Category Archives: constitution

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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Blog post summarizing Constitutional Tribunal dispute (Myanmar/Burma)

I have a post for Tom Ginsburg’s new I-Connect Constitutional Law blog about the Myanmar Constitutional Tribunal impeachment saga. It’s basically just a summary of recent events for American constitutional law scholars who might not have followed news in Myanmar closely. Here is the link:

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Are less majeste cases important enough

First of all, sorry for the lack of posts, despite the huge amount of law-related news from the Philippines and other parts of SEA. I was in Myanmar last month, and between a slow internet connection and being busy with meetings, I didn’t have much time to post. However, I did obtain a copy of the Constitutional Tribunal’s 2011 decisions and learned a few interesting things about the court.

Until I have time to write about that trip, here is a very in-depth article about the Thai Constitutional Court’s recent decision on a lesse majeste case. Elizabeth Fitzgerald tries to understand the court’s reasoning for dismissing the petitioner’s challenge against the constitutionality of the lesse majeste laws. Unfortunately, the court’s reasoning is still somewhat unclear after having read the article, but I guess that is Ms. Fitzgerald’s point.

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Myanmar’s Constitution: To Change or Not to Change?

I’ve published another article about Myanmar’s constitution for New Mandala, this time focused on the question of how much the constitution constrains political developments. I wrote the article in response to the many outcries that the country needs to amend its constitution to remove military involvement in politics before any genuine progress can be made. My point is simply that the text of the constitution doesn’t matter quite so much as how political actors want to utilize the constitution. New Mandala also posted a response to the article talking about how constitutional change occurs.

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