Is Myanmar’s Ruling NLD Pushing Hard Enough on Constitutional Amendment?

By The Irrawaddy 7 February 2020

Kyaw Zwa Moe: Welcome to Dateline Irrawaddy! The conversation surrounding constitutional change in Myanmar has grown increasingly pessimistic; marked by discouragement more than hope. When the NLD [National League for Democracy] submitted its bills containing proposals for a second round of amendments to the Constitution, on Jan. 27, military lawmakers accused the NLD of being deceitful, and of only proposing the amendments it seeks, despite its earlier promises to be all-inclusive. They also accused the NLD of deceiving other parties into supporting the Charter Amendment Committee, and of deceiving the public. They also said the NLD recklessly approved the proposed amendments via the Charter Amendment Committee without consulting experts. Such statements are rather negative toward constitutional change. Of the 114 proposed amendments submitted by the NLD, I assume there are only one or two main points that the NLD really wants to change. Democratic Party for a New Society chairman Ko Aung Moe Zaw and Ko Mya Aye, one of the leaders of the Federal Democratic Force, join me to discuss this. I’m The Irrawaddy English editor Kyaw Zwa Moe.

As I’ve mentioned, the military lawmakers said those things, though this is not unusual. We have seen intense debate on constitutional change between the two sides—the military lawmakers and the USDP [Union Solidarity and Development Party] on one side, and the NLD and ethnic parties on the other. As I’ve mentioned, there are two main points the NLD wants to change out of the 114 proposed amendments. The first is Article 14 of Chapter 1, so as to reduce the [proportion of] unelected military lawmakers. It suggests reducing the military bloc, which currently accounts for 25 percent of lawmakers, to 15 percent in the 2020 election, and by a further 5 percentage points at subsequent general elections. So, there will only be 5 percent after the 2025 election. This is one of the critical amendments. The second concerns Article 436. It suggests changing the requirement for approving a charter amendment from more than 75 percent of Parliament to two-thirds of elected representatives. So military lawmakers would be excluded from voting, while still sitting in Parliament. Ko Mya Aye, what is your assessment and what else have you found regarding the charter amendment proposals?

Mya Aye: I want to discuss my views only from a political perspective. To me, charter amendment is a political problem, and not a legal issue. We have always asked this question—how do we want to build our country? What is encouraging about the NLD’s efforts to amend the Constitution is that it proposed amending Article 436. The NLD in cooperation with the 88 Generation Peace and Open Society took steps to amend it five or six years ago. I assume it is now trying to take action on the basis of the 5 million signatures it garnered from the public five or six years ago [on a petition in support of amending Article 436]. I am thankful for it. But the question is whether the article can be amended. No matter how much we are willing to amend it, ultimately we still need one vote [from a military lawmaker], plus all of the 75 percent of lawmakers who are elected. That result it not possible. Given that, we need to review the possible political impacts of, and the political developments during, the charter amendment process. It would be good if that article can be amended. But politics is not something you can daydream about. So, the NLD needs to consider what will happen if the article can’t be changed and what impact that will have. People will get the message that the effort to amend the charter through the Parliament failed. People may feel disappointed and disheartened. Definitely, they will blame the other side for not being able to amend the Constitution. To what extent will [the NLD] take responsibility for the possible impacts? We need to think about that.

KZM: It appears the NLD and the ethnic parties want to amend the Constitution. Ethnic parties submitted 3,765 proposed amendments. The NLD submitted just 114 proposed amendments. They all agree in principle that the Constitution should be amended, though it remains to be seen whether that will be possible. The NLD submitted two bills—one includes changes that would require approval in a national referendum; the other includes changes that don’t require a referendum. What is your assessment?

Aung Moe Zaw: I would like to approach this from two perspectives. The first, as Ko Mya Aye said, concerns the question of whether the procedural technicalities can be overcome. The second is about whether the bills submitted by the NLD are in line with the democracy and federalism that the people have demanded all along—in other words, with the wishes of the people. I would like to assess it from these two perspectives. As to the first point, Ko Mya Aye has pointed out, and everyone knows, that it is not that easy to overcome procedural technicalities. As to the second point, the bills for the second round of amendments to the charter propose annulling some 17 key provisions in a total of seven chapters… The NLD has tried this with the apparent intention of deepening democracy and reducing the role of the military in politics over time. I agree with you that the NLD is trying. But I’m disappointed that they didn’t try to touch Article 261, which many ethnic parties want to see amended. This has led people to think the NLD is ignoring federalism, to some extent. I am sorry about that. It is too difficult to overcome procedural technicalities to amend the Constitution. And [the NLD] would allow the military to remain engaged in politics for the next 20 years while it says it is trying to reduce the military’s role in politics. This is quite problematic, I think.

KZM: So, do you think the role of the military can be further reduced?

AMZ: The NLD should state clearly that the military should not engage in politics if we are to build a true democracy.

KZM: Most of the ethnic parties have called for removing military lawmakers from the Parliament in one fell swoop. It appears the military is opposed to even a 5 percent reduction. They responded harshly. What is your view, Ko Aung Moe Zaw?

AMZ: If we choose not to speak or submit [proposals] because they don’t accept them, we will never get the Constitution changed. Our country will never become a democracy. We have demanded [change] repeatedly. And the NLD is trying too. Some people with strong views may see the current situation as appeasement. It is not good for the NLD to say the military does not accept constitutional change—not to mention other groups. The NLD has leverage, but it hasn’t used it properly, I’d say.

KZM: I agree with the ethnic parties that thousands of points need to be amended in the Constitution if we are to build a real federal democracy. The NLD submitted just 114 amendment proposals, which is too few, some say. And I doubt that even the two main provisions that I have mentioned can be amended. But other simple ones may be amended. So, Ko Mya Aye, how likely do you think it is that the charter amendment process can achieve a practical result? People have demanded democracy since 1988. And 30 years later, it appears that we have achieved “half democracy”.

MA: I respect and acknowledge the efforts made to amend the Constitution. I myself want to change it. I view [the charter debate] as an occasion for the respective persons and parties to express their stances. But it is impossible to achieve a result. The amendment will be minimal. And I am sure we will definitely not obtain what we want. If we are to establish a democracy, we have to talk about democratic norms. From the point of view of democratic norms, it is clear that the military should in no way engage in politics. About the practicality, I would like to ask whether the plan to reduce the military lawmakers over 20 years is practical. If many think it is practical, I’d accept that. A big gap has opened up between the NLD and the ethnic parties over Article 261. There shouldn’t be that gap. They are allies. The NLD has proposed that charter amendments can be passed by two-thirds of the elected lawmakers. If that happens, Article 261 can be amended easily. There are some differences between the political direction of the democratic forces and the ethnic-issue-based democratization of ethnic people who are calling for federalism. I want the NLD to be aware of that.

KZM: It appears that the NLD is not aware of that.

MA: Some argue that federalism can be achieved if democratization is successful. Theoretically this is true. But in reality, there are considerable differences.

KZM: Ko Aung Moe Zaw, you have long been engaged in politics, along with others including Ko Mya Aye. But as you are a party chairman and your party will be contesting the 2020 election, can you [personally] contest the election? I ask this because you have lived in exile.

AMZ: I haven’t been living in this country for 10 [consecutive] years.

KZM: So, you are not permitted under the Constitution to contest the election.

AMZ: Right. It appears that I will be able to contest the election only when the Constitution is changed to allow that.

KZM: How long do you have to wait to be eligible to contest the election?

AMZ: I will have to wait until 2025, by which time I will have reached the retirement age [60].

KZM: You joined politics in 1988, so how long will it have been [by then]?

AMZ: It will have been around 40 years. It appears that people like me have to wait for some 40 years to be able to join the official political process.

KMZ: So, for the time being you are barred by the Constitution?

AMZ: Yes, that’s right.

KZM: In our interviews with NLD spokespersons on charter amendment, they refer to Indonesia. The [Myanmar] military regime designed the 2008 Constitution based on the Indonesian model of “Dwifungsi”, or dual function. There will be both unelected and elected [lawmakers] in the government and parliament. It appears to me that the NLD is considering that model because it says it plans for a gradual reduction of the military in Parliament. Taking a look at Indonesia, dual function began in the time of Suharto in 1966. If I remember correctly, the military remained in power until 2004. So, the process of gradually removing the unelected lawmakers from the parliament took 38 years. In comparison, the NLD plans for 20 years. Ko Aung Moe Zaw, what is your view?

AMZ: If we consider Myanmar’s situation back in 1966, ours is worse than Indonesia’s. The democracy movement in Indonesia started later than ours. But they arrived back on the democracy track before us. They arrived back in 1997, 1998. And when Suharto said they would withdraw the military from politics, it appeared that they had the will [to do so]. Now, [a president without a military background] is in his second term. It is fair to say Indonesia is an advanced democracy in Asia.

KZM: It is the most advanced democracy in Southeast Asia. Countries that introduced democracy before Indonesia did are behind it now. But the problem in our case is that we still don’t know about the will of the Tatmadaw [Myanmar’s military]. They said they would withdraw and they tried to push the [democratization] process forward by taking a political leadership role. Taking a look at the charter amendment process in the Parliament, so far they have not shown any willingness to amend. They said they agree with amending the Constitution, but in reality, let’s take a look at the peace process. The peace process was initiated by the military. That process has gone nowhere.

KZM: So, your point is that the military leadership lacks political will.

AMZ: I haven’t seen any so far.

KZM: Ko Mya Aye, what do you think?

MA: I haven’t seen it either. It is good to take cues from other countries. Indonesia’s process has been faster than ours. When I visited Indonesia as part of a government delegation, I found that what their military said was different from what the Tatmadaw said. In our country, the military in the past introduced the “Burmese Way of Socialism” based on socialist concepts. And its approaches to the 1988 Uprising were different. Indonesia is different in that regard. I want Myanmar people to be aware of that. My view is that either the NLD or the democratic forces must form a “package deal” with the ethnic parties based on the Constitution, as the next step beyond the 2020 election.

KZM: The [NLD] is also trying to establish the Union Accord [through the Union Peace Conference with the ethnic armed organizations] outside Parliament.

MA: It is in a fog. It has reached an impasse. And I think [the peace process] can’t fully represent all [groups]. For example, the Northern Alliance has not signed the truce.

KZM: You both have a lot of political experience. Ko Aung Moe Zaw, you have engaged in politics constantly inside and outside the country. And Ko Mya Aye you did the same inside the country and behind bars. Ko Aung Moe Zaw, if you were in the shoes of Daw Aung San Suu Kyi or any NLD leader, what would you do with the military on one side and the ethnic parties on the other, while faced with the need to amend the Constitution?

AMZ: I want the NLD to act boldly. I want it to speak out and negotiate boldly. I want it to be persuasive.

KZM: But what if the other side doesn’t listen? Even if they act boldly, if the other side doesn’t have political will, what do you do?

AMZ: Perhaps we will have to push for it. People have vested power in them [the NLD] because they have trust in them.

KZM: What do you mean by “boldly”?

AMZ: There will be problems if they only start to speak out now. I mean, from the moment they came to power, they should have boldly introduced the necessary changes. It appears that the NLD is too focused on the question of “What if it doesn’t move, though we push for it?” So they exercise excessive caution, even in their choice of words in discussing charter amendment. Even with this, the other side does not move at all. However, I want the NLD to speak boldly about what it thinks is necessary to get it done.

KZM: You mean speak boldly without considering the consequences?

AMZ: You have to take calculated risks sometimes. You will run into trouble otherwise.

KZM: So far, Myanmar people, especially those who engage in politics, still don’t have a sense of security.

MA: The current situation is worse, I think—we are in a state of confusion. The military has criticized the NLD regarding constitutional amendment. This clearly shows disagreement between the two. People will suffer more amid the confrontation between these two.

AMZ: Let me interrupt. The NLD has not been that close to the ethnic parties since it came to power. It stays away from them. It also stays away from democratic forces like us. As a result, it can’t push the military and has lost its allies. As far as I’m concerned, it does not properly use its leverage. This is the NLD’s problem. And about the ICJ [International Court of Justice], if [the NLD] had talked about its principles boldly, the impact would not have been so great. The NLD is so concerned about offending the military, it has gotten itself into trouble.

KZM: Ko Mya Aye, what would you do if you were in a position of power, as I have said, but faced many problems and challenges such as a constitutional crisis, economic downturn, military-civil relations, the peace process. What would you do regarding the Constitution?

MA: Whatever we do, we do according to our stance and the norms. We should speak clearly about our norms and our goals. And as for the military, as far as I’m concerned, the military justifies everything it does with the excuse that it needs to prevent the Union from breaking up. I accept, welcome and support that the NLD has expressed its stance by making a move to amend the Constitution. The result is another question. We don’t blame it for this. We already know that it will be difficult. It has been agreed in the Union Accord to establish the Union based on democracy and federalism. The military has agreed to this. I will negotiate with democratic forces and ethnic parties to work out a system that is in line with this. The package deal [with ethnic parties] may involve the entire Constitution. Only after that will I talk with the military.

KZM: The two amendment bills will come to nothing if not approved by more than 75 percent of lawmakers. What you have just suggested might perhaps be on the agenda of the NLD. But both methods will run into the same obstacle: the military’s approval. The NLD needs to negotiate with the military. There have been calls for dialogue between the two. But there is still none, it appears.

MA: My view is that [the ruling party] must have a policy package about the Constitution that is in line with federalism.

KZM: Suppose there is such a policy package; what if the military still doesn’t agree?

MA: In that case, [an NLD leader] would have to split [from the military].

KZM: To summarize, it all depends on the political will of the military leadership.

MA: We haven’t seen that will thus far.

KZM: How far democratization can go and to what extent the Constitution can be changed will depend on the political will of the military leadership. It depends solely on an individual and an institution.

AMZ: Mainly, it is the institution. It is important that the Tatmadaw has the will. It is not enough for the NLD to have the will alone. It should also be aware of the ways and means to exercise that will.

KZM: Thank you for your contributions! We have frequently discussed constitutional amendment, which is most important for our country. I’m afraid we still can’t even dream about a Constitution that the people wish to see. But perhaps the situation is not that discouraging.

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