Myanmar elections lack legitimacy without constitutional change

Author: Melissa Crouch, UNSW

Constitutional reform is an important part of Myanmar’s transition from military rule. Although widespread political reforms have been enacted since 2011, these have not yet been accompanied by constitutional change. The next few months will determine whether constitutional amendment will take place before the elections scheduled in November. This will affect the very legitimacy of the election itself.

In February 2015, the parliament passed a law detailing the process for holding a national referendum on constitutional amendment. This is a very important step as it indicates that the government does intend to allow for a constitutional referendum at some point in the future.

Setting out the formal process for holding a constitutional referendum is important because it demonstrates that the government wants to learn from the past. In 2008, the referendum on the constitution was held despite the devastation caused by Cyclone Nargis, which undermined the legitimacy and results of the referendum. The new law provides that a referendum can be postponed or cancelled in the event of a natural disaster.

The most pressing question now is whether any constitutional amendments will take place before the election in late 2015. The Union Parliament started its session on 11 May 2015, and discussion over what should be proposed for constitutional amendment is on the agenda. But parliament needs to allow for a diverse range of voices to be heard and considered. The debate must not be rushed. This must be balanced with the sense of urgency because this is likely to be the last parliamentary session before the elections.

While the process of constitutional amendment began in 2013, little progress has been made on the substance of any possible changes. The Constitution Review Committee did invite public submissions and this generated a flurry of constitutional campaigns across the country. The committee submitted its report to the parliament in January 2014, but failed to offer specific recommendations concerning which provisions should be amended and how. This led to widespread disillusionment on the prospects of democratic reform.

The most controversial part of the committee’s report was that it recommended three key aspects of the constitution should not be amended. First, it advised that the military should retain its role in governance. Second, that the presidential requirements should be retained, which would mean that Aung San Suu Kyi of the National League for Democracy could not be nominated by the presidential electoral college after the 2015 elections. And, finally, that the provisions on the constitutional amendment process should be retained. These provisions require more than 75 per cent approval of parliament and more than 50 per cent of eligible voters at a national referendum in order to amend some provisions of the constitution. These three provisions have been central to demands for change.

In 2014, an Implementation Committee for the Amendment of the Constitution was formed to continue the process. Around the same time, in mid-2014, the National League for Democracy held major rallies and a petition campaign across the country. Its single demand was for the amendment of Section 436, because at present this provision effectively grants the military veto power over any constitutional amendment. This would affect future efforts for reform. Yet the government has given no clear response to this demand.

By late 2014, the committee submitted its report to parliament. It suggested a large number of amendments to the constitution, but it also offered various ways in which it could be amended. Again, it did not offer clear recommendations.

Time is now running out for change before the elections. While the amendments are not necessary for the 2015 elections, some amendments would clearly enhance the legitimacy of the election itself. For example, changing the requirements for presidential candidates would send a strong signal that the military is willing to allow Aung San Suu Kyi to potentially be nominated in the presidential electoral college. This would be a significant indication of the depth of the political reforms.

Other amendments would indicate that the government is committed to furthering its agenda for democratic reform in the future. For example, greater judicial independence is critical, yet at this stage there have been no significant reforms to the courts, in contrast to the changes taking place in the executive and legislature.

Regardless of whether amendments are made in 2015, constitutional reform remains highly relevant to the long-term consolidation of the rule of law in Myanmar. The recent passage of a law on the constitutional referendum process demonstrates that the government is willing to consider constitutional amendment in the future, but this may ultimately come too late to bolster the legitimacy of the 2015 national elections.

Melissa Crouch is a Lecturer at the Law Faculty, UNSW, Sydney.

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