Democracy on a leash

by Jared Genser

The returns from Myanmar's parliamentary election show there will be an overwhelming victory for longtime democracy leader Aung San Suu Kyi and her National League for Democracy(NLD), enabling them to form the next government.

But the oddest feature of the election is that Suu Kyi herself, who led her party to a landslide victory, cannot become president. This reality is just one visible symptom of the even more difficult struggle that lies ahead. It is very much a critical and open question if the military will feel compelled to cede any ground in light of the new government.

The Myanmar military, or Tatmadow, is surely disappointed that it did not block Suu Kyi from obtaining the 67 percent vote that she needed to control a majority of the parliament. This result is required because under Myanmar's Constitution, 25 percent of the seats in the upper and lower House are appointed by the military. As a result Suu Kyi will control the parliament, which will appoint the new president. Yet the military anticipated and planned for this possibility years ago, including disqualifying constitutionally anyone whose spouse or children had benefited from a foreign nationality from serving as president, a provision designed just for her. Even if she will be "above the president," no meaningful reform to restore a genuine democracy will be possible without the military's support.

To understand the very unusual situation that Suu Kyi will find herself in, one must look back on the country's recent history. As the military realized that its path, including an extraordinary economic reliance on China, was going to be unsustainable, it decided to manage the reform process to secure the soft landing it referred to as "disciplined democracy." But the military never intended for Myanmar to be a Western-style democracy. It wanted the government to have a civilian face but fully preserve its strong prerogatives.

In April 2008, the then-military junta of Myanmar released its long-awaited draft constitution. It was drafted with no input from the National League for Democracy or ethnic political parties. And on May 10, 2008, in the wake of Cyclone Nargis hitting the country, a referendum was held and the military claimed that 98 percent of eligible voters turned out and over 92 percent voted "yes." That constitution set the framework for last Sunday's vote, ensuring that the best any political party could achieve, regardless of its electoral success, would be to enter into a power-sharing arrangement with the military.

In fact, the 2008 constitution was written to ensure that Myanmar's civilian government would be, at best, democracy on a leash.

Under the constitution, the Myanmar military is a fourth branch of government; it sets its own budget independent of the president and parliament; it appoints the defense, home and border affairs ministers; and it has the right to veto decisions of the executive, legislative and judicial branches of the government. In fact, the civilian government has no oversight over the military, which "has the right to independently administer and adjudicate all affairs of the armed forces."

Jared Genser previously served as Aung San Suu Kyi's international counsel during the latter years she was under house arrest (2oo5-2010). He is also a U. S. News contributor.