Myanmar’s new President, Htin Kyaw, was sworn in at the end of last month, a milestone in the country’s gradual transition period. This is the first transfer of power under the current regime, coming after elections handed the opposition National League for Democracy (NLD) majorities in both houses of parliament in November of last year.
Of course, it remains to be seen how successful this changeover will be, and how far democratisation will go. Under the current Constitution, written by the Junta, the military retains a great deal of power, retaining responsibility for appointing a number of ministers (home, defence, border affairs) as well as one-quarter of each house of parliament as well as in the regional assemblies. As a result of the military-backed USD Party’s poor showing in November, this means the military appointees currently form Parliament’s biggest opposition group.
In the media, however, a different restriction on the NLD’s ambitions seems to have gained somewhat more publicity: the strict requirement that the President not only must be a natural-born citizen, but must have no direct relatives with foreign nationalities either. This provision has widely been seen as specifically targeting Aung San Suu Kyi, the longstanding leader of the NLD, whose two sons have UK citizenship, legally preventing her from becoming President. This has often been portrayed as a big obstacle to Kyi’s assumption of the country’s leadership, and Kyi herself gave a similar impression by seeking, for a while, to change the country’s constitution so that she would be allowed to become president – something the military were always going to veto, and even launch a coup if the NLD simply ignored the constitution.
However, there is one very significant detail here: Myanmar’s President, though very much the country’s chief executive and in possession of ample constitutional power, is not elected directly. Instead, the President is elected by a joint sitting of both houses of the Pyidaungsu Hluttaw (parliament). The President then serves a fixed five-year term, without being removable by Parliament other than by an impeachment process requiring supermajorities for removal. This makes this a case of assembly-independent, a system whereby the (chief) executive is elected by the legislature but not subsequently responsible to it.
This makes another option – nominating a loyal ally to the presidency instead as a proxy and leading the government from the cabinet – much more feasible than if the President were elected directly, as is far more common in newly-democratised countries and, indeed, in the world: assembly-independent is very rare these days. Such a President would not only be apt to claim a democratic mandate to himself, but his selection as candidate might also be more dictated by questions of electability than by the question of future loyalty to the party (i.e. presidentialisation).
With NLD holding a majority in parliament, it can select someone to the presidency with an eye towards their functioning in the office itself, i.e. with an eye towards loyalty towards the party in the future. Htin Kyaw, the party’s ultimate nominee, fits the bill, being known as “a party loyalist with strong personal ties to Suu Kyi”. The setup still presents a (principal-agent) problem, to be sure, but probably a lesser one than under presidentialism, which might have seriously complicated things for the party.
After the presidential inauguration, Htin Kyaw appointed his ministers, with Suu Kyi as Foreign Affairs and President’s Office minister. There is officially no ‘prime minister’, but Kyaw also made Suu Kyi ‘State Counsellor’ after the NLD passed an act creating that position as the President’s chief advisor – ignoring protests from the military. The position is a ministerial one, so is only responsible to the President. But could that change at some point in the future through a gradual process establishing responsibility to parliament? As I mentioned, assembly-independent regimes have not been too common over the years, especially in recent times – so I don’t know what kind of precedents there are. But a common speculation (it even appears in this blog’s mission statement) is that had the Philadelphia Convention endowed the US with a presidency elected by Congress, the US government could have become parliamentary through the same evolution that established cabinet responsibility in the UK.
Could this happen in Myanmar? Unless the NLD persists – and succeeds – in demanding a repeal of the provisions excluding Suu Kyi from the presidency, it seems likely the current setup, with Suu Kyi effectively leading the government as State Counsellor, will continue until she retires. If, in the coming years, there is no major conflict with the President, I think it likely that she will find this works well enough. The longer this goes on, the more a convention will develop putting the State Counsellor at the centre of power instead of the President – this, I would think, is the first step. Whether the process will then continue probably depends more on Suu Kyi’s successor.
In any case, Myanmar should certainly be interesting to watch in the coming years.
 By plurality from three nominations: one by each house’s elected members and one made by the military’s representatives.
 Either detail would disqualify this as parliamentarism, but the supermajority requirement does so more definitively.