What Will It Take for Myanmar to Pull Off Constitutional Reform?

By The Irrawaddy 9 November 2019

Kyaw Zwa Moe: Welcome to Dateline Irrawaddy! This week, we’ll discuss the constitutional crisis. The Constitution was adopted in 2008, and though the current government is trying to amend it, we still see more problems surrounding it. Recently, the Tatmadaw [Myanmar military] filed lawsuits against some activists including lawyer U Kyee Myint for giving talks regarding constitutional amendments. During her visit to Japan, Daw Aung San Suu Kyi said in an interview that it is difficult to say whether some constitutional changes can be achieved before the next election. We’ll discuss hurdles and prospects for charter reform. Lawyer U Kyee Myint and Ko Mya Aye, a member of the leading political committee of the Federal Democratic Force, join me to discuss this. I’m The Irrawaddy English editor Kyaw Zwa Moe.

The military has filed a complaint against three people including you, poet Ko Saw Wai and former military captain Nay Myo Zin for giving talks on charter amendment in Kawthaung in April. What did you say that they decided to file a complaint against you?

Kyee Myint: First, I would like to explain why I participated in the talks there. I’m neither a member of the National League for Democracy [NLD] nor an NGO who receives foreign assistance. I make a living practicing the legal profession. I had never been to Kawthaung before that. Community elders in Kawthaung asked me if I can give talks as a legal expert at a rally to support the constitutional amendments which are being debated in the Parliament. As I had never been there, I said I would.

I was ill when I arrived there. It was quite hot at the talks and I even struggled up the stage because it was quite high. I didn’t want to use an umbrella while the audience was standing under the scorching sun. But at the age of 75, I could not stand the heat, and I had to get down from the stage. Secondly, I only discussed legal aspects of the Constitution [at the talks]. Before that, I had done similar discussions at workshops, in articles and on panels at many places on many occasions. That day I mainly said that 48 articles, from Article 1 to Article 48, can’t be changed without the consent of the Tatmadaw. Those provisions can’t be changed unless approved by two-thirds of the parliamentarians. Therefore, those provisions need to be changed, I said.

I said the Constitution was designed by the military dictatorship to protect themselves, but not to protect the people. As we are transitioning to democracy, we need to amend the Constitution to be able to suit democracy. If necessary, it must be rewritten. And I pointed out that articles 417, 418 and 419, which apparently permit military coups, should be changed. I said I feel sorry that citizens are standing under the blazing sun to come [and show their support] to amend the Constitution. The Tatmadaw has interpreted it in such a way that people have to stand under the scorching sun because of it.

They took my quotation out of context and we feel sorry for that. We have a video record and I can present it as evidence.

KZM: As you are a lawyer, it is impossible that your statements break the law.

KM: I didn’t speak ill of the current Tatmadaw. When I talked about military dictatorship, I didn’t say the current Tatmadaw practices dictatorship, but they accused me of calling the Tatmadaw dictators. But I didn’t say the current Tatmadaw practices dictatorship.

KZM: Ko Mya Aye, as I’ve said, Daw Aung San Suu Kyi, in her interview with Japanese news agencies, said it is difficult to say when constitutional changes will be achieved. She said there is resistance in the Parliament and that the military is not overly enthusiastic about the amendments. The NLD government has been taking active steps to amend the Constitution since early this year. We also found that the Tatmadaw has filed complaints against many of those who advocate for and speak strongly about constitutional amendment. It is fair to say that the situation has become more intense. What is your assessment and how long will this situation continue?

Mya Aye: In my opinion, it is not a good situation. They should think about politics as it exists. The Constitution is not a treatise that came from heaven. It was drafted under the military regime and the 14-year-long National Convention. If you look inside, you will see incorrect figures, for example the population. There is a huge gap between the real population at the time and the population stated in the Constitution. It is obvious that it is invalid. What are the political requirements of our country at present? To put them separately, they are democracy and federalism, together: the establishment of federal democracy.

Everyone understands we need a constitution that suits democracy and federalism. This is not my opinion only. It is one of the 51 agreements of the Union Accord, and also stated in the NCA [Nationwide Ceasefire Agreement] signed by state leaders, including the military chief. We need a new Constitution that meets the requirements of the present time and political system, and attains federal democracy. All the demands and efforts to amend the Constitution are fair. They are done for the sake of the country. The Tatmadaw is too sensitive, though it might think it is right to file complaints against those who speak at pro-constitutional amendment rallies. But the Tatmadaw will just draw the ire of the people by doing so, I think. Constitutional amendment is not for the two sides to blame each other, but to cooperate. This is the need of the country.

The Tatmadaw is involved in politics under the Constitution. It is the nature of politics that if you are involved in politics, you will be criticized. The Tatmadaw should accept that. There will be various criticisms. This is the nature of politics. If they don’t like criticism, then don’t become involved in politics. The current trend is not good for the country and I think the situation will be more intense beyond 2020, and the country might be thrown back into conflicts.

KZM: While activists are advocating for constitutional change, there has been an intense debate going on in Parliament. Military-appointed lawmakers have opposed the change. In the Parliament, the NLD and ethnic party lawmakers are vigorously debating in support of constitutional change, but you are being sued—do you feel like you are being victimized?

KM: We are talking about this as part of the rule of law. The Constitution must be good. The government offices that are formed under the Constitution must be good. Despite the debate in the Parliament, I don’t think they can overcome Article 436. It was made so it is hard to change. Daw Aung San Suu Kyi suggested in Japan that it is difficult to amend the Constitution. I’ve said this at workshops and I have presented this idea many times: to hold a national referendum to see if people like the current Constitution or not. If their answer is yes, keep the Constitution. But if not, the ruling party, the Tatmadaw and ethnic parties should together write a new constitution, hold a national referendum and organize elections. This will help the Parliament and the government. I am 75 years old now. In other countries, prisoners are even released from prison at my age, but here in Myanmar [authorities] are trying to imprison a 75-year-old for saying those things. I am very sorry for that. This does not bode well for our country.

KZM: I’d like to discuss your case later. You have made suggestions for constitutional amendments. Do you agree with holding a national referendum as U Kyee Myint has suggested or do you have other pragmatic approaches?

MA: As far as I am concerned, we should think about political matters stage-by-stage. We have now seen what the requirements of the country are. It is clear that federalism must be established for ethnic groups. But the current Constitution doesn’t provide for federalism. It is necessary to write a new constitution that provides for federalism and democracy.

KZM: And all the stakeholders must be involved in the process.

MA: Yes, we need to write a new constitution inclusively. The longer we put it off, the heavier the loss that our country will suffer, as you can see: there are ongoing clashes. There are many options regarding [charter amendment] such as holding a national referendum as suggested by Saya U Kyee Myint and [political analyst] Dr. Yan Myo Thein. Or we can set a time frame and write a new constitution while using the current Constitution for a transitional period. But we can’t take too long, because the country will suffer.

I’m not saying the Tatmadaw shouldn’t participate in this process. The Tatmadaw can also participate in it. Considering the current political landscape of our country, it is impossible to leave anyone out. But according to democratic norms and principles, the Parliament should be formed only with the elected lawmakers.

Saya U Kyee Myint’s case is the second case, I think. Ko Min Htin Ko Ko Gyi is now in prison for criticizing the military and five members of the Peacock Generation satirical performance group were also imprisoned. Like the practice under military rule, they will be sued at different township courts [because they performed across different townships]. They will be imprisoned again and again. This is a practice that was used during the time of the military regime. It should no longer be used in this era. Saya U Kyee Myint is here now. Ko Nay Myo Zin was free before but is in prison now. This will lead the people to take a negative view of the Tatmadaw. This is my view.

People were satisfied when the military chief met with Dr. Hkalam Samson [of the Kachin Baptist Convention (KBC)] in person and dropped charges against him. This is how I want things to be. We should not work with hatred. Some think we are criticizing the army because we hate it. But we are in fact talking about the system. Some, however, will be emotional when they talk about the system. This is normal when you give talks. I want the military to be forgiving. If not, the conflicts will grow bigger over time. Tensions are not as high as they could be because of the 2020 election. It is obvious that it is difficult to amend the Constitution. As the NLD takes the lead role in amending the Constitution, it should give a clear message to the public about what it will do if the Constitution can’t be amended.

KZM: In Saya U Kyee Myint’s case, the talks were organized by the Kawthaung branch of the NLD. Has the NLD offered any assistance to you regarding the lawsuit?

KM:  People will love the Tatmadaw if it works for them. But the more they oppress, the more votes people will give to the opposition. The same for the NLD: they should not oppress people. If they stand by the oppressed instead, people will love them. I don’t want to ask the NLD to intervene in my case. I just want to ask them to adopt this policy: don’t oppress the people and stand by those who face oppression. If the NLD doesn’t do anything in response [to oppression], public support for them will decline, I’d say.

KZM: When will court hearings start for your case?

KM: In fact, the court hearings should not start. According to Section 202 of the Code of Criminal Procedure, the judge should direct police to conduct an investigation to decide whether or not there is sufficient grounds to proceed. Based on the findings of the police, the judge should decide whether to proceed with the charge filed by the Tatmadaw, or to file different charges, or to dismiss the charge. But if the judge fails to do so, I will be tried under the charge filed by the Tatmadaw.

KZM: You will face trial at the court in Kawthaung?

KM: Yes. As I have not been officially summoned, I don’t know exactly when the court hearing will begin. But I have already lost my legal rights.

KZM: They have filed charges against you under Section 505(a) of the Penal Code?

KM: Yes, they filed the complaint directly with the court and the court accepted it.

KZM: If the charges were to proceed, we have seen in previous cases that those charged under Section 505(a) of the Penal Code were denied bail and imprisoned. Would it be the same in your case?

KM: Yes, those charged under Section 505(a) were denied bail and sent directly to prison. And you can’t appeal. But what I feel sorry about is the Law Protecting the Privacy and Security of Citizens. It bars spying on and noting down what a person says. The Tatmadaw and the prosecutors themselves have violated the Law Protecting the Privacy and Security of Citizens to file a lawsuit against me. It is not us who have violated the law. But it is they who broke Law Protecting the Privacy and Security of Citizens, and I feel very sorry for that.

KZM: My last question: the Tatmadaw filed a lawsuit against KBC President Samson, but later Commander-in-Chief of Defense Services Senior General Min Aung Hlaing dropped the charge. So there is a possibility of something similar. To speak frankly, who can help Saya U Kyee Myint not to be arrested?

KM: In the KBC case, the military dropped the charge under its policy of maintaining good ties with all religions. It is different in the case of Myawaddy Sayadaw [a Buddhist monk facing a lawsuit for allegedly criticizing the military]. Various organizations called for dropping charges against him, and sent letters to lawmakers and the military chief as well as foreign embassies. And [activist] networks fought hard for him. And finally, the court changed the charge from Section 505(a) to Section 500.

KZM: So, he was granted bail?

KM: Yes he was granted bail, and Section 500 can result in a fine instead of imprisonment. This example shows that the charge can be changed.

KZM: Thank you for your contributions! We can see that the constitutional crisis has become worse.