Constitutional
reform is an important part of Myanmar’s transition from military rule. Although
widespread political reforms have been enacted since 2011, these have not yet
been accompanied by constitutional change. The next few months will determine
whether constitutional amendment will take place before the elections scheduled
in November. This will affect the very legitimacy of the election itself.
In February
2015, the parliament passed a law detailing the process for holding a national
referendum on constitutional amendment. This is a very important step as it indicates
that the government does intend to allow for a constitutional referendum at
some point in the future.
Setting out
the formal process for holding a constitutional referendum is important because
it demonstrates that the government wants to learn from the past. In 2008, the
referendum on the constitution was held despite the devastation
caused by Cyclone Nargis, which undermined the legitimacy and results of the
referendum. The new law provides that a referendum can be postponed or cancelled
in the event of a natural disaster.
The most
pressing question now is whether any constitutional amendments will take place
before the election in late 2015. The Union Parliament started its session on
11 May 2015, and discussion over what should be proposed for constitutional
amendment is on the agenda. But parliament needs to allow for a diverse range
of voices to be heard and considered. The debate must not be rushed. This must
be balanced with the sense of urgency because this is likely to be the last
parliamentary session before the elections.
While the
process of constitutional amendment began in 2013, little progress has been
made on the substance of any possible changes. The Constitution Review Committee
did invite public submissions and this generated a flurry of constitutional
campaigns across the country. The committee submitted its report to the parliament
in January 2014, but failed to offer specific recommendations concerning which
provisions should be amended and how. This led to widespread disillusionment on
the prospects of democratic reform.
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| Rally to amend constitution held in 2014 |
The most
controversial part of the committee’s report was that it recommended three key
aspects of the constitution should not be amended. First, it advised that the
military should retain its role in governance. Second, that the presidential
requirements should be retained, which would mean that Aung San Suu Kyi of the
National League for Democracy could not be nominated by the presidential
electoral college after the 2015 elections. And, finally, that the provisions
on the constitutional amendment process should be retained. These provisions
require more than 75 per cent approval of parliament and more than 50 per cent
of eligible voters at a national referendum in order to amend some provisions
of the constitution. These three provisions have been central to demands for
change.
In 2014, an Implementation Committee for the Amendment of
the Constitution was formed to continue the
process. Around the same time, in mid-2014, the National League for Democracy
held major rallies and a petition campaign across the country. Its single
demand was for the amendment of Section 436, because at present this provision
effectively grants the military veto power over any constitutional amendment. This
would affect future efforts for reform. Yet the government has given no clear response
to this demand.
By late
2014, the committee submitted its report to parliament. It suggested a large
number of amendments to the constitution, but it also offered various ways in
which it could be amended. Again, it did not offer clear recommendations.
Time is now
running out for change before the elections. While the amendments are not
necessary for the 2015 elections, some amendments would clearly enhance the
legitimacy of the election itself. For example, changing the requirements for
presidential candidates would send a strong signal that the military is willing
to allow Aung San Suu Kyi to potentially be nominated in the presidential
electoral college. This would be a significant indication of the depth of the
political reforms.
Other
amendments would indicate that the government is committed to furthering its
agenda for democratic reform in the future. For example, greater judicial
independence is critical, yet at this stage there have been no significant
reforms to the courts, in contrast to the changes taking place in the executive
and legislature.
Regardless
of whether amendments are made in 2015, constitutional reform remains highly
relevant to the long-term consolidation of the rule of law in Myanmar. The
recent passage of a law on the constitutional referendum process demonstrates
that the government is willing to consider constitutional amendment in the
future, but this may ultimately come too late to bolster the legitimacy of the 2015
national elections.
This article first appeared as Melissa Crouch, 'Myanmar Elections lack legitimacy without constitutional change' East Asia Forum, 26 May 2015.