Civil-military relations and constitutional reform in a changing society writes Melissa Crouch, East Asia Forum for Asia Sentinel

The rule of law and the constitution matter. This is evident in Burma/Myanmar, where current steps towards constitutional amendment have the potential to determine the future direction of the country’s transition process. A key issue is whether the role of the military, as defined by the Constitution of Myanmar, will be changed.

A constitution in any democracy must clearly define the position of the military and provide for appropriate national defense, while providing mechanisms to prevent the misuse of power. There should be civilian control over the military, and the military should be subordinate to the executive arm of government in particular. To achieve this, the military cannot also be part of the legislature, nor have the power to appoint ministers.

Myanmar soldiers march during ceremonies Saturday, March 27, 2010, marking the 65th anniversary Armed Forces Day in Naypitaw, Myanmar. The day remembers Myanmar's struggle against occupying Japanese Army during World War II. (AP Photo/Khin Maung Win)

A range of constitutional approaches can limit military power. Some constitutions adopt a minimal approach and briefly refer to the military as subordinate to the executive, leaving other details for further regulation by the legislature. Others take a more expansive approach and set out in detail the role of the military and the limits of its powers.

In Myanmar the military is under the control of the Defense Services Commander-in-Chief, who is appointed by the President. But the President’s appointment is subject to the approval of the National Defense and Security Council, a majority of whose members are from the military. In practice, this means the military has significant influence in appointing its own commander. The Constitution does not specify the term of the Commander-in-Chief, the qualifications the position requires or the circumstances in which he could be removed from his position. In contrast, the office of the President has a clear term, the candidate must meet set requirements, and there is a clear process for removal from office.

There are further differences in relation to the composition of Parliament and the election of members. The Commander-in-Chief has the power to nominate the Defense Service personnel in both houses of Parliament, which makes up 25 per cent of the seats. He also has the power to recommend the appointment of the Minister of Home Affairs, Border Affairs and Defense.

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