Robust debate needed on constitution

Robust debate needed on constitution

By Andrew McLeod   |   Sunday, 11 August 2013

When Pyithu Hluttaw Speaker Thura U Shwe Mann visited Washington last June, he delighted his American audience with a keen interest in their constitutional system. Showing characteristic charm, he revealed an eagerness to learn more about how powers were divided among branches of government in the United States. The significance of that remark was lost on many commentators. But it represented the first sign of cross-party support to strengthen the separation of powers in Myanmar's constitution. Thura U Shwe Mann and Daw Aung San Suu Kyi have now both made the separation of powers a crucial plank of their platform for constitutional reform.

The fresh prominence given to this principle raises two questions: What might a stronger separation of powers look like? And is such a tightening politically feasible?

The constitution adopted for Myanmar in 2008 embraces the separation of powers as one of its basic principles. Section 11 stipulates that the legislative power, the executive power and the judicial power are separated "to the extent possible, and exert reciprocal control, check and balance among themselves". According to standard constitutional doctrine, this would normally be understood as entrenching the notion that each of the three branches of government has a defined area of operation in which their actions are sovereign. The overriding objective of dividing powers in this way is to ensure that no branch of government is able to oppress or override the liberties of citizens.

But other provisions of the constitution sit uncomfortably with the usual conception of the separation of powers. Some powers that would ordinarily be vested in one branch currently reside in a different branch. For instance, section 212 grants the president power to promulgate ordinances when the Pyidaungsu Hluttaw is in recess and section 218 authorises him to make "necessary rules" on matters to be performed by the Union Government. Both these powers resemble capacities normally vested in a parliamentary body. Another example is section 226, which empowers the government to mediate and decide disputes over administration among the regions, states and the union. This provision seems to give the executive the authority to deliver a definitive judgment on such disputes, which looks very much like a judicial power.

Other constitutional provisions weaken the ability of each branch to check the power of the others. The president is responsible to the hluttaw (section 203), and the rulings of the Supreme Court and Constitutional Tribunal are final and conclusive (sections 295 and 324). But according to section 215 the president will not be answerable to any hluttaw or any court in the exercise of his powers and functions or even in the purported exercise of these. The proviso at the end of this section might suggest that the immunity operates only when actions are in accordance with the constitution but such an interpretation would make the section meaningless. If the constitution authorises an act, what is there to answer for?

Entrenching a stronger form of the separation of powers – if that is what Myanmar decides is in its best interests – will require amending these sections and others. It will involve the removal of some functions exercisable by the executive and the legislature and the bolstering of safeguards on judicial power.

At first blush, that seems to sink any chance of genuine reform. Global history has consistently shown that people and institutions rarely relinquish power willingly, no matter how well intentioned they may be.

But there are significant political and economic incentives for all three branches of government in Myanmar to agree to such changes. If the constitution establishes a clearer division of powers, the chance of contentious constitutional disputes will likely drop. For instance, a sharper separation of powers in the constitution might have avoided last year's complicated debate about the meaning of the term "union-level organisation". On this hypothetical, the arrangement of the legislature and its committees could have been viewed as a matter uniquely within the competence of the legislative branch and one inappropriate for another branch to adjudicate on unless the arrangement was clearly unconstitutional. By giving up some powers, the executive and the legislature will gain greater certainty and a degree of autonomy within the remaining scope of their authority. The judiciary, on the other hand, will be less likely to disrupt the expectations of the other branches when they do adjudicate on the breadth and depth of their powers.

This in itself will bring economic advantages. But businesses will also benefit directly from a more predictable constitutional structure. Knowing the scope and authority of each branch affords greater certainty in judging the likelihood of legal challenges to transactions. If, for example, the prerequisites for the executive to enter into a contract are clear – when must parliament vote to appropriate the funds for the contract? On what grounds can a court review the legality of the contract? – a private enterprise will be more willing to progress a transaction quickly and perform the contract efficiently.

Implementing such changes are likely to make Myanmar a more stable polity and a more attractive option for local and foreign investors. But whether a stronger separation of powers is desirable is ultimately a question for Myanmar, its people and its leaders. What is needed now is an informed and robust debate about the checks and balances required to progress Myanmar's transition to democracy. The balance Myanmar ultimately chooses will be unique and must suit its special social, cultural and economic considerations.

Andrew McLeod is a constitutional lawyer and deputy director of the Myanmar Constitutional Reform Project at the University of Sydney, Australia. In May, he led the Myanmar Constitutional Democracy Workshop held in Yangon.

Source: http://www.news.myanmaronlinecentre.com/2013/08/13/robust-debate-needed-on-constitution/