Category Archives: constitution

Less than Expected (Myanmar/Burma)

By now most readers have probably read the news that Myanmar’s Joint Constitutional Review Committee has issued a report advising against drastic amendments to the 2008 Constitution. According to The Irrawaddy, while the report supports amendments decentralizing government authority to state and region governments, it rejects both the proposal to reduce the military’s role in the legislature and revision of § 59(f) (the ban on presidential candidates with foreign dependents).

The Committee claims that it received over 106,102 letters opposing any amendment to § 59(f), compared to just over 500 in support of change. However, a member of the governing Union Solidarity and Development Party (USDP) has revealed that the petition came from a USDP sponsored initiative and most of the majority of those signatures are from USDP members. It’s a somewhat surprising move given that the USDP seemed to have been amenable to amending § 59(f) just a few weeks ago.

In other news, after months without any cases, President Thein Sein is now threatening to submit eight new laws to the Constitutional Tribunal. According to The Myanmar Times, the laws include:

  • the Anti-Corruption Law 
  • Farmers’ Rights Protection Law
  • the Pyithu Hluttaw Law
  • Amyotha Hluttaw Law
  • Pyidaungsu Hluttaw Law
  • Region and State Hluttaw Law
  • Union Auditor General’s Office Law 
  • Constitutional Tribunal Law
This will be the Tribunal’s first test after the August 2012 impeachment crisis, and it’s a big one. Perhaps more importantly, it will give us an indication of how the current Tribunal members will rule. Will they stick to the more textualist/originalist interpretation of their predecessors? Will they defer to the legislature or find a way to stake out their independence?

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Untilting the Playing Field? (Myanmar/Burma)

On Monday, Myanmar’s governing Union Solidarity and Development Party announced that it would support amending § 59(f) of the 2008 Constitution to allow Aung San Suu Kyi to run for president. I share my thoughts on this development in the International Journal of Constitutional Law‘s I-CONnect blog.

On another note, hope everybody reading this has a happy and productive New Year!

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Survey says… Amend the Constitution! (Myanmar/Burma)

On Friday, according to The Irrawaddy, local authorities in Naypyitaw refused to give the National League for Democracy permission to conduct a poll of local support for amending the 2008 Constitution. The government reversed itself soon after and allowed the poll.

Not surprisingly, the NLD found overwhelming support for constitutional amendment. Out of the approximately 25,000 people who participated, 88% supported amendment, 8% favored rewriting the entire constitution, and the rest were neutral.

As The Irrawaddy notes, the poll’s methodology is questionable; it certainly would not merit publication in a peer-reviewed academic journal. Asking people to attend a polling station creates a self-selection bias in which residents who are more likely to agree with the NLD are also more likely to participate. There was no attempt at random sampling.

Naypyitaw itself is hardly representative of the entire country. However, that fact might bias against the NLD’s results; one would imagine that, as the seat of government and the military, Naypyitaw is less likely to be a stronghold of the NLD (although in the April 2012 by-elections the NLD did win several seats).

More important is which constitutional amendments people would support. The NLD has prioritized reducing the role of the military in politics and allowing Burmese with non-citizen dependents (specifically, Aung San Suu Kyi) to run for president. It’s far from clear if and to what extent this platform represents the preferences of the 88% who voted in favor of amendment, much less the rest of the country. In fact, there are many other parts of the constitution that would benefit from amendment, including the overly vague provisions on the powers of legislative committees.

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Survey says… change the constitution (Myanmar/Burma)

According to the DVB, the National League conducted a survey of Karen and found that 95% of respondents supported amendments to the 2008 Constitution. In particular, respondents supported reducing the role of the military in parliament and allowing Aung San Suu Kyi to compete for the presidency. Of course, given that the survey was conducted by the NLD, one might be tempted to wonder if the results are biased. However, 95% is a pretty overwhelming response. It’d be interesting to see how these results compare with surveys of attitudes towards constitutional change amongst other ethnic groups in the country.

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Thaksin come home? (Thailand)

It’s been a while since we’ve heard much from Thailand’s Constitutional Court. Now, with Yingluck Shinawatra almost done with her second year in office, Thaksin Shinawatra’s political allies are attempting to amend the 2007 Constitution in order to allow Thaksin himself to return to the country. However, a member of the Senate has asked the Constitutional Court to stop the move. While the justices have agreed to hear the case, they have not issued an injunction against parliament.

The case raises a fascinating constitutional question: can amendments to the constitution ever be considered unconstitutional? Do courts have the authority to rule on amendments that go through the constitutional amendment process? Few courts have taken such a position. (for more about this issue, check out Gary Jacobsohn’s International Journal of Constitutional Law article).

In Golak Nath v. State of Punjab, the India’s Supreme Court declared that a constitutional amendment could not render the fundamental rights guaranteed in Indian Constitution unenforceable. The 1973 Kesavananda Bharati v. State of Kerala decision reversed this broad declaration, but did assert its authority to strike down laws that contradicted the “basic structure” of the constitution. Later, during Indira Gandhi’s Emergency Rule, it used this power to strike down the 38th and 39th amendments, which would have stripped the court of jurisdiction over elections and rights cases during Emergency Rule.

If Thailand’s Constitutional Court invalidates the amendment, it will be interesting to see if they adopt India’s “basic structure” doctrine. An argument could be made that the 2007 Constitution was implicitly designed to prevent a Thaksin resurrection, so allowing him to return would defeat the entire point of the constitution. However, that would require the justices to extract a very partisan message from the document. More likely is that the court would find that parliament violated the procedures for the amendment process. Either way, the Thai Constitutional Court is back on the radar!

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Constitutional reform so soon? (Myanmar/Burma)

It appears that there is a consensus to explore amending Myanmar’s constitution. Last Friday, according to an official announcement, the Hluttaw announced that it would form a committee of law experts to propose amendments to the 2008 Constitution. The committee hasn’t proposed any specific amendments yet, but the assumption seems to be (almost) anything is on the table.

Most media commentary has focused on the potential that constitutional amendments could have for Aung San Suu Kyi’s position. Particularly, there is a possibility that the amendments will remove the ban on presidential candidates with foreign dependents. However, Eric Randolph at Irrawaddy reports that many believe the reforms are intended to benefit Pyithu Hluttaw Speaker Shwe Mann. According to the article:

A Western diplomat, speaking on condition of anonymity, told The Irrawaddy last week that he believed some form of back-room agreement has been reached between Suu Kyi and Shwe Mann.

“They feel they can work together—they have some common ground,” said the diplomat. “He is one of the people who has changed the most, and they have a shared interest in strengthening Parliament. She sees it as key to establishing democracy, and he sees it as a potential power base.”

While it’s not clear what amendments Shwe Mann’s allies are seeking, the broader notion makes sense. Constitutional reform is costly. While many analysts expect Aung San SuuKyi and the National League for Democracy to sweep the 2015 elections, that result is far from guaranteed. For one, as many have noted, the NLD has thus far not succeeded in rejuvenating the party. Daw Suu’s charisma remains powerful, yet tarnished after the controversial Letpadaung Commission report. However, the party is alienating young activists, who will likely be key to rounding up votes in a free and fair election. Moreover, the NLD lacks policy expertise. While the NLD might not need a think tank to win an election, it does need credibility.

If there is to be constitutional change, my bet is actually that amendments will transform Myanmar into more of a presidential-parliamentary system along the lines of France. Shwe Mann could carve out a viable role for himself as a “de facto” prime minister, while Daw Suu could serve as a president with reduced powers focused on foreign relations. Frankly, Daw Suu’s comparative expertise lies in her ties to the international community so she might be perfectly satisfied in this sort of role. Moreover, as a president, she would be in a position to check that the reforms are not rolled back.

Some commentators have also suggested that the reforms could strengthen the rights of state governments, partly meeting the demands of ethnic minority parties for federalism. Here I’m somewhat more skeptical. First, the ethnic minority parties have yet to prove their electoral viability, especially at the national level. There are dozens of ethnic parties in the Hluttaw, but even after having boycotted the 2010 elections the NLD is still the largest opposition party.

The ethnic groups’ political strength really comes from the military strength of ceasefire groups. This power is not inconsiderable. Thein Sein’s administration has taken great efforts to negotiate ceasefire agreements and political agreements with most of these groups. However, the Union government would probably still be reluctant to give the states sovereignty, as full federalism would require, if there are still armed groups in control of large swaths of territory. Rather, if anything, I suspect constitutional amendments would expand the legislative schedules of the state governments such that the states have greater jurisdiction over issues like education and natural resources.

It’s obviously an exciting time for Myanmar and the possibilities seem endless. However, over the coming weeks it will be important to remember that any constitutional compromise must come as a result of compromise. Constitutional change does not simply mean that “democracy” has won. It will be important to consider exactly how the compromise occurs and which provisions of the constitutions are changed.

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Is that your final answer? (Myanmar/Burma)

A few weeks ago, the Hluttaw voted to amend the Constitutional Tribunal Law. Unfortunately, I haven’t seen an English-language translation of the changes. Fortunately, we now have an insight into the debates through an op-ed by U Ye Tun, Pyithu Hluttaw MP from the Shan Nationalities Democratic Party for Hsipaw in northern Shan State. Ye Tun wrote in The Myanmar Times explaining his decision to vote against amendments to the Constitutional Tribunal Law.

Ye Tun spells out two complaints. First, the amendments require the Tribunal members to report to the president, Pyithu Hluttaw speaker, and Amyotha Hluttaw speaker about their activities. Ye Tun fears that this would make the Tribunal members responsive to the bodies that appointed them. Rather, Ye Tun would have preferred language simply requiring the members to submit a formal message that would allow the members to keep their distance from the politicians.

Second, Ye Tun worries that the law will undermine the finality of Constitutional Tribunal decisions. The way he interprets the changes, the Tribunal decisions will only be final if they reached the court on appeal from the ordinary courts through § 323 of the Constitution. In other words, cases submitted by the president, speakers, etc. would not constitute the final word on the constitution.
U Ye Tun’s concerns are very real and potentially troubling. If the Constitutional Tribunal’s independence is undermined and the finality of its opinions questioned, then it will not be able to play an impartial adjudicatory role between the branches. Members might be viewed primarily as agents of their appointing bodies rather than as neutral arbiters. In short, as Ye Tun warns, the Tribunal might become more controversial without becoming more effective.

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