Suspending the Section 59(f) of the Constitution

[Vivek Kumar]

Hi Myanmar Law Group,

An exciting week!  According to news reports the idea of 'suspending' Section 59(f) is being discussed among legal experts.  There doesn't seem to be anything in the Constitution that allows for suspension - but is there anything in the general principles of constitutional law or theory which could form the basis for the suspension (given the huge majority for the NLD)?  Has anyone been involved or have any thoughts?

Cheers,

Vivek

[Khin Thandar]

DearVivek

Thank you for you info. Eventhou its a temporary solution to go around 59 (f)  and we want to see it happen
totally from a legal point of view I  would be happier to see it abolished totally.

For me ive never heard of a certain constitution section being suspendend in this way
and it could set a terrible precedent of "suspending" other sections of the constitution . Heaven knows what could be suspended next.
Best regards

Khin

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[Nathan Willis]

A case could be brought to the Constitutional Tribunal. The Constitutional Tribunal could interpret the section as a historical artifact of relevance at the time of drafting and not now. Or something like that. ;-)

Best,
Nathan.

Sent from my Android device with K-9 Mail. Please excuse my brevity.

[Andrew James Harding (Director, CALS and ASLI)]

Dear All,

I am deeply puzzled and a bit shocked by this suggestion.

There is nothing in constitutional law or any theory of constitutionalism or the rule of law that would justify such a move, and for good reasons. If this provision is 'suspended', on what authority, and who would decide this? When would they decide it was appropriate to 'unsuspend' it? And could they (whoever they are) not also 'suspend' any other constitutional provision found (by whom?) to be inconvenient?

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.

If this provision is subject to a purported suspension that suspension would be unconstitutional unless it is subjected to the procedure for constitutional amendment set out in the constitution.

Once you abandon the rule of law, even if it is the rule of laws you would rather not have, then there is no reason why anybody should obey a statute, or an official acting under the law, or a court order. You are abandoning not a single provision but the entire constitution and the entire principle of the rule of law. You don't need me to spell out how disastrous that would be. What a terrible start it would be 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.

Best, Andrew Harding

---

From: myanm...@googlegroups.com [myanm...@googlegroups.com] on behalf of Nathan Willis [nathan...@scu.edu.au]
Sent: 06 February 2016 09:57
To: myanm...@googlegroups.com; Khin Thandar
Subject: Re: Suspending the Section 59(f) of the Constitution

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[Nathan Willis]

Section 325 of the 2008 Constitution is the relevant provision. I agree with Andrew better to have the CT decide rather than any approach to "suspend". Bringing such matter to the CT would strengthen the rule of law especially if a less formalist decision were to be elicited as I said. Best, Nathan.

[Andrew James Harding (Director, CALS and ASLI)]

Thanks Nathan. If the issue is to be one of interpretation, which is quite different from suspension, then yes it should be decided by the CT to maintain the rule of law. However, I see nothing in 59(f) that indicates any possible favourable interpretation without in effect egregiously ignoring the provision itself. If that were to be done even (or especially) by court of law, it would still be a very serious blow to the rule of law and would indicate that the CT is 100% subject to political manipulation. Other provisions too could be egregiously ignored (see my argument in my earlier email). Perhaps the only way forward is for somebody to prove that DASSK and Michael Aris were never actually married, despite all appearances, and therefore SASSK was never married to a foreigner and her sons are not 'legitimate' in terms of 59(f). Ok this is a reductio ad absurdum I will admit (bringing to mind JB Priestley's comedy, "When We are Married", in which an old couple discovered the priest who 'married' them years ago had been defrocked!), but I hope I have made my point. I would very much like her to be President of Myanmar, but I think if you asked her which she'd prefer - abandon the rule of law and become President, or keep the rule of law and give instructions to the President - there is no doubt which she would choose. Indeed she has already chosen. A

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From: myanm...@googlegroups.com [myanm...@googlegroups.com] on behalf of Nathan Willis [nathan...@scu.edu.au]

Sent: 06 February 2016 17:31
To: myanm...@googlegroups.com; Andrew James Harding (Director, CALS and ASLI)
Subject: RE: Suspending the Section 59(f) of the Constitution

[Janelle Saffin]

The lawyer in me says rule of law at all costs, but in this case it would be a case "cut off your nose to spite your face", and this constitution is decreed by a few generals not desired by the people.  ‎However, it is being used and expanded to incrementally move the disciplined decreed democratic framework to a more free one. 

The politician in me says that the people choose their government and leader.  Article 21 United Nations Declaration on Human Rights, gives expression to this.

So, a cleaner way would be to say we accept the will of the people and allow them to have their chosen President.

Cognitive dissonance

Sent from my iPad

[Andrew James Harding (Director, CALS and ASLI)]

Dear Janelle,
I have never disagreed with anything you have said.
This time however I do beg to differ. As you say this inperfect constitution is moving Myanmar towards a more democratic system. The only way forward on your hypothesis is to dissolve the 2008 Constitution and start afresh. Why then do that if things are edging in the right direction? You cannot selectively suspend constitutional provisions. It doesn't work that way.
Manila 1986 springs to mind. Cory Aquino disavowed the costitutionality of her election and claimed she was proclaimed President by the will of the people. A new constitution followed.
The difference here is that the Philippines military was on her side having abandoned Marcos. If Daw Suu does the same you know the military will not react in the same way. A new Constitution would be no bad thing. But if the process to draft it is based on flagrantly unconstitutional acts then we are in for very rough ride. I feel sure Daw Suu has made the best call on this issue of the presidency. I still maintain, despite your superior knowledge and experience, that suspending 59f would be a disaster, much as I hate this abominable text. Best, Andrew

________________________________________
From: Janelle Saffin [jasa...@nor.com.au]
Sent: 06 February 2016 20:19
To: myanm...@googlegroups.com
Cc: Andrew James Harding (Director, CALS and ASLI)

Subject: Re: Suspending the Section 59(f) of the Constitution

The lawyer in me says rule of law at all costs, but in this case it would be a case "cut off your nose to spite your face", and this constitution is decreed by a few generals not desired by the people. ‎However, it is being used and expanded to incrementally move the disciplined decreed democratic framework to a more free one.

The politician in me says that the people choose their government and leader. Article 21 United Nations Declaration on Human Rights, gives expression to this.
So, a cleaner way would be to say we accept the will of the people and allow them to have their chosen President.

Cognitive dissonance

Sent from my iPad

On 6 Feb 2016, at 8:31 PM, Nathan Willis <nathan...@scu.edu.au<mailto:nathan...@scu.edu.au>> wrote:

Section 325 of the 2008 Constitution is the relevant provision. I agree with Andrew better to have the CT decide rather than any approach to "suspend". Bringing such matter to the CT would strengthen the rule of law especially if a less formalist decision were to be elicited as I said. Best, Nathan.

On 6 February 2016 8:20:06 pm AEDT, "Andrew James Harding (Director, CALS and ASLI)" <law...@nus.edu.sg<mailto:law...@nus.edu.sg>> wrote:
Dear All,

I am deeply puzzled and a bit shocked by this suggestion.
There is nothing in constitutional law or any theory of constitutionalism or the rule of law that would justify such a move, and for good reasons. If this provision is 'suspended', on what authority, and who would decide this? When would they decide it was appropriate to 'unsuspend' it? And could they (whoever they are) not also 'suspend' any other constitutional provision found (by whom?) to be inconvenient?
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.
If this provision is subject to a purported suspension that suspension would be unconstitutional unless it is subjected to the procedure for constitutional amendment set out in the constitution.
Once you abandon the rule of law, even if it is the rule of laws you would rather not have, then there is no reason why anybody should obey a statute, or an official acting under the law, or a court order. You are abandoning not a single provision but the entire constitution and the entire principle of the rule of law. You don't need me to spell out how disastrous that would be. What a terrible start it would be 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.
Best, Andrew Harding

________________________________

From: myanm...@googlegroups.com<mailto:myanm...@googlegroups.com> [myanm...@googlegroups.com<mailto:myanm...@googlegroups.com>] on behalf of Nathan Willis [nathan...@scu.edu.au<mailto:nathan...@scu.edu.au>]

Sent: 06 February 2016 09:57

To: myanm...@googlegroups.com<mailto:myanm...@googlegroups.com>; Khin Thandar

Subject: Re: Suspending the Section 59(f) of the Constitution

A case could be brought to the Constitutional Tribunal. The Constitutional Tribunal could interpret the section as a historical artifact of relevance at the time of drafting and not now. Or something like that. ;-)

Best,
Nathan.

On 6 February 2016 12:55:11 pm AEDT, Khin Thandar <khinmari...@gmail.com<mailto:khinmari...@gmail.com>> wrote:
DearVivek

Thank you for you info. Eventhou its a temporary solution to go around 59 (f) and we want to see it happen
totally from a legal point of view I would be happier to see it abolished totally.

For me ive never heard of a certain constitution section being suspendend in this way
and it could set a terrible precedent of "suspending" other sections of the constitution . Heaven knows what could be suspended next.
Best regards

Khin

On Friday, February 5, 2016, Vivek Kumar <wpmcphee@gmaion being suspendedil.com<http://suspendedil.com>> wrote:
> Hi Myanmar Law Group,
> An exciting week! According to news reports the idea of 'suspending' Section 59(f) is being discussed among legal experts. There doesn't seem to be anything in the Constitution that allows for suspension - but is there anything in the general principles of constitutional law or theory which could form the basis for the suspension (given the huge majority for the NLD)? Has anyone been involved or have any thoughts?
> Cheers,
> Vivek
>
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[Eugene Quah]

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Eugene

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[Vivek Kumar]

Thanks all - a very interesting discussion.

I can see that the NLD, on the basis of their democratic mandate, could
decide to draft and promulgate a new constitution (following a
constitutional assembly, referendum etc) without following the procedures
set out in the 2008 Constitution.  But that's very different to using that
mandate (even with the agreement of the military) to ignore a provision in
a Constitution that you have decided to work within.  So I agree there does
not seem to any way to suspend Section 59(f) without doing severe damage to
the principle of the rule of law and all that would follow.

Best,

Vivek

[Nathan Willis]

A related but different question: is not a Daw Suu Presidency by Proxy constitutionally (and politically) problematic? Best, Nathan.

[Janelle Saffin]

I feel glad to be considering these matters, given the twenty odd years when I and mainly Burmese lawyers tried to get attention to human rights abuses and no rule of law and we had very little interest.   So to be discussing these matters now is a blessing. I observe that all minds are galvanised to overcoming political obstacles and mindful of respect for the rule of law

Sent from my BlackBerry 10 smartphone on the Telstra Mobile network.

From: Nathan Willis Sent: Sunday, 7 February 2016 07:58 To: myanm...@googlegroups.com; Vivek Kumar Reply To: myanm...@googlegroups.com Cc: law...@nus.edu.sg; eug...@gmail.com

[Andrew James Harding (Director, CALS and ASLI)]

A good perspective, Janelle.
Regarding Nathan's question, which is a good one, I would say it is a bit problematic but can be squared with constitutionalism. Normally if the elected leader is dictated to by others not in office one would call that inimical to democracy. In this case the one not in office but dictating to the President has overwhelming public support as evidenced in the election results, and so the anti-democratic argument is hard to sustain. If, however, she were to instruct the making of specific decisions under statute, eg licensing a foreign investment or a mining project, that would be difficult in administrative law terms as it would be a ground for judicial review. If it is just setting or indicating overall policy directions I see no big issue. It just highlights the constitutional problem created by 59f. A
________________________________________
From: myanm...@googlegroups.com [myanm...@googlegroups.com] on behalf of Janelle Saffin [janell...@gmail.com]
Sent: 07 February 2016 05:17
To: Nathan Willis; myanm...@googlegroups.com; Vivek Kumar
Cc: Andrew James Harding (Director, CALS and ASLI); eug...@gmail.com

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[Marcus Brand]

Dear friends of the rule of law in Myanmar, 

It is great to see that this simple mail-group is used for a very important debate. Here's my own take on it. 

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 ASSK out of the presidency. Even though reference is sometimes made to a similar provision of the 1947 Constitution, I don't 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 also give full legitimacy to an ASSK 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 (eg. with regard to the CT Law, more below).

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.  

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 don't 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 (see Prof. Khin Khin Oo's detailed analysis of this issue for details), 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 ASSK and the NLD want to really establish the rule of law and constitutionalism in Myanmar, they should, at the same time as making ASSK president, move to immediately free the Constitutional Court 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 Constitutional Tribunal is allowed to play a role similar to that of the Constitutional Court of South Africa in the 1990s, and if ASSK finds the grandness of Nelson Mandela in respecting it as a balance to presidential power, then I would be comfortable with ASSK having become president by overstepping a constitutional tripwire laid for her by the military junta a decade ago.

Greetings to Myanmar from Kiev.

Marcus   

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[Janelle Saffin]

Dear Marcus,

As usual you speak with elegance and lay out the arguments clearly, blending the entire constitutional framework.

 Yes, the suspension is not necessary and can be ignored. Articke 21 UDHR (I think 3 but not sure) makes it clear that the will of the people re elections is paramount. It is clear what the peoples' will or desire is.  

I have also said, given her children are adults and sadly dear Michael has passed, it is as you say. This is clear.  

And yes, ‎ Madiba did indeed do as you say and one case I use and I am sure you know, was when he issued a Presidential Decree vis-a-vis housing and for good purposes. The Constitutional Court  declared he exercised his Presidential power in issuing this decree, ultra vires. He went on national TV that night and rejoiced in the rule of law in South Africa. I have used it in a paper I gave in 1999 on statehood.  

Now, I take umbrage with one point you made, perhaps explicit or implicit, and it is that ‎the Lady's appeal will be on the wane.  Yes, sadly, in politics it can happen and in general usually does but let us see. 

Sent from my BlackBerry 10 smartphone on the Telstra Mobile network.

From: Marcus Brand Sent: Sunday, 7 February 2016 20:18 To: myanm...@googlegroups.com Reply To: myanm...@googlegroups.com

Subject: Re: Suspending the Section 59(f) of the Constitution

[Nathan Willis]

So perhaps an application to the CT based on reading down s 59 (f) in light of UDHR art Janelle refers to and the transitory role of the 2008 Constitution? Is there another argument? In the end there must be an arbiter of the Constitution or the media will do the job... and yes, make it a real Constitutional Court with top legal minds as Marcus says. Best, Nathan.

[Melissa Crouch]

Given the recent discussions among this group, here are my thoughts on the current debate and why I think recognising Myanmar's history of constitutional amendment is crucial to understanding local debates on this issue

http://www.constitutionnet.org/news/dawn-democratic-era-or-dialogue-dictators-challenges-ahead-myanmars-new-leaders

Dawn of a Democratic Era or Dialogue with Dictators? The Challenges Ahead for Myanmar’s New Leaders www.constitutionnet.org Ever since the National League for Democracy won a significant victory in Myanmar’s November 2015 elections, attention has turned to who will become president for the next five years. This issue has

Melissa 

Dr Melissa Crouch

Lecturer 

UNSW Law

UNSW SYDNEY NSW 2052 AUSTRALIA

E: melissa...@unsw.edu.au

[Nick Booth]

Dear Myanmar Law Group,

I am breaking a long silence as a 'lurker' on  this group,  and I  do  so with much diffidence since, unlike many who have written in this thread I am not a constitutional law expert, and unlike all of you, I am not an expert on Myanmar.  Still, I want to endorse Marcus' appreciation  that this web-group is being used to host such an important debate, with such excellent and civilised and deeply-thought through contributions, and in tribute to those I would like to add my thoughts and concerns into the mix.

Marcus' reference to Maradona's "Hand of God" is apt, and it reminded me of the saying of the great HLA Hart, when he wrote about the great political convulsions which occasionally lead to constitutions - as the ultimate "rule of recognition" - themselves being overtaken and transformed by events mightier than themselves and the rule of law traditions they represent.  "In the end", he memorably wrote, "all that succeeds is success".  And so it will prove here.  It may well be that a decision to suspend or violate (or, as Marcus more tactfully puts it, 'not to apply') section 59(f) could succeed without damaging the incipient rule of law culture which is slowly beginning to take root in Myanmar, and of which the military's apparent acceptance of the election results will itself (I hope) prove to be the greatest tribute to date.

However, we should be clear about what is being sacrificed,  and the risk that is being taken, whenever we allow substance and political reasoning to override legal and constitutional form and order.  Even if we emphasise our approval for the force of that reasoning by using terms like "technically unlawful"  or referring to  "literal interpretation", positivists (wasn't Hans Kelsen one himself?) might remind us that the rule of law is itself a technique, albeit one with the most profound political underpinnings, and one which requires us to think through the implications of our approach to interpretation  with great care.

In particular, we should be wary of using the democratic imperative of the will of the people, or the undemocratic origins of the constitution which appears to thwart that will, as a dispositive argument.  The test of a great constitutional system is its ability to override majoritarian politics.  If the US Constitution - a document written by 55 men and ratified by a set of legislatures elected by franchises which excluded women, slaves and indeed the entire class of landless citizens - commands respect and influence in the world today, it is surely because it has overturned laws which provided for racial segregation, outlawed abortion and same-sex marriage, even though all these laws were democratically adopted by states and often reflected majoritarian political views in those states,  And if Shinzo Abe's decision to expand the role of the Self-Defence Force in Japan is intensely controversial, it's at least partly because of a strongly held attachment in Japan to the values of constitutionalism which have taken hold around a document drafted by an American general in a closed room from which Japanese were entirely excluded.

So, while I suppose many of us keenly share Janelle's cognitive dissonance, and while none of us on this group is likely to feel  that the former military regime has any moral highground in this debate, would there not be a high political risk involved in 'not applying' section 59(f), at a time when that regime appears prepared, unlike 1990, to respect the Constitution and laws which underpin the NLD's electoral victory?  And do we really wish to put the poor beleaguered Constitutional Tribunal in the position  of having to decide whether to strike down  such an action, I feel it might be damned if it did and damned if it didn't - and perhaps either way doing more damage to the longer-term cause of trying to establish its power and respect within a system in which the Constitution and laws can be embedded as Myanmar's ' rule of recognition', rather than the turbulent forces which have buffeted its politics for so long.  

Once again, I write in all modesty in deference to the greater constitutional expertise and understanding of Myanmar among the other members of this group.  So please accept my reaction from the hip in that light.

And once again, thanks to all of you for your contribution to one of the most enriching debates I've read on a web-group in a long while.  Perhaps I'm only  writing because the debate has gone quiet for almost two weeks and I am experiencing withdrawal symptoms.

Best regards to  all of you, and watching these developments with intense interest from Bangkok,

Nick Booth