‘Principles Should Take Precedence Over Details in Charter Reform’
By The Irrawaddy 28 December 2019
Kyaw Kha: Welcome to Dateline Irrawaddy. This week, we’ll discuss whether there has been progress in amending the 2008 Constitution, and if there are non-parliamentary ways to push through changes. I’m The Irrawaddy’s chief reporter Kyaw Kha and I am joined by Dr. Salai Ngun Cung Lian, the director of federalism and constitutional reform at the Myanmar Institute for Peace and Study (MIPS), a think tank based in Yangon. He is also a former member of the Myanmar Peace Center.
KK: The Union Parliament in February formed a 45-member committee to amend the 2008 Constitution. The committee submitted 3,765 proposed amendments. Does the formation of the committee comply with the 2008 Constitution?
SNCL: Chapter 12 provides clear details of how the Constitution can be amended. So there are two options: to amend under Chapter 12 or according to the wishes of the political party that has a parliamentary majority. As the Constitution is the mother law for any other law, it is important not to overstep its boundaries. I believe the committee was formed as a consequence of a submission to amend Article 261 [which empowers the central government to select the chief ministers for each region and state]. From a legal point of view, the committee is unconstitutional. And U Aung Kyi Nyunt, who is on the committee, said they are gathering proposed amendments. So there are two approaches: to amend the Constitution in line with Chapter 12 or amend it according to the wishes of the majority in the Parliament. I don’t think it is good to overstep the boundaries of the 2008 Constitution. I am still not clear if the committee is just collecting input or if it will proceed with those proposed amendments according to Chapter 12.
KK: The committee submitted over 3,000 proposed amendments. The Constitution only has 457 provisions and five schedules. So why are there over 3,000 amendments?
SNCL: I was also amazed when I heard about the 3,765 proposed amendments. But if we remove the duplicated amendments from different parties, there will be only around 500. So those who don’t understand the details might think [the National League for Democracy] wants to scrap the 2008 Constitution and write a new one. There are 15 chapters about the basic principles of the Union as well as the executive, legislative and judicial branches. The proposed amendments are good but the essence of the 2008 Constitution lies in its basic principles from Article 1 to Article 47. If we don’t give priority to that part and try to amend other provisions, the amendments are unlikely to work. Because provisions are based on those basic principles, it is risky to amend those provisions before reaching agreement over basic principles.
KK: In your research paper, you point out different views among the parties on the committee. The military and the Union Solidarity and Development Party have raised objections to the committee. What is your view?
SNCL: The military and USDP lawmakers attended the committee meeting, but they did not vote. Independent lawmakers are also on the committee. The committee proposed changes regarding transitory provisions. On Article 59(f) [which bars Daw Aung San Suu Kyi from the presidency], the parties have various motives to amend it. There are differing views about the vice presidency; some say one vice president is enough while others try to highlight the advantages of having two. One party suggested around 500 amendments and another just three amendments. It is hard to see how a consensus will be found on the 3,765 proposed amendments.
KK: A few lawmakers have resigned from the committee so far. Can the committee function?
SNCL: It is not good. The committee was formed according to the proportion of seats the parties hold in Parliament, including independents and military members. Around five have resigned. The military lawmakers also filed a complaint with the Speaker last week because the committee is no longer proportional. What the military said is reasonable. But those who resigned didn’t explain the reasons behind their resignation.
KK: Chapter 12 outlines procedures for amending the Constitution. But the Union Parliament formed the committee to amend the Constitution. Which approach do you think is better?
SNCL: It is wrong to amend the Constitution against the provisions outlined in Chapter 12. No law is above the Constitution. If there is a conflict over approaches, we have a Constitutional Tribunal and we should seek its judgment. The Constitutional Tribunal should judge whether the committee formed by the majority vote in the Parliament is line with the Constitution. Forming the committee breaches Chapter 12. But on the other hand, I have no reason to object to them gathering proposed amendments. They can list the reasons why particular articles should be amended. But listing the reasons and amending the Constitution are two different things. The Constitution should not be amended outside Chapter 12.
KK: Because Daw Aung San Suu Kyi contested the lawsuit at the International Court of Justice (ICJ), some have suggested it will push the government and Tatmadaw [military] closer and help constitutional amendment. What is your view?
SNCL: There were “We stand with Daw Aung San Suu Kyi” campaigns to support her regarding the ICJ. She went to the ICJ to defend [against charges of Myanmar’s] alleged violation of the Genocide Convention. But there is confusion between genocide and crimes against humanity, war crimes and crimes of aggression, for example, the displacement of over 700,000 Bengalis [Rohingya] from Myanmar, and refoulement. The State Counselor and defense lawyers denied genocide at the ICJ. But some don’t understand the Genocide Convention and they are therefore confused with other crimes I have mentioned. But I think they know the difference now. Appearing in The Hague is nothing to do with constitutional reform. It is not that Myanmar is prosecuted at The Hague because of the 2008 Constitution. It is prosecuted by The Gambia for alleged violation of the Genocide Convention. People should be clear about that. Thirdly, some criticized Daw Aung San Suu Kyi’s decision to attend the ICJ, saying that she did so for political advantage, to gain votes in the 2020 general election.
KK: Do you think the military will be less hardline because of this, as some suggest?
SNCL: I don’t see any reason for that. To reject the genocide allegations, first we must prove that we had no intention of violating the Genocide Convention. Certain things that happened before and after the ICJ are wrong. Some are quite shameful. People showed their support for Daw Aung San Suu Kyi without knowing what she would say at the ICJ. And some ethnic minorities living abroad asked her to complain to the ICJ about crimes against humanity [committed by the military in ethnic areas]. She went to the ICJ to contest genocide allegations. The Tatmadaw has not made any statement about her defense at the ICJ. But I heard the Tatmadaw was upset with the statement that many people were unhappy with granting amnesty to offenders by court martial.
KK: What can be done to amend the Constitution if the committee fails?
NCL: What shall we do if the committee does not work? We will have to follow the procedures in Chapter 12. There is no other way. Many people don’t know why Rakhine and Mon parties proposed 400 to 500 amendments while the NLD proposed only 45. This is interesting. The origins of the committee were the proposal to amend Article 261 to enable the state or regional parliaments to elect their chief ministers. But the NLD has not proposed amendments to Article 261. Is it serious about decentralization and a federal system?
KK: What steps should be taken to achieve national reconciliation and a federal system in accordance with the National Ceasefire Agreement?
SNCL: The NLD has promised a federal union since the 1990 election. Most of the ethnic people accepted the promise. But since it took power, there have been no changes. It is impossible to amend the Constitution without the Tatmadaw’s support because 25 percent of seats are reserved for the military. However, 51 amendments could be made to the Constitution by the Parliament under the previous government. The Tatmadaw supported those amendments completely. But no article has been amended since the 2015 election. Then the proposal to amend Article 261 led to the formation of the committee. However, among the 12 parties on the committee, the party that calls for national reconciliation and ethnic equality does not do anything to amend Article 261. And the NCA is taking place outside Parliament. In the NCA it is agreed that the 2008 Constitution shall be amended in accordance with the outcome of the Union Peace Conference to build a federal union. The committee did not take these points into consideration and did not invite ceasefire signatories to give their views on the proposed amendments. Therefore, the NCA and committee are on different paths. If these two ways cannot meet, it will be very difficult to amend the Constitution because the NCA signatories will say they have nothing to do with the amendments. And the Parliament would also say that it cannot accept the 51 points the NCA signatories agreed as they were reached outside Parliament.
KK: What are the gaps between the NCA signatories and the committee? Can they be reconciled?
SNCL: I met ethnic leaders at a recent Democratic Karen Buddhist Army celebration. They asked what was happening to the 51 points they agreed after hard negotiations. Everyone involved should take them into account.
KK: Military lawmaker Major General Tin Swe Win wrote to the Speaker to criticize the committee and urging him to review its decisions. What is your view on the letter?
SNCL: Maj-Gen Tin Swe Win said the parties were only allowed to discuss matters for five minutes each. They did not have enough time to discuss the issues. Moreover, the committee did not consider the views of minority ethnic parties. When an issue was put to a vote, the majority of the committee are from the NLD and the results were in their favor. Therefore, it was not inclusive and fair. The committee had to follow the decisions of the NLD. The Constitution is not for the NLD but the entire country. Only Maj-Gen Tin Swe Win knows his intentions and we can only guess from the letter. It is necessary for the committee to be more widely representative and far-reaching.
KK: We expect efforts to amend the Constitution will be stepped up during the next parliamentary session. Will this happen?
SNCL: The Constitution’s basic principles must be changed along with its substance. If we do not distinguish between the basic principles and substance, amending the Constitution is very difficult. Articles 1 to 47 of the Constitution are the basic principles. Article 48 is the definition of the Union. Articles 49 to 547 deal with the substance of the Constitution. This has not been distinguished so far. Article 6(f) says the defense services shall have a political leadership role. It is a basic principle. If we do not understand the basic principles and try to amend later articles, efforts will fail. Amendments will never end. Amendments to the US Constitution have been going on for centuries. Constitutional amendments will not be completed during the parliamentary term. Only when we understand basic principles and the links between them will we be able to amend the Constitution meaningfully.
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