The Debate Concerning Section 59(f) of Myanmar’s 2008 Constitution: A Gordian Knot of Rule of Law, Democracy and the Application of Problematical Constitutional Provisions

[This short piece was an 'Editorial Note' appearing at the end of A Harding and Khin Khin Oo (eds), Constitutionalism and Legal Change in Myanmar (Oxford, Hart Publishing, 2017). At the time we went to press there was an intense public debate about whether s.59f could be ignored, avoided or suspended, and I thought this was a special moment whose authenticity was worth recording. I also had my own views on it, initialy expressed in a facebook post then picked up by a Myanmar newspaper and published in Myanmar language. That provoked some interesting responses, including from one reader who said, 'how typical of Singapore not to support Aung San Suu Kyi on this issue'! I am of course a strong supporter of The Lady and do not represent the Singapore Government on this or any other issue!

I want here to dedicate this post to U Ko Ni, The Lady's legal adviser, a Muslim lawyer, and a great force for constitutional reform, who visited NUS twice and with whom we had some long and interesting discussions. Ko Ni was tragically assassinated at Yangon International Airport on 29 January 2017. He did not agree with the contents of this Note, but he had my enormous respect and admiration and I recognise there are two views, both of which I explore here. The project of constitutional reform is set back enormously by Ko Ni's death.] 

The Debate Concerning Section 59(f) of Myanmar’s 2008 Constitution: A Gordian Knot of Rule of Law, Democracy and the Application of Problematical Constitutional Provisions

Ever since Myanmar’s 2008 Constitution was published, its section 59(f), dealing with qualifications and disqualifications for becoming President of Myanmar, has attracted widespread comment.[1] The 2015 elections having resulted in an overwhelming victory for Daw Aung San Suu Kyi and the National League for Democracy (NLD), there arrived a moment of truth for the Constitution: could she take office as President despite section 59(f)? A debate ensued over this matter, which was terminated when it became apparent in early March 2016 that, following discussions with the military, she would not put herself forward for election as President.[2] On 15 March U Htin Kyaw was elected in a joint sitting of Parliament, and shortly after that it was made known that Aung San Suu Kyi would take a position in the cabinet as Minister for Foreign Affairs and Minister of Education, holding altogether four portfolios, and the cabinet list was approved by Parliament on 21 March 2016.[3] Discussion as to possible ‘suspension’ or ‘non-application’ of section 59(f) was stalled and became mere hypothesis. However, the debate raised the important issue whether beyond section 59(f) the 2008 Constitution should be implemented in full, even in aspects that are unpalatable to the majority, or might be inconvenient. The outcome of this issue appears to set the tone for the Constitution under the new government in a decisive way.[4]

One obvious answer is that if the NLD and other parts of the political spectrum do not like section 59(f), all they have to do is have the Constitution amended. But as we have seen on several occasions in earlier chapters, the 2008 Constitution is extremely hard to amend; moreover the 25% of military members of both Houses of Parliament can block an amendment at the threshold stage, since a majority of more than 75% is required in both houses, not to mention the referendum requirement that would, in the case of section 59(f), be triggered by a parliamentary vote in favour of an amendment. Accordingly, in an attempt to avoid the constitutional amendment issue, a bill was presented to Parliament and passed by the upper house on 1 April 2016 that would give Daw Aung San Suu Kyi a role as ‘Adviser to the State’; the bill was strongly opposed by the military and the USDP on grounds of its unconstitutionality.[5] It was the first piece of legislation tabled to the parliament on the first day in office for the democratically elected government. The opposition stated that the new law if passed should be referred to the Constitutional Tribunal. Thus it seems inevitable that, irrespective of the section 59(f) debate the constitutional position of the President will be pronounced upon by the Constitutional Tribunal, and that its decision will be highly controversial.

For the incoming paramount leader (one supposes one will now have to refer to her in some such way), the political solution she has stated is that as NLD leader she will give instructions to the President. This appears to assume that her path to the presidency is indeed blocked by section 59(f). Yet some opinions questioned whether this is necessarily true. Assuming the position stated by Aung San Suu Kyi is followed, the need to consider section 59(f) further may well be obviated in practice. On the other hand, perhaps the matter will be raised eventually and perhaps the Constitutional Tribunal will have to render a verdict on this provision on a future occasion. Whatever verdict they give is, however, almost bound to be problematical or at least highly controversial. The Constitutional Tribunal was already the subject of a constitutional crisis in 2012 as we have seen in chapter 9. In late March 2016 a new bench of Constitutional Tribunal judges were appointed.[6]

Let us first take the actual political outcome. Is it unconstitutional in some sense for the President to take instructions from somebody who is his or her party leader but holds no office higher than that of a minister and a member of parliament?

I would suggest that the answer is that it is not unconstitutional; but this is not completely free of difficulty. Under section 58 of the Constitution the President ‘takes precedence over all other persons throughout the Republic of the Union of Myanmar’. Ordinarily we would surely describe as unconstitutional in some sense, or at least improper democratically, for an elected leader to take instructions from any other person unless that person is constitutionally empowered to give him or her instructions.[7] Indeed, in administrative law, taking directions from one not legally empowered to make a decision is referred to as ‘acting under dictation’ and is an abuse of administrative discretion.[8] We would call such a situation the ‘capture of the state’ by some interest group. If an elected leader were captured by, say, corporate, or foreign, or military interests, we would cry foul and say this is not within the intention of the democratic process. In this case, however, the person hypothetically giving instructions has the overwhelming support of the electorate and is the leader of the party to which the President belongs. In this case democracy is on the side of the constitutional ‘fix’, and the position is not in any real sense a capture of the state. If the President were to ignore the express views of the leader, he or she would actually be going against the democratic result.[9] In addition the instructions would be coming from the person who would very plausibly have been President but for a constitutional obstacle that enjoys little support and a good deal of disgust across the nation. Accordingly, this constitutional fix seems justifiable pending a final resolution in terms of constitutional amendment or pronouncement on the bill before Parliament mentioned above. It remains uncertain, however, whether, if the position regarding section 59(f) were challenged in the Constitutional Tribunal, it would take the view expressed here.

Is there, however, a more direct, easier solution?

Is it possible, as some have suggested, that section 59(f) could somehow be suspended, ignored, or disapplied, allowing Aung San Suu Kyi to become President without resort to constitutional fictions? Is there indeed a case to be made that the Constitution does not in law disqualify her, despite the widespread assumption, not least by the person directly affected, that it does? Could and should the Constitutional Tribunal be required, accordingly, to render an interpretation of section 59(f)?

First, let us take the issue of interpretation. Here I reproduce an interesting argument put to me on social media by Angus McLeod (I reproduce it here with Angus’ permission). His last paragraph in particular reflects many statements made on social media during the debate about section 59(f):

The constitution is broad in scope, dealing with both the division of powers and the rights and duties of citizens. It has 457 sections. The subsection in question reads as follows: “Qualifications of the President and Vice-Presidents are as follows … (f) shall 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 …” This is said to bar Aung San Suu Kyi, who married the British citizen Michael Aris in 1971 and has two sons by him (who hold British citizenship). 

Does the provision even apply to her? Aris died in 1999, so in the English translation one would have to stretch the meaning of ’the spouse’ (i.e. the tense) to apply it to his case. Prima facie, it seems to apply to her children. But prima facie literal interpretations are not always correct. I note that her two sons were born in the 1970s under a different (mostly non-existent) constitutional regime. I was unable to find any official interpretations of the provision, so let us look at similar constitutional provisions that define criteria of appointment to state office for the purpose of security against foreign influence. 

As you know, the interpretation of Article 2(1) of the US constitution (the ‘natural born citizen’ clause) is controversial. What is relatively uncontroversial about it however is its carve out: “or a Citizen of the United States, at the time of the Adoption of this Constitution”. It would have been contrary to the purpose of the section to exclude an individual from state office on the basis of facts established long before the creation of both the office and state. While more research is required, I would wager that analogous provisions in other constitutions are similar. The purpose of such provisions is to prevent foreign meddling, not to restrictively exclude certain individuals.

Which brings us to the legal question strictly within the context of the 2008 constitution. I would argue that two important legal principles relevant to the discussion of the rule of law in this context are ‘general application of laws’ and ‘substance over form’. Applied to Burma’s constitutional context, I would tentatively argue that it would be in line with those principles for a properly empowered body to hold that section 59(f) does not apply to Aung San Suu Kyi for reasons similar to those I have already mentioned. Whether that would amount to a ‘suspension’ or ‘interpretation’ of the subsection would be a hurdle to overcome, but not an insurmountable one.

Outside of that context, I would also point out that the Burmese constitutional process is still in its infancy. Despite being formally defined, all written constitutions develop over time and are influenced by unwritten principles. I think the relevant legal principles are far too nascent for a relatively specific abrogation of one (if it is an abrogation) to be considered contrary to the spirit of the rule of law.

He added that of course this interpretation relates to the English text and may ignore nuances in the original Myanmar language rendering of the provision.

Marcus Brand, author of chapter 7 of this book, argued in similar vein in a blog posting:

I have no doubt that section 59(f) was included into the 2008 Constitution very consciously and deliberately, and with the single purpose of keeping Aung San Suu Kyi out of the presidency.[10] Even though reference is sometimes made to a similar provision of the 1947 Constitution, I do not believe this was done just out of a wish for preserving an old tradition. Given her situation, it cannot be argued with reason that the fact that her late husband and her two sons are British citizens in any way poses some sort of risk for Myanmar's independence, or allows Britain to have some sort of undue influence over her as the Head of State. The verdict of the people of Myanmar was as clear as can be. The electorate wants her to lead, and does not care about these constitutional limitations, which many will not even have heard about, and even if they have, they will understand the cynicism of its origins. 

But the words are there. And it hurts not only positivists to simply ignore a provision which is so seemingly clear as this one. But I think that is what will eventually be done (this was discussed among senior lawyers in the administration already one or two years ago), and I can live with that. I think it is better to simply not apply the provision, by considering it obsolete and not applicable, rather than suspending it through some messy constitutional acrobatics. If the Constitution is to be changed, and I hope it will, it should follow the foreseen procedures for that, clumsy as they might be. If this is done soon, before the Lady's appeal is on the wane, a referendum can be held to unlock the biggest obstacles to constitutional reform; it will ex post facto also give full legitimacy to her presidency. 

For the former junta and its heirs in the USDP to hold such cutting-corners against her would be quite ridiculous, not only because of the rather blatantly unconstitutional and unlawful rule of the military for decades, but also because of the rather selective manner in which the 2008 Constitution has been followed during the past five years of USDP domination. I would compare such a move, which could be considered 'technically unlawful' on the basis of the purely literal interpretation of the wording of the Constitution, as something equivalent to Maradona's famous Hand of God goal in the 1986 Football World Cup against England. Clearly for the world to see, he pushed the ball into the goal with his hand, but it was a beautiful goal, the world loved Maradona, the Argentinians were clearly winning anyway, and if only he had been 10cm taller, he would have made it a header. The goal has counted as valid ever since, and it did nothing to harm Maradona's reign as the world's best footballer of his time.[11] 

However, I would like to see something else happening at the same time, to avoid the dangerous trend of concentrating too much power in a single person by making her the president, and by creating a precedent that the wording of the Constitution is malleable to political convenience, and that this becomes a habit which will obviously put the country on a slippery slope. I do not need to quote lessons from the past 200 years of democratic development across the globe to underline that even the smartest, kindest and gentlest lady should not be equipped with unchecked powers to rule. Here, the Constitutional Tribunal comes in. One of the more worrying aspects of the NLD's politics in recent years was its attempts, during the constitutional amendment process, to get rid of the CT altogether. The CT, which itself had been unconstitutionally curtailed and sidelined a couple of years ago [ed note: see Khin Khin Oo's detailed analysis of this issue in chapter 10], has not yet been able to prove it can play a meaningful role in developing constitutionalism and the rule of law in Myanmar. This is not for a lack of qualification or not having tried. In fact, it got under the wheels precisely because it did try. It was simply not in the range of imagination of the generals-turned-parliamentarians to have a gun-less bunch of lawyers with books of Hans Kelsen under their arm stand in the way of decisions they would make. 

If Aung San Suu Kyi and the NLD really want to establish the rule of law and constitutionalism in Myanmar, they should, at the same time as making Aung San Suu Kyi president, move to immediately free the CT from the shackles the USDP majority (together with the NLD) put on it with the amended Constitutional Tribunal Law, reassert its full independence, and fill it with the best legal/constitutional minds the country can find. And respect it. If the CT is allowed to play a role similar to that of the Constitutional Court of South Africa in the 1990s, and if Aung San Suu Kyi finds the grandness of Nelson Mandela in respecting it as a balance to presidential power, then I would be comfortable with her having become president by overstepping a constitutional tripwire laid for her by the military junta a decade ago.

            Marcus Brand’s careful and balanced view of this issue ignores, however, some difficulties.

            His analysis embraces a distinction between ‘suspending’ and ‘not applying’ section 59(f). This distinction does not appear to be salient, because either way it would be a breach of the rule of law. And as he says, the words are there (like it or not, and of course most people clearly do not, and for good reasons). There is, unfortunately, nothing in constitutional law or any theory of constitutionalism or the rule of law that would justify such a move, whether we call it suspension or not. If this provision is suspended (or not applied), on what authority would this have happened? When would they decide it was appropriate to unsuspend or apply it in future? And could they (whoever they are) not also suspend any other constitutional provision found (by unspecified persons) to be inconvenient (in some sense)?

            Marcus Brand’s approach, well-argued as it is, assumes that a violation of the principle of the rule of law can somehow be made up for by showing vaguely good intentions towards the rule of law in some other respects. It is a bit like stealing money and then giving it to charity, which is still, surely, theft?[12] When you have a constitution, it is, for better or worse, and until revoked, the law and it is supreme law. If it were possible to suspend a provision in the absence of any specific constitutional authority to suspend it, then you have in effect a meta-constitution that has never been set out or agreed to by anybody, but could apparently be used to countermand anything in the constitution, including elections, appointments, powers, or anything else that anybody finds awkward. The problem is that the rule of law cannot be parcelled out in this manner. If you make an exception, then you are not missing 5 percent or 20 percent of it – you just do not have the rule of law at all. You have just lost it via your own actions, and your attempts to recover it will smack of rank hypocrisy.

If section 59(f) is subject to a purported suspension, that suspension would without doubt be unconstitutional, unless it is subjected to the procedure for constitutional amendment set out in the constitution, or unless the CT holds it to be inapplicable. Now it may be that, if those hostile to an Aung San Suu Kyi presidency were to throw in the towel, and simply not challenge the legality of her assuming the presidency, then she could assume the presidency, albeit with a lurking question of constitutionality, and if they did indeed not wish to challenge this, then the path would be open, one assumes, to amending the Constitution in some suitable fashion. Politically, any attempt to fix this issue by manipulating section 59(f) would send alarm bells through the military, and could create the very political backlash that Aung San Su Kyi seems bent on avoiding.

Beyond this, we can compare this situation with that of Nelson Mandela and South Africa’s Constitutional Court. The heroism of Mandela’s acceptance of a most uncomfortable (for him and the ANC) decision on social housing is highly instructive.[13] There too the President could have said that the decision was inconvenient and contrary to the very social justice the Constitution of South Africa was intended to facilitate. Yet he knew that at the outset of establishing a constitutional system based on the rule of law, there can be no fudges or half measures. In the longer term, adherence to the principle of rule of law would be more valuable for social and every other kind of justice than pushing through a convenient result in a manner contrary to the Constitution. It is of course true that the legitimacy and the drafting process of South Africa’s 1996 Constitution cannot be compared with those of Myanmar’s 2008 Constitution. But the latter has been accepted as the Constitution (since 2012) by the NLD, who now have around 100 MPs who were in the past sent to jail by the military junta in defiance of the rule of law. The NLD and other parties object to many of its provisions, and those should, without doubt, be removed. But to act in a manner contrary to the Constitution at this point would not in my view be some kind of condonable peccadillo by well-intentioned reformers heading in roughly the right direction. On the contrary, it would throw the entire fragile structure into doubt as things edge slowly and carefully in the right direction. It would indeed be a terrible start for the new government, as its first act, to abolish the rule of law its prospective members and supporters have been at pains to advocate for decades and have suffered greatly to establish. My conclusion is that the political solution Aung San Suu Kyi has set out is valid and the issue of section 59(f) – along with many, many other constitutional issues that need attention – will no doubt be resolved in due course, starting with the issue of the creation of an Adviser to the State

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[1] See eg chs 1, 4, 5, and 6, which all discuss this issue as a point of acute criticism of the Constitution.

[2] ‘Aung San Suu Kyi to Run Myanmar Foreign Ministry’, BBC, 22 March 2016, available online: www.bbc.com/news/world-asia-35868579.

[3] ‘NLD Leader’s Multiple Jobs Likely Temporary: Minister’, Myanmar Times, 29 March 2016, available online: www.mmtimes.com/index.php/national-news/19695-nld-leader-s-multiple-jobs-likely-temporary-minister.html.

[4] For a contrary view, see David Williams’ arguments in ch 3.

[5] ‘Myanmar Upper House Approves State Counsellor Role for Aung San Suu Kyi’, Channel News Asia, 1 April 2016, available at  http://www.channelnewsasia.com/news/asiapacific/myanmar-upper-house/2656040.html.

[6] ‘Aung San Suu Kyi Preps NLD Lawmakers for Handover of Power in Myanmar’, Radio Free Asia, 28 March 2016, available online: www.rfa.org/english/news/myanmar/aung-san-suu-kyi-preps-nld-lawmakers-for-handover-of-power-in-myanmar-03282016163123.html.

[7] The report cited above at n 5 also says: ‘the NLD leader had instructed all incoming ministers to draw up a plausible plan for their respective portfolios within 100 days’.

[8] H Lavender and Son Ltd v Minister of Housing and Local Government [1970] 1 WLR 1231.

[9] The new President described his appointment as ‘Aung San Suu Kyi’s victory’; ‘Myanmar Elects Htin Kyaw as First Civilian President in Decades’, BBC, 15 March 2016, available online: www.bbc.com/news/world-asia-35808921.

[10] In fact, Aung San Suu Kyi is not the only person to fall foul of section 59(f), and there may be others in future. This does not of course entail that Marcus Brand’s statement in the text is incorrect, nor that section 59(f) gains in legitimacy by applying to other persons than The Lady herself. Not does it dilute the argument that this section is essentially ad feminam (as opposed to ad hominem).

[11] As an Englishman, the author of this note is unable to share the Austrian Marcus Brand’s aesthetic appreciation of Maradona’s goal or his lending to it of some kind of legitimacy. The legality of this goal remains contested – at least in England.

[12] These contradictions are famously analysed regarding the crime of murder in Dostoevsky’s novel, Crime and Punishment.

[13] H Klug, The Constitution of South Africa: A Contextual Analysis (Oxford, Hart Publishing, 2010), 74.