Steven (pseudonym) examines the future implications of addressing gender inequalities in Myanmar.
Gender discriminatory policies are a set of rules and regulations that discriminate against an individual or group of individuals based on their gender, resulting in unequal treatment and access to opportunities, and the fostering of exclusion. Gender equality in Myanmar has encountered challenges throughout the country’s history thanks to its patriarchal political systems. These include feudal, colonial, and military dictatorships followed by periods of democratic backsliding. Myanmar’s legal framework includes discriminatory laws based on traditional, cultural, and religious gender stereotypes and these remain challenging for the pursuit of gender equality in Myanmar. In the 2008 Constitution, gender discriminatory policies are evident, shaping the limits of women’s rights, political leadership, employment opportunities, and women’s roles in society within the constitutional framework. Hence, this essay investigates these gender discriminatory policies embedded in the 2008 Constitution of Myanmar that hinder women’s equal participation in political, socio-cultural, and economic affairs and provides legal interpretation to understand how these policies discriminate against women more deeply.
As a former International Relations student who participated in the Civil Disobedience Movement, I am well aware of the discouraging effects of the Military’s drafted 2008 Constitution on Myanmar’s Pathways toward gender equality with a full democratic federal system. In the fight against the long-oppressing Military rule, I have also acknowledged that the 2008 Constitution should be revoked because the Military Junta itself had broken the provisions in the Constitution and deliberately orchestrated the Military Coup on February 1st, 2021. In addition, the Committee representing the Pyidaungsu Hluttaw (CRPH) has also declared that the abolishment of the 2008 Constitution and introduced the new Federal Democracy Charter grounding for building a Federal Democratic Union along with collective leadership and eradication of military rule on 31st of March, 2021. While analyzing gender discriminatory provisions in this work, I am not reminiscing nor supporting the legitimacy of the 2008 Constitution. By contrast, I am critically examining this recently used Military-imposed Constitution to advocate for future constitutional implications that guarantee gender equality, human rights, and individual or group freedom and create an inclusive society in the future of Myanmar. Through this critical examination of gender disparities in the 2008 Constitution, I will also propose recommendations for guaranteeing gender equality in the future Constitution, solely drawing from my analysis included in this work. To advocate for democracy and justice, this paper calls for a close examination and reflection on systemic barriers with gender discriminatory laws and provisions embedded in the 2008 Constitution that hinder social justice and substantive gender equality in society. By reflecting on and addressing mistakes in the past, we can better create a peaceful and prosperous society by ensuring and protecting equal rights and freedom of all individuals in the future.
In Myanmar’s 2008 Constitution, Section 347 states, “The Union shall guarantee any person to enjoy equal rights before the law and shall equally provide legal protection.” Moreover, Section 348 further notes, “The Union shall not discriminate against any citizen of the Republic of the Union of Myanmar based on race, birth, religion, official position, status, culture, sex and wealth.” Both laws assure citizens’ access to equal rights and protection within the constitutional framework. Despite both laws guaranteeing equal rights and security for all /citizens, I argue that the presence of gender discriminatory provisions in other sections of the Constitution contradicts and limits achieving gender equality in Myanmar.
The inclusion of Section 6 (f) of the Basic Principles, which resists the enacted laws granting equal rights by Sections 347 and 348 of the Constitution. Section 6 (f) states “Enabling the Defence Services to be able to participate in the national political leadership role of the State.” This constitutional provision allows Myanmar Military to automatically take 25% of the unelected parliamentary seats in national parliaments. As Myanmar’s Military is known for its patriarchal national leadership, the representation and inclusion of women seeking political offices have become less favored and remain significantly challenged. Out of 25% of military-reserved seats, only two female military representatives in the 2010 general elections and one woman in the 2020 general election were appointed by the Military. From an EMREF report in 2020, statistics of women elected in the non-military seats include only 4.9% in 2010, 10.5% in 2015, 9.9% in the 2017-18 by-election, and 15.6% in the 2020 general elections respectively. Although Myanmar has ratified international agreements such as Conventions on the Eliminations of All Forms of Discriminations (CEDAW), which encourages countries to implement gender quotas of 30% women to 70% men in national parliaments, the representation and participation of women in political seats in Myanmar remain low. Therefore, Section 6 (f) acts as a major systemic barrier for women pursuing political leadership roles with the military-dominated Constitution.
After examining the constitutional provisions that favor male dominance in political leadership, other significant discriminatory provisions assign women’s societal roles within the Constitutional framework. Section 32 (a) of the 2008 Constitution of Myanmar articulates that “The Union shall care for mothers and children, orphans, fallen Defense Services personnel’s children, the aged and the disabled”. According to a gender equality and women’s rights situational analysis conducted by the Asian Development Bank, this constitutional provision particularly references support not for parents, but for mothers, positioning women as solely responsible for childcare and as a group requiring protection. Feminists and women’s rights organizations in Myanmar have argued that this element of the Constitution reinforces gender stereotypes and societal expectations that define women as inherent caregivers and nurturers whose sole responsibility is to give birth. Section 32 (a) of the Constitution indirectly promotes the marginalization of women in society by limiting women’s equal participation in education, political leadership, and employment. Although the provision is written as a protective measure for women and vulnerable groups, in reality, it has become a discriminatory provision by assigning women only to nurturer roles while men are not. Therefore, the negative impacts of Section 32 (a) should be acknowledged since it prioritizes men’s roles in the public sphere, while restricting women’s roles to the private sphere (as mothers and in nurturing roles).
Additionally, although the 2008 Constitution establishes gender equality for women’s labor rights, the same Constitutional framework also limits the right to equal employment in civil services. In Chapter 8 of the Constitution, Citizens, Fundamental Rights and Duties of the Citizen, Section 349 articulates that “Citizens shall enjoy equal opportunities in carrying out the functions such as public employment, occupation, trade, business, technical know-how, and vocation and exploration of art, science, and technology.” Section 350 of the 2008 Constitution grants equal rights to women, stating that “Women shall be entitled to the same rights and salaries as that received by men in respect of similar work.” Both constitutional laws grant women equal rights to work, employment, and compensation. However, Section 352 of the Constitution contradicts equal rights to be employed in civil services based on gender. Section 352 of the 2008 Constitution stat
The Union shall upon specified qualifications being fulfilled, in appointing or assigning duties to civil service personnel, not discriminate against any citizen of the Republic of the Union of Myanmar, based on race, birth, religion, and sex. However, nothing in this Section shall prevent the appointment of men to the positions that are suitable for men only.
This clause is contradictory and excludes women from equal employment opportunities based on gender expectations. It fails to give clear definitions and references to the jobs that are appropriate for men only. The last exception in these provisions refutes equal rights that were previously guaranteed by the Constitution. Section 352 undermines societal gender expectations and stereotypes that women are not capable of doing certain jobs and excludes women from equal economic opportunities. Therefore, constitutional provisions in the sector of employment equal rights promote patriarchal employment mechanisms; they also lack transparency and justice in the recruitment process. Such gendered provisions should be abolished as the constitution must guarantee equal rights and opportunities to further build a practically inclusive and equitable society for all individuals.
Through this 2008 Constitutional analysis, I argue that the 2008 Constitution is merely a sugar-coated constitution that on the surface, appears to prioritize inclusivity, justice, and equality. The presence of gender discriminatory provisions perpetuates patriarchal norms and reinforces detrimental gender stereotypes within society. Noticeably, it enforces societal gender stereotypes that regard women as mothers, caregivers, and nurturers in the private sphere. The contradiction in constitutional passages means that ultimately, there is no clear mechanism and clarification towards guaranteeing equal rights across all socio-political sectors for the citizens. Moreover, these confusing provisions can also be perpetuated by legalizing discriminatory practices and hinder progress toward achieving gender equality.
In the context of the 2008 Constitution, the gap between women’s formal rights to leadership and the lived experience of women in Myanmar is quite significant. From a systemic perspective, successive governments have worked with many international and regional policy frameworks and mechanisms for gender mainstreaming together with women’s rights organizations, based on the 2008 Constitution. For instance, the National Strategic Plan for the Advancement of Women (2013-2022), aimed to promote women’s rights and enhance the status of women in the country, was based on the 2008 Constitution.
Undoubtedly, the real-world application and implementation of this mechanism based on the context of the 2008 Constitution were not as effective as they should have been, in defiance of NSPAW’s planned strategies for promoting women’s development and equal participation in various sectors. The reliance on a discriminatory Constitution for NSPAW’s implementation would not have helped Myanmar to meet substantive gender equality aligned with international standards. Simply, the lack of constitutional amendments and the absence of affirmative and sophisticated will and mechanisms retarded Myanmar to further progress, requiring structural and legal reforms to fully achieve substantive gender equality aligned with CEDAW and NSPAW. Therefore, I argue that the 2008 Myanmar Constitution seems to guarantee gender equality conforming to its International treaty obligations, but it is a Constitution with major gender disparities. Significant gender discriminatory policies are evinced by the language of the constitution in granting equal women’s rights and labor rights, favoring male dominance in the political leadership, and framing women’s primary role as mothers in line with gender expectations in the society within the Constitution.
Through this constitutional analysis, it is important to acknowledge that the 2008 Constitution is one of the major challenges to implementing substantive gender equality in Myanmar. In the future, advancing gender equality in Myanmar requires amending discriminatory national legal mechanisms in the Constitution by guaranteeing legal protection and upholding everyone’s fundamental human rights concerning its International Obligations.
Rwanda serves as an outstanding example of how a constitutional reform can significantly contribute to meeting gender equality by manifesting a quota of 30% in decision-making positions for women. Rwanda introduced a new Constitution in 2003 that clearly articulates at least 30% of the gender quota for all elected positions in government. From this, women held a minimum of 48% of elected seats and a maximum of 61% of elected seats in successive elections over the years. The case of Rwanda vividly highlights the importance of the Constitutional amendment as a powerful tool and framework to enhance women’s equal participation and achieve gender equality effectively. Rwanda presents a valuable lesson that Myanmar could emulate in its pursuit of substantive gender equality in the future.
By aligning with CEDAW’s commitment, Article 48 of the Federal Democratic Charter (2021) mentions the enforcement of at least a 30% quota of women’s participation in decision-making bodies to encourage and guarantee the advancement of women and gender equality in the Federal Democratic Union. To build a Federal Democratic Union in the future, it is vital to establish the concept of gender equality by ensuring inclusive and equal participation in all administrative, legislative, and judiciary sectors, as guaranteed by the Constitution. In addition to this, gender budgeting and gender mainstreaming will serve as powerful mechanisms to address structural gender inequalities through fundamental considerations of policies and legal frameworks for a more inclusive and equitable governance system.
Substantive gender equality can only be achieved when the representation and participation of women populations in the conflicts and fight against the military junta are substantially acknowledged and enforced in the process of transitional justice, Federal Constitutional development, peace and political processes, and local governance. Practicing and application of gender equality policies can still be challenging even in the establishment of a Federal Democratic Union as different federal units may have problems of power imbalance, and limited capacity in terms of resources or political will to strengthen gender equality movements. Although the Federal Democratic Charter welcomes the value of equality, inclusivity, and respect for human rights, continuous monitoring and advocacy are still required to assess the extent of commitments and the effectiveness of the promises included in the Charter. The monitoring should invite collective effort from different stakeholders, civil society organizations, women’s rights organizations, women empowerment groups, ethnic resistance organizations, international development partners, and donors to ensure adherence to gender equality commitments in Future Myanmar.
Steven (pseudonym) is a former International Relations student at Dagon University. After the military coup in 2021, he joined the Civil Disobedience Movement. He is a young research enthusiast and currently works for access to continuing education for youths and students in Myanmar.
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