On 1 February 2021, the democratically elected government of Myanmar was dismissed and in marched the Army. The sovereign powers of the Myanmar State were transferred to the Commander-in-Chief of the armed forces, Senior General Min Aung Hlaing. This was ostensibly done under Sections 417 and 418 of the 2008 Myanmar Constitution: the provisions allow the President to declare an emergency and transfer the legislative, executive and judicial powers of the Myanmar State to the Commander-in-Chief of the Defence Services.
How did such constitutional power end up in the hands of the military?
Following decades of civil tensions and military rule, the Constitution of the Republic of the Union of Myanmar (2008) was adopted through a referendum on 10 May 2008. This Constitution was deliberated and drafted over 14 years by a National Convention that was formed in 1992. The Convention comprised 702 delegates:106 elected representatives and 596 delegates nominated by the military ruling body. There was no public discussion or consultation on the draft constitution before its adoption.
Myanmar is not alone in having had the military (and its proxies) participate in constitution-making: for instance, the 2017 Constitution of Thailand was drafted by a Committee appointed by the National Council for Peace and Order (NCPO) (which was the military government that ruled Thailand from 2014 Thai coup d’état till 2019). The Thai Constitution ensures that the real power remains with the military through various provisions. Military participation in constitution-making increases the likelihood of military interests getting encoded into a Constitution’s provisions.
The composition of a constitution-making body is critical to the final form and substance of a Constitution. Leaders of India’s freedom movement were aware of this. They wanted an Indian Constitution that protected the rights of minorities and marginalised groups. So, they needed to ensure that these groups were represented in the Indian Constitution-making project.
No invitation was sent to the Indian military to join the Constituent Assembly. To be fair, from what we know, the military never wanted one. Assembly members, even during discussions around emergency provisions, never seriously considered giving the military significant power. India has never had anything close to a military coup since its existence as an independent republic.