Will Sound and Fury Over Constitution Reform Committee Signify Something?

By The Irrawaddy 9 February 2019

Welcome to Dateline Irrawaddy! I would call the topic we are going to discuss this week “constitutional amendments and the five Ws.” After the National League for Democracy (NLD) took steps to amend the Constitution, there are questions: why the NLD took steps at this point in time to amend the Constitution; who would support and who would oppose the constitutional amendments; what main provisions will be amended; the time frame for amending the Constitution; and how the Constitution can be amended. Ko Mya Aye, a member of the political leading committee of the federal democratic force, and political analyst Dr. Yan Myo Thein join me to discuss this. I am Kyaw Zwa Moe.

Ko Mya Aye, as I’ve said, it is interesting to see what can be called in journalism terms the five Ws and one H of the NLD’s move. People are asking why the NLD has taken steps only now to amend the Constitution and did nothing over the past three years in Parliament. There are just two years until the next elections. Can you explain briefly your views on its motives? I’ve also obtained some information.

Mya Aye: People are speculating different things, and I have my own assessment. My view is simple. I’d like to look at the principles of politics. It (the NLD) could not amend it over the past three years and it is just now making attempts to amend it. Some people accuse it of targeting the next elections. I don’t see it like that. Amending the Constitution is one of the points raised by the NLD during its (2015) election campaign. My view is that the NLD has started trying to amend the Constitution in order to fulfill a promise it made to the people. Presumably, the NLD party or the government believes it is time to amend it now. On the other hand, as everyone knows, the 21st Century Panglong Conference is making little progress while the peace process and constitutional amendments are intertwined. I think (the NLD is taking steps to amend the Constitution) to facilitate the peace process.

Kyaw Zwa Moe: I heard— this is privileged information that can be confirmed by only the two of them, and I don’t know if it is true or not — that after the NLD won the election in 2015, former Snr. Gen. Than Shwe and Daw Aung San Suu Kyi verbally agreed not to amend the Constitution immediately. Nobody can officially confirm it. Only the two of them know if it is true or not. The military raised objections when the proposal (to form a committee to draft constitutional amendments) was submitted. During the debate in Parliament, lawmakers from the USDP (Union Solidarity and Development Party) also strongly opposed it. So who supports it and who opposes it?

Yan Myo Thein: Amending the Constitution, no matter when it is done, is necessary for Myanmar politics. There is no point in arguing if it is too soon or too late. It is important that the amendments are approached strategically. I mean, the NLD proposed forming a joint committee to amend the Constitution. The proposal met opposition in Parliament. But all the people who opposed the proposal said they agree on amending the Constitution. The difference is the extent or degree of the amendments they want to see. Military representatives support amending the Constitution, and so do the USDP lawmakers. But they differ on the extent of the amendments they want to make. My view is that provisions in the Union Accord signed by the president, state counselor, commander-in-chief, deputy commander-in-chief and parliamentary speakers at the 21st Century Panglong Conference must be met and implemented in any way. Otherwise, public trust will decline.

KZM: Military representatives spoke in Parliament against changes to the Constitution  that they haven’t seen yet. In 2014, the NLD proposed 168 amendments…. I think the upcoming constitutional changes will be based on those 168 proposed amendments. Overall, three provisions are the most important. The first is to reduce the role of the Tatmadaw (Myanmar military) in politics and to reduce the privileges it enjoys. The second is to reduce the authority of the president. In my view it is intended to grant greater autonomy for chief ministers of regions and states. These two are the main points. They are advisable according to democratic norms. But reducing the role of the Tatmadaw is quite problematic — 25 percent of the seats in Parliament are reserved (for lawmakers appointed by the military) and the Tatmadaw has a political leadership role. The NLD proposed amending those provisions. How serious will the confrontation be? And can the committee deliver good results?

MA: The Tatmadaw and USDP oppose the formation of the committee, saying that it does not comply with the procedures. They don’t say they oppose changing the Constitution. But then, we can’t hold expectations. When it comes to politics, reality and wishes are two different things. The reality is we have reasons to be concerned that the country will be thrown back into chaos when there is growing friction.  But we must step up to the plate. In principle, we can’t make concessions. No way. My view is that it is important that our country has a 100 percent civilian government. There is a convergence in the NCA (Nationwide Ceasefire Agreement) and Union Accord, which mention a Union based on democracy and federalism. I think this is the most basic point in amending the Constitution. It was agreed and signed by the commander-in-chief, NLD, ethnic political parties and ethnic armed groups. It is enshrined in both the NCA and the Union Accord. There is a need to amend the Constitution in line with that. If this yardstick is to be applied, all we need is the Tatmadaw’s approval of discussion on these provisions.

KZM: Article 8 of Chapter 1 of the Constitution says the Union is constituted by the Union system. But as you two said, what was agreed at the Panglong Peace Conference by all, including the Tatmadaw, was a Union based on democracy and federalism. So, as they have already agreed on it, can related provisions be amended?

YMT: Yes, it should be possible to amend them. Section 7 says the Union practices a genuine, disciplined, multi-party democracy system. But in the Union Accord, “genuine” and “disciplined” are not included. The Union Accord is a pact agreed and signed by the leaders of the government, Parliament, Tatmadaw, ethnic political parties and ethnic armed groups. So what we are waiting to see is whether the constitutional amendments due to take place in Parliament can make changes in line with the Union Accord. Who will deter those changes? And how can we overcome the deterrence? We need to think about it.

KZM: So it is likely that the NLD leaders will change the Constitution with reference to the Union Accord. The Constitution mentions genuine, disciplined, multi-party democracy. In its proposed amendments, the NLD says it need not modify democracy. But in the view of some authoritarians and conservative leaders around the world, democracy is anarchy. So (the military) put “disciplined” before democracy.

YMT: In the Union Accord, it is simple. It just says multi-party democracy, with no adjective before it.

KZM: With the word disciplined, it seems that democracy itself is not disciplined. There was opposition when the proposal to form the committee was submitted. Ko Mya Aye, how can the NLD convince the opposition?

MA: It is no longer the time to sing lullabies. The Tatmadaw said that it wishes to change the Constitution. And so did the USDP. The key is the phrase “the Union based on democracy and federalism.” This is the terminology for the interim period before we reach federal status. There is a need to amend the Constitution in line with that phrase.

KZM: What should be done if the lullabies can’t be sung?

MA: Politicians should seek the public’s opinion. The Constitution is eight years old now, and it doesn’t serve the country but causes delays in the peace process. Suffice it to say that it is not good in all aspects. In my view, people should express peacefully, within the legal framework, their desire to change the Constitution, whether or not (the military) accepts it. It would be best for the country if the commander-in-chief and the people’s leader, Daw Aung San Suu Kyi, negotiate around a table.

KZM: For the time being it remains a dream. Ko Yan Myo Thein, as it has been agreed in the Union Accord, it (Article 8) can be changed in the Constitution to a Union based on democracy and federalism. But the most important thing, I think, is the role of the military. For example, 25 percent of the lawmakers in Parliament are military representatives nominated by the commander-in-chief. Perhaps the NLD is pragmatic. It doesn’t say such provisions must be changed immediately. Instead, it says they shall be amended gradually through negotiation focused on harmony. So it seems that a space is reserved for the Tatmadaw and Tatmadaw leaders, doesn’t it?

YMT: The most important thing to do to tackle the constitutional crisis is to have dialogue between the decision makers — the civilian leaders and the military leaders. Another thing is that the Tatmadaw said it would leave Parliament some day, but we don’t know when. We don’t know how long it will take. Taking a look at the closest example, there were military representatives in the Indonesian Parliament. But they have a roadmap for what percent to reduce their representation by in certain years. Due to the lack of such a roadmap, we don’t know how long we have to walk to get to the end of the tunnel.

MA: I think the NLD government must have discussed it, as it is now three years since it took office. They (the military) oppose the formation of a committee on constitutional amendments. We don’t want the country to suffer. It is wasting time to get back into the argument, and the people will suffer. So there should be negotiations. When we talk about constitutional change, one group thinks it is about purging the 25-percent block of military representatives, and the other group, the military, thinks the same. But it is not the case.

KZM: To be frank and pragmatic, it is also not impossible.

MA: Given the situation, we have to go step by step. Rather than asking them to leave gradually, what I would like to focus on is the emergence of a new Constitution that guarantees a Union based on democracy and federalism. The Tatmadaw says it would leave Parliament only after peace is achieved. Its meaning is broad. It calls for agreement between the Tatmadaw, Parliament, government, ethnic leaders. As there is little progress implementing the Union Accord, it is time lawmakers, including the Tatmadaw’s, try to collaborate to change the Constitution in order to facilitate the 21st Century Panglong.

KZM: It is now 2019, and the NLD has more than 20 months until the next elections in 2020 to amend the Constitution. When do you think it intends to end the process whether amendments are made or not? Do you think it has a time frame in mind to realize as many of the 168 proposed amendments as it can through the committee? The current government has a roadmap for peace that calls for amending the Constitution and holding elections based on those amendments before transferring power to the next government.

YMT: The first Parliament [under U Thein Sein] dissolved in 2015, the year of the election. So I think the (amendment) process is intended to end in early 2020. We want to change many things, but according to Article 436 (a) and (b), no amendment can be made without the approval of more than 75 percent of lawmakers. This means the Constitution can’t be changed without the consent of military representatives. But I expect that there will be potential for constitutional amendments that allow local people to elect their own chief ministers. There are many impossibilities and uncertainties, but I hope it is possible. Presumably the Tatmadaw has given it the green light. Ethnic lawmakers and ethic political parties also want it. So I think it is possible. I don’t deny that there should be more significant amendments than that.

KZM: It is one of the NLD’s proposed amendments. It is about reducing the authority of the president and granting greater autonomy to regional chief ministers and parliaments. Regarding Article 436, the NLD in 2014 proposed that it should be amended by two-thirds of elected lawmakers or more than 50 percent of all Union lawmakers, in which case military representatives would also be included. So that proposed amendment is interesting to see. The most interesting proposed amendment to me is to replace the existing state flag. Perhaps you two have read it. The proposed amendment says it is unacceptable that the state flag is completely different from the previous one that boosted the morale of the people during the independence struggle and that people cherished greatly. So they have even thought about this. They have thought about subtle details. But we don’t know to what extent the Constitution can be changed. Ko Mya Aye, what is your view on constitutional amendments?

MA: The Tatmadaw said it agrees to amend the Constitution, and the NLD has now submitted the proposal to form the committee, and [the Tatmadaw and USDP] oppose forming the committee. I wish everyone would cooperate to amend the Constitution. I don’t want to see a blame game being played in amending the Constitution. The country will suffer if a blame game is played. I would like to urge the leaders of the Tatmadaw, government, NLD and ethnic groups to seriously consider this.

KZM: Everyone agrees the Constitution should be amended. But the USDP’s and Tatmadaw representatives’ objection to forming the committee amounts to indirect opposition to constitutional amendments. Ko Yan Myo Thein, how do you think this can be overcome?

YMT: It should be overcome through dialogue. There is a need to hold a national referendum again on the 2008 Constitution.

KZM: It will cost a lot of money.

YMT: It is because 92.48 percent (the official “yes” vote in a referendum on the Constitution in 2008) is not genuine. No matter how much effort we make based on a fake foundation, the country can’t be (a) genuine (democracy). So I think there is a need to conduct a nationwide referendum on the existing Constitution.

KZM: This is another issue. Thank you both for your contributions! We will wait and see how successful the constitutional amendment efforts are.

Translated from Burmese by Thet Ko Ko.