Could Aung San Suu Kyi be above Myanmar’s next president?

Author: Myint Zan, Multimedia University

In a press conference on 5 November 2015, Myanmar’s democracy leader Aung San Suu Kyi candidly stated that if her party, the National League for Democracy (NLD) won the election on 8 November and was able to form the next government, she would be ‘above the president’. And the NLD has won the election. The 2008 Myanmar Constitution bars Aung San Suu Kyi from being president since she has two sons who are British nationals. But the next president will be a candidate nominated by her party.

Myanmar's parliamentary speaker Shwe Mann (L) and Chairperson of the National League for Democracy (NLD) Aung San Suu Kyi (R) shake hands before their meeting at Parliament in Naypyidaw on November 19, 2015. Suu Kyi is constitutionally barred from leading the country but has vowed to rule from "above" the next president, who she will select following her National League for Democracy's win in the November 8 polls (Photo: AAP).

Candidness can be good on occasions but may not necessarily be a positive attribute in politicians. Is it tactically or strategically advisable to announce in advance what you would do before the proverbial chickens are hatched or the votes are counted and the result announced? Aung San Suu Kyi herself stated at the press conference that there are many irregularities in the voting process.

Though it may seem far-fetched, one is reminded of the late U Kyi Maung — one of the ‘elders’ of the NLD — who made an incautious statement in an interview with the now defunct magazine Asia Week in June 1990 that persons like (now former General) Khin Nyunt might have something to be concerned about if the NLD were to come into power. That statement was made a few weeks after the NLD’s landslide win and in response to a query about whether the NLD had any plans to establish Nuremberg-style tribunals for the then military junta’s ‘excesses’.

The rest is history. U Kyi Maung was arrested on trumped-up charges and spent time in prison from 1990 to 1995. The target of his comments, Brigadier-General Khin Nyunt, himself subsequently spent more than seven years in detention, after being purged. But U Kyi Maung died before Khin Nyunt’s arrest in August 2004.

The year 2015 is not 1990. Aung San Suu Kyi herself has reiterated this point in response to the queries about what would happen if, like in 1990, the election results were ignored. Although the nature and contexts of the comments made by U Kyi Maung and Aung San Suu Kyi are different, there are at least some similarities in that they have both said what they would do (or might do) before they formally assume power. And, at least in U Kyi Maung’s case, it might have contributed to his and the NLD’s regress from power.

Are there any other countries where either, constitutionally or formally, a person or an institution is above the president?

In February 1979, after the overthrow of the Shah of Iran, Ayatollah Khomeini was never formally the president. But, formally and factually, he was above the presidents. When Khomeini died in June 1989, Sayyed Ali Khamenei became the new ayatollah. Khamenei was above the president when he succeeded to Khomeini’s position — and above subsequent presidents. And it may be that Iran’s constitution actually describes the position of the two ayatollahs to date as being above the president — though perhaps not with those exact words. As rightly pointed out by Aung San Suu Kyi, while the 2008 Myanmar Constitution did not provide for such an arrangement it did not, or seems not to, prohibit such an arrangement.

In another, somewhat different arrangement, the previous Fijian constitutions — or at least arrangements — allowed the Great Council of Chiefs to appoint and, in exceptional cases, dismiss the president. So, in one sense, in previous Fijian constitutions the Great Council of Chiefs was above the president.

In Burma, under the 1974 constitution, there was nothing specific to formally state that the sole and ruling Burma Socialist Programme Party (BSPP) chairman was above the president. But when Ne Win — the former President of the Socialist Republic of the Union of Burma and from 4 March 1974 to 9 November 1981 — ‘retired’ from the presidency but retained his position as Chairman of the Burma Socialist Programme Party, he was above the president. In all the government-controlled newspapers Ne Win’s name was mentioned first in order when he attended state dinners hosted by then president San Yu. And the chair in which Ne Win sat, even when he attended the legislature as party chairman after he retired from the presidency, was higher than the president’s.

That was of course in the past. Now, the NLD has won a landslide victory — securing nearly 80 per cent of all contested seats.

And, if Aung San Suu Kyi is formally above the president — in whatever mode currently not specifically envisaged — is it possible that the new ‘opposition’, the former ruling Union Solidarity Development Party, would challenge before the Union Constitutional Tribunal that this arrangement is unconstitutional? Under the 2008 Myanmar Constitution, only 10 per cent of the legislative members of either house are needed to seek a ruling, resolution or opinion from the tribunal on whether (among others) certain actions of the legislature are in accordance with the Constitution.

But this scenario assumes — in the words of former US Defence Secretary Donald Rumsfeld — a fair amount of ‘known knowns’, ‘known unknowns’ as well as ‘unknown knowns’ and ‘unknown unknowns’. What will actually happen now that the election results are known remains to be seen.

Myint Zan is a professor in the Faculty of Law, at Multimedia University, Malaysia. This article was first published here on Asian Currents.