Myanmar - Form of Government and Electoral and Party System

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- Constitutionalism

Our recommended parliamentary system places the Myanmar Constitution at the apex of power as the supreme law of the republic, dictating the separation of powers between the three organs of the government: a bicameral legislature; the executive; and an independent judiciary. However our recommendation necessarily requires Myanmar to amend its present constitution such as to reflect the will of the Myanmar people; Myanmar’s present Constitution was last amended in 2008 with extensive provisions ensuring a dominating role for the military in government affairs,[19] as well as other provisions that appear arbitrary and seemingly targeted at Myanmar’s well-known democracy icon: Aung San Suu Kyi.[20]

We recommend that Myanmar’s amended constitution be a product of public deliberation and adopted with widespread consensus by the relevant stakeholders in Myanmar. This process will afford the new Constitution being popularly recognised as the basis for the rule-of-law, providing legitimacy to the elected government, and being the cornerstone upon which all other laws and executive actions are held accountable. We emphasise the importance of Myanmar prioritising its constitutional reform as part of establishing its sustainable form of government, as there is an “inextricable link” between democratisation and the rule-of-law, and rule-of-law should be ingrained simultaneously as countries transition from autocracies to democracies.[21]

Amongst other provisions, the Myanmar Constitution should guarantee civil and political rights to all Myanmar citizens based on the principle of equality, prevent the state from encroaching on individual liberties, and protect the rights of the ethnic and religious minorities. The Freedom in the World 2014 Report recently gave Myanmar a score of 5 and 6 for “Political Rights” and “Civil Liberties” respectively.[22] Clearly there is much work to be done in protecting the rights and liberties of the Myanmar people.

- Parliamentary System

We propose that Myanmar forms a parliamentary republic, comprising a dual executive “containing both a non-hereditary president as head of state, and a prime minister as the formal or constitutional head of government,”[23] as well as a bicameral legislative system.

Under this dual executive system, the Myanmar president would be a titular head of state performing largely ceremonial functions and acting as an advisor to the government. The president’s consent should be obtained for matters of national importance such as constitutional amendments, national defence and declarations of state of emergencies.

We recommend that the president be elected indirectly with a super-majority of 75% from both houses of Parliament, thus ensuring that he carries the strong mandate of the people’s elected representatives to represent the country. Additionally, the president must renounce his past political affiliation after being successfully elected. The president’s political neutrality is crucial in establishing the president’s role as a stabilising and unitary force, and to demonstrate that he is above party-politics. The president should also be constitutionally barred from serving more than two terms.

The prime minister, on the other hand, would serve as the head of government, nominated by the party or coalition of parties forming the majority in the Lower House. He shall lead the executive and is aided by a council of ministers or a “cabinet”. Like the president, the prime minister should also be constitutionally barred from serving more than two terms so as to prevent any tendency towards authoritarian rule.

Our recommendation for a bicameral Parliament goes towards ensuring that there is extensive debate and deliberation in two separate legislative chambers prior to the enactment of laws. Within this bicameral system, the Lower House would be the “House of the People” akin to the present-day Myanmar “House of Representatives (Pyithu Hluttaw);” its members being directly elected by the citizens of Myanmar, and primarily responsible for proposing and passing all legislation.

The Upper House is similar to the present-day Myanmar “House of Nationalities (Amyotha Hluttaw)”. The primary objective of the Upper House is to serve as an additional layer of accountability for the legislative process; and also to represent the interests of the states at the level of the central government. Hence, bills and legislation passed by the Lower House would also have to be passed by a majority in the Upper House. However, we also recommend that the proposal of certain legislation on significant issues affecting national interest such as finance, defence, foreign affairs and constitutional amendments be restricted to the lower house.

Lastly, with regard to the relationship between our recommended parliamentary system and the local/state administrative and legislative government, we propose an extensive devolution of powers to state/regional governments; the Myanmar Constitution detailing the power sharing arrangement between the legislative and executive scope of the central and the state/regional governments.[24]

- Electoral and Party Systems

In this part, we will detail our recommended electoral and party system; essentially the processes that establish the form of government as above proposed.

- Party Systems

In light of Myanmar’s ethnic composition and history, it is foreseeable that minority groups will form their own insular homogeneous ethnic parties to represent their ethnic interests if left to their own devices. As such, a preliminary question about party system design in Myanmar would be whether such ethnic-based parties should be allowed to form and participate in elections.

The considerations for both sides are compelling: on one hand, the allowance for ethnic parties coupled with a proportional representation electoral system (proposed below) will almost definitely guarantee ethnic minority representation in the government, assuming that voters vote along ethnic lines. Such minority representation would give minorities a platform to air their concerns, in hope that this would dis-incentivise them from breaking the peace and ceasefire agreements and return to civil war. Yet on the other hand, allowing the formation of ethnic parties leaves ethnicity as an issue that can be potentially abused, bringing much unneeded attention to the realities of multiple ethnic fractions, and potentially exacerbating the division problem.

Having balanced these considerations, our