The bizarre prosecution and conviction of opposition leader and Nobel Peace laureate Aung San Suu Kyi for violating her house arrest has returned attention to repression in Myanmar, as preparations were underway for the first national elections in twenty years, now scheduled for 2010. This further undermined what little credibility the exercise may have had, especially when based on a constitution that institutionalises the military’s political role. The UN Secretary-General’s July visit, which produced no tangible results, added to the gloom. But while the elections will not be free and fair – a number of prominent regime opponents have been arrested and sentenced to prison terms over the last year – the constitution and elections together will fundamentally change the political landscape in a way the government may not be able to control. Senior Generals Than Shwe and Maung Aye may soon step down or move to ceremonial roles, making way for a younger military generation. All stakeholders should be alert to opportunities that may arise to push the new government toward reform and reconciliation.

At first glance, the obstacles to change seem over­whelming. The 2008 constitution entrenches military power by reserving substantial blocs of seats in the national and local legislatures for the army, creating a strong new national defence and security council and vesting extraordinary powers in the commander-in-chief. It prevents Aung San Suu Kyi from standing for president, even if she were not imprisoned. It is extremely difficult to amend. And while not all regulations relating to the administration of the elections have been an­nounced, they are unlikely to offer much room for manoevre to opposition parties.

But the elections are significant because the controversial constitution on which they are based involves a complete reconfiguration of the political structure – establishing a presidential system of government with a bicameral legislature as well as fourteen regional governments and assemblies – the most wide-ranging shake-up in a generation. The change will not inevitably be for the better, but it offers an opportunity to influence the future direction of the country. Ultimately, even assuming that the intention of the regime is to consolidate military rule rather than begin a transition away from it, such processes often lead in unexpected directions.

This report looks at the elections in the context of Myan­mar’s constitutional history. It examines key provisions of the 2008 constitution and shows how many of the controversial articles were simply taken from its 1947 or 1974 predecessors. Noteworthy new provisions include strict requirements on presidential candidates, the establishment of state/regional legislatures and governments, the reservation of legislative seats for the military, military control of key security ministries, the authority granted to the military to administer its own affairs (in particular military justice) and the creation of a constitutional tribunal.

Criticism of the constitution from groups within Myan­mar has focused on military control, ethnic autonomy, qualifications for political office, and the very difficult amendment procedures. The main reaction of the populace to it and the forthcoming elections is indifference, rooted in a belief that nothing much will change. Some of the so-called ceasefire groups – ethnic minorities that have ended their conflicts with the government – are endorsing ethnic political parties that will take part in the polls. These groups take a negative view of the constitution but feel that there may be some limited opening of political space, particularly at the regional level, and that they should position themselves to take advantage of this. There are increased tensions, however, as the regime is pushing these groups to transform into border guard forces partially under the command of the national army.

The National League for Democracy (NLD), winner of the 1990 elections, has said it will only take part if the constitution is changed, and it is given the freedom to organise. Assuming this will not happen, it is not yet clear if it will call for a complete boycott in an attempt to deny the elections legitimacy or urge its supporters to vote for other candidates. A boycott could play into the hands of the military government, since it would not prevent the election from going ahead and would mainly deprive non-government candidates of votes, potentially narrowing the range of voices in future legislatures. 

The Myanmar authorities must make the electoral process more credible. Aung San Suu Kyi and all other political prisoners must be released now and allowed to participate fully in the electoral process; politically-motivated arrests must cease. It also critical that key electoral legislation be promulgated as soon as possible, in a way that allows parties to register without undue restriction, gives space for canvassing activities and ensures transparent counting of votes.

The international community, including Myanmar’s ASEAN neighbours, must continue to press for these measures while looking for opportunities that the elections may bring. This will require a pragmatic and nuanced strategy towards the new government at the very time, following a deeply flawed electoral process, when pressure will be greatest for a tough stance. The new Myanmar government, whatever its policies, will not be capable of reversing overnight a culture of impunity and decades of abuses and political restrictions. But following the elections, the international community must be ready to respond to any incremental positive steps in a calibrated and timely fashion. To have any hope of inducing a reform course, it is critical to find ways to communicate unambiguously that a renormalisation of external relations is possible.

Yangon/Brussels, 20 August 2009