Myanmar: Proposed amendments seek to entrench legislative supremacy and devolve marginal autonomy to local governments

On 10 June 2015, Myanmar parliamentarian U Thein Zaw submitted a package of two constitutional amendment bills to Myanmar’s parliament that have been two years in the making. While global attention on Myanmar, and its constitution, is focused on Nobel peace laureate Daw Aung San Suu Kyi and her ineligibility to run for President under the current rules, the proposal for amendment outlines an important set of changes that, if enacted, will have great influence on wider democratic reforms, including re-molding Myanmar as a parliamentary system and devolving taxation and legislative powers to sub-national parliaments. But the changes will, in some cases, be at the expense of judicial independence and the capacity of State and Regional parliaments to exercise their new powers will be severely constrained. The long path to constitutional renewal, ongoing since the 1990s, remains uncertain.

A Tortured Path towards Constitutional Reform

Myanmar’s current constitution formed a key mechanism by which the country emerged from military rule in early 2011. Its adoption in 2008 followed nearly two decades of drafting attempts, which varied significantly in the degree of their inclusivity. The system of government the constitution established is quasi-federal and presidential in nature. Powers are divided between national (Union) branches of government and 14 sub-national units (States and Regions). The president of the Union is chosen by an electoral college comprising members of the Union parliament and leads a cabinet independent of the legislature. But he or she also appoints and removes the Chief Ministers of all States and Regions, and it is a Union bureaucracy that carries out the work of government at all levels rather than separate sub-national administrations.

The constitution preserves a significant role for the military in public affairs. The Commander in Chief of the military chooses the ministers with responsibility for defence, border affairs and home affairs at both the national and sub-national level from among serving members of the military (sections 232, 262). On the National Defence and Security Council, a body whose powers are left undefined in the constitution but which has functioned as high-level cabinet body, five of the 11 members are serving military officials (section 201). The Commander in Chief also appoints one-quarter of parliamentarians in all legislatures (sections 109, 141, 276(i)). This ensures the military has a veto over any constitutional amendment, the first threshold for which is passage of a parliamentary bill with a majority of more than 75% of the Union parliament (section 436).

Democratic activists and ethnic nationalities groups have long called for a constitutional overhaul to reduce the military’s role in politics and devolve more power to sub-national governments. They consider the drafting process that produced the current constitution to be illegitimate and the referendum at which it was adopted to be flawed. Aung San Suu Kyi and the National League for Democracy (NLD) she leads have argued, among other things, for the repeal of the military’s veto on constitutional change and the loosening of the presidential qualification provision that currently prohibits any person whose parents, spouse, children or children’s spouses are or are entitled to citizenship of a foreign country (section 59(f)). Under this provision, Aung San Suu Kyi is disqualified from becoming president or vice-president. On the other hand, ethnic nationalities groups, who represent about a third of Myanmar’s population of 51 million and are concentrated in States along edges of the country, seek greater autonomy over social policy and a greater share of profits from natural resources in their territory. Their concerns are closely linked to armed conflicts between armed ethnic groups and the Myanmar military, which have lasted for more than 50 years and are yet to be conclusively resolved.

The ruling Union Solidarity and Development Party (USDP) responded to their opponents’ demands in March 2013 by announcing a review of the constitution. Between August 2013 and October 2014, two separate parliamentary committees examined each chapter of the constitution and considered submissions made by the public, political parties and government officials. Their deliberations were kept strictly confidential, they conducted no public hearings and the content of the submissions they received has never been made public. Each committee produced a report of their deliberations, but these generally avoided making explicit recommendations for changes to the constitution. The two bills presented to parliament this week are therefore the first concrete proposals to emerge from this phase of constitutional reform. If enacted, they will represent the only instance since 1961 that Myanmar has carried out constitutional change using the means prescribed in the existing constitution.

The proposed amendments appear designed to strengthen the role of the legislature at the Union level, devolve a marginal amount of authority to State and Region Governments and weaken certain judicial institutions. They also address the high-profile demands for changes to presidential qualifications and the constitutional amendment procedure but in ways that are unlikely to satisfy advocates.

Parliamentary supremacy Myanmar-style

Disputes about the role of parliament have dominated politics in Myanmar since the transition to quasi-civilian rule in 2011. The Union parliament, led by the charismatic lower-house Speaker Thura Shwe Mann and his upper-house counterpart U Khin Aung Myint, has tussled openly and frequently with both the executive and the judiciary. Assertions of a form of legislative supremacy led to the mass resignation of all members of the Constitutional Tribunal in 2012 and frequent veto threats from the President concerning contentious legislation.

The constitutional amendment bills seek to resolve these tensions in favour of parliament. The President, both Vice-Presidents and all Union Ministers and Deputy Ministers will be drawn from members of the Union parliament and will not be required to resign from parliament upon appointment, as they currently must (section 232(i)). The President and Vice-Presidents will also now be able to remain involved in political parties, as members or leaders (cf section 232(k)). Reversing the Constitutional Tribunal decision that triggered the 2012 crisis, special ad-hoc committees created by parliament will be granted the same status as Union Ministries, allowing them to submit bills and reports directly to a chamber of parliament. Parliament will also have a greater role in the selection of senior judicial posts. The Chief Justice of the Supreme Court of the Union, the final appellate court, will be chosen by parliament from among three candidates, one nominated by each of the President and the Speakers of the two parliamentary chambers. The candidate with the most votes will become Chief Justice, while the other two candidates will assume newly created Deputy Chief Justiceships. Similarly, nominations for Chairmen of the Constitutional Tribunal and the Union Election Commission will be made by the President and the two Speakers, with parliament making a final decision.

Most parliamentarians and political leaders will welcome this constitutionalising of the assertive stance that parliament has adopted with respect to its powers and role. Shwe Mann, who habours presidential aspirations, will benefit the most from such a change. His two main competitors (aside from Aung San Suu Kyi) are President Thein Sein and the Commander in Chief, Senior General Min Aung Hlaing, neither of whom have parliamentary experience. For Thein Sein, who has remained coy about his intentions, the proposed change would require him to declare his hand ahead of the elections in order to ensure he had a seat. But the wisdom of converting a presidential system into a “quasi-parliamentary” one after only five years may be doubted and will only add further uncertainty to what will already be a bumpy handover of power. (The style of system that the proposed changes will deliver cannot be said to be truly parliamentary or, conversely, semi-presidential, because Union Ministers will remain responsible to the President rather than directly to parliament: section 232(h).)

Marginally greater autonomy for States and Regions

The rallying constitutional call of politicians representing majority ethnic areas and ethnic peace negotiators has focused on removing the President’s control over the tenure of Chief Ministers (chief executives at the State and Regional level) and securing greater revenue-raising powers. The amendment bills ostensibly heed this call. Chief Ministers will now be elected by State and Regional parliaments from among their members. The President will formally make the appointment, but will have no discretion to veto a constitutionally qualified candidate. The President also loses his unconstrained power to remove Chief Ministers at will: instead, the State or Regional parliament is granted a veto power over any dismissal. The bills propose a significant number of additions to the subjects on which State and Region parliaments may legislate and collect taxes (Schedules 2 and 5). The new heads of legislative power, however, are all made explicitly subject to Union legislation. The proposed new taxing powers are not so constrained and they offer the potential for significant new revenue streams. States and Regions will have the ability to collect income tax, customs duties and stamp duty as well as levies on services (tourism, hotels, private schools and private hospitals) and resources (including oil, gas, mining and gems).

On paper, the new powers suggest a significant devolution of authority away from the centre but it will take some time before there is meaningful power at a local level. No changes are proposed to the bureaucracy through which policy is implemented. Chief Ministers and their fellow parliamentarians will still rely on the General Administration Department, directed from the centre and under the authority of the military, to effect any major changes. The Union government will therefore retain a significant lever in controlling how States and Regions are allowed to exercise the new powers granted. Of course, the military too remains central to governance, not least through its 25% share of the composition of legislatures at the State and Regional level (section 161(d)).

Judicial independence potentially under threat

All sides of Myanmar politics, including leading USDP figures like Thein Sein and Shwe Mann, have highlighted the importance of re-establishing judicial independence to the success of the transition to democracy. Yet some of the proposed constitutional amendments are likely to weaken key judicial bodies if they are enacted.

Amendments to section 312 will remove the security of tenure for Chief Justices and Judges of the High Courts of States and Regions (the penultimate appellate courts for all civil and criminal matters). Currently these judges have tenure to the age of 65 years and can only be removed for specified causes. The amendment bills propose instituting rolling five-year terms with the possibility of reappointment. No provision is made for existing judges, so it remains unclear if this will only have prospective effect. High Courts are reportedly afflicted by high levels of corruption and so the new rolling terms may be a means to remove judges who are unsuitable for judicial office. But the possibility of misuse of this power is high and is especially concerning for institutions as important as the High Courts.

Changes proposed to section 324 will remove the final and binding nature of the decisions of the Constitutional Tribunal for most cases brought before it. The current provision suggests that any resolution of the Tribunal is final and conclusive. But the section appears directly after a section concerning cases referred to it by another court and critics of the Tribunal have suggested that the correct interpretation of section 324 is that resolutions are only final in cases that have commenced in another court and are referred to the Tribunal for decision on a constitutional question. The amendment bills carry into effect this interpretation and add a proviso whereby the President or one of the two Speakers may ask for a revision of a decision that is “of national importance”. The apparent result is that any matter submitted directly to the Tribunal (as all cases to date have been) will not give the Tribunal the jurisdiction to make a final or binding order. This change is likely to exacerbate rather than solve the controversial role that the Tribunal has played. It will leave Myanmar without a meaningful arbiter of constitutional disputes, which will inevitably arise between branches and levels of government.

Limited changes to presidential qualifications and amendment procedure

The provisions of the constitution that have attracted most publicity internationally are the qualifications for presidential and vice-presential candidates (section 59) and the procedure by which constitutional amendments may be made (section 436). Changes to either provision will not only require a parliamentary vote of more than 75% but also a referendum at which more than 50% of all eligible voters vote in favour of the change (section 436(a)).

Aung San Suu Kyi and the NLD have consistently argued that two sub-sections of section 59 must be changed. The first, which requires that a candidate be “well-acquainted with the affairs of the Union such as political, administrative, economic and military”, has often been understood as an implicit stipulation for prior military service (section 59(d)). The other, concerning citizenship of close family and described above, was by most accounts inserted to ensure Aung San Suu Kyi could not become president, though many in the military and senior USDP ranks deny this. The amendment bills address both issues but the changes will neither satisfy NLD members nor allow Aung San Suu Kyi to become president. A minor textual amendment to section 59(d) will substitute “defence” for “military”. The proposed new section 59(f) would remove the requirement that a candidate’s spouse and their children’s spouses must not hold or be entitled to foreign citizenship but retains the requirement for a candidate’s children. As Aung San Suu Kyi’s sons both hold or are entitled British citizenship, she remains disqualified.

More interestingly, the proposed changes to section 436 will shift the balance of power for constitutional amendment further in parliament’s favour. The amendment bills suggest a reduction of the “greater than 75% of all representatives” threshold to “no less than 70% of representatives eligible to vote”. This removes the military’s veto but also means that a suitably large number of abstentions (say, the military’s 25% bloc plus another 5% or 33 members) will stymie any attempt. At the same time, the bills propose to make passage through a referendum easier: no longer will a vote of 50% of all eligible voters be necessary; instead, it will be the more orthodox formula of 50% of all voters.

Likelihood of any constitutional change remains uncertain

The amendment bills are now under review by the parliament’s Bill Committee and will not reach the floor of the parliament for open debate for at least a week. The response to the proposed changes has been muted. Some in the NLD have said the changes do not go far enough, while certain ethnic parties (in particular the Rakhine National Party) have welcomed the commitment to increased devolution. It remains far from clear that the bills will have sufficient support to pass parliament during the current session, which will likely finish in August and will be this parliament’s final one. Comments on 9 June 2015 from Min Aung Hlaing, the Commander in Chief, to the Japanese daily Mainichi Shimbun sugest the military is against any change to the amendment procedure set out in section 436. But even if the bills attract the support of the military and sufficient other representatives, the changes are unlikely to satisfy the groundswell of popular support for constitutional renewal. Demands for further changes once the next parliament is elected are inevitable and as yet there is no clear forum for the disparate political blocs to negotiate through.

Andrew McLeod is a Research Fellow in Law at the University of Oxford, where he directs the Oxford Burma/Myanmar Law Programme. A comparative constitutional lawyer, he previously served as associate to the Chief Justice of Australia and as an adviser to the Australia’s Cabinet Secretary. He has advised on constitutional reform processes in Africa and Asia and, for the past two years, has supported Burma/Myanmar’s constitutional review.