Larry Jagan, June 23, 2019
Myanmar’s ruling party, the National League for Democracy (NLD), is making an audacious attempt to change the country’s constitution. Finishing touches are now being given to the plan which is to yet to be revealed to parliament and the people.
Party officials claim that the NLD is only fulfilling its electoral pledge in 2015 to bring about constitutional reforms. Analysts believe the timing of the move is linked to preparations for the forthcoming elections in 2020.
But the changes and the process being followed by the civilian government will upset the military, and an acrimonious confrontation between the two seems inevitable.
According to sources in the government, already, preparations are under way for a referendum – the final step to change the most controversial parts of the constitution, which gives the military enormous political power.
Voter lists for a referendum are being drawn up by the Union Election Commission (UEC). The daring bid to change the constitution is aimed above all at reducing the military’s power.
In the initial years of her administration, State Counselor, Aung San Suu Kyi, focused largely on the peace process or Panglong as it is dubbed. But she became increasingly frustrated with the lack of any substantial progress towards political change through dialogue. So, she turned to parliament as the main vehicle for change.
Towards that end, earlier this year, the government set up a Joint Parliamentary Committee to review the constitution and suggest amendments.
This renewed push to change the constitution has been in the pipeline for months. And the government leader, the State Counselor, has made no secret of the government’s general intention to change the constitution this term, possibly before the next elections, which are scheduled for November 2020. But the specifics have not been made public yet.
Aung San Suu Kyi began making preparations for the charter’s change late last year, but in extreme secrecy. Only a handful of the party’s top leaders were privy to the internal discussions. However, the State Counselor informed the army’s commander-in-chief, Senior General Min Aung Hlaing, about her move. She was committed to do so by an initial agreement between the two, before her government took office in late March 2016, according to government insiders.
She agreed not to try to change the constitution within the first two years. She promised that the army chief would be informed of the government’s plans beforehand, according to sources privy to the discussions.
Now the parliamentary committee, formed four months ago, has finished its report and is scheduled to reveal its findings to MPs next month, when parliament returns from recess.
It will then be tasked with drafting an amendment bill, based on the parliamentary debate on the report.
Committee’s composition
The 45-member committee is made up of representatives of all political parties and the military, mirroring the composition of parliament. The military and the pro-military and establishment party, the Union Solidarity and Development Party, objected to its formation, and initially refused to be part of the proceedings, arguing that the committee is unconstitutional on the grounds that it did not follow the amendment procedure laid out in the constitution. But later it backtracked and joined.
The military felt side-lined by the move as it had originally understood that the NLD intended to table amendments separately to parliament, which meant that when individual constitutional amendments which affected the military were proposed, they could simply use their veto. At any rate to pass an amendment, a 75% majority is needed.
But Aung San Suu Kyi’s change of tactics to go via a referendum, threw the military out of gear.
Large scale changes
The panel reviewed all 15 chapters of the Constitution, along with five additional schedules relating to tax collection, the state and regional legislatures, self-administered regions and some other topics, according to its committee’s secretary and upper house MP, Myat Nyana Soe.
Some amendments can be approved by a simple majority in parliament: including the one relating to giving greater autonomy to the regions and states and the power to local parliaments to directly elect chief ministers in place of being appointed by the President. These will certainly be ratified.
But there are contentious articles which need to be passed by a 75% vote and a pass in a referendum. These are: Art 436 gives the military a 25% quota of seats in parliament and hence virtual veto; the army chief’s appointment as minister for Border Affairs, Defense and Home; and a military-appointed Vice President.
Indeed, on the face of it, it is an impossible task. Myanmar’s current constitution is certainly a straightjacket for any civilian government.
In her recent lecture “Challenges of Transition” at Charles University in Prague, Aung San Suu Kyi said: “The 2008 Constitution prevents the emergence of a truly functional democratic system. Not surprisingly, judicial experts have pronounced that the Myanmar Constitution is about the most rigid in the world today,” she added.
While opposition to constitutional reform is to be expected in the legislature, the NLD has been encouraged by the people’s interest in changing the constitution, she said reflectively.
So, it seems the military’s voting strength in parliament on these issues may still not prevent the NLD taking the bull by the horns and going all out to change the constitution and reduce the army’s political power.
Although senior NLD officials and MPs won’t be drawn out on what would come next, a strategy is beginning to emerge. The government is preparing to go directly to the people to initiate the desired but controversial changes. And it seems certain the referendum will coincide with the 2020 elections. This will have the added strategic advantage of mobilizing the party’s base and bringing them out to vote in the referendum and also for NLD candidates in the elections to counter the party’s strategists greatest fear: voter apathy.
Although legal opinion is divided, some experts believe there are ambiguities in the constitution which allow parliament to directly vote for a referendum without first agreeing on the actual amendments.
In this case, the government would only need a simple majority to get its way. This was certainly the view of the eminent lawyer Ko Ni who was assassinated two years ago. At the time of his killing, Ko Ni was a close legal advisor to Aung San Suu Kyi.
However, the issue as to how the military will react to the NLD’s new political push still remains. Many analysts — and even senior members of the party — expect heated discussions between the two sides before the government resorts to a referendum. But these discussions will also decide what amendments are eventually put to the people. There could be ‘give and take’ here.
The fact that the military members in the constitutional change committee did not walk out mid-way but stayed to the end has been seen as an encouraging sign by senior members of the government, who remain sanguine about a compromise being struck.
For example, instead of demanding an instant abolition of the military’s 25% quota, a gradual reduction was suggested by the NLD. It proposed the reduction of the percentage gradually over the next three elections or 15 years.
The appointment of the three military-nominated ministers was not challenged. There is an acceptance that they may be necessary at least while there are ethnic armed groups within the country fighting for autonomy.
This approach also highlights the continued importance of the peace or Panglong process to accomplish a measure of national reconciliation leading to the formation of a democratic and federal state.
Although the reconciliation process seems stalled at the moment, sources close to Aung San Suu Kyi say she has not abandoned it, and that it is progressing in tandem with the parliamentary initiative to change the constitution.
Military-Civil trade off
But what is less clear is what the military leadership may want in return for their acquiescence. In discussion may be an exit strategy for the current commander-in-chief Min Aung Hlaing, or a formal role in leading the National Security Council with the formation of a government military commission, along the lines of the Chinese Military Commission.
The military’s demands are yet to clearly emerge. And in the meantime, civilian-military relations – already at their lowest-ever ebb – will become increasingly fraught.