The 2008 constitution and ‘The Lady’ prohibition

The 2008 constitution and 'The Lady' prohibition

By Janelle Saffin   |   Wednesday, 10 July 2013

Given the desire and urgency for constitutional change the people of Myanmar have a right to know President U Thein Sein's views about changing the 2008 constitution. In particular, they need to know his views on the section that prohibits Daw Aung San Suu Kyi and others whose children have foreign citizenship or allegiance from being president.

The offending section, 59(f), was included solely to stop one individual, Daw Aung San Suu Kyi, from being president. Creating constitutions directed at individuals violates the fundamental principle of proper constitution making.

President U Thein Sein's response to Daw Aung San Suu Kyi's recent comments advocating constitutional change was cagey. He stated that the three spheres of government – the executive, parliament and judiciary – are separate. "The constitution was written by the approval of the people," he said, adding that "if the parliament authorises it and the people agree for her to become the president, I don't have a say".

Yes, the president is correct that the three spheres of government are separate, although the 2008 constitution qualifies this with "to the extent possible" in section 11(a). But the president could have acknowledged that he has broad constitutional powers and is at liberty to give his views on a wide range of topics of public interest both directly to the public and through the parliament. Constitutional change is one such topic.

He could have also said that his constitutional powers include initiating bills of amendment to the parliament. As head of the government, his powers also include initiating a referendum if amendments to certain sections of the constitution, including section 59(f), are passed by the parliament with the required 75 percent majority.

Further, the president could have said what the people already know – that is, that the 2008 constitution was not written with the approval of the people. The 2008 constitution is not a people's constitution, as it did not result from an agreed political pact among political leaders who represent the people – just ask the political stakeholders who were conscripted to the National Convention process.

President U Thein Sein previously occupied the role as chairman of the National Convening Commission of the National Convention that led to the 2008 constitution so he knows more than most about the constitution and views of Myanmar's political parties and ethnic nationalities. He knows that their views and the people's aspirations are not reflected in the 2008 constitution.

In a positive development, the Pyidaungsu Hluttaw, the combined upper and lower houses of parliament, recently formed a committee to undertake a constitutional review and – one would hope – reform. The Union Solidarity and Development Party (USDP) has had a committee working on this since last year and the National League for Democracy's (NLD) platform includes constitutional reform. The ethnic nationalities parties have also long advocated for a federal constitutional democracy. The NLD and leading ethnic parties have recently joined forces to advocate this, and ethnic parties are also working together so they have a stronger voice.

The Pyidaungsu Hluttaw has been leading the way in terms of democratic advance and practice, and their efforts deserve acknowledgement. The speakers of the Pyithu Hluttaw (lower house), U Shwe Mann, and of the Amyotha Hluttaw (upper house), U Khin Aung Myint, have taken to their roles as forceful advocates for change. U Shwe Mann has spoken out on all sorts of matters, including his desire to be president, a role that all thought would be given to him by Senior General Than Shwe but instead went to U Thein Sein.

This current constitutional stand-off presents countries that lifted sanctions and engaged with Myanmar, including my own, Australia, with a direct challenge. None can countenance an election process that intentionally prohibits one person from being considered for the presidency. This alone would prevent any election from being deemed free and fair and therefore needs to be settled sooner rather than later.

These countries must make their views known on these constitutional matters, starting with section 59(f). Engagement cannot slip into appeasement and needs to lay out expectations. Australia and Myanmar now have high level consultations and I would expect constitutional reform to be a standard agenda item.

Australia has also agreed to a request from the head of the Union Election Commission (UEC), U Tin Aye, for electoral assistance. Australia is not able to aid a process that will not be free and fair but it could assist to make it free and fair. Perfection is not expected, but section 59(f) is quite an obstacle. The free and fair assessment is more than what happens on voting day. It is also the electoral framework and the conditions before and after elections that form part of the assessment.

These challenges are to be expected and will keep arising because a limited political transformation is under way in Myanmar and not a deliberate political transition that includes a constitutional settlement. A political transition would be based on a political pact among stakeholders who represent the people along similar lines to that which we have seen in other countries coming out of dictatorship and authoritarian rule.

The current transformation is welcome but is scripted and guided by the Tatmadaw. It would benefit from the setting out of a clear political plan, with timelines and a public participation process, that goes beyond the 2008 constitution.

An election in 2015 that Daw Aung San Suu Kyi is barred from has the potential to unravel advances that have been made. It could harm international acceptance of the reform process and, most importantly, its credibility with the people of Myanmar.

This leaves everyone wondering then why the president is reluctant to state whether he believes she should be eligible. In politics such vacuums are filled with speculation. In this case, it is whether the president wants to maintain the status quo so he does not have to fac off against her, and that he is not free to say what he thinks as it is still the Tatmadaw's call.

The people really do need to hear from President U Thein Sein and the Tatmadaw, particularly given the latter are charged with being "mainly responsible for safeguarding the constitution" under section 20(f).

Perhaps the Pyidaungsu Hluttaw will again lead the way. Let us hope that the voices that are now silent will come to life under their constitutional review.

Janelle Saffin is an MP in the Australian parliament and a long-time friend of Myanmar. Her engagement focuses on constitutional, legal, election and political history.

 

Source: http://www.news.myanmaronlinecentre.com/2013/07/11/the-2008-constitution-and-the-lady-prohibition/