By A. Morris, Juris Doctor Candidate (2014), Northwestern University School of Law
In anticipation of presidential elections slated for 2015, the government of Myanmar is taking a closer look at the 2008 Constitution. The former military government drafted the Constitution before the civilian transition, and some observers, in both Myanmar and abroad, have taken issue with the 2008 Constitution. They claim the constitution does not go far enough to ensure democracy.
Reflecting this renewed interest in the constitution, Sydney Law School conducted a three-day Constitutional Reform Workshop in Yangon last spring. The purpose of the workshop was to discuss a broad range of issues related to constitutional law and was moderated by constitutional scholars. Topics included federalism, the role of the military in relation to the constitution, bills of rights, and independent accountability of institutions. This workshop was significant because it was the first of its kind to be held in a public forum and discuss substantial issues of constitutional law.
The workshop was also a major event because Members of Parliament, judges, lawyers and a number of representatives from civil society organizations in Myanmar participated. In addition, scholars from around the world, including Melissa Crouch, PhD and research fellow at the National University of Singapore, attended. In an interview with Dr. Crouch, she praised the workshop and constitutional committee for engaging in open dialogue.
More recently, the government has taken a keen interest in ensuring free and fair elections in 2015. In August 2013, in part as a response to the clamor for change, the government in Myanmar established a Parliamentary Constitution Review Committee to review the Constitution. The government tasked the committee with putting forward draft amendments to the 2008 Constitution. The committee is comprised of 109 representatives, including members from the ruling party, opposition parties and military, in proportion to political representation in Parliament.
On January 31, 2014, the committee submitted its recommendations to the government. The report includes over 28,000 recommendation letters from the public and political parties. Preliminary reports suggest that the committee’s recommendations are superficial because key issues remain unaddressed.
Most of the media’s attention has been given to Article 59(f). Under Article 59(f), an individual whose spouse or children “owe allegiance to a foreign power” cannot become president. One of the frontrunners in the 2015 elections would likely be Aung Sang Suu Kyi, who was awarded the Nobel Peace Prize in 1991. She is recognized as the voice and symbol of democratic freedom in Myanmar. However, her children retain foreign citizenship thus making Aung Sang Suu Kyi ineligible.
Although much of the focus has been on Article 59(f), there are other provisions that deserve similar scrutiny. For example, the current constitutional amendment process gives the military too much veto power in Parliament. Under Article 436 of the Constitution, key provisions of the Constitution including eligibility for presidency requires a seventy-five percent parliamentary approval rate for amendment. This is a very high bar because twenty-five percent of the seats in parliament are reserved for members of the military, and the military has strong support in at least one of the political parties represented in Parliament. Article 436 essentially gives the military a veto over constitutional amendments.
In addition, Dr. Crouch identified another significant issue that has yet to be addressed. According to Dr. Crouch, although ethnic tolerance has not been at the forefront of discussions, it is likely to become a prominent factor in the election and future constitutional debates. Under Articles 347 and 348, the Constitution protects citizens and promises equal rights before the law. This includes protection from discrimination based on religion. However, there are a number of ethnic minorities in Myanmar who do not qualify for citizenship and as a result, are not protected under the Constitution.
But for now, discussions about Myanmar’s path to constitutional reform are focused on the review committee’s recent report. In February, the government formed an implementation committee to assess the report. The new committee has yet to issue a statement and it remains to be seen what will happen in the future. However, it can be said with certainty that if the military’s power is preserved in Article 436 then free and fair elections will not be achievable in 2015.