Myanmar’s 2012 By-Elections: The Return of NLD

Introduction: The Constitutional Roots of Myanmar’s By-Elections

If not for the unique features of Myanmar’s 2008 Constitution there would not have been any by-election of the sort that engrossed Myanmar’s polity and much of the West as well as Asia in April 2012.

Myanmar’s third constitution in six decades is controversial as it has been seen by the military’s detractors and the advocates of liberal democracy as codifying military control over the political process and extending its dominance over state and society.¹ Nevertheless, it was overwhelmingly endorsed at the national referendum in May 2008 despite a “vote no” campaign by its opponents.² Having secured 92.5 per cent of the votes (98.1 per cent turnout), the Constitution of the Republic of the Union of Myanmar popularly known as the 2008 Constitution was promulgated by the ruling State Peace and Development Council (SPDC) on 29 May 2008, paving the way for the multi-party general elections under the supervision of the SPDC-appointed Union Election Commission (UEC).

However, in this Constitution, it is stipulated in article 232(i), that “if the Union Minister is a representative of a Hluttaw (i.e. MP or member of parliament), it shall be deemed that he has resigned from the day he is appointed as a Union Minister”.³ The same stipulation applies to the person appointed as deputy minister and as attorney-general according to article 234(f) and 237(f) respectively.⁴ In the case of the chairman and the member of the Election Commission the Constitution’s article 398(b)(8) states that the appointee “shall not be a Hluttaw representative”.⁵

The general elections held on 7 November 2010 brought into power a civilian government formed by President U Thein Sein who was the chairman of the Union Solidarity and Development Party (USDP) which captured nearly 79 per cent of the Lower House (Pyithu Hluttaw) constituencies and some 77 per cent of the Upper House (Amyotha Hluttaw) seats. It also won around 75 per cent of the contested seats in the fourteen provincial assemblies (Region and State Hluttaw).⁶ On the other hand, the National League for Democracy (NLD), which refused to recognize the Constitution and which had convincingly won the May 1990 general election was absent as it refused to re-register as a political party under the revised election laws and by-laws that were seen as too restrictive and discriminatory to be acceptable.⁷ As such, the party became defunct and lost its status as a legal entity under the prevailing election rules. Nevertheless, the NLD continued to operate in a business-as-usual manner albeit under a constant threat of being declared an unlawful organization. Meanwhile, the party leader Nobel Peace Laureate Daw Aung San Suu Kyi who was released from seven years of house arrest on 13 November expressed her intention to continue her struggle for democracy by saying that “there are always some who participate in politics inside Parliament, and others who are involved in politics outside Parliament. We will be in the latter category. Since we have some experience with how they [the USDP] engage in political activities, we will use various means to carry out our political activities outside the Parliament.”⁸

Subsequently, President U Thein Sein, who was the former Secretary-1 of the SPDC and the incumbent prime minister prior to the elections, formed the Union executive with personnel drawn mainly from the USDP members of parliament (MP). As such, the seats of those MPs who were appointed, on 30 March 2011, to the Union Government (the President, two Vice-Presidents, Ministers, and the Attorney-General) and as deputy ministers as well as members of the reconstituted election commission became vacant in conformity with the provisions of the Constitution.

The Return of NLD to Mainstream Politics

President U Thein Sein’s government, whose legitimacy was questioned by the exiled opposition groups and many Western politicians, quickly initiated political and economic reforms that surprised its detractors and supporters alike. In a significant move towards political...