On this week’s edition of Dateline Irrawaddy, lawyers Ko Ni and Nay Min discuss whether President Thein Sein breached the Constitution after the dramatic removal of Shwe Mann from the chairmanship of the Union Solidarity and Development Party (USDP).
Thalun Zaung Htet: Welcome to Dateline Irrawaddy. This week we will be discussing whether or not President U Thein Sein violated the constitution during the midnight power struggle at the headquarters of the USDP. Lawyers U Nay Min and U Ko Ni will join me for the discussion. I am Thalun Zaung Htet, editor of The Irrawaddy’s Burmese edition.
On midnight of Aug. 12, at the USDP headquarters, party chairman Shwe Mann was removed from his post. President Thein Sein formed a new central executive committee, assigning former vice-chairman Htay Oo the role of party chair. According the constitution, the president is barred from engaging in party activities. Thein Sein removed Shwe Mann and replaced him with Htay Oo. Is this in compliance with the constitution?
Nay Min: According to the 2008 Constitution, the president, if he is a party member—Article 64 states that if the president or vice-presidents are members of a political party, they shall not take part in its party activities during their term of office from the day of their election. So, according to Article 64, President Thein Sein, as the chairman of the USDP, has no right to take part in party activities because he assumed the presidency. If he wanted to engage in his party activities, he had cease once and for all when he assumed the presidency. If he wants to engage in his party activities while he is serving as the president, he has to resign from his presidential post before engaging in party activities.
The Constitution says that the president is not allowed to conduct party activities during his tenure. So, it is a question of how much Thein Sein has been involved in the purge of Shwe Mann on Aug. 12. President Thein Sein was involved in this. As he is constitutionally prohibited from engaging in party activities, even if he gives instructions on party functions from the his residence, it is still contrary to the Constitution. It is not only a prohibition on visiting the party and taking part in party activities, the provision has a wider effect.
TZH: In a statement, the USDP said that President Thein Sein had assigned the party co-chairmanship to Htay Oo because Shwe Mann was busy with parliamentary work. The USDP issued further statements after Shwe Mann was purged on Aug. 12. They held several press conferences and released statements saying that Thein Sein acted in line with the Constitution. Can doing this justify a violation if it is found that he has acted contrary to the Constitution?
Ko Ni: No, it can’t. From a legal point of view, issuing a statement on one’s own behalf claiming that what one does is right and in line with the Constitution has no binding force. It is just an expression of opinion, someone arguing that what they have done is not wrong. As Nay Min has said, it is important to gather evidence that can prove how much the president was involved in the events of Aug. 12. Without such evidence, it is a wild guess. But then, we have found some undeniable points. Ye Htut clarified the matter on Facebook and also gave explanations to the media. Shwe Mann himself read out the letter he received about his purge during a parliamentary break. He also wrote on his Facebook page.
Going from credible information on the night of Aug. 12, Shwe Mann was removed from the USDP co-chairmanship and the president, who is the party chairman, transferred the chairmanship to Htay Oo. It is pretty clear, according to the statement released by the party afterward. If he had done so—he knows if he has or not—it is a violation of the Constitution. I have found two reasons why it is against the constitution. The first reason is, as Nay Min has said, Article 64 says clearly that president shall not participate in party activities. The president knows that and therefore he transferred his power in the party to Shwe Mann. If the President had really purged Shwe Mann and handed over chairmanship to Htay Oo, it is a violation of Article 64. The second reason is, if he had permitted the use of security forces that night, if he had not stopped it with the knowledge that it is against the constitution, it is a misuse of the power granted to the president by the Constitution and so is also a violation.
TZH: Another undeniable proof is that before the midnight purge on August 12, the 8pm news bulletin of that day announced that President U Thein Sein released Order No. 5/2015, 6/2015, 8/2015 and 9/2015 simultaneously. Irder No. 5/2015 is reassigned Defence Minister Lt-Gen Wai Lwin and Border Affairs Minister Lt-Gen Thet Naing Win to their former military responsibilities. Order 6/2015 announced the retirement of President Office Minister U Tin Naing Thein, Minister for Immigration and Population U Khin Yi, Telecommunications and Information Technology Minister U Myat Hein, and Minister for Rail Transport U Than Htay. Feputy ministers were retired with Order 8/2015 and Member of Union Civil Service Board Dr Kyaw Kyaw Htay was retired with Order 9/2015. All those who retired on Aug. 12 became members of the new central executive committee of the USDP, formed in the early morning of Aug. 13. That he reshuffled ministers with the use of his presidential power means he played the role of a coach in a football team, making substitutes. It is an undeniable fact. It is officially stated in the law. Legal experts point out that it is crystal clear that the president violated Article 64. They ask if there is a provision in the Constitution that allows impeachment of the president, and if there is such a provision, how can he be impeached?
NM: Article 71 outlines reasons for which the president and vice-presidents can be impeached. High treason—that is the major reason cited for impeachments, including all lawmakers, in the Constitution. But then, high treason can be defined very broadly. You can cite any act as an act of disloyalty if only you are bright enough to stretch the definition. If lawmakers are bright enough, they will be able to make it appear that the president has breached the Constitution. Another reason is a breach of the Constitution. And the president has acted against the Constitution. He appears to be acting against Article 64, which bars him from party activities during his presidency.
TZH: Is his action against or does it just appear to be that way?
NM: It is against the Constitution. We have not yet impeached anyone, but, it is his responsibility to answer for it. No one has talked about this. The one who has acted against the Constitution remains untouched. From the point of view of foreign countries, the situation of our country is ridiculous and it is shameful—we should feel shame.
TZH: In the circumstances, it is alleged that the president has breached the Constitution. What action can lawmakers take, according to the Constitution, in response to those suggestions?
KN: Yes, they can if they wish. The president is constitutionally authorized to retire ministers. But then, he retired them one day and the retirees were assigned to top positions in the restructured USDP the next day, which makes it appear that the president has retired them because he wanted to put those people into the party. So, it is crystal clear that he is engaging the party activities, violating the constitutional provision on prohibition of party activities.
Both of you have mentioned this point. Even if he really did not violate it, his action implies that he had violated it. Why did he retire them? If he retired them for honest reasons, why were they on the party central executive committee list the next day? If it had been prearranged, it violates Article 64. As Nay Min said, the president has to take an oath to abide by the Constitution. According to Article 71(a), he can be impeached for five reasons, including a breach of the constitution. So, 25 percent of Lower House or Upper House lawmakers, even if the parliament is not in session, can sign a petition and submit it to the parliamentary speaker, the speaker has to convene a parliamentary session, according to the law. Then, it would be put to a vote. If two-thirds of lawmakers in that parliament agree to impeach him, the other parliament has to form a body to make investigation. If two-thirds of the lawmakers of that parliament assume that the president should be impeached from the office, the speaker of the Union Parliament has to announce the removal of the president. The Constitution provides for impeachment. But then, it was quite sad for people to see that this provision is not exercised.
Lawmakers elected by the people have to consider the people. I don’t like the Constitution, I totally oppose it. This is just my personal view. The Constitution remains in effect. Lawmakers, who are elected according to this Constitution, should impeach those who violate the Constitution in order to abide by the Constitution. Even if they can’t impeach because of a lack of support, 10 percent of them should sign the petition and submit it to the constitutional tribunal. Personally, I think lawmakers are neglecting their duty.
TZH: Thank you both for joining the discussion.
