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?
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!
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.
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.
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!