Constitutional change and security forces in Southeast Asia: lessons from Thailand and Myanmar.

• Author: Chambers, Paul

Taming security forces through constitutional reform has been a major challenge for young democracies in Southeast Asia. In Indonesia, security sector reform has been successful, and some studies cite that country as a basis on which to predict a bright future for the region. (1) In the Philippines, however, governments seeking to establish or consolidate civilian control have been faced with military mutinies or the threat of coups. On other occasions (e.g. the two countries under examination in this article), the successful enshrinement of laws regulating security forces have accompanied compromises which provide militaries/police with considerable latitude in areas of decision-making. Ultimately, the constitutional incorporation of security forces into political life--as controlled by "true" civilians--is no easy task. This article examines two case studies of "defective" democracies (2)--Thailand and Myanmar --where security forces have moved towards becoming more integrated under the constitutions of civilian-led regimes. Yet such moves have not led to civilianization but have instead mostly camouflaged the continuing influence of the armed forces, thereby insulating security forces from civilian monitoring. As such, this study asks four questions with regard to the two cases. First, how did the institutionalization of security services under civilian-led constitutions occur historically? Second, how did these experiences vary? Third, to what extent do security forces in different countries today possess differing degrees of enshrined powers? And fourth, based upon these experiences, how might the constitutionalization of "true" civilian control eventually be sustained? Using historical institutionalism, this study argues that constitutional change acceded to by security forces more often than not results from sequences of transformative bargains--informal negotiations and concessions --between civilians and security officials. However, the initial sequence can later transition towards more or less security service interventionism depending upon three variables: the heritage of authoritarianism as perceived by security officials as well as civilians; the relative unity of civilians as opposed to that of security services; and external or internal threat environments.

Historical Institutionalism and Security Forces

An abundance of literature exists on the distribution of decision-making power between civilians and security officials, particularly regarding civil-military relations. (3) Though traditionally political scientists examined only soldiers, (4) this focus has increasingly been viewed as myopic, given the existence of a plethora of other armed state organizations such as the police, paramilitaries and related entities. (5) This study applies the Organization for Economic Cooperation and Development's definition of the security sector as "core security actors: armed forces; police service; gendarmeries; paramilitary forces; presidential guards; intelligence and security services (both military and civilian); coast guards; border guards; customs authorities; and reserve or local security units (civil defence forces, national guards, militias)." (6) The study defines the relations between civilians (7) and security forces as those interactions that in some way relate to the power to make political decisions. (8) R.H. Kohn described civilian control as a situation where "civilians make all the rules and can change them at any time". (9) As Timothy Edmunds has argued, in young democracies given that security forces possess the legal monopoly of violence, "they may be tempted to act in a partisan or praetorian manner in relation to domestic politics.... [Alternatively,] they may be the subject of attempts by partisan factions within the civilian sector to ... disrupt democratic processes. Thus, effective and democratic civilian control of the security sector is a key component of any process of democratization." (10) Constitutionally-entrenched civilian supremacy implies that the arrangements of civilian control over security forces must be enshrined into law. Nevertheless, sometimes security officials engage in informal behaviour outside the purview of law which enables them to resist civilian control. (11) Moreover, sometimes civilian governments are unwilling to enforce constitutionally-embedded civilian control.

Constitutions are important institutions for civilian control as they represent rule-governed arenas that formally mediate between civilian and security force actors which must act within constitutional parameters. Constitutions can be defined as "collections of interrelated rules and routines that define appropriate action in terms of relations between roles and situations". (12) Such institutions can also bolster democracy by enshrining liberal rule of law with the objective of achieving a liberal, embedded democracy, defined by Wolfgang Merkel as consisting of "a democratic electoral regime, political rights of participation, civil rights, horizontal accountability, and the guarantee that the effective power to govern lies in the hands of democratically elected representatives.... [R]ule of law binds a state to uphold its laws effectively and ... act according to clearly defined prerogatives." (13) Ultimately, this study examines constitutions as well as decrees within countries where embedded democracy and liberal rule of law have not fully been achieved.

Historical institutionalism is useful in explaining the evolution of security sector reform as well as civil-military relations. (14) Historical institutionalism offers explanations about how events in history either constrained or offered opportunities which affected institutional resilience or change. (15)

Historical institutionalism points to patterns reflecting gradual institutional change. In young democracies, changes in constitutions across an historical period represent critical junctures which help to define the parameters of the overall, gradual transformation. Such institutional change is generally of four types. Where the change is of a radical type, the constitution will be fundamentally altered. This study views such a constitutional transition as displacement. Alternatively, where change-agents do not absolutely transform the constitution but simply build upon what is already written in a previous one, such an alteration is referred to as layering. Moreover, if previously-written rules continue to be applied despite the fact that the environment surrounding these laws has abruptly changed, this legal phenomenon is called drift. Finally, where previously-enacted rules (or the ambiguities surrounding these rules) are re-interpreted to fit the vested interests of newly dominant actors, such a situation is known as conversion. (16)

Elected civilians and security officials can each initiate institutional change towards a new constitution. Elected civilians are change-agents where, once they come to lead a regime, they initiate attempts to change constitutions towards greater civilian power vis-a-vis the security forces. Where security forces resist these attempts, they become status quo agents. Meanwhile, security officials can be change-agents in two instances: first, if, following a military coup, the new ruling junta attempts to alter constitutions to either protect or extend its influence vis-a-vis civilians; and second, where regimes are led by weak elected civilians but the security forces are very powerful, the latter may attempt to make rule alterations to their benefit. However, if civilians leading an already-democratic regime attempt to counter moves by the security forces to increase their power, the civilians become status-quo agents. Sometimes, both sides simultaneously accrue benefits from constitutional changes. In such cases, it becomes necessary to look more closely at the historical context surrounding the enactment of the constitution. Furthermore, sometimes civilians or the security forces will resist increased powers.

Understanding the four modes of constitutional change as well as the behavior of civilians and security officials with regard to initiating or resisting such transformations demonstrates the importance of agency. It can also contribute to comprehending why one form of transition occurs as opposed to another. (17) Table 1 matches different modes of rule alteration with the change-agent initiating change.

Structure is also significant as a factor which conditions the abilities or decisions of actors to affect change. Indeed, whether constitutional change occurs at all, how often it happens, and which mode of alteration is selected depends upon three conditioning variables: first, the heritage of authoritarianism; second, the unity of elected civilians versus security forces; and third, changing environments (in terms of domestic/internal security or insecurity).

The Heritage of Authoritarianism

The heritage of authoritarianism denotes historical legacies of autocracy. Legacies of autocracy are ideational, social constructions based around political culture, history and group psychology over time. With regard to security forces, such legacies reflect how security officers think about themselves in terms of legitimate behaviour towards civilian actors. Regarding civil-military relations, Croissant et al. refer to this factor as the "military mindset". (18) The emphasis on this heritage illustrates the extent to which socio-cultural legacies in society influence the majority of people to resist, remain apathetic to, or encourage interventions by the security forces against civilian decision-making. (19)

Unity of Civilians Versus Security Forces

The degree of agents' cohesion is crucial to the success of institutional change. If civilians (elected civilians and civil society) are more united than security forces in pressuring for greater civilian control via changes in law, they...