Anti-Democratic Constitutional Landmarks

*This post was first published on the International Association of Constitutional Law blog

The idea of constitutional landmarks contains a set of basic presumptions. It presumes that courts are important and that they receive cases. It presumes that constitutional landmarks are based upon a liberal democratic conception of law. It presumes that courts offer reasons for their decisions. And it presumes that cases heard by the courts have meaning and legitimacy. This is the case in many countries around the world. But what about many other jurisdictions where these assumptions do not hold? There may be no court with the power of constitutional review. Or there may be a court, but it lacks legitimacy or power, or simply hears few if any cases.

In this post I focus on Myanmar as an example of a country in the Global South that has a Constitutional Tribunal, now approaching ten years old. Depending on how you count the cases, there have been less than twenty cases in total. In some years, the Constitutional Tribunal has not received a single case. Can we even speak of landmark constitutional cases in this context? From one perspective, no. In my book, The Constitution of Myanmar, I have argued that it is in the legislature rather than the Constitutional Tribunal where significant debate and decisions over the meaning of the Constitution takes place. However, for the purpose of this post, I will focus on the Citizenship Case decided by the Constitutional Tribunal in 2015 as an example of an anti-democratic constitutional landmark. I suggest that anti-democratic constitutional landmarks are decisions by constitutional courts that have a negative impact on democracy and reduce the scope for democratic participation. Anti-democratic constitutional landmarks compromise the quality of democracy, affecting elections, public participation and the protection of rights.

The Constitutional Tribunal was established in 2011 in the inaugural year of Myanmar’s political transition from direct military rule. This transition was enabled and facilitated by the 2008 Constitution. The Constitution was the product of pre-emptive constitution-making, that is, constitution-making was used to prevent a transition to constitutional democracy and to entrench the role of the military in governance. The Constitutional Tribunal is the first separate judicial institution in Myanmar to have the power of constitutional review. Although the country self-identifies as a common law legal system, or at least has a common law history, it has a Constitutional Tribunal based on a civil law model. The Constitutional Tribunal co-exists uneasily with the Supreme Court; the latter judicial institution hears constitutional writs cases, a revival of a past legal practice.

The structural design of the Constitutional Tribunal and narrow standing rules means that it is an elite institution. Only select elite actors from the executive, legislative and judicial branches have access to the Tribunal, such as the President, the Chief Justice of the Supreme Court, Speakers of the legislature and the Union Election Commission. Individuals or civil society cannot bring cases. As a result, the Constitutional Tribunal primarily facilitates constitutional dialogue between and among the military and democratically elected representatives.

The anti-democratic question at the heart of the 2015 Citizenship Case was whether the Constitutional Amendment Referendum Law had gone beyond the legal scope of the constitutional right to vote by including temporary registration card holders (then known as white card holders) among those who could vote in a constitutional referendum. Rather than seeking the protection of a constitutional right, the case was about excluding a certain group of people (the Rohingya) from the opportunity to have this right.

The year this case was heard was notable for two reasons. It was the year of the culmination of the first major effort to amend the Constitution. And it was the first time the National League for Democracy (NLD ), the pro-democratic political party of Aung San Suu Kyi, was running for government, after it had refused to participate in the 2010 elections.

The Union Parliament was preparing for the possibility of a constitutional referendum by passing a law regulating who can vote in a referendum and how it will be held. The key debate was whether temporary registration card holders should be allowed to vote.

An application for constitutional review was brought to the Constitutional Tribunal by a member of the Amyotha Hluttaw (upper house), the then chairperson of the Arakan National Party known for his anti-Rohingya views, together with other members of the Amyotha Hluttaw. They argued that the Constitutional Amendment Referendum Law was inconsistent with the Constitution because it would permit temporary registration card holders to vote in a referendum. The applicants sought clarification of the constitutional provisions on the right to vote and to be elected, and the process and eligibility of a citizen to vote (Constitution, ss 38(a), 369, 391(a)).

The applicants argued that sovereign power resides in citizens (Constitution, s 4) and therefore only citizens should have the right to vote in a referendum on constitutional amendment. They emphasised that under the Burma Citizenship Act 1982, both associated and naturalised citizens must swear an oath of loyalty to the state, but in contrast temporary card holders are not required to swear an oath. They implied that temporary card holders could not be trusted to be loyal to the state and therefore should not be allowed to vote in a constitutional referendum.

The Constitution does contain a list of categories of people who have no right to vote, such as members of a religious order (eg monks; Constitution, s 392). However, temporary card holders are not listed here, which could have been read to imply that white card holders can vote, but the Tribunal did not come to this conclusion.

In effect, the applicants were seeking to restrict the constitutional right to vote and to be elected to citizens in order to deny temporary registration card holders from enjoying this right. This case came after serious violence against the Rohingya in Rakhine State in 2012 and the spreading of violence that targeted other Muslim communities across Myanmar.

The applicants were successful in this case. The Constitutional Tribunal held that the provision of the Constitutional Amendment Referendum Law allowing white card holders the right to vote was unconstitutional because it was inconsistent with sections 38(a) and 391 of the Constitution. The decision of the Constitutional Tribunal supported the broader ethno-nationalist agenda of exclusion of groups not perceived to be official ‘national races’ (the term used by the government in Myanmar).

While no constitutional referendum was held that year, this decision was a part of wider efforts by the Union Election Commission and the Union Parliament at the time to disenfranchise over one million people, most of whom are Rohingya. The 2015 election was the first time that white card holders were officially denied the right to vote in an election and denied the right to run for political office. The Constitutional Tribunal’s decision is an example of the use of law to exclude the Rohingya, or what I have referred to as the legal denial of the Rohingya.

The 2015 Citizenship Case, while not the sole cause of the disenfranchisement of the Rohingya, has had a negative impact on democracy and reduced the scope for democratic participation in Myanmar. Since then, from 2016-2017, we have seen horrific violence and a mass exodus of Rohingya to Bangladesh. In the 2020 elections, those with temporary identity cards were again not able to vote and Muslims who tried to run for public office had their identity scrutinised.

It is not surprising to see the emergence of anti-democratic constitutional landmarks in Myanmar. The Constitutional Tribunal was created as part of an effort at pre-emptive constitution-making and is part of a system designed by the military to limit the nature and scope of democracy.

This case shows that anti-democratic constitutional landmarks have several functions. The ability to bring a case that has an anti-democratic objective to a constitutional court gives airtime and publicity to this agenda. A constitutional court may therefore become a forum for the public hearing of anti-democratic ideas. The issuing of a decision that endorses an anti-democratic petition gives legitimation and credibility to this agenda. Anti-democratic constitutional landmarks can have a long-lasting impact on the health of elections, public participation and the protection of rights.

More broadly, acknowledging and studying anti-democratic constitutional landmarks illuminates some of the unspoken assumptions about the very idea of constitutional landmarks in comparative constitutional law. Going beyond assumptions that constitutional landmarks are democratic or liberal is important to further our understanding of the role and function of courts in authoritarian regimes.

Suggested citation: Melissa Crouch, ‘Anti-Democratic Constitutional Landmarks: Myanmar’s Constitutional Tribunal and the Right to Vote’ IACL-AIDC Blog (8 December 2020)