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Myanmar's Elections

Skewed Constitution and Its Conundrums
Mohinder Pal Singh (colmpsingh@gmail.com) is an army officer who is pursuing his research in Defence and Strategic Studies at Allahabad University.
As Myanmar prepares for its third elections under its third constitution in 67 years, this article looks at the evolutions of its electoral practices and its constitutions. The complex rules and seat allocation in parliament make it very difficult but not impossible for the main opposition party to defeat the military in this “militarised democracy.”

Views expressed in the article are personal and do not have any official endorsements.

Myanmar’s tryst with democracy since its independence has been extremely fragile. The British left the country under a weak democratic rule with a hastily formed constitution in 1948. This constitutional government managed to stay in power till 1962, but amidst an uncontrolled civil war, insurgency, corruption and mismanagement. Thereafter, the armed forces which had already tasted political power for 18 months during the election period in 1960, staged a coup, arrested many members of the government, suspended the constitution, and ruled by decree. From 1962 onwards, for the next 28 years, Myanmar was under a one-party rule (Burma Socialist Programme Party; BSPP) under General Ne Win.

After Ne Win’s withdrawal from politics, there was an economic crisis, which provoked popular unrest. During this period, Myanmar witnessed tardy growth and increase in unemployment. In the summer of 1988, the people of Myanmar revolted against the ruling military government. Subsequently, a 19-member military-backed State Law and Order Restoration Council (SLORC) took over the reins in September 1988 and promised to hold multiparty democratic general elections. This promise was welcomed by the people of Myanmar. The elections finally took place in 1990 and the opposition party, National League for Democracy (NLD), led by Aung San Suu Kyi won an absolute majority of votes and seats. The SLORC refused to recognise the results of the election, and instead continued its repressive rule, held Suu Kyi under house arrest, and suppressed the democratic aspirations of the people. After 20 years, the military junta framed a new constitution and declared elections in 2010. Though these elections were boycotted by the main opposition party NLD, the new ruler Thein Sein started a blitzkrieg of reforms which brought the country back into the world’s mainstream. There remain spots of scepticism that surround the basic tenets of democracy on which this state rests its constitution.

The Constitution

Myanmar has seen three constitutions in a short lifespan of 67 years. All three constitutions belonged to cardinally different ideologies. The first constitution, given by the British, was democratic in its nature. The second constitution, created in 1974 by socialist leader and dictator Ne Win, was of socialist ideology. And, the present constitution, which was created by the military regime in 2008, was nothing but a unique ideology that can best be termed as “militarised democracy.”

The first constitution, adopted in 1947, was drafted by Chan Htoon. It continued till 1962 when it was suspended by Ne Win. In this constitution the government consisted of three parts: judiciary, legislative and executive. The legislative branch was bicameral and parliament consisted of two chambers, the 125-seat Chamber of Nationalities (Lumyozu Hluttaw) and the Chamber of Deputies (Pyithu Hluttaw).

In the second constitution, which was framed in 1974, Ne Win propagated that the goal of the state is to become a socialist republic. Article 11 of that constitution says, “The State shall adopt a single-party system. The Burma Socialist Programme Party is the sole political party and it shall lead the State.” The Socialist Republic of the Union of Burma had a unicameral Pyithu Hluttaw, that is, people’s assembly or parliament.

When the SLORC took the reins in 1988, they suspended the 1974 constitution. In 1993, they called for a constitutional convention to form a new constitution, but had to suspend it in 1996 when the NLD boycotted it. A new constitutional convention was called in 2004, which created a constitution by 2008. This convention too was boycotted by the NLD. This constitution was passed by the military junta by a countrywide referendum which was kept under wraps. The military junta hailed this constitution as democratic; however, the NLD opposed it vehemently.

The analysis of this “third constitution” or the “2008 constitution,” as it may be called, claims a democratic set up in the country, but, at the same time, gives the Tatmadaw (the Myanmar Armed Forces) total control of governance and keeps the most favoured national leader, Aung San Suu Kyi, out of the race for the president of the country. How this constitution was supposedly passed by a public referendum in 2009 is unknown. As per this constitution, the people only elect 75% of the members to both houses of parliament, that is, 498 out of 664 seats. The remaining 25%, 166 members, are not in parliament because they have won elections; they are nominated from the army by the Chief of Army Staff.

At best, this form of governance can be called a “militarised democracy,” and not “disciplined democracy” as some analysts called it. The 2010 elections were held as per this constitution, which the NLD again boycotted. The military-backed Union Solidarity and Development Party (USDP) won not only a majority in the 75% seats in parliament, but also had the support of the 25% military members nominated by the Chief of Army Staff. This constitution also gives three important ministries to the military-nominated members: home, border affairs and defence.

The contentious issue being talked about the world over are the hurdles that have been deliberately embedded in this constitution to make Suu Kyi ineligible for the posts of president or vice president. The first hurdle is Article 59(f) of the constitution, which states,

he himself, one of the parents, the spouse, one of the legitimate children or their spouses not owe allegiance to a foreign power, not be subject of a foreign power or citizen of a foreign country. They shall not be persons entitled to enjoy the rights and privileges of a subject of a foreign government or citizen of a foreign country.

According to this, Suu Kyi’s name is debarred from being proposed not only for the president’s post, but also for the vice president’s post, as her late husband, Micheal Aris, was a British citizen, and her two sons too are British citizens. The second hurdle, the election procedure for the President, is even more complex. The President shall be elected by the presidential electoral college, comprising the three groups of parliament (Pyidaungsu Hluttaw):

(a) Elected representatives in the Pyithu Hluttaw (lower house);

(b) Elected representatives in the Amyotha Hluttaw (upper house); and

(c) The Tatmadaw member representatives nominated by the commanders-in-chief for both Hluttaws.

Each group shall elect a vice-presidential candidate from among Hluttaw representatives or from among persons who are not Hluttaw representatives. Therefore, there will be three vice-presidential candidates. Finally, the presidential electoral college, made up of all the representatives  (or members) of Pyidaungsu Hluttaw, that is 664 parliamentarians, will vote for one of the three vice-presidential candidates as the President of the Union of Myanmar while the other two remain vice presidents. It depends on the electoral results for both houses of the legislature. In the Pyithu Hluttaw, 330 elected members, and in the Amoytha Hluttaw, 168 elected members, will propose a candidate. To be the President, a candidate must secure at least 332 of the votes (50%) of the 664 members of the Pyidaungsu Hluttaw. Therefore, if a political party or a coalition of political parties controls more than 50% of the seats in each house (165 for the lower house and 84 for the upper house), and holds at least 67% of the seats of both houses combined (333 seats), it will have two vice-presidential candidates, and one of them will surely become the president. In this situation, the vice-presidential candidate nominated by the commander-in-chief or the Tatmadaw will just remain a vice president.

In such a procedure, what is the prospect of a political party nominee for a vice president becoming the resident? The answer is obvious.

2015 Elections

Under immense international pressure, in March 2014, Myanmar’s parliament approved a motion to set up a committee to review the 2008 constitution, a move that could become the first step to seeing opposition leader Suu Kyi contest the presidency in the next election. However, after almost a year of closed-door deliberations and speculations, in June 2015, the members of parliament (MPs) voted down a motion to amend the constitution to allow persons with foreign family members, such as Suu Kyi, to run for presidency. The moot question is: will Suu Kyi’s party, the NLD, contest these elections?

Having settled that issue to rest, on 8 July 2015, Myanmar’s Union Election Commission (UEC) declared that the general elections will be held on 8 November 2015.

The 2015 elections in Myanmar are going to be the third election after its independence in 1948. Hence, all eyes are going to be glued to this historic election. Everybody is watching the developments in the nation very closely. Presently, the UEC is seen to be far more open than it was till the 2010 elections. Though, the suitability of the chairman of the UEC, Tin Aye, who has a military background, is still in question. But, the UEC has already accepted that they will permit international as well as domestic observers, and it can therefore be presumed that the United Nations and the European Union will be there. Also, the political parties of Myanmar are now far better prepared than they were in previous elections, and have certainly developed more credible and professional strategies.

Will the military, which has had an elitist status for years, let power slip out of their hands in 2015? This is the other moot question in everybody’s minds.

The contest is between the military backed ruling USDP, and the main opposition party, the NLD. The USDP needs only 25% of the elected seats, whereas the NLD needs 67% of the elected seats. Is it an even playing field? The NLD under the enigmatic leadership of Suu Kyi is surely going to contest in this uneven playing field. Some analysts feel that in order to win the 2015 presidential election, Suu Kyi and her NLD have rejuvenated its leadership at the grass-roots level. On the other hand, President Thein Sein is on an international appeasement mission to project the reform process undertaken by his government, and is inviting aid and investment. On one such mission, Japan’s Prime Minister waived Myanmar’s $1.74 billion debt and sanctioned a fresh loan of $504 million.

At home, the government machinery too is busy ironing out differences, especially in the ethnic regions where the NLD does not have much of a support base. After 13 peace accords with ethnic groups, the government on 31 May 2013 inked a peace accord with the Kachin Independence Organisation (KIO). This is being seen as a big victory for the government. It must be remembered that the Kachins had refused mediation by Suu Kyi. Myanmar under Thein Sein was also accepted as the chair of Association of Southeast Asian Nations and the economy has shown positive development growing by 7% a year. It is now evident that the military junta will not amend the constitution to accommodate the candidature of the Nobel laureate for the country’s top office. However, it seems that the NLD will now purely focus on getting a large chunk of seats in parliament. In 1990, it got 392 seats out of the 492 that it contested, and in the 2011 by-elections, it got 43 out of the 44 seats in which it contested. For making any changes in the constitution, a party has to have a two-thirds majority, which amounts to 443 MPs. When the total number seats going to the polls are only 498, the task is indeed an uphill one, but not insurmountable for the NLD. And, if they make it beyond this figure, then they can not only come to power, but also attempt to amend the constitution to get their leader to run for top office. All in all, this election is going to be neck and neck, and watched the world over.

References

Constitution of the Republic of the Union of Myanmar,2008.

DVB News (2015): “Burma Announces Election Date,” 8 July, http://www.dvb.no/news/breaking news-burma-announces-election-date/53782.

Economist (2014): “What Is Wrong with Myanmar’s Constitution?” 4 March.

Eleven (2013): “Election Commission Says It Is Preparing for 2015 Elections,” 2 April.

Hindustan Times (2012): “Full Text of Suu Kyi’s Jawaharlal Nehru Memorial Lecture,” 16 November.

International Center for Transitional Justice (2009): “Impunity Prolonged: Burma and Its 2008 Constitution,” September, New York.

Martin, Michael F (2010): “Burma’s 2010 Elections: Implications of the New Constitution and Election Laws,” CRS Report for Congress, R41218, 29 April, Congressional Research Service, Library of Congress, Washington DC.

Mizzima News (2012): “Burma’s 2015 Election Will Be Tough Fight: Thein Sein,” 1 October.

Myoe, Maung Aung (2007): “Historical Overview of Political Transition in Myanmar since 1988,” Working Paper No 95, Asia Research Institute, University of Singapore, Singapore.

The Constitution of the Socialist Republic of the Union of Burma, 1974.

Tun, Aung Hla (2013): “Myanmar Parliament to Review Controversial Constitution,” Reuters, 15 March.

Williams, Michael C (2015): “Myanmar’s Troubled Path to Reform: Political Prospects in a Landmark Election Year,” February, Chatham House, The Royal Institute of International Affairs, London.

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