Much talk, lit­tle head­way on char­ter change

While in the US, the state con­sel­lor in­sisted the 2008 con­sti­tu­tion en­sures the coun­try re­mains demo­crat­i­cally de­fi­cient, but at home she paints a more con­cil­ia­tory pic­ture.

The Myanmar Times - - Front Page - EI EI TOE LWIN eieitoel­win@mm­times.com

DUR­ING her re­cent trip to the United States, Myan­mar’s de facto leader Daw Aung San Suu Kyi high­lighted the im­por­tance of amend­ing the 2008 con­sti­tu­tion, call­ing it a bar­rier to build­ing “a truly demo­cratic coun­try”. Her rhetoric abroad, how­ever, has yet to be matched by con­crete ac­tion at home since her gov­ern­ment took power in late March.

The Na­tional League for Democ­racy, led by Daw Aung San Suu Kyi, won a large ma­jor­ity in last year’s his­toric elec­tion, but she was un­able to be­come pres­i­dent her­self un­der the mil­i­tary-drafted char­ter. Ever re­source­ful, the No­bel lau­re­ate would not be de­nied the chance to lead the coun­try, and set about cre­at­ing a new po­si­tion for her in gov­ern­ment, “state coun­sel­lor”, that her party then wrote into law and rammed through par­lia­ment in early April, de­spite mil­i­tary MPs’ stren­u­ous ob­jec­tions.

One week ear­lier, Daw Aung San Suu Kyi’s proxy pres­i­dent, U Htin Kyaw, had de­liv­ered a speech to par­lia­ment in which con­sti­tu­tional change was stated as one of the pri­mary goals of his ad­min­is­tra­tion. No one in the cham­ber, or any­where in Myan­mar, re­ally had any doubt that his words were in fact hers.

Nearly six months later, how­ever, in prac­tice the state coun­sel­lor re­mains wedged be­tween a mil­i­tary un­will­ing to re­lin­quish power and the sky-high ex­pec­ta­tions of her sup­port­ers. Her ad­min­is­tra­tion and the NLD­dom­i­nated par­lia­ment have slowly em­barked on re­forms to the struc­ture of gov­ern­ment and Myan­mar’s le­gal frame­work, but if a grand bar­gain on con­sti­tu­tional re­form has been struck be­tween her and the Tat­madaw, so far mum’s been the word be­yond the halls of power.

When Daw Aung San Suu Kyi de­liv­ered an ad­dress last week at the Asia So­ci­ety in New York on her coun­try’s po­lit­i­cal changes, she in­sisted that Myan­mar was still demo­crat­i­cally de­fi­cient, with her gov­ern­ment forced to share power with the mil­i­tary and un­able to yet undo the con­sti­tu­tion­ally en­shrined role in pol­i­tics that the Tat­madaw re­tains.

Ex­plain­ing to an au­di­ence of Amer­i­cans, many prob­a­bly per­plexed by the con­cept, that 25 per­cent of all leg­is­la­tures’ seats are ap­pointed by mil­i­tary Com­man­der-in-Chief Se­nior Gen­eral Min Aung Hlaing, she put con­sti­tu­tional re­form at the cen­tre of a more demo­cratic fu­ture for Myan­mar.

“To amend the vi­tal parts of the con­sti­tu­tion, which would make it a truly demo­cratic coun­try, we need to have more than 75pc of the agree­ment of the mem­bers of the leg­is­la­ture … That means even if all elected rep­re­sen­ta­tives from var­i­ous par­ties agreed on an im­por­tant amend­ment, at least one brave sol­dier would have to stand with them and say, ‘I agreed that it should be amended,’” Daw Aung San Suu Kyi said.

“I’m sure soldiers are very brave on the bat­tle­field, but when it comes to the leg­is­la­ture they vote as they are or­dered to vote,” she added.

The NLD has in the past at­tempted to har­ness pub­lic sup­port to force through con­sti­tu­tional amend­ments. In 2014, the party launched a pe­ti­tion call­ing for changes to sec­tion 436, which gives the mil­i­tary a veto over con­sti­tu­tional change.

More than 5 mil­lion sig­na­tures were sub­se­quently gath­ered and sub­mit­ted to par­lia­ment. Mil­i­tary MPs were un­moved.

Last year, the NLD also pro­posed changes through a con­sti­tu­tional amend­ment com­mit­tee set up by for­mer par­lia­men­tary Speaker Thura U Shwe Mann. Two amend­ment bills later put for­ward were both blocked by the mil­i­tary.

New era, stub­born pol­i­tics

De­spite the NLD se­cur­ing nearly 80pc of elected seats in the Union leg­is­la­ture last year, there has been no re­newed push for con­sti­tu­tional change.

In fact, the party’s com­mit­ment to amend the char­ter has, if any­thing, been called into ques­tion since the Novem­ber vote: It faced strong crit­i­cism dur­ing the tran­si­tion pe­riod from eth­nic par­ties that ar­gued the NLD was us­ing the same pro­vi­sions of the con­sti­tu­tion that it had re­peat­edly de­scribed as un­demo­cratic to deny state and re­gional leg­is­la­tures the op­por­tu­nity to ap­point their own chief min­is­ter.

This is a right af­forded to the pres­i­dent in the char­ter, but eth­nic par­ties ar­gued that the NLD should de­volve this priv­i­lege to the state and re­gion level, where in two leg­is­la­tures the rul­ing party had failed to win a ma­jor­ity.

Al­though the NLD’s dis­taste for sec­tions 436 and 59(f) – the lat­ter clause bar­ring Daw Aung San Suu Kyi from the pres­i­dency – is well-doc­u­mented, less is known about the party’s vi­sion for other as­pects of the con­sti­tu­tion that are more cen­tral to eth­nic mi­nori­ties’ agenda, such as de­cen­tral­i­sa­tion of power and re­source-shar­ing ar­range­ments.

What most can agree on is that Daw Aung San Suu Kyi faces a daunt­ing con­sti­tu­tional co­nun­drum that could taint her legacy as a bea­con of Myan­mar’s pro-democ­racy strug­gle.

“Dur­ing the US trip, Daw Aung San Suu Kyi told of her ef­forts in the coun­try’s democrati­sa­tion, but it can­not be said that we are on the path to­ward a truly demo­cratic coun­try un­less the con­sti­tu­tion is changed,” said po­lit­i­cal an­a­lyst U Yan Myo Thein.

“Ef­fec­tive changes on ev­ery is­sue – like the peace process, econ­omy and rule of law – can­not be re­alised with the cur­rent con­sti­tu­tion, which is the main ob­sta­cle to be re­moved first. But the NLD gov­ern­ment is busy with other things,” he added.

While the NLD ap­pears to be putting char­ter change on the back­burner for now, po­lit­i­cal an­a­lysts point to three pos­si­ble paths to re­form: to com­pro­mise with the mil­i­tary and set a time­line for con­sti­tu­tional amend­ments; to find com­mon ground through the na­tion­wide po­lit­i­cal di­a­logue – a cru­cial up­com­ing phase in the na­tion’s peace process; or to pro­pose, in par­lia­ment, hold­ing a na­tional ref­er­en­dum on draft­ing a new con­sti­tu­tion.

Many are scep­ti­cal that the first op­tion would pro­duce any other re­sult than turn­ing over the terms of the de­bate to the Tat­madaw en­tirely, given that Snr Gen Min Aung Hlaing is of­ten quoted as say­ing the con­sti­tu­tion will be amended at “an ap­pro­pri­ate time”, and only in ac­cor­dance with sec­tion 436. That, go­ing back to Daw Aung San Suu Kyi’s speech in New York, will re­quire at least “one brave sol­dier”.

While the un­like­li­hood of a timely out­come may be­devil op­tion one, the sec­ond strat­egy is ar­guably no bet­ter: If the gov­ern­ment’s ini­tial grand foray into the peace process – the 21stcen­tury Pan­g­long Con­fer­ence – was marred by con­tention over in­clu­siv­ity and even what cour­tesy ti­tles should go on name cards, prospects look dim for speedy agree­ment on thorny is­sues like power dis­tri­bu­tion and al­lo­ca­tion of the coun­try’s re­source wealth.

“From my per­son­nel point of view, the best way to over­come the con­sti­tu­tional bar­rier is sub­mit­ting a pro­posal in the Union par­lia­ment to hold a ref­er­en­dum. In ac­cor­dance with par­lia­men­tary law, the pro­posal can be passed with a ma­jor­ity vote and does not re­quire over 75pc agree­ment to ap­prove it,” said U Yan Myo Thein.

But among NLD law­mak­ers, there ap­pears to be lit­tle ap­petite for such a ma­noeu­vre in the near term.

“We [NLD] don’t need to give time to pre­pare or to dis­cuss con­sti­tu­tional changes be­cause we al­ready pro­posed to [the pre­vi­ous] par­lia­ment 168 points [in the char­ter re­quir­ing amend­ment] and pub­licly an­nounced these points,” said U Tun Tun Hein, an NLD par­lia­men­tar­ian rep­re­sent­ing Nawng­cho town­ship who is also chair of the lower house Bill Com­mit­tee.

He added that al­though those 168 points were in the NLD’s crosshairs, the party would need to take into ac­count the in­put of other po­lit­i­cal stake­hold­ers in ac­cor­dance with its pledge to ful­fill the de­sires of the peo­ple. His re­marks would seem to in­di­cate that the NLD is look­ing to op­tion two as its best bet for con­sti­tu­tional re­form.

“Cur­rently, peace is the most im­por­tant is­sue. All have the right to dis­cuss their point of view at the po­lit­i­cal di­a­logue,” U Tun Tun Hein said.

All quiet on the MP front

The par­lia­men­tary Com­mis­sion for the As­sess­ment of Le­gal Af­fairs and Spe­cial Cases, led by Thura U Shwe Mann, has the right to pro­pose changes to both leg­is­la­tion and the con­sti­tu­tion, but its mem­bers told The Myan­mar Times that con­sti­tu­tional re­form has not been dis­cussed since the new par­lia­ment was sworn in.

“We have re­viewed many laws but not con­sti­tu­tional changes,” said U Ko Ko Naing, deputy chair of the com­mis­sion.

U Ko Ko Naing said al­though no in­struc­tion to re­view the char­ter has been is­sued by the NLD-led par­lia­ment, such an or­der was likely to come sooner or later “be­cause Pres­i­dent U Htin Kyaw promised in his first speech to change the con­sti­tu­tion”.

“The NLD has a duty to fol­low through,” added U Ko Ko Naing, a lower house MP from the Union Sol­i­dar­ity and De­vel­op­ment Party.

“But right now the NLD has to fo­cus on mak­ing a strong cab­i­net in­stead of chang­ing the con­sti­tu­tion,” he said.

But given the party’s will­ing­ness to use its size­able ma­jor­ity in the Union par­lia­ment to make leg­isla­tive changes de­spite ob­jec­tions from the USDP and mil­i­tary ap­pointees, op­po­nents of the cur­rent char­ter might won­der why NLD law­mak­ers have not made a sim­i­lar bid on con­sti­tu­tional re­form a cen­tral plank of its elec­tion cam­paign.

Ac­cord­ing to an­other po­lit­i­cal an­a­lyst, U Than Soe Naing, the party’s mantra of “na­tional rec­on­cil­i­a­tion” and a de­sire to build trust with the still-pow­er­ful mil­i­tary are the main rea­sons for the NLD hes­i­tancy.

Sources said Daw Aung San Suu Kyi is con­cerned about re­la­tions with the mil­i­tary and does not want to es­tab­lish an overly con­fronta­tional dy­namic early in her ad­min­is­tra­tion’s term.

There have al­ready been some dus­tups: Mil­i­tary MPs ac­cused the NLD of “demo­crat­i­cally bul­ly­ing” when par­lia­ment ap­proved the State Coun­sel­lor Law; they ar­gued that the party was ma­nip­u­lat­ing the con­sti­tu­tion when the NLD used its pro­vi­sions to ar­gue for a bill against un­war­ranted state sur­veil­lance ear­lier this month; and a suc­cess­ful but con­tentious de­ci­sion to re­move a guest reg­is­tra­tion clause from the Ward and Vil­lage Tract Ad­min­is­tra­tion Law again put the two sides at odds.

What­ever the po­lit­i­cal re­al­i­ties hold­ing the state coun­sel­lor back at home, be­yond her coun­try’s bor­ders she felt no re­luc­tance pro­fess­ing a com­mit­ment to change the char­ter.

“Mil­i­tary com­man­ders should have no role to play in the civil­ian gov­er­nance of a demo­cratic coun­try. And what we want is a truly demo­cratic coun­try,” Daw Aung San Suu Kyi said in her speech at the Asia So­ci­ety.

But when asked to pre­dict when leg­is­la­tures might be en­tirely elected, paving the way for a con­sti­tu­tional over­haul, the state coun­sel­lor avoided spec­u­la­tion, say­ing that she – un­like many in Myan­mar – does not be­lieve in as­trol­ogy.

“I can’t say this is go­ing to hap­pen in five years or 10 years. Nei­ther can he [Snr Gen Min Aung Hlaing], I don’t think. In the end, it will be up to the peo­ple,” she said.

She added, “We have to con­vince the peo­ple of the need for change. And by the peo­ple, I mean mem­bers of the mil­i­tary as well, be­cause they are part of our coun­try. They are also our ci­ti­zens. And we want to make them un­der­stand, we want to con­vince them that this change is nec­es­sary for the whole coun­try, in­clud­ing mem­bers of the mil­i­tary. A pro­fes­sional army that is loved and re­spected by the peo­ple is worth far, far more than an army that has po­lit­i­cal pow­ers not in line with the as­pi­ra­tions of the peo­ple.”

In mul­ti­ple in­stances since tak­ing power, Daw Aung San Suu Kyi has struck a pos­i­tive tone when asked about the pace of Myan­mar’s democrati­sa­tion and her gov­ern­ment’s abil­ity to see that process through to com­ple­tion. Oth­ers are less san­guine. “I have no hope to make ef­fec­tive changes to the con­sti­tu­tion un­til 2020. We had ex­pe­ri­ence in the pre­vi­ous par­lia­ment – the mil­i­tary re­jected all pro­posed points when Speaker U Shwe Mann tried to change some points, even though he was a for­mer gen­eral and also the USDP leader,” said Daw Khin Saw Wai, a lower house MP from the Arakan Na­tional Party.

Per­haps tellingly, Thura U Shwe Mann was sub­se­quently un­seated as USDP chair in a move many agree was or­ches­trated by then-pres­i­dent U Thein Sein, with Snr Gen Min Aung Hlaing’s tacit ap­proval or even at the com­man­der-in-chief’s be­hest. Thura U Shwe Mann’s role in push­ing for con­sti­tu­tional change at the time is widely cited as con­tribut­ing to his fall from grace within the mil­i­tary-backed party.

“So how will the NLD try to get the mil­i­tary’s agree­ment?” Daw Khin Saw Wai added.

‘We have to con­vince the peo­ple of the need for change. And by the peo­ple, I mean mem­bers of the mil­i­tary as well.’

Daw Aung San Suu Kyi State Coun­sel­lor

Photo: EPA

NLD sup­port­ers await Daw Aung San Suu Kyi’s re­turn from the US out­side the Yan­gon air­port on Septem­ber 25.

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