Democracy leader Daw Aung Suu Kyi’s declaration that she will be ‘above the president’ should her party form government after the 8 November election leads MYINT ZAN to make some external and internal comparisons—and postulate a possible scenario.

In a press conference on 5 November 2015 Burma’s (Myanmar) democracy leader Daw Aung Suu Kyi candidly stated that if her party, the National League for Democracy (NLD) wins the election on 8 November and is able to form the next government, she would be ‘above the president’, who would be a candidate nominated by her party (The 2008 Myanmar Constitution bars her from being president since she has two sons who are British nationals).

Candidness can be good for some people on occasions but may not necessarily be a positive attribute in politicians. Is it tactically or strategically advisable to announce in advance what you would do before the proverbial chickens are hatched or the votes are counted and the result announced. Aung San Suu Kyi herself stated at the press conference that there are many irregularities in the voting process.

Though it may seem far-fetched, one is reminded of the late U Kyi Maung—one of the ‘elders’ of the NLD—who made an incautious statement in an interview with the now defunct magazine Asia Week in June 1990 that persons like (now former General) Khin Nyunt might have something to be concerned about if the NLD were to come into power. That statement was made a few weeks after the NLD’s landslide win and in response to a query whether the NLD has any plans to establish Nuremberg-style tribunals for the then military junta’s ‘excesses’.

The rest is history. U Kyi Maung was arrested on trumped-up charges and spent time in prison from 1990 to 1995. The target of his comments, Brigadier-General Khin Nyunt himself, spent more than seven years in detention. But even before Khin Nyunt’s arrest in August 2004, U Kyi Maung had died.

The year 2015 is not 1990—a statement made by Aung San Suu Kyi herself to the query, what if, like in 1990, the election results were ignored? Although the nature and contexts of the comments made by U Kyi Maung and Aung San Suu Kyi are different, there is at least a slightly more than superficial similarity in that they have both said what they would or might do before they formally assume power and, at least in U Kyi Maung’s case, it might have contributed to his—and at that time—the NLD’s regress from power.

Are there any other countries where either, constitutionally or formally, a person or an institution is above the president?

In February 1979, after the overthrow of the Shah of Iran, Ayatollah Khoemini was never formally the president. But, formally and factually, he was above the presidents. When Khoemini died in June 1989, his son Khameini became the new ayatollah, Khameini was above the president when he succeeded to his father’s position—and subsequent presidents. And it may be that the Constitution of the Islamic Republic of Iran actually describes the position of the, so-far, two ayatollahs as being above the president—though perhaps not with those exact words. As rightly pointed out by Aung San Suu Kyi, the 2008 Myanmar Constitution did not provide for such an arrangement—though she put it in a different way—it did not or seem not to prohibit such an arrangement.

In another, somewhat different arrangement, the previous Fijian constitutions—or a least arrangements—allowed the Great Council of Chiefs to appoint and, in exceptional cases, dismiss the president. So, in one sense, in the previous Fijian constitutions the Great Council of Chiefs was above the president.

In Burma, under the 1974 constitution, there was nothing specific to formally state that the sole and ruling Burma Socialist Programme Party (BSPP) chairman was above the president. When Ne Win—the former President of the Socialist Republic of the Union of Burma and Chairman of the Burma Socialist Programme Party, from 4 March 1974 to 9 November 1981—’retired’ from the presidency, he was above the president, even formally. In all the government-controlled newspapers Ne Win’s name was mentioned first when he attended state dinners hosted by President San Yu, and the chair in which he sat, even when he attended the Legislature not as president but as party chairman after he retired from the presidency, was higher than the president’s.

That was of course in the past. But for Myanmar’s future, let’s suppose the NLD wins the plurality of the votes in the election and, perhaps with the help or cooption of the ethnic political parties, is able to form government. And, if Daw Aung San Suu Kyi is formally above the president—in whatever mode currently not specifically envisaged—is it possible that the ‘opposition’, the now ruling Union Solidarity Development Party, would challenge before the Union Constitutional Tribunal that this arrangement is unconstitutional? Under the 2008 Myanmar Constitution, only 10 per cent of the Legislative members of either house are needed to seek a ruling from the tribunal on whether certain acts of government are constitutional.

This scenario, however, assumes—in the words of former US Defence Secretary Donald Rumsfeld—a fair amount of ‘known knowns’, ‘known unknowns’ as well as ‘unknown knowns’ and ‘unknown unknowns’.

Myint Zan is a professor in the Faculty of Law, at Multimedia University, Malaysia.

Photo:
Although Myanmar’s constitution bars her from being president, Daw Aung Suu Kyi stated she would be ‘above the president’ if her party can form government after the elections on 8 November (Shawn Landersz, Flickr).