stabilization and legitimation? Much of the contemporary literature focuses on authoritarian constitutionalism in transitions away from constitutional democracy. This article considers the opposite scenario: pre‐emptive constitution‐making as a mechanism of authoritarian constitutionalism to contain a potential transition toward constitutional democracy. This is illustrated through the case of Myanmar. Since the 1960s, Myanmar has experienced successive periods of direct military rule without a constitution, followed since 2011 by a new constitution. Adding to the comparative literature on constitutions in authoritarian regimes, this article explains how pre‐emptive constitution‐making limits a transition to liberal democracy and contributes to authoritarian‐regime resilience. This article further identifies “military‐state” constitutionalism as a variation of authoritarian constitutionalism in Myanmar. The case of Myanmar offers comparative insights into the ways constitutions are used to contain transitions to constitutional democracy and illustrates the varieties inherent in authoritarian constitutionalism.

Captured Courts and Legitimized Autocrats: Transforming Kazakhstan’s Constitutional Court

“…The border between authoritarian courts and democratic courts is blurry, and scholars gain by examining cases in the uncertain ranges. We have shown that the CCRK falls under the model of "authoritarian constitutionalism" (Trochev and Solomon 2018;Crouch 2020) or "autocratic legalism" (Scheppele 2018), and we focused our attention on the process by which judicial or quasi-judicial constitutional review bodies are captured and then leveraged to maintain these regimes. In Kazakhstan, that process produced a body that, over time, leveraged its authority over law to consistently reinforce the idea that the extended tenure of the president had constitutionally based legitimacy.…”

“…Some scholars focus specifically on democracies, including those democracies that are termed "new" or "nascent" (Ginsburg 2003;Chavez 2004). Others examine judiciaries under authoritarianism (Moustafa 2003(Moustafa , 2014Ginsburg and Moustafa 2008;Crouch 2020). Both sides of the split are interested in similar questions, such as the presence or absence of judicial independence, but they look at only one type of regime.…”

Judicial Loyalty to the Military in Authoritarian Regimes: How the Courts Are Militarized in Myanmar

“…Institutional loyalty is shaped by the political and legal environment in which the court exists. In the 1990s and 2000s, the military engaged in preemptive constitution-making, that is, it controlled the constitution-making process in order to contain a potential transition toward constitutional democracy (Crouch 2020). The purpose of preemptive constitution-making in authoritarian regimes is to use a new constitution to arrest and limit the possibility of transition, and ultimately to contribute to authoritarian-regime resilience.…”