Alternative constitution-making in Myanmar by non-state actors is a form of active resistance to illegitimate constitutions.
Key words: Myanmar, constitutions, non-state actors, military, political legitimacy.
Since the military coup of 2021, many people in Myanmar reject the Constitution outright as illegitimate. While the military claims the Constitution (drawn up in 2008) as its legal cloak, the post-2021 era is, in reality, a period of extraconstitutional rule.
Yet in this constitutionless period, people from Myanmar continue to talk of constitutions. The military’s lack of constitutional legitimacy has led them to initiate a range of creative counter-constitutional efforts. These efforts connect to a long history of alternative constitution-making efforts in Myanmar.
Such non-state constitution-making functions as a form of resistance to military rule and illegitimate constitutions.
The Military’s 2008 Constitution
People in Myanmar have long contested the ruling military’s audacious claim that the 2008 Constitution is legitimate. The military organised and carefully orchestrated a constitution-making process which led to the 2008 Constitution, after quashing the results of a democratic election in 1990.
The military was overt and unapologetic in the goals it pursued through the 2008 Constitution. The military enshrined its own power both within and above the constitutional system. It claimed to restore representative elections and yet secured seats for its officers in the legislature. It implemented a grossly centralised political system despite decades of calls for federalism and the decentralisation of power. Neither the protection of basic individual rights nor government accountability through the courts featured in its Constitution. The 2008 Constitution had inauspicious beginnings and promoted a suspiciously biased political system, to say the least.
Despite this, by 2012, some political actors, most prominently Daw Aung San Suu Kyi, sought to work within the political system of this new constitution. Theirs was largely a pragmatic and even reluctant act, rather than an endorsement of the legitimacy of the process or content of the Constitution.
Both under the military-led government of 2011-2015, and the democratically elected government of the National League of Democracy in 2016-2021, there were major efforts to reform the 2008 Constitution. Some of these efforts were channelled through the formal constitutional amendment process. However, the military’s veto on constitutional amendment in effect stifled any meaningful prospects for reform. Other people and groups channelled their efforts through the national peace process, although again this never materialised into actual constitutional reform. Yet this was a fraught and risky debate. Some people, such as lawyer U Ko Ni, were assassinated for his advocacy for constitutional reform.
Constitution-making as a form of non-violent resistance
Constitution-making is one among a range of repertoires of people’s resistance in authoritarian regimes. In Myanmar, people resist military rule and the military’s Constitution in both violent and non-violent ways. In its violent forms, people resist with sticks and stones, guns and drones, homemade bombs, the torture of captives perceived as the enemy, or even assassinations.
But people in Myanmar have also resisted the military in a wide range of non-violent ways. Their non-violent forms of resistance include traditional street protests and demonstrations, boycotts of military-affiliated businesses, road signs decrying military rule and nightly pot-banging as a protest against the military takeover, as well as various other forms of civil disobedience. While it is not usually an activity associated with pot-banging or road signs, constitution-making is also form of non-violent resistance.
Alternative constitutions
It’s often presumed that a constitution is drafted by those who represent the people in a state-led process and that therefore these constitutions are legitimate. By contrast, we don’t usually talk about non-state constitutions or what I will refer to as alternative constitutions or counter-constitutions.
So, what are alternative constitutions? Alternative constitutions by their nature claim to be constitutions, a form of mimicry that utilises the form and technology of written constitutions, including their ideas and key concepts.
Just like state constitution-makers, alternative constitution-makers draw from comparative ideas elsewhere, even as they adapt and innovate. Yet these constitutions are drawn up in non-state processes of constitution-making, as a challenge to the status quo.
Not only do people propose alternative constitutions as a constitutional text, they are ‘alternative’ in the sense that they are not the state constitution. From the perspective of the state, they exist outside the realm of officially sanctioned constitutionalism. In the eyes of the military regime in Myanmar, alternative constitutions are illegitimate.
Yet for people who initiate and draft alternative constitutions, their vision arises precisely because the state constitution, in their view, is illegitimate and in need of replacement and fundamental reform.
Those who claim that a state constitution is illegitimate and is the target of their resistance to the regime point to an important element of alternative constitutions: they are relational. That is, alternative constitutions exist in relationship to the regime’s constitution, they are an alternative and set themselves up in contrast to it.
To truly understand the alternative nature of the counter-constitutions, we have to understand the regime’s constitution against which it sets itself.
Myanmar’s counter-constitutions
Myanmar’s history is littered with alternative constitutions that are a reaction to the status quo constitution and which present a new constitutional vision for the future.
Under colonial rule, the British imposed the Government of Burma Act 1935, justifying the continuation of colonialism. Then during World War II, the Japanese imposed an imperial-style constitution. At the end of the war, in response to both of these texts, Burmese nationalists from the Anti-Fascist People’s Freedom League (AFPFL) issued a Manifesto setting out their constitutional vision of democracy and individual rights, as a contrast to the constitution of both British colonial occupation and the Japanese war-time occupation.
In early 1947, the AFPFL formalised and expanded upon these ideas in the AFPFL Draft Constitution. That text became the basis for the 1947 Constitution that was discussed, amended and approved by the Constituent Assembly. The drafters of the 1947 Constitution of Burma wrote this legal text as a direct response to and rejection of imposed constitutions of the past.
Yet these counter-constitutional impulses continued in the postcolonial era, in part because of minority concerns that the 1947 Constitution did not live up to aspirations for federalism and territorial recognition and autonomy. Calls by ethnic groups such as the Shan for federalism remained strong, and these demands too were articulated in the form of alternative constitutions. In 1961, a collective of ethnic minority groups put forward the Federal Proposal as a concrete set of demands for a federal style constitution, one that would have dramatically reduced the power of the central, Bamar-dominated government in favour of the minority regions.
After just over another decade of military rule post-1962, the military-led regime introduced its own socialist-inspired constitution. The 1974 Constitution offered neither democracy nor federalism and justified an even more tightly centralised political system controlled by General Ne Win’s regime. Various minority groups sporadically reignited their calls for counter constitutional visions, even as many also took up arms against the regime.
In 1988, in the wake of economic crisis and widespread protests, the regime as it was known collapsed. The election of 1990, and the National League for Democracy’s (NLD) victory, created another window for public expressions of counter-constitutional reform. The NLD issued the Gandhi Hall Declaration, advising that they would return to an amended form of the 1947 Constitution, drawing on the legacy of parliamentary democracy of the past. Alternative constitutions are not necessarily new texts but may include invocations of old constitutional orders. This was treated with some suspicion by minority ethnic groups, who had long criticised this text for its lack of commitment to federalism. Alternative constitutions are certainly open to contestation and disagreement, in much the same way that state constitutions are.
In the 1990s-2000s, as military rule dragged on in new guises without a constitution, opposition and ethnic minority groups who were committed to a federal future issued a series of drafts, such as the 1996 Federal Constitution and, its later iteration, the 2008 version. Through these texts, democratically minded drafters sought to verbalise and memorialise the aspirations of groups that sought a federal and democratic state, particularly the call for greater recognition for minority groups of their cultures, languages, religion and claims to territory.
The Federal Democracy Charter
This brings us to the present, five years since the military coup of 2021, and in the midst of conflict that continues to ravage many parts of the country. Several months after the coup, pro-democratic forces declared the Federal Democracy Charter as a proto constitution, a set of aspirations that would form the basis for a new constitutional vision. The Charter was the work of the Committee of Representatives for the Pyidaungsu Hluttaw (CRPH), a group of people who were elected in the November 2020 elections, but who the military prevented from taking office. The CRPH collaborated with civil society organisations, political parties, and ethnic armed organisations in the form of the National Unity Consultative Committee (NUCC) to draft the Charter.
Following in the traditions cast by previous alternative constitutions, the Charter opposed the role of the military in politics and called for a shift from a highly centralised authoritarian regime to a decentralised, representative one.
Significantly, the Charter is an attempt to rewrite the constitution to a democratic and federal script, departing from the mode of constitution-making that the military embodied at the National Convention of the 1990s and 2000s. At a high level of generality, it affirms ideas such as democracy and federalism that were central to past alternative constitutions while resolutely rejecting past models of centralised, undemocratic, and unaccountable military rule. While it does incorporate some contemporary developments in comparative constitutional design, it remains closely affiliated with past counter-constitutions from within Myanmar
The Charter is divided into two parts: the Declaration of the Federal Democratic Union and the Interim Constitutional Arrangements. The Declaration identifies two negative goals (the end of military authoritarianism and of the 2008 Constitution), and two positive ones (the creation of a Federal Democratic Union and a civilian state).
While the Federal Democracy Charter is largely a political document that seeks to pave the way for an interim constitution, it contains the seeds of an alternative constitution. The Charter is both an idealist project to end military rule, but also an act of people’s resistance to the military regime. Alternative constitutions are both a form of agency by opposition groups and an expression of hope that a constitution can recast the future.
The Charter amounts to civilians’ refusal to be intimidated or subordinated to the military’s Constitution, and rejects the military’s oversight of civilian rule, including of the courts.
Since the first version of the Charter was issued, there has been robust discussion, debate and fierce disagreement. This has led to further iterations and proposals: in 2023 with a Transitional Federal Union Constitution (Preparatory Draft), and then in 2024 with the Articles of Federal Transitional Arrangements (AFTA). The NUCC’s initiative has also prompted other groups to propose their own models of federal constitutional reform.
Some groups have proposed different draft federal constitutions, while many sub-state armed groups continue to work on sub-state constitutions. These initiatives are often fragmented and disparate, even as they may borrow from past models or from each other.
By the end of 2025, the drafting of sub-state constitutions had occurred or was underway in no less than eleven states, regions or areas. At least four of these had been formally adopted in Karenni State, Chin State, Magway Region and Sagaing Federal Unit. Today, these constitutional initiatives remain underway in different stages of drafting, proposal, or adoption right across the country. Sub-state constitutions are particularly interesting because they are proposed as a challenge to the central government in the absence of state constitution.
In these ways, alternative constitutions call into existence entirely new constitutional arrangements, both for the present and the future, even as they are opposed to the constitutional status quo.
The power of non-state constitutions
Practically, the national pro-democratic constitutional reform movements and sub-state constitution-making movements in Myanmar share in the goal of a new constitutional future, even as they often differ on what the vision should look like. Despite the ambiguous status of these texts, I suggest that it remains significant that texts such as the Charter and others come into existence to begin with.
Alternative constitutions speak to the status of constitutions in the 21st century. It is often assumed that only state constitutions are valid constitutions, and that each country has had one constitution that endures. Instead, we live in an age of constitution-making, where many states have had multiple written constitutions. This frenzy of constitution-making is in fact not the sole realm of nation-states. As the government in exile, the National Unity Government of Myanmar demonstrates, constitution-making is appropriated as a resource by resistance groups.
The alternative constitutions of such groups offer a glimpse into new constitutional possibilities and portray a sense of ‘what could be’, constitutionally speaking. We must not consign alternative constitutions to history. Often alternative constitutions become a touchstone and rallying cry to which minority and political opposition groups return in their struggles for constitutional reform.
Alternative constitution-making is a form of active resistance to illegitimate constitutions. Alternative constitutions don’t have to be adopted by the state to have power. It is enough that people propose them and, in doing so, fundamentally disrupt the ruling regimes’ claims to legitimacy.
Image: Anti-coup protestors in February 2021. Credit: Muang Sun/Wiki Commons.
