Unity Needed for Effective Constitutional Reform

By The Irrawaddy 9 March 2019

Ko Ye Ni: Welcome to Dateline Irrawaddy. We will discuss efforts in constitutional amendments this week.  A constitutional amendment committee has been formed at the Union Parliament. However, we still don’t know how far the amendment will go or if it will be a waste of time and end up with the same status quo. Lawyer U Kyi Myint and political commentator U Yan Myo Thein will join me in the discussion. I am Ye Ni, editor of The Irrawaddy (Burmese Edition).

Saya U Kyi Myint and Ko Yan Myo Thein, there were disagreements at the Union Parliament this morning as the Tatmadaw (Myanmar Army) opposed a proposal submitted by the Constitutional Amendment Committee. We saw that (sound of) the live broadcast of criticisms made by the Tatmadaw representatives had to be omitted. The Tatmadaw has always opposed the NLD’s aim to reduce the leading role of the Tatmadaw in politics. During the Tatmadaw’s press conference, they made it clear that they will not relinquish their political role as long as ethnic armed organizations exist. As the Tatmadaw and the NLD hold no negotiations and have different views on constitutional amendments, is it possible to amend the Constitution? If it is possible, under what circumstances can the Constitution be amended? I would like to ask Saya U Kyi Myint to discuss this.

U Kyi Myint: The Constitution, which is also known as “mother law” or “basic law,” is vital for a country. It is the “mother law” that affects the development of a country. What we see now is anarchy in which everyone is perusing their own cause amid criticisms and protests instead of making the Constitution more democratic. We, [activists] are very sad because we are not affiliated with any political party. As we fought against the military dictatorship at all stages, we were imprisoned repeatedly but we are still full of hope for our country. Whenever we raise the topic of constitutional amendment, different stakeholders—including the military, the USDP, ethnic groups, the government and so on—interpret it to their own ends. Efforts in constitutional amendment should not be treated in this way. The Constitution will be democratic only when we all keep in mind that everyone is contributing something to the country and we must do it for the interest of the country. The Constitution will be democratic only with this approach. One stakeholder says they will amend it when they are the majority in Parliament, while another says they have constitutional rights to object to constitutional amendment. Similarly, ethnic groups say they will continue their armed struggle if their demands are not met and they instigate hatred towards the Bamar. Under such circumstances, it is impossible to make the Constitution more democratic. As a result, only some articles of little importance are likely to be amended. Efforts in constitutional amendment should not be treated as a propaganda campaign.

YN: What’s your opinion, Ko Yan Myo Thein? The NLD collected 5 million signatures from the public during their signature campaign to amend the Constitution in 2013. However, nothing has materialized from the campaigns for constitutional amendment.

Ko Yan Myo Thein: In 2013, about 5 million signatures were collected during a campaign calling for the amendment of Article 436 and they were submitted to Parliament. The Parliament also tried to amend the Constitution. As far as I know, there is no official record of the 5 million signatures to amend Article 436 in the documents of the Parliament, in which 37 representatives of the NLD were sitting.

They failed to point it out and raise questions for discussions. It was not even mentioned when the NLD submitted the proposal for constitutional amendments recently. In reality, all Myanmar people deeply believe in their hearts that the entire 2008 Constitution must be amended. To realize that belief, it is necessary to build trust among the political leaders, the military and ethnic groups through tripartite negotiations. We cannot ignore the fact that constitutional amendment is possible only when their differences can be settled and an agreement is reached. To amend the Constitution in Parliament, more than 75 percent of representatives must vote for it. It means that no article can be amended without the support of the Tatmadaw. Therefore, in the amendment process in 2019, it is essential for political leaders, Tatmadaw leaders and ethnic leaders to build trust among themselves through comprehensive negotiations.

YN: What is interesting about your discussion is the tripartite negotiations. One article ethnic groups are interested in amending is Article 261. As far as we know, the Tatmadaw, the USDP and ethnic parties like the ANP (Arakan National Party) support the amendment of the article. It is a topic for discussion. If it is to be amended, some point out that it would be good for the decentralization of power of the central government. On the other hand, others point out the expansion of the role of the Tatmadaw in states and regions. What is your opinion, Saya U Kyi Myint?

KM: Recently, the United Nationalities Alliance, with members from all ethnic groups in the entire country, held a two-day conference at the Green Hotel. They have no objection to the amendment of Article 261. There is no problem with the amendment of Article 261 as ethnic groups, the USDP and the NLD support it. The problem lies in the manner of proposing it. They are arguing about who was first to propose it. Ethnic groups pointed out that the amendment of the article alone is not sufficient and it is necessary to amend other related articles. For example, it is contradictory if a chief minister is to be elected by the regional parliament but regional ministers are to be appointed by the president. It is necessary for ethnic groups to amend the complete set of related articles. The NLD said it also intends to do so. The USDP agreed and said they had submitted their own proposed amendment of Article 261. As I said, they are trying to get ahead of one another even while working in the interest of the country. The manner they are doing it in is annoying for the public and ethnic groups. The situation is confusing because of their manners of promoting their personal popularity and party interests rather than making the Constitution more democratic. There is no problem in amending the article. They are not united. I am not asking them to be united forcefully but it is a common goal in the interest of the country. It appears difficult to amend the article because of their personal and political grudges. It is not a problem.

YN: I would like to ask Ko Yan Myo Thein: which articles are likely to be amended through negotiations as a common goal?

YMT: Every stakeholder including the ruling party, ethnic groups, the USDP and the Tatmadaw has agreed to amend the Constitution but they disagree on the extent of the amendment. To bridge their differences, it is important to negotiate through political means. It is important to approach constitutional amendment more from the political point of view rather than from a legal one. When you ask me which articles are likely to be amended, it is necessary to make a reference to the Union Agreement reached during the 21st Century Panglong Conference. Terms of the agreement signed by the president, Parliament speakers, the state counsellor, the commander-in-chief, ethnic leaders and leaders of EAOs must be integrated into the constitutional amendment. Some of the terms are concerned with the basic principles of the Union. As these terms are agreed on in the Union Agreement, it is necessary to amend the Constitution based on them. The Union Agreement states that the
Union shall be built on a democratic federal system while the Constitution pushes for a unitary state. Terms of the agreement must be integrated into the constitutional amendment process in 2019-20. If we can’t do this, it will have an impact on the peace process by undermining the trust of ethnic leaders. So it is necessary for political leaders, Tatmadaw leaders and ethnic leaders to treat this issue seriously.

YN: A final question for Saya U Kyi Myint: how can constitutional amendments benefit the public?

KM: I believe that the NLD, as an elected government, proposed constitutional amendments as it is the wish of the people. However, the Tatmadaw said they didn’t know about it because they were not invited for negotiations. They held a press conference and said that a total of 48 articles must not be amended. These articles are important and related to the role of the Tatmadaw. They said these articles must not be amended. How can we build a democratic federal Union with these articles? If we are to amend the Constitution without touching on the 48 articles, it will be just a superficial amendment. It will be a waste of time and bring no benefit to the country. It has been a decade since the Constitution was enacted and it doesn’t work. It says the population of Myanmar is 57 million but it is only 52 million in reality. It is wrong. A referendum should be held on whether the Constitution should continue to be in place or whether it is in accord with the democratic federal system. If more than half of the votes at the referendum support the Constitution, it will go on. If not, leaders should find a solution through negotiations.

YN: Thanks for your comments.