The NLD's Path to Constitutional Liberalism

By Kyaw Zwa Moe 9 February 2019

Like many people around the world, there are those in Myanmar who honestly believe that democracy necessarily brings about civil rights, freedom of speech, equality, autonomy, religion, good governance and even property rights.

I disagree. Simply speaking, democracy is a political system in which the people elect the government. Under that basic definition, Myanmar has been a democracy since March 2016, when the National League for Democracy (NLD) managed to form a government after winning the general election in November 2015. But as news reports remind us on a daily basis, here in our country obstacles remain in terms of achieving civil rights, equality, press freedom, autonomy and many other political goals.

The fact is, democracy gives people the right to vote for the party of their choosing; it doesn’t guarantee rights or any of the underpinnings of a liberal society mentioned above. Only constitutional liberalism can deliver those rights as well as the rule of law to citizens. In the United States, constitutional liberalism protects civil rights and liberties, even under an elected illiberal leader like President Donald Trump. In other words, democracy alone isn’t enough.

We need a constitution that can protect those rights and liberties for the people.

Myanmar’s current Constitution is not really designed for the people; rather, it serves the interests of the military leadership. It’s the Constitution itself that keeps the country from moving forward. Only constitutional reform will bring about a radical departure from Myanmar’s military-dominated system. The charter must be fundamentally transformed.

Last week, the NLD initiated in Parliament the process of forming a joint committee to discuss amending the Constitution. Predictably, the customary objections were raised and heated objections lodged by the military and lawmakers from its proxy, the Union Solidarity and Development Party. Nonetheless, the proposal to form the committee was approved by Parliament, in which the NLD and ethnic lawmakers hold a majority.

This is a battle, is it not? A constitutional battle!

It’s a fight between the ruling NLD and the country’s powerful military—and the majority of Myanmar people, including members of the ethnic communities, are on the side of the NLD.

In reaction to the NLD’s move, some critics have asked, “Why now? Why didn’t the party start this right after it took office in 2016?”

Actually, the NLD is acting according to an established plan. That plan was the basis of my analysis written in October 2016. The following paragraphs of that article help to explain the NLD’s policy in regard to amending the Constitution:

When the incumbent government led by the State Counselor announced its policy for national reconciliation and Union-level peace in mid-October, it indicated a certain level of determination to suggest that this could be completed in accordance with a predetermined schedule. The policy was published in the government’s newspapers after Daw Aung San Suu Kyi described them in her speech on the first anniversary of the Nationwide Ceasefire Agreement on Oct. 15.

The first two steps of the government’s seven-point policy are to review and amend the political dialogue framework that was drafted by the previous government led by ex-general Thein Sein. The third and fourth steps are to continue convening the 21st Century Panglong Conference and to sign a Union peace agreement based on the 21st Century Panglong Conference.

Daw Aung San Suu Kyi and her government never officially disclosed a timeframe for their political roadmap in establishing a democratic federal union, but she seems to have a specific deadline in mind. The fifth point clearly mentions amending the current Constitution in accordance with the Union agreement, while the sixth says to hold multi-party democratic elections in accordance with the amended Constitution.

These two points reveal her timeframe. The general elections mentioned in the government’s policy must be a reference to the next election in 2020. Thus, before the 2020 election, the State Counselor must aim to execute the other points of the policy, including the Union-level agreement, and the amendment of the Constitution.

This clearly shows that the government’s policies do not only aim to achieve peace but also to change national laws. In fact, such an attempt to amend the Constitution could be considered the bigger challenge, as the military—which enjoys the Constitutional privileges—will definitely resist any change to its current status. Yet one of the longtime goals of the National League for Democracy, led by Daw Aung San Suu Kyi, has been to create a Constitution that ensures “all the people of Burma can live together in tranquility and security.” It was officially written as such in the NLD’s 2015 election manifesto.

Thus, for their fifth point, the NLD introduced its proposal to form the committee last week. My analysis is based on two things—the first is an assumption that the NLD leadership has deliberately waited for this moment to kick the process off. The second is based on “privileged information” from a reliable source who told me that the top leader of the former military regime, U Than Shwe, asked Daw Aung San Suu Kyi at a meeting in December 2015—about one month after the NLD won a landslide victory in the general election—to wait for a couple of years before moving to amend the Constitution.

It’s quite likely true, though only those two people would be able to confirm this information. If this agreement was in fact reached, it was likely in the form of a verbal exchange between the country’s most powerful ex-military leader and its most popular elected leader. At that time, Daw Aung San Suu Kyi would have known at what pace she and her victorious NLD could proceed. At least she was able to do so in the knowledge that she was not opposed by U Than Shwe, who is believed to retain his influence in the military.

Back then, U Than Shwe was quoted as saying on his favorite grandson’s Facebook page: “After winning the election, it’s the reality all have to accept—that Daw Aung San Suu Kyi will be the country’s future leader.” The grandson continued in his post that Daw Aung San Suu Kyi reportedly said, “For the success of establishing [a brighter] future of Burma, I want to talk to Snr-Gen. Than Shwe for all-inclusive collaboration, including with the Tatmadaw [the military].”

After their meeting on Dec. 4, 2015, according to his grandson’s post, U Than Shwe pledged to support Suu Kyi “as best he can,” so long as she truly works for the development of the country.

With these two points in mind, I think the NLD put the wheels in motion in late January in order to try and achieve its goal, as planned, before 2020. Whether the military will collaborate with the NLD or not remains an open question, as demonstrated by its objection to the party’s move in Parliament. But the current military commander-in-chief, Senior General Min Aung Hlaing, and his appointees in Parliament said the military is not opposed in principle to amending the Constitution.

My main question is this: Might U Than Shwe be inclined to counsel the commander-in-chief to accommodate the NLD’s constitutional reform to some extent? If he were to keep the promise of help that he made to Daw Aung San Suu Kyi in 2015, the NLD’s attempt to change the Constitution would be significantly more likely to yield fruit.

Certainly, the NLD will not try to amend every undemocratic article in the Constitution. Knowing that success depends on the military’s support, the ruling party will have to leave some space for the military to play a role in politics, even as it implements its plan to amend the Constitution.

If you’re wondering about the NLD’s priorities when it comes to constitutional reform, here are the articles most likely to be targeted for amendment and why they need to be fixed. 

Read this story: Making Myanmar’s Constitution Democratic