Myanmar’s Crisis Calls for Constitutional Overhauling

September 14, 2012

An ongoing showdown between the branches of Myanmar’s young civilian government took a dramatic turn September 7 when the nine members of the country’s Constitutional Tribunal resigned following a vote to impeach them by the Lower House of the parliament. The motion passed overwhelmingly. Most of the legislators who opposed the motion or abstained were from the 25 percent who are appointed by the military. The Upper House had already voted for impeachment in August, leaving the judges little recourse but to resign or deepen the crisis with a standoff. Thankfully they chose the former.

The drive for impeachment began with a request by President Thein Sein in February for the tribunal to define the powers of parliamentary committees and other bodies. The Constitutional Tribunal is empowered by the country’s 2008 constitution to resolve questions of interpretation regarding the constitution and to rule on disputes between government branches. It was therefore well within its rights to take up the case and issue a decision.

The court issued its ruling in March, clarifying that although parliament itself is a union-level (i.e., national) government organ, its committees are not. This places them at a lower level than other government organs, including the president and his cabinet. In the view of outraged legislators, the Constitutional Tribunal had essentially limited the parliament’s decisionmaking capabilities, removed its authority to call and question ministers, and undermined its ability to oversee the actions of the executive branch. In other words, it had tilted the balance of power in Myanmar in the executive’s favor.

Shwe Mann, speaker of the Lower House and presumed 2015 presidential candidate, spearheaded the movement for impeachment after the parliament issued an ultimatum August 27 for the judges to rescind their ruling or face impeachment. Shwe Mann and most other parliamentarians, including National League for Democracy leader Aung San Suu Kyi, who voted for impeachment, claimed that the judges violated their legal role by grossly misinterpreting the constitution.

Optimistic observers have hailed these proceedings as evidence that Myanmar’s democracy is maturing, that political reforms are taking root, and that the new legislature is stretching its wings. Each of these is at least partly correct. The primary fear during most of the last year and a half of reforms was that the executive, and by extension the military, remained firmly in control while the parliament was merely a paper tiger. It is now clear that the balance of power between branches is not as skewed as feared. But the legislature’s victory (at least for now) is not an unqualified good for Myanmar.

The decision to impeach the entire court sets a dangerous precedent for judicial independence. Of the branches of the government, the judiciary is the weakest, with extremely limited capacity. Defenders of the parliament have argued that the nine justices of the Constitutional Tribunal were merely proxies for Thein Sein in a two-way fight between the legislature and executive. The truth is more complicated. Of the nine, six justices were actually nominated by the parliament— three by the speaker of the Lower House and three by the speaker of the Upper House.

Thein Sein’s motivation in asking for clarification of the powers of the legislative committees appears to have had little to do with restraining oversight of the executive. His concern appears to have been with the committees’ ability to amend and otherwise affect legislation—a process that so far has held up the pending investment law for months as it has seen 94 amendments.

If the primary concern is with rule of law, then it would appear that the Constitutional Tribunal and the executive were in the right, while the parliament was acting in a grey zone at best. Both the executive and the Constitutional Tribunal acted within their prescribed powers under the constitution.

The legislature, meanwhile, has no right to overrule the tribunal’s rulings, which the constitution declares as “final and conclusive.” The requirements for impeachment of the tribunal include “inefficient discharge of duties” and “breach of any of the provisions under the constitution,” but it appears to have done neither. The constitution is ambiguous on the powers of parliamentary committees, but there is no indication that the tribunal willfully misinterpreted the law in reaching its ruling.

Given the murkiness of the current crisis, what is most apparent is the need to amend the country’s 2008 constitution. That constitution was rammed through by the military in a highly questionable referendum in the wake of the destruction of Cyclone Nargis. It is intentionally vague in many sections concerning the delineation of powers between branches of the government and the military. This situation plays to the benefit of the military, which enjoys special prerogatives and wide-ranging powers to protect national stability with or without the acquiescence of civilian authorities.

Replacing that flawed document is the central goal of Aung San Suu Kyi and her party. Even President Thein Sein recognizes the need to amend the constitution to prevent a worsening crisis among the branches. He suggested as much to the parliament on August 20, but the legislature failed to muster support for the amendment, thanks to the military representatives and their allies among the ruling Union Solidarity and Development Party.

Aung San Suu Kyi and Thein Sein, along with their allies, must redouble efforts to amend the constitution and clarify the balance of power within the government. This is also in the interests Speaker of the Lower House Shwe Mann, who has his eye on the presidency in 2015 and therefore has a stake in the continued stability of the civilian government. If these three leaders ignore this pressing need, logjams like the current one are bound to be repeated. Myanmar should know from its own and its neighbors’ histories that nothing encourages military intervention like prolonged deadlock among civilian leaders.

(This Commentary originally appeared in the September 13, 2012, issue of Southeast Asia from the Corner of 18th and K Streets.)

Gregory Poling is a research associate with the Southeast Asia Program at the Center for Strategic and International Studies (CSIS) in Washington, D.C. Kathleen Bissonnette is a researcher with the CSIS Southeast Asia Program.

Commentary is produced by the Center for Strategic and International Studies (CSIS), a private, tax-exempt institution focusing on international public policy issues. Its research is nonpartisan and nonproprietary. CSIS does not take specific policy positions. Accordingly, all views, positions, and conclusions expressed in this publication should be understood to be solely those of the author(s).

© 2012 by the Center for Strategic and International Studies. All rights reserved.