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