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Untilting the Constitutional Playing Field in Myanmar (Burma)

– Dominic J. Nardi, Jr., Ph.D. candidate, Department of Political Science, University of Michigan

If you were the leader of the governing political party in a quasi-democratic state and you intended to run for president in the next general election, would you (a) propose to amend the constitution in a way that would allow your expected opponent, the widely admired leader of the opposition party, to compete, or (b) support the status quo? The obvious answer is “b”. Yet, on Monday December 29, the governing Union Solidarity and Development Party (USDP) of Myanmar (Burma) recently chose the former option, which would allow the popular National League for Democracy (NLD) leader Aung San Suu Kyi (Daw Suu) to compete for the presidency in 2015. Why would the party untilt the playing field?

Adopted in 2008 under a military junta, Myanmar’s constitution includes several provisions designed to secure the military’s role in politics, including 25% of the seats in the legislature and a ban on presidents whose dependents possess foreign citizenship (Daw Suu’s late husband and sons are British nationals). The NLD boycotted the November 2010 elections and the USDP – the military’s preferred party – won around 78% of the elected seats. However, since the election, President Thein Sein and the legislature, led by Speaker Thura Shwe Mann, have embarked upon an ambitious reform program, freeing political prisoners, enacting legislation to permit labor unions and political protests, and abolishing prior restraint censorship. The president and speaker have also reached a détente with NLD, which competed and won 42 out of 43 contested seats in the April 2012 by-elections.

Earlier this year legislature established a 109-member committee to review the constitution, with 52 members from the USDP, 25 from the military, and 7 from the NLD (all 18 political parties in the legislature have at least one MP in the committee). The NLD has been vocal about removing the ban on presidential candidates with foreign dependents (§ 59(f)), especially after Daw Suu’s election to the legislature in 2012 and her announcement earlier this year that she “wants to run for president.” More surprisingly, the USDP has privately and publicly expressed a willingness to accept such amendments, despite the fact that Shwe Mann has also announced his intention to compete for the presidency. So, while the USDP’s formal proposal is not surprising, it is still puzzling.

One possible explanation is that the USDP’s proposal is a step towards improving its competitiveness ahead of the 2015 general elections. While we do not have any scientifically rigorous surveys of public attitudes towards the constitution, large majorities appear to support constitutional change. During the 2012 by-elections, the NLD campaigned in part on a platform of amending the constitution and won all but one of the seats it had contested. More recently, the NLD – admittedly an interested party – conducted surveys in Karen State and the capital city Naypyitaw and found that upwards of 90% supported lifting the §59(f) ban (the rest either supported the status quo or completely abolishing the constitution).

In the 2010 elections, the USDP could rely upon support from the military and an atmosphere of intimidation to win, but the current reform process has already raised citizens’ expectations such that the USDP would encounter greater resistance if it tried a repeat performance. The USDP itself is a relatively weak and loose collection of elites from the old regime that has relatively little experience electioneering. Moreover, with the separation of the presidency, legislature, and military, it has become much more difficult for the party to coordinate and muster resources to campaign. Indeed, the party’s resounding defeat in the 2012 by-elections allegedly shook party leaders. By at least appearing to support amendments to § 59(f), the USDP is likely attempting to reduce some of the lingering negative perceptions voters have of the party.

Moving into the realm of informed speculation, it is also possible that the USDP and NLD have reached a power-sharing agreement. It would not be difficult to imagine a scenario in which Daw Suu might become president in 2015 in return for allowing Shwe Mann to continue as speaker of the legislature. Such a bargain would be even more palatable if the NLD agreed to constitutional amendments that increased the formal powers of the speakership – a limited position that Shwe Mann has used effectively. This could also suit Aung San Suu Kyi’s goals as it would give her greater influence over the country’s foreign affairs and leverage her relationships with foreign leaders.

Even though the USDP has a majority in both the constitutional review committee and the legislature, its proposal is not guaranteed to pass. Constitutional amendments require the assent of over 75% of the legislature and the military, with 25% of the seats, has an effective veto. More importantly, even if enacted, the amendment would not guarantee an Aung San Suu Kyi presidency. First, the USDP’s proposal would require that Daw Suu’s sons convert to Myanmar citizenship. Second, under the constitution, the president is elected by a majority of the legislature, not by popular vote. Assuming the military MPs would not vote for her, the NLD and its allies would need to win over two-thirds of the elected seats in 2015. Given the stakes, the USDP will likely compete much more vigorously than it did in 2012. Finally, Shwe Mann could split the opposition by presenting himself as a compromise candidate able to work with both the military and opposition (he has a fairly positive reputation amongst opposition MPs).

The section 59(f) amendment is perhaps the most surprising part of the USDP’s proposal, but not necessarily the most important one. The proposal would also make district and township administrators directly elected by the people and chief ministers appointed by each state/region legislature rather than by the president. Many of Myanmar’s ethnic minority parties have advocated for greater devolution of power to the state and region governments. Previously, senior military leaders had declared the “f-word” – federalism – anathema, but Shwe Mann recently announced his support. Indeed, this latter part of the USDP’s proposal could do much to make local governments more accountable to the people and build goodwill amongst ethnic minority communities.

The military and NLD, amongst others, have yet to release their constitutional amendment proposals so it is too soon to predict if and how § 59(f) will be amended. However, the USDP’s proposal makes clear that it believes constitutional amendment is politically popular, even if it could make Shwe Mann’s path to the presidency more difficult. In meeting one of the NLD’s core demands, it could also likely reduce calls to completely scrap and rewrite country’s 2008 Constitution. Ultimately, given that military elites would not be able to dominate any new constitutional convention, the USDP and military might view limited amendment as a necessary bargain to make the constitution more durable.

Suggested Citation: Dominic J. Nardi, Jr., Untilting the Constitutional Playing Field in Myanmar (Burma), Int’l J. Const. L. Blog, Dec. 31, 2013, available athttp://www.iconnectblog.com/2013/12/untilting-the-constitutional-playing-field-in-myanmar-burma/

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Published on December 31, 2013
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3 Responses

  1. Holek

    I think it is a relatively safe bet that the sons of ASSK will not be willing to change their citizenship

  2. Holek is right.

    Furthermore, under Article 16 of the 1982 Burmese Citizenship Act, dual nationality is not permitted, so that if the two sons were to accept Myanmar citizenship, they would in theory have to renounce their British citizenship. There are no doubt many expatriate Burmese who have kept both foreign and Myanmar passports, and the Myanmar authorities generally turn a blind eye to this, if they ever find out. But in the case of the two sons, this would be a high profile issue and so impossible to sweep under the carpet. At one stage both sons reportedly held (Wintle and Popham biographies) both British and Myanmar passports, but their Myanmar passports were invalidated in 1989 after they returned to the UK from a visit to Myanmar.

    So unless special arrangements were made for them to keep their British nationality, e.g. by the grant of some kind of quasi-honorary Myanmar citizenship without rights or obligations, of the kind that Suu Kyi herself enjoys through her acceptance of the offer to her of honorary Canadian citizenship, it is highly unlikely that the two sons would wish to become aliens in their own country where they are British nationals by birth – formerly “Citizens of the UK and Colonies”, and after the 1981 British Nationality Act, ‘”British citizens”. (Alexander seems today to be US resident, while Kim is in the UK.)

    Indeed, under the present Article 59(f), Suu Kyi is almost as eligible to be a presidential candidate as under the USDP proposal, were it to some into force. The USDP proposal simply replaces the negative (dependents/close relatives shall not be foreigners) with a positive (dependents/close relatives shall be Myanmar citizens). The only difference is that the USDP proposal would seem not to require the spouses of legitimate children also “not to be foreigners”, that is “to be Myanmar citizens”.

    Rather more significant is the President’s latest monthly message: “I would not want restrictions being imposed on the right of any citizen to become the leader of the country.” Requiring the two sons to take Myanmar citizenship would be an unfair restriction, possibly even a denial of their human rights. Suu Kyi would surely reject this. Is the President, I wonder, responding to the USDP’s deceptively cosmetic proposal?

    It is, incidentally, not clear at all that the President wants to run for a second term. It is also a fact that the NLD won 43 out of 44 seats contested in the April 2012 by-elections – their candidate for the 45th seat was declared ineligible, though the NLD have challenged this. There have as well been one or two subsequent defections to the NLD from elected representatives of other parties. Michael Aris was of course never a “dependent” of Suu Kyi.

  3. Dom

    I apologize, I just saw these comments. I suspect you’re right in that Daw Suu’s children will not convert to Burmese citizenship, though I don’t know them personally and can only speculate.

    I do think including the amendments in a formal proposal, however flawed, is a step above and beyond merely giving a speech. What I didn’t write at the time and think might be likely given subsequent developments is that the USDP might not be entirely unified on this issue and that the limits on § 59(f) might be more a result of pushback by hardliners.

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