This article was commissioned by International IDEA and was originally posted on ConstitutionNet, IDEA’s online knowledge platform supporting constitution builders globally. Read more
Ever since the National League for Democracy won a significant victory in Myanmar’s November 2015 elections, attention has turned to who will become president for the next five years. This issue has generated a large amount of interest not only because the president holds a significant amount of power under the 2008 Constitution, but also because the most favoured person, Daw Aung San Suu Kyi, cannot be nominated. The constitutional requirements for presidential nominees appear designed to explicitly exclude Aung San Suu Kyi.
Ever since the National League for Democracy won a significant victory in Myanmar’s November 2015 elections, attention has turned to who will become president for the next five years. This issue has generated a large amount of interest not only because the president holds a significant amount of power under the 2008 Constitution, but also because the most favoured person, Daw Aung San Suu Kyi, cannot be nominated. The constitutional requirements for presidential nominees appear designed to explicitly exclude Aung San Suu Kyi.
So who are the new leaders of
Myanmar, how are they appointed and what constitutional challenges will they
face moving forward?
Electing new leaders
The quality and skill of the
country’s new leaders will determine the NLD’s impact, and this goes beyond the
leadership of the president. On 1 February 2016, the new members of
parliament took office in Naypyidaw, the capital city. The NLD has a
majority in both houses of parliament, although its members sit alongside a
handful of members of parliament from ethnic political parties and members from
the Union Solidarity and Development Party (backed by the military), as well as
the 25 percent of non-elected members from the military.
The recent appointment
of the upper and lower house speakers reflects a
necessary mix of historical legacy, political pragmatism and calculated
diversity. The Speaker of the more powerful Pyithu Hluttaw (lower house) is U
Win Myint, a long-time NLD member and member of parliament since 2012. He is
accompanied by Deputy Speaker, U T Khun Myat, who is said to be close to Thura
Shwe Mann, the former Speaker and USDP member. The NLD will rely on them to
keep parliamentary proceedings in order and in line with the NLD’s legislative
agenda.
The Amyotha Hluttaw (upper
house) consists of representatives from each of the state and region
parliaments and is designed to represent the interests of the officially
‘recognised’ ethnic groups, which are divided into eight broad categories that
include ethnic Burmans, Kachin, Karen, Mon, Chin, Shan, Kayah and Arakan. This
rigid ethnic recognition is overlaid with religious diversity; while a majority
of people in Myanmar are Buddhist, there are significant Christian and Muslim communities. The appointed Speaker
for the Amyotha Hluttaw is Mahn Win Khain Than, a Christian Karen who is known
as the grandson of one of the seven martyrs in 1947. The Deputy Speaker is U
Aye Thar Aung, of the Arakan National Party that defends a pro-Rakhine Buddhist
agenda in Arakan State, where a third of the population are Muslim.
The parliament is now
deliberating over the presidential nomination process. The process under the
Constitution is conducted by the parliament, rather than a direct election of
the president by the people. Three nominations will be put forward. One each
from the upper and lower house, dominated by the NLD, and one from the military
members of parliament. The criteria for presidential nominees in section 59 of
the 2008 Constitution have been carefully crafted by the former military regime.
Not only must the nominee have resided in Myanmar for more than 20 years, they
must be a citizen of Myanmar and at least 45 years old. Crucially, neither they
nor their partner or children can hold foreign citizenship, according to the
now infamous section 59(f). Aung San Suu Kyi’s late husband and children hold
foreign citizenship and this bars her from being nominated. The nominee must
also be familiar with military affairs under section 59(d). Changes to this section
to replace the word ‘military’ (sit-ye) with the word defence (ka-gwe-ye),
as a subtle image make-over for the military, were approved in 2015 by
parliament, although the matter was never put to a referendum to complete the
amendment process.
There are two possible
outcomes of the presidential nomination process. One is that a proxy president
from the NLD will be put in place and answer to Aung San Suu Kyi. While some commentators have been
confident enough to eliminate the possibilities down to a single person, this
is still largely a matter of speculation. The other controversial option being
discussed is to find a way to bypass the Constitution so that Aung San Suu Kyi
can become president immediately, with the intention of then formalising this arrangement
through constitutional amendment.
Bypassing the Constitution?
In particular there has been
speculation that the NLD may attempt to
suspend section 59(f) to enable Aung San Suu Kyi to become president. This
is where most foreign media have failed to understand the reasons why this is
considered a possibility and the historical precedent on which it may be
broadly based. Two past incidents are remembered in Myanmar as circumventing
the 1947 Constitution.
First, the Constituent
Assembly members that drafted the 1947 Constitution were appointed to
parliament with the intention that they would step down within six months once
national elections were held. However, the members were allowed to continue to
serve in parliament beyond this deadline. This contradicted the six month limit
set by the 1947 Constitution. The pragmatic
reason given was that elections had to be postponed because of the serious
conflicts that threatened the ‘Rangoon’ government. The legal reason given was
based on the interpretation of the then Chief Justice U Chan Htoon, who took a
rather generous and pragmatic reading of the Constitution, suggesting that the
six month limit did not actually apply to the former Constituent Assembly
members.
The second key historical
incident on which the idea of ‘suspension’ of a provision of the Constitution is
based occurred in 1959. At this time, the six month limit of General Ne Win and
his caretaker government came to an end according to the 1947 Constitution.
This led to fierce parliamentary debates as to whether the 1947 Constitution
should be formally amended by suspending the provision that permitted
non-elected members of government to serve for no more than six months. There
was serious opposition to this proposal and some warned it would set a negative
precedent and lead to dictatorship. But those in favour overruled the 29
members of parliament who voted against the proposal. The constitutional
amendment law of 1959 claimed to temporarily ‘repeal’ this provision
until a new Prime Minister was appointed. In effect, it suspended a provision
of the Constitution to allow Ne Win and his caretaker government to continue to
rule until an election was held in 1960.
The difference between 1959
and the present is that the 1947 Constitution allowed constitutional amendment if
the proposal had been passed by both houses of parliament, and then approved by
two thirds parliament sitting jointly. The 1947 Constitution specifically
allowed any provision to be repealed, varied or added to via the amendment
process, and this was interpreted as including a ‘temporary’ repeal.
The 2008 Constitution in
contrast requires a much more difficult process and it does not mention suspension
of a provision. It then comes down to the interpretation of the Burmese phrase.
Does the word ‘amendment’ (pyin-sin-chyin) in the 2008 Constitution
include efforts to (temporarily) repeal, vary or amend? This would require a
determination by the Constitutional Tribunal to resolve, but if the Tribunal
follows past interpretation then the answer is possibly yes.
In short, while some
practitioners claim a law could be passed to temporarily suspend article
s59(f), there appears to be no legal basis for this claim.
Priorities and Limitations of
the New Government
Once the presidential
nomination process is complete, the President will then determine the number of
ministries and appoint all ministers, all Chief Ministers of the States and Regions,
the Attorney General, and the Union Election Commission members, among others.
The appointments for Shan State and Rakhine State will be particularly
important, as the NLD does not enjoy a majority in these parliaments.
Over the next five years, the President
and its NLD-majority government has a significant opportunity to further the democratic
reform process, - yet there are things they can and cannot do.
The NLD does have a majority
in both the upper and lower house and so it will have the power to pass any
laws it chooses. The only brake on the legislative process is that the
military, USDP and ethnic members may decide to challenge legislation in the
Constitutional Tribunal on the grounds that it is unconstitutional. This could
lead to a ‘dialogue with dictators’, with unelected military members of
parliament bringing cases before the Tribunal. Given that the NLD-dominated
parliament is likely to re-elect a new bench to the Constitutional Tribunal, it
may be less open to such applications.
The parliament is still graced
by the presence of military members of parliament who are unelected. Forming 25
per cent of the seats, these military members will no doubt keep a close watch
on the decisions made by the NLD. One of the vice-presidents will also be
chosen by the military. The biggest roadblock that the military is likely to pose
is to the possibility for constitutional amendment, and it is here where
dialogue with dictators is most needed.
The NLD will be able to
propose a bill for constitutional amendment, but the chances of success will
depend on the agreement of at least some military members of parliament. To
amend key provisions of the constitution requires more than 75 percent of the vote
in parliament, and more than 50 percent of eligible voters at a referendum.
Even if military approval can be gained for constitutional amendment, the
referendum could also be difficult. The turnout rate for voting at the national
election was only 69 percent, and the NLD gained no more than roughly 60
percent of the votes.
It is not only the
constitutional amendment but also the implementation of government policy that
will require the President to find a way to work with Commander-in-Chief Min
Aung Hlaing. According to the Constitution, the Commander has power to choose the
heads of several key ministries: the Ministers of Defence, Home Affairs and
Border Affairs. Given that the backbone of government bureaucracy – the General
Administrative Department – falls under the Ministry of Home Affairs,
cooperation will be critical.
Reform of the judiciary is also
likely to be a key concern for the NLD. The NLD’s Manifesto, issued in October 2015, identified judicial
independence and fairness in judicial decision-making as a core concern. The
role of the Supreme Court was extolled and reinforced. No mention was made of
the Constitutional Tribunal - a convenient silence. This omission suggests that
the Tribunal may not feature in the NLD’s future vision for a democratic Myanmar,
but to abolish the Tribunal would itself require constitutional amendment.
Either a proxy president or
Aung San Suu Kyi herself will take over as President on 30 March 2016 – when the
current President Thein Sein’s term ends. He or she will serve until 2021, and
has the possibility of being re-nominated for a second term. The NLD has called for patience and indicated it
may not hold the final nomination procedure until March.
In any event, we will see the
President and one Vice-President with the support of the NLD, and one
Vice-President appointed by the military. Paradoxically, if this is to be the
dawn of a truly democratic era in Myanmar, it will be because of a delicate dialogue
with dictators.
