Page 1 Chapter 11: Authoritarian Straightjacket or Vehicle for Democratic Transition?: The Risky Struggle to Change Myanmar’s Constitution Melissa Crouch1 Note: this is for publication in Tom Ginsburg and Aziz Huq (eds) (2020) From Parchment to Practise: Implementing New Constitutions. Cambridge University Press Introduction Since the referendum that nominally approved the 2008 Constitution, scholars of comparative politics have sought to understand and explain Myanmar’s political transition after decades of seemingly indefatigable military rule.2 There has been less scholarly focus on the politics of constitutional reform in Myanmar. This chapter advocates taking law seriously in authoritarian regimes and builds on a line of scholarship that examines the role of courts and 1 Associate Professor, Law School, University of New South Wales, Sydney, Australia. melissa.crouch@unsw.edu.au. I would like to thank Theunis Roux for comments on an early version of this chapter, and for comments by the organisers of the workshop in Chicago, Tom Ginsburg and Aziz Huq, and comments from Dan Slater, and other participants. 2 See for example Kyaw Yin Hlaing (2008) ‘Power and Factional Struggles in Post-independence Burmese Governments’ 39(1) Journal of Southeast Asian Studies 149; Ian Holliday (2013) Myanmar in 2012: Toward a Normal State, 53(1) Asian Survey 93-100; Lee Jones (2013) ‘Explaining Myanmar's regime transition: the periphery is central, Democratization, p.1-23; Dan Slater (2014) ‘The Elements of Surprise: Assessing Burma’s double-edged détente’ 22(2) South East Asia Research, pp 171–182. Marco Bünte (2014) ‘Burma’s Transition to Quasi-Military Rule: From Rulers to Guardians?’ 40 (4) Armed Forces & Society 742-764. Page 2 constitutions in authoritarian regimes.3 Contributing to the theme of this volume on implementing new constitutions, I consider the challenges to the 2008 Constitution in its first period of implementation. In exploring the options for constitutional reform by democratic actors, I emphasise the risks these options entail. There is a paradox in a country like Myanmar where a constitution drafted under authoritarian rule facilitates a political transition. The Constitution can be understood as a ‘transformative authoritarian constitution’, which Ginsburg argues is a sub-type of authoritarian constitutions that can be seen at work in a range of countries from Chile to Taiwan.4 Ginsburg finds evidence to suggest that such constitutions may lead to democratic transformation. However, this finding should not cause us to dismiss the very real risks to democratic actors who seek to change a constitution in its first period since transition from direct military rule. By its very nature, a transformative constitution is not designed to allow substantial change in the future, and any change that is permitted is likely to be highly contained and controlled. I assume that the risks associated with changing a constitution during the first period of implementation after a transition from direct military rule are higher than in later stages, and that the risks to change a transformative authoritarian constitution are higher than the risks to change a 3 See for example Tom Ginsburg and Tamir Moustafa (eds) (2008) Rule by Law: The Politics of Courts in Authoritarian Regimes. Cambridge University Press; Tom Ginsburg and Albert Simpers (eds) (2014) Constitutions in Authoritarian Regimes. Cambridge University Press; Tamir Moustafa (2014) ‘Law and Courts in Authoritarian Regimes’ 10 Annual Review of Law and Social Sciences 281-299; Robert Barros (2002) Constitutionalism and Dictatorship: Pinochet, the Junta and the 1980 Constitution. Cambridge University Press; David Landau (20132014) ‘Abusive Constitutionalism’ 47 UC Davis Law Review 189-260. 4 Tom Ginsburg (forthcoming) Fruit of the Poisoned Vine? Some Comparative Observations on Chile’s Constitution, submitted to Centro de Estudios Públicos (CEP), Santiago de Chile. Page 3 democratic constitution, at least if fundamental change is being considered. In this respect, I focus on constitutional change and risk-taking during the first period, and particularly under authoritarian constitutions. The potential risks are related to the different strategies available to pro-democratic actors who seek greater social and political transformation through constitutional change in Myanmar. I suggest there are three main strategies: to draft a new constitution, amend the constitution formally, or attempt informal amendment. These options are potentially open to both prodemocratic5 actors such as the National League for Democracy (NLD), and to undemocratic actors such as the military. The least likely option, given present political conditions in Myanmar, is revolution and the drafting of a new constitution. The reason this is near impossible is because the 2008 Constitution was designed as a permanent and lasting structure that conditions and limits politics in the new regime. There is little political space or tolerance towards efforts to draft a new constitution. Another option is for pro-democratic actors to push for formal constitutional amendment through the required procedure under the 2008 Constitution. This option means that prodemocratic actors must subject themselves to the authority of the Constitution and the specific requirements it mandates for change. The third option for constitutional change is for prodemocratic actors to make efforts towards informal constitutional amendment. While there may be many ways in which informal constitutional change takes place, I focus on two means of informal amendment: by the legislature passing a law that empowers the administration to do 5 In this chapter, I use a thin definition of ‘democratic actors’ – ie those who advocate for an elected government. This thin definition of democratic actors means that they are not necessarily advocates of liberal ideas of rights or equality, as we will see in the case of the NLD and prevailing views towards the Rohingya. Page 4 something that does not appear to fit within the existing constitutional order; and judicial interpretation as a means of informal amendment. I seek to show that both formal and informal amendment of Myanmar’s Constitution during this first period has attracted certain risks. In the first part of my chapter I explain why we are still in the first period of Myanmar’s Constitution, and I introduce the contours of Myanmar’s 2008 Constitution that are designed to endure. I then consider three different strategies that have been used to try to change the 2008 Constitution – formal constitutional amendment proposals; judicial interpretation in the Constitutional Tribunal; and legislative innovation with the Office of the State Counsellor. I identify the various risks pro-democratic actors have suffered for these actions as a result of seeking change in this first period. I conclude by suggesting that it is necessary to keep in mind the risks to local actors who push for constitutional change in the first period of transitional regimes. The First Period of the 2008 Constitution The first presidential college selection process held at the beginning of 2011 marked the initiation of a new political and legal system in Myanmar. This system is regulated and framed by the 2008 Constitution. My approach in this chapter to the study of Myanmar’s Constitution is intentionally qualitative and based on extensive field research. The need to base the study of Page 5 constitutional law and politics in Myanmar on ground up studies of Burmese language texts, understood within the wider social and political context, is critical.6 In keeping with the theme of this volume, Myanmar remains in this critical ‘first period’ of the Constitution. Any of the possible approaches to defining the first period, as identified by Ginsburg and Huq, suggest that Myanmar remains in this first period. Their first approach is to define the first period within the general hazard rate of constitutions. Clearly Myanmar’s 2008 Constitution has outlasted the average constitution beyond the first year or even 5 years. However, since the drafters clearly intended the Constitution to last far beyond this average, other measures of the first period are more relevant. The second approach to the first period is to identify a key institutional event, such as free and fair elections. Many observers credit 2015 as the first free and fair elections, although as I show later in this chapter it is questionable whether we should in fact consider this the first free and fair election when over one million people were disenfranchised in the process. At any rate, most scholars of democratic consolidation would agree that a minimum of two successive elections must be held before consolidation, or that crucial first period, has taken place. This is not yet the case in Myanmar. The third approach to defining the ‘first period’ is by asking whether the constitutiondrafters as still involved in governance. In brief, the National Convention was held from 19931997 and 2004-2007. Representatives were chosen by the military, although initially some of 6 This is particularly the case because the Burmese version is declared to be the only authoritative version, and the English language translation of the 2008 Constitution is inaccurate and inconsistent. This creates a potential problem for text-based case studies of Myanmar’s Constitution that presume the accuracy of the English language translation of the Constitution. Page 6 these were members who had been democratically elected in the 1990 elections. There are both high and low profile actors from the military and ethnic groups who were involved in the National Convention of the 1990s-2000s and who remain involved in government today. These political elites are well-known and include former President Thein Sein, the Chief Justice of the Supreme Court, and the former Speaker and chairperson of the Legal Affairs and Special Cases Assessment Commission, Shwe Mann. But it also includes other characters, such as former representatives of ethnic nationalities at the National Convention, some of whom are now Ministers for National Races Affairs. There also remain a cast of characters behind the scenes, including General Than Shwe who led the prior military regime. In this regard, the first period of the Constitution continues under the influence of constitution-drafters. The fourth approach is to measure the ‘first period’ as the time when habits and shared understandings about the Constitution are solidified. As I will show, the high level of contestation over the Constitution and efforts for constitutional change suggest that this process of embedding shared accepted understandings has not yet taken place. Finally, and perhaps most relevant to Myanmar, the first period can be defined as the time when the policy issues that constitution-makers sought to address via the Constitution are resolved. There are a range of policy issues that Myanmar’s Constitution targets that have been resolved. The goal of ensuring that the military retains a prominent role in national governance has been secured by the Constitution. The Constitution has facilitated a return to party politics and achieved the goal of ending one-party socialist rule or rule without political parties. The Constitution has also solved the problem of a minimum level of political inclusion for both ethnic political parties and democratic parties, who can now compete in elections. The Page 7 Constitution plays a role in reinforcing the principle of a market economy, which achieves the goal of shifting away from a socialist economy. However, the Constitution has failed at this juncture to address one major policy goal: the end to several decades of armed conflict and the creation of a durable nationwide peace agreement. Despite the ceasefire agreements of the 1990s and new constitutional arrangements to recognize select ethnic groups, war has continued. The need for a national ceasefire process was not anticipated by the constitution-drafters. The new national ceasefire process commenced in 2012, and by 2015 the National Ceasefire Agreement was signed by 8 of 15 groups. However, all invited armed groups have not yet signed the agreement, and even if this does occur it may then lead to increased demands for constitutional change. What is clear is that on any approach, Myanmar remains within the first period of its Constitution. I suggest that the possibility of changing the Constitution during this first period remains low, and that the risks to actors of trying to do so are relatively high. This is because many of the core features of the Constitution are designed for permanence. The Constitution centralizes and affirms the role of the military in the governance of the country. This is evident from the first chapter on Basic Principles, where the military is given prime position in the future political system and is central to the objectives of protecting national unity, maintaining territorial unity and guaranteeing the sovereignty of the nation. These principles mirror the previous slogans of the former military regime, upgrading them from military slogans to constitutional principle. The chapter on Basic Principles subverts the very idea usually associated with constitutional principles, as it is used to entrench military Page 8 governance.7 The chapter on Basic Principles is explicitly required to guide the legislature in its role in drafting laws, and also the courts in their role in interpreting both the Constitution and other laws.8 It is within this context of military governance that the rest of the political system needs to be viewed. While the Constitution does establish a bi-cameral union parliament, 25 percent of the seats are unelected and constitutionally reserved for the military. What is more, the military has adopted a deliberate practice of rotating military officers, so that they are not in parliament long enough to build connections with, be influenced by or form allegiances with other political actors such as the NLD or ethnic political parties. The NLD has protested against this practice, arguing that at the very least military officers appointed to parliament should be required to serve the full five-year term rather than being subject to constant rotations. These complaints have been ignored. The reservation of 25 percent of parliamentary seats does not enable the military to block legislative proposals. But the reserved seating system does ensure that the military members of parliament can infiltrate and monitor democratically elected members of parliament, as well as participate in various high-level appointments. For example, the military members of parliament, along with the upper house and lower house, each appoint a candidate for the positions of president and vice-presidents. This means that, at the very least, the military members of parliament get to appoint a vice-president. In addition, the constitutional amendment clause 7 This is contrary to the usual focus in comparative constitutional studies on Fundamental or Basic Principles in democracies such as the India and Irish Constitutions. 8 For a detailed discussion see Melissa Crouch (forthcoming) The Constitution of Myanmar: A Contextual Analysis. Hart. Page 9 requires more than 75 percent approval in parliament, giving the military members of parliament veto power over any future constitutional amendment proposal. The next indication of the dominance of the military over the most important and influential areas of government administration is the designation of three important Ministries Home Affairs, Defence, Border Affairs – who are unilaterally appointed by the Commander in Chief of the military. There are several reasons these ministerial positions are important. The Ministry of Border Affairs has historically been used by the military to control and contain areas on the territorial periphery of the country that are more prone to ethnic armed insurgencies. The Ministry of Home Affairs supervise the police, and so the line between the military and the police is blurred. The Ministry of Home Affairs also supervised the General Administration Department (GAD) which is the government administration at the state and region level. In December 2018 this changed, with the GAD now responsible to the Ministers Office of the Union of Myanmar. The Ministry of Defence is in full control of all aspects of the army, navy and air force, and is not subordinate to the executive. The Constitution also creates a National Defence and Security Council, in which military officers or military appointees hold a majority of the seats. Although the president has the power to call a meeting of the Council, he must the consult the Council on any decision to declare a state of emergency. Despite the military’s pervasive role, the Constitution still offers significant, highly centralised powers to any party that can win a majority of seats in the union parliament, as the NLD did in 2015. The Constitution introduces a President as the head of state. The President does have the power to appoint many key political, administrative and judicial posts. The election of the heads (known as ‘chief ministers’) of the 14 states and regions is not a democratic or direct election, but remains the decision of the President. This stunts any independence that Page 10 the states/regions might have and limits future possibilities for decentralisation or federalism. The appointment and accountability structure means that the President has significant control over some aspects of the civilian dimension of the political system. However, the President and the government of the day is entirely dependent on the military for security and for its cooperation in the implementation of policy through the administration. The Constitution does provide for an upper house (Amyotha Hluttaw) with ethnic representation, but in the end the will of the more numerous lower house (Pyithu Hluttaw) prevails in any decisions made by the Pyidaungsu Hluttaw (Union Parliament) sitting jointly. The Constitution includes a chapter on duties and rights that positions duties as more important and conceptually prior to rights.9 This chapter is hedged by qualifications and in practice has delivered no practical benefits or protections for individuals. Despite the re-introduction of the constitutional writs and the potential to use these remedies for the enforcement of individual rights, the writs applications have largely been stymied in the court system. The outcome of the 2008 Constitution is to introduce a highly centralised and militarised regime. In addition to limitations on elections, Myanmar’s contemporary political regime is animated by other tensions common to authoritarian regimes. Pro-democratic actors still face significant threats to their personal safety. Limited forms of opposition are now permitted, such as the formation of political parties and unions. Yet the situation remains precarious for democratic actors – particularly student activists and journalists - who remain targets of surveillance, harassment, punishment and detention. There also remains rampant abuse of state resources through the opaque nature of state-owned enterprises, the omnipotent presence of major military-run corporations, and the cartels of cronies in natural resources such as jade, See further Melissa Crouch (2019) The Constitution of Myanmar: A Contextual Analysis. Hart Publishing, chapter 9. 9 Page 11 rubies, oil and gas. Land claims and complaints of land grabbing remain among the top concerns of abuse of state power. This is all the more pressing given that a large percentage of the population depends on agriculture for their livelihood. Further, Myanmar remains plagued by media restrictions. In 2012, media restrictions were lifted, censorship regulations were removed and papers were allowed to publish daily (rather than weekly). Yet practical restrictions remain, and this is evident in the frequency with which journalists and editors are found in contempt of court or facing politicised criminal charges. For in 2018 two Reuters journalists were convicted by a court for investigating a massacre in Rakhine State. Understanding the system that the 2008 Constitution puts in place and the privileges it grants to the military enables us to better appreciate how the prospect of constitutional change may be perceived as a threat. Constitutional change threatens the centrality of the military in governance, politics, security and the administration. It threatens the military with the potential loss of its immunity under the existing Constitution. It also threatens to deny or limit the military’s ability to engineer a constitutional takeover, as justified in the extensive emergency powers chapter, if or when needed. In order to mitigate the perception of these threats, I suggest that the NLD chose formal constitutional amendment to demonstrate its willingness to work within the current system. Formal Constitutional Change in the First Period Formal constitutional change is a means of working within the system for social and political change. It requires actors to demonstrate a sense of commitment to and recognition of Page 12 the existing political and legal order, regardless of how it came into existence. This was particularly difficult for the NLD and other parties who won seats in the 1990 elections but were later told by the military that the election was to appoint a Constituent Assembly to draft a new constitution, rather than an election for a new and democratic Parliament. The NLD held out until they finally agreed to run in the 2012 bi-elections. In doing so, the NLD demonstrates that it is willing to work within the boundaries of the Constitution. Reinforcing this approach, the NLD has shown that it is willing to go through the arduous constitutional amendment requirements as set out in the Constitution. In doing so, the NLD’s proposals were largely ignored, and instead the bills submitted to parliament contained a range of proposed amendments that would instead have reinforced regime interests. Attempts to formally amend the Constitution in the first period have come attached with certain risks for democratic actors. The official process to initiate formal constitutional amendment began in 2013 after the NLD and 88 Generation had campaigned widely on the issue. In 2013, a Constitutional Review Committee was established by parliament. The Committee was responsible for proposing constitutional amendments to promote peace, national unity and democratic reforms in Myanmar. The Committee consisted of existing members of parliament. Most were from the USDP (the civilian political party most closely aligned with the military), ethnic-based political parties or the military itself. All of these members of parliament (except for the military officers) were elected in the 2010 elections, which were not considered to be free and fair. The Committee did include seven NLD members, who were elected in the 2012 by-election which was considered to be free and fair. In advocating for formal amendment, the NLD first organized a series of peaceful demonstrations as well as education campaigns across the country. In late 2013, the public was Page 13 given the opportunity to make written submissions to the Committee. The NLD’s formal submission emphasized democracy, federalism and civilian control over the military. I discuss its proposal here in order to contrast it with the Committee’s 2014 Report and with the 2015 proposed bill for amendment. The NLD sought to emphasize that the Union should be identified as a federal Union. The NLD’s proposal aimed to reinforce the principle of democracy by removing the word ‘disciplined’ which currently qualifies the principles (ie ‘disciplined democracy’). This emphasis was related to its proposal to remove the role of the military from politics and remove its influence over any political appointments. This included removing military members of parliament, and removing the militaries power to appoint a vice-president and other ministerial positions. This was highly controversial, although in its submission the NLD admitted this may need to be done gradually. They also suggested reforms to separate the military from the police. The NLD proposed limits on executive power. They suggested that the term of office of the President and Vice-presidents should be limited to just one term. Rather than leave many decisions within the sole power of the president, the NLD suggested balancing the power of the President by requiring him or her to make certain decisions together with the Speakers of the upper and lower house. The NLD proposed to bring all cabinet positions (President, VicePresident, and all Ministers) back into parliament, and allow them to retain their status as an active member of a political party. It also proposed that only elected representatives can be appointed as Ministers (currently unelected persons can be appointed to these positions). The NLD sought to change the balance of power in the National Security and Defence Council by adding in the Speakers of the upper and lower house as members, which would mean that the government of the day, rather than the military, would have a majority on the council. Page 14 In terms of central-local relations, the NLD proposed to change the balance of power and reporting lines slightly at the sub-national level. Instead of the Ministers of State/Region Hluttaws being responsible to the President, they suggested that the Minister be responsible to the Chief Minister. The Chief Minister would be appointed by a majority of votes of the Ministers of that state/region parliament). Regarding the courts, there were several key changes proposed. The NLD wanted to change the centralized judicial appointment processes so that the Chief Justice of the Supreme Court, together with Chief Ministers of the States/Regions, appointed the High Court judges (instead of the President). They also wanted the Supreme Court to be the highest court (ie the courts martial would be subordinate to it), and they proposed to abolish the Constitutional Tribunal and give these powers to the Supreme Court. In terms of individual rights, the main change was a proposal to make the Basic Principles in chapter 1 judicially enforceable (they are currently unenforceable in a court), because they felt this would better protect individual rights. The NLD wanted to change the constitutional amendment provision so that proposals could be approved by a two-thirds vote of civilian members of parliament in the Pyidaungsu Hluttaw (ie excluding military members from the vote). They also wanted to delete section 59f (to allow Suu Kyi to be elected as president) and amend section 59d so that a presidential candidate did not have to have military experience. The Constitutional Amendment Committee received a large number of submissions but the recommendations in these submissions were not made public. In January 2014, the Committee released its report, yet it failed to identify any proposals for constitutional amendment. The Report adopted an ‘anti-change’ tone and was emphatic that some provisions of the Constitution should not be amended. The most controversial aspect was the report’s reference Page 15 to key aspects of the Constitution that should not be amended, based on a petition signed by 106,102 people (which was presumed to be organized by the USDP and military). These recommendations ran directly contrary to the NLD’s main proposals for change. The petition recommended that three key aspects of the Constitution be retained: the role of the military in politics, the prohibition on presidential candidates holding foreign citizenship in section 59f, and section 436 on the process for amendment that gives veto power to the military. This was the first major sign that the NLD’s efforts at formal constitutional amendment would not only fail to be put to parliament but lead to constitutional regression. In mid-2015 two bills were finally proposed in parliament, one containing provisions that required both parliamentary approval and a nationwide referendum, and the other bill that only required approval by more than 75 percent in parliament. The main proposal that did address concerns raised by the NLD but that did not go far enough was the extent to which the President should have control over appointments and responsibilities of state/region parliaments. The system is highly centralized, and democratic actors wanted to decentralize power to an extent. The NLD’s proposal for Chief Ministers be appointed by a vote in the State/Region parliament was not accepted. Instead, the proposed bill suggested that the Union Parliament should decide together with the President on the appointment of the Chief Ministers of the States and Regions (rather than the President alone). On the courts, the proposed bill would have led to undemocratic reforms by suggesting five year terms for judges of the Supreme Court and High Courts. This would change the current system of retirement at a set age to instead effectively tie judges to the term of the government. The proposal did not agree with changes to the appointment process for judges as the NLD had suggested, but instead allowed the Speakers of the upper and lower house to decide together with Page 16 the president on certain appointments. This was another minor concession to balance the power of the President with that of parliament. The proposed bill sought to retain the Constitutional Tribunal, which the NLD had wanted abolished. Regarding the proposal to amend constitutional provisions, the NLD’s suggestions again were ignored. For provisions that also require a constitutional referendum, it was proposed that the constitution require more than half of those who voted to agree (rather than half of all eligible voters). This proposal also failed to receive approval. There were only two proposed amendments that were actually approved by parliament, and neither are centrally directed at democratic transformation. The first was to change the wording of section 59(d) on presidential requirements, so that a president must be familiar with ‘defence’ matters rather than ‘military’ affairs. This distinction between defence/military is subtle, and suggests that a presidential candidate does not actually have to come from the military. To be fully approved, this provision requires a referendum to be held, which has not occurred to date. The only other proposal that was approved and did not require a referendum was the clarification of legislative and taxation powers as set out in the Schedules to the Constitution. The proposal clarified the ability of the 14 States and Regions to collect income tax, customs duties and stamp duty, and levies on services (tourism, hotels, private schools and private hospitals) and resources including oil, gas, mining and gems. Combined with a decision in which the Tribunal declined to interpret the legislative schedules and instead deferred a question of inconsistency between the schedules to the Parliament, the constitutional amendments suggest that the Constitutional Tribunal does not have power to interpret the schedules to the Constitution and instead the Union Parliament must clarify or expand the list via formal amendment. This appears to be based on a misunderstanding that legislative power in the Page 17 Constitution can only be clarified or changed by the parliament, rather than interpreted by the Tribunal. In this way, formal amendment detracted further from the power of the Tribunal as a check on parliament. The outcome of the 2015 proposals for amendment suggests that the NLD’s strategic choice to pursue formal constitutional amendment during the first period has backfired. Many individuals have faced personal risks such as being arrested and tried for criminal offences for their efforts in demonstrating or protesting in favour of constitutional change. Efforts towards formal constitutional amendment have reinforced limits on democratic reform, rather than open up greater social and political transformation. The NLD’s proposals for formal constitutional amendment failed to even be reflected in the bills submitted to parliament. In addition, the Committee’s first report reinforced central elements of the Constitution that favour military interests, and the contents of the bills proposed in parliament affirm the interests of a highly centralized and militarized political system. On 29 January 2019, on the second commemoration of the political assassination of lawyer U Ko Ni, the NLD initiated a process of constitutional amendment in the legislature. The military displayed its opposition to this initiative by refusing to vote on the legislative proposal to form the committee. The Committee was formed in February 2019 with 45 members, and this process remained ongoing at the time of writing. One of the biggest issues that has dominated discussion is whether to amend section 261 to allow Chief Ministers at the sub-national level to be appointed directly. However it is unclear whether the legislature will be able to agree on any proposal for amendment, given that the military has expressed its strong disapproval of the process. While the NLD’s efforts to formally amend the Constitution demonstrate it is still trying Page 18 to work within the limits of the 2008 Constitution, this approach remains risky and there is no indication they will be able to amend the Constitution before the 2020 elections. Judicial Interpretation as Constitutional Change Aside from formal constitutional change, there are a range of ways that actors may seek informal constitutional change during the first period of the Constitution. For pro-democratic actors, judicial interpretation may provide an opportunity to work around the initial or original intentions of the drafters of the constitution. The courts are potentially a means to push for a new or more expansive interpretation in light of changing social and political circumstances. The potential risk is that if pro-democratic opposition forces do not take up the opportunity that judicial interpretation presents, then the courts may instead be used by regime forces to bolster their existing position. In Myanmar, it is pro-military forces, that is, the USDP, military officers and to a lesser extent some ethnic political parties, that have been willing to use the courts to seek informal change through judicial interpretation. I identify how the failure of pro-democratic forces such as the NLD to take up the opportunity that judicial interpretation offers has instead allowed room for regime forces to take full advantage of the courts to bolster their existing constitutional position. This is exemplified in the mass disenfranchisement of temporary identity card holders (once known as ‘white cards’) prior to the historic 2015 elections in Myanmar. In a country going through a transition from authoritarian rule, there is inevitable controversy over who is a Page 19 citizen of the state and how the rules of citizenship are determined.10 The issue of citizenship and who can vote remains a heated debate in Myanmar and relates to racialized ideas of citizenship.11 Although the general international perception is that the 2015 elections in Myanmar were the first free and fair elections for over 50 years, there remained significant limitations. Pro-regime forces used the Constitutional Tribunal to support its agenda of disenfranchising over 1.3 million people who held temporary identity cards, most of whom are Rohingya Muslims. In 2015, the Citizenship Case before the Constitutional Tribunal raised the issue of the right to vote in the Constitution.12 The question before the Tribunal was not whether legislation had failed to protect the constitutional right to vote and to be elected, but rather whether it had gone beyond the legal scope of the constitutional right. In effect, the applicants were seeking to restrict the constitutional right to vote and to be elected to parliament, in order to deny temporary identity card holders (many of whom are Muslim) from enjoying this right. The Tribunal case came in the wake of several years of violence, discrimination and efforts to marginalize and exclude the Rohingya and Muslims more broadly, as well as attempts to discredit the NLD by painting them as a ‘pro-Muslim’ political party. Although Myanmar is a Buddhist-majority country, it has a Muslim population of four percent according to the 2014 census. An additional 1.3 million Muslims were not recorded in the census. Myanmar does however have a history of 10 Juan J Linz and Alfred Stephan (1996) Problems of Democratic Transition and Consolidation: Southern Europe, South America, and Post-Communist Europe. Baltimore: John Hopkins University Press, p 28. 11 See Ian Holliday (2014) ‘Addressing Myanmar’s Citizenship Crisis,’ 44(3) Journal of Contemporary Asia 404- 421; and, Nick Cheesman (2017) ‘How in Myanmar “National Races” Came to Surpass Citizenship and Exclude Rohingya’, 47:3, Journal of Contemporary Asia, 461-483 12 Constitutional Court Decision, Citizenship Case 2015. Page 20 Muslim political participation. In the 2010 election and 2012 bi-election temporary identity card holders were able to vote and to run in the elections.13 Three Muslim candidates were successful in winning seats in elections during this period. The political parties that these members of parliament represent have never been based on an Islamist ideology and do not advocate for the institutionalisation of Islamic law.14 However, from 2011-2015, the three Rohingya members of parliament in northern Rakhine State were questioned over their citizenship status and hounded out of parliament. This effort coincided with the rise of radical Buddhism and the ensuing violence against Muslims in Myanmar.15 This has been a critical issue since 2012 when large scale conflict broke out in northern Rakhine State and spread to many major towns across Myanmar.16 While the initial targets in Rakhine State were largely Rohingya Muslims, the conflicts that broke out in other parts of Myanmar targeted Muslim communities more broadly. In short, by 2014, this led to overt anti-Muslim campaigns and attempts to smear the NLD in the lead up to the 2015 elections for being perceived as ‘pro-Muslim’. In 2014, the President issued a notification requiring all temporary identity card holders to hand in their cards. In late 2014, parliament amended several electoral laws so that temporary identity card holders – many of who are 13 Nicholas Farrelly (2016) ‘Muslim Political Participation in Myanmar’ in M Crouch (eds) Islam and the State in Myanmar. Oxford University Press. 14 Melissa Crouch, ‘Myanmar’s Muslim Mosaic and the Politics of Belonging’, in M Crouch (eds) Islam and the State in Myanmar. Oxford University Press. 15 Nyi Nyi Kyaw (2016) Islamophobia in Buddhist Myanmar: The 969 Movement and Anti-Muslim Violence’ in M Crouch (eds) Islam and the State in Myanmar. Oxford University Press. 16 For a recent collection of articles on communal violence in Myanmar, see Nick Cheesman (2017) Interpreting Communal Violence in Myanmar, Vol 47(3), Special Issue: Journal of Contemporary Asia. Page 21 Muslim and from Rakhine State (who may identify as Rohingya) – could not vote or run for elections. In 2015, a law was passed in parliament to set out the process for a referendum on constitutional amendment, although it did allow white card holders to vote.17 As a result, an application was brought to the Constitutional Tribunal challenging the provision by arguing that it was unconstitutional to allow white card holders to vote in a referendum. The case was brought by Dr Aye Maung, an ethnic Rakhine Buddhist and leader of the Arakan National Party, and other members of the Amoytha Hluttaw (the Upper House). The applicants challenged the provision of the Law on the Constitutional Referendum concerning who could vote in a referendum.18 The applicants relied on the constitutional provisions on the right to vote and to be elected, and also referred to the process and eligibility of a citizen to vote.19 They argued that the Constitution did not mention the phrase ‘temporary identity card holders’ but only use the term ‘citizens’, and so under s 198(a) the provision of the law was inconsistent with the Constitution and the Constitution should prevail. The application also referred to the definition of a citizen in the Constitution that limits the concept of ‘citizen’ to a person whose parents were born in Myanmar, or a person who had already been granted citizenship at the time the Constitution came into force.20 The applicants emphasised the constitutional provision stating that sovereign power resides in citizens,21 and argued that only citizens should have the right to vote in a referendum on constitutional amendment. Instead of 17 Law on the Referendum to Amend the 2008 Constitutional of the Union of Myanmar No 2/2015 [in Burmese]. 18 Law on the Constitutional Referendum No 11/2015, s 11(a). 19 2008 Constitution, ss 38(a), 369, s 391(a). 20 2008 Constitution, s 345. 21 2008 Constitution, s 4 Page 22 conceiving sovereign power as residing in ‘the people’ in a broad sense, it was argued that sovereign power was restricted to citizens. The Tribunal noted that the 1982 Citizenship Law allows associate citizens and naturalised citizens to have the same rights as citizens, unless this right is limited by the state. The Tribunal observed that the law does not, however, offer the same rights to temporary card holders. The Tribunal held that the provision of the Law on the Constitutional Referendum was invalid because it was inconsistent with the provisions on the right to vote in the Constitution. The Tribunal’s decision contributed to the disenfranchisement of over one million people. White card holders were explicitly denied the right to vote in an election and denied the right to run for political office. While it was not just the Tribunal decision that triggered this legislative reversal against electoral rights for individuals with white cards, it was one more justification for the parliament to pass legislative amendments to the electoral laws. This demonstrates that the right to vote in the 2008 Constitution is a fragile and highly contingent right.22 Major conflict in Rakhine State continued in 2016-2017 and led to the mass displacement of Rohingya, with over one million now living in camps in Bangladesh. The 2020 elections, if they go ahead in Rakhine State, are likely to perpetuate the exclusion of the Rohingya. The 2105 court case is an instance 22 This is important to note, as some quantitative comparative constitutional law studies argue that Myanmar is an example of a Constitution where the right to vote is fully protected and upheld. The reality of mass disenfranchisement, the social pressure not to vote for Muslims, and the absence of elections in areas of ongoing conflict, show otherwise. Page 23 of constitutional change for illiberal means, that is, the exclusion of a particular group from the right to vote that reinforces regime interests.23 Legislative Reform as Informal Constitutional Change Another type of informal constitutional change that has occurred in Myanmar is change through legislative reform and executive action. Although the NLD has failed to formally amend the Constitution to date, it has been able to effect informal constitutional change in the creation of a defacto leader for the government. I focus on the example of the legislative creation of the Office of the State Counsellor created under the NLD.24 This example demonstrates that pro-democratic forces may seek informal constitutional amendment to get around provisions of the Constitution that do not allow them to rule directly in the way they want. I will show that this is a high risk option in the first period, particularly when informal constitutional change is perceived to be an underhanded means of changing the Constitution. In early 2016, as the NLD was poised to take over government, there was clearly overwhelming public support for Aung San Suu Kyi to lead the country. The question that the NLD had to resolve was how this could be constitutionally justified. At first, a prominent lawyer 23 I leave aside the issue of whether the NLD agreed that white card holders should not be allowed to vote, but this does raise the question of how proposals for constitutional change are affected when those who claim to be democratic actors hold illiberal views. 24 There are other examples, such as actions that Suu Kyi took while chair of the ad hoc Rule of Law Committee in parliament, which were not within the remit of the legislative committee and could be perceived as informal constitutional change. Page 24 and legal advisor to the NLD, U Ko Ni, argued that the parliament could appoint Suu Kyi as president if parliament first suspended section 59(f) of the Constitution (the provision that is regarded as barring Suu Kyi from becoming president). This option was risky and did not have a clear constitutional basis. An alternative option advocated by U Ko Ni was a law to establish a new and unprecedented executive position. The first law proposed by the NLD government was for the creation of the position of State Counsellor.25 This option was justified based on the constitutional power of parliament to pass laws, and the power of the President to delegate executive power to anyone he chose. In this way it could be argued that the law did not betray the constitutional text. Yet the military members of parliament were under no illusion that this reform amounted to constitutional change and threatened the system they had created. They raised objections in parliament and at one point, there were indications that the military members of parliament may challenge the constitutionality of the State Counsellor law in the Constitutional Tribunal, although this has not occurred to date. Their objections were ignored and the law was passed by the majority NLD government. The State Counsellor’s Office is an innovative use of legal text to achieve the goal of Suu Kyi serving as leader of the government.26 There are several reasons why this innovation can be understood as informal constitutional change. This legislative reform enabled Suu Kyi to become the de-facto leader of the government and to the international community, the defacto leader of the country. The creation of the State Counsellor role re-adjusted the way people understand the role of 25 26 Law 26/2016 on the Office of the State Counsellor. This can also be understood as a constitutional workaround, see Mark Tushnet (2009) ‘Constitutional Workarounds’, 87(7) Texas Law Review 1499. Page 25 the President in Myanmar, giving the President a more symbolic and ceremonial function. The State Counsellor draws attention and authority away from the Office of the President.27 The Office of the State Counsellor is specific to Suu Kyi, so no other person can occupy this office unless the law is changed. The stated purpose of the role of the State Counsellor is to foster a market economy, to enhance democracy, to promote peace and development, and to work towards federalism. The goals of building a market economy and promoting peace and development are consistent with the wording and intentions of the 2008 Constitution. However, the goal of fostering democracy may be at odds with the 2008 Constitution’s more qualified version of ‘disciplined democracy’; and the goal of working towards a federal system is arguably inconsistent with the 2008 Constitution, which does not explicitly claim to uphold federalism as a fundamental principle. The State Counsellor has appropriated and adopted many leadership functions that may otherwise have been undertaken by the president. The law requires the State Counsellor to make recommendations and report to the Union Parliament, and in doing so to work within the existing Constitution. In this role, Aung San Suu Kyi has established and spearhead the new 21st Century Panglong Peace Process (a reference to the 1947 Panglong Agreement orchestrated by her father General Aung San). She is the chairperson of the Union Peace Dialogue Joint Committee that facilitates and manages the ongoing peace talks. She also occasionally issues announcements, such as granting an amnesty for political prisoners, which is a task former President Thein Sein previously undertook. She is the chairperson of the Central Committee on the Implementation of Peace, Stability and Development of Rakhine State. She plays a significant role in international relations, meeting with foreign ambassadors and other foreign dignitaries, although she also wears 27 6. See further Melissa Crouch (2019) The Constitution of Myanmar: A Contextual Analysis, Hart Publishing, chapter Page 26 the hat of Minister of Foreign Affairs and Minister of the President’s Office. It is not always clear which capacity she is acting. Further, the international community sees Suu Kyi, rather than the President, as the leader of Myanmar. An example is the response of the international community in August 2017, when they called upon Suu Kyi to speak out in support of the Rohingya and to acknowledge and address the grave humanitarian crisis. The international community implored the President, U Htin Kyaw, to speak out in support of human rights on this issue. The angst and controversy that the Office of State Counsellor has attracted has come at a great price to the NLD. On 30 January 2017, U Ko Ni, the lawyer mentioned earlier who was considered to be one of the architects of the State Counsellor law, was brutally assassinated. Despite his ordinary background as a traditional civil and criminal law lawyer,28 he had taken the risk to speak out against the undemocratic elements of the Constitution and to advocate for the constitutionality of Suu Kyi’s position as State Counsellor. There were no doubt multiple reasons for his death – U Ko Ni was also a Muslim and he had been outspoken on other controversial law reforms such as the need for a hate speech law. He had also spoken about the need to draft a new constitution. Yet his role in the creation of the Office of State Counsellor was certainly one of the reasons for his assassination. The trial against the four accused (two of whom who are former military officers) ended in death sentences for two of the accused, although the fifth accused and mastermind remains at large. On the first anniversary of U Ko Ni’s death in 2018, a small group dared to protest in support of the accused, threatening to harm the judge if they were convicted. On the second anniversary of Ko Ni’s death, the NLD submitted its proposal to the legislature to 28 On the career paths of legal professionals in Myanmar, see Crouch (2019) ‘The Legal Profession in Myanmar’, in Richard Abel et al (eds) Lawyers in Society (2nd edition, two volumes) Hart Publishing. Page 27 form a committee to amend the Constitution. Myanmar lost its most articulate lawyer on constitutional reform, a tragic and untimely loss for efforts at democratic transformation. In the first period, the costs of informal constitutional amendment via legislative reform and executive action may be high, particularly if legislative change is perceived to be an underhanded means of constitutional change. The death of U Ko Ni also suggests a highly targeted campaign against those most visibly involved in advocating for constitutional change.29 U Ko Ni was firstly a lawyer, and his death was a warning to legal advocates involved in constitutional and rights reform to back down. U Ko Ni was affiliated with the NLD and prodemocratic actors, and so his death was a warning to them and a stark reminder that the NLD government is extremely vulnerable without the protection of the police or military. The third group U Ko Ni represented in a symbolic sense was minorities, both Muslims but also other ethnic groups or non-Buddhists. His death was aimed at silencing those seeking to advocate for greater equality in constitutional reform. Conclusion Myanmar’s Constitution remains in its crucial ‘first period’. The possibility of substantially changing the Constitution during this first period remains low, and the risks of trying to do so are relatively high. This is because constitutions drafted under authoritarian rule that facilitate a new political era are often designed to endure. My chapter has focused specifically on the strategies 29 On how authoritarian Leviathans with the capability of punishing their opponents in a targeted and pinpointed fashion, see Dan Slater (2000) Ordering Power: Contentious Politics and Authoritarian Leviathans in Southeast Asia. Cambridge University Press, p17. Page 28 being employed in Myanmar by democratic actors to try and change the Constitution. The option of drafting a new constitution remains unrealistic in Myanmar’s political climate. Instead, I identified that the main strategies pro-democratic actors have pursued are formal amendment or informal constitutional change. Formal constitutional amendment under the new Constitution means that the NLD and other pro-democratic actors have to submit to the authority of the Constitution and work to achieve the required approval threshold it mandates for change. In doing so, they face a strategic dilemma, and despite running for office on a program of constitutional reform, have only put forward a series of limited proposals. Yet the outcome of that process reinforced the limits of democratic reform. The NLD was unable to obtain sufficient support for its proposals. It then had to watch as the Committee Report identified three issues that are off-limits in terms of amendment. In 2015 a range of undemocratic proposals were put forward in the bills to parliament. The Report and the subsequent proposals reaffirmed the Constitution’s core commitments to military governance. People who who advocate for change, particularly on the off limits topics such as the section 436 amendment formula, face challenges ahead. The NLD is unlikely to get the approval rate it needs to amend the Constitution in its first term (2016-2021). Having failed at formal constitutional change, the NLD, once in government, has engaged in informal constitutional amendment through the creation of the Office of State Counsellor. The military’s opposition to this legislative reform made clear that they perceived this as an inappropriate means of constitutional change in this first period. The NLD has ultimately paid a high price for the creation of the Office of State Counsellor with the assassination of prominent lawyer U Ko Ni. The option of informal constitutional change through the Constitutional Tribunal represents untapped potential for democratic actors in Page 29 Myanmar. Given that the NLD appointed all nine Tribunal members (who serve five year terms), now is a better time than any to use this mechanism. I suggest that the NLD’s failure to use the Constitutional Tribunal while in opposition (2012-2016) left the courts wide open for use by regime supporters, as illustrated in the Citizenship Case. I have drawn attention to the risks that these strategies may entail. Attempts at constitutional change during the first period may attract a range of risks including personal risks, such as the risk of arrest, torture, disappearance or death (as in the case of the students mentioned at the beginning of the chapter); institutional risks such as the surveillance or deregistration of a political party; or the risks may be political, that is, a decline in public support and a loss of votes in a future election. The risks of constitutional change are heightened during the first period, particularly if it is a transformative authoritarian constitution that protects the interests of the former authoritarian regime. In this chapter, I have suggested that we need to pay attention to the potential risks that pro-democratic actors may be exposed to if they seek to change a constitution during the first period of a transition from authoritarian rule. This focus on risk-taking in constitutional change is an area ripe for further comparative study. This is not least because international and foreign actors engaged in the global constitutional advice industry may inadvertently contribute to the risks faced by local actors seeking democratic constitutional change.