Acknowledging the Elephant in the Room

By The Irrawaddy 30 January 2019

The ruling National League for Democracy has initiated the process of forming a joint parliamentary committee to work on amending the country’s military-drafted Constitution. Facing public frustration and sensing a loss of confidence among the party’s hardcore supporters, the senior leadership of the NLD pondered the move for months before finally deciding to submit a proposal to Parliament.

The move coincided with the second anniversary of the assassination of prominent lawyer U Ko Ni, an expert on constitutional law and a member of the NLD.

As expected, the military’s representatives in Parliament questioned the proposal’s legality and insisted that any move to amend the Constitution requires a draft signed by at least 20 lawmakers. Despite these objections, Parliament voted in favor of forming a committee.

A total of 397 lawmakers voted in favor of the measure with 17 voting against it, three abstaining and 187—comprising all of the military members and 21 others—boycotting the vote.

NLD legislator U Aung Kyi Nyunt, who submitted the proposal, said membership of the joint committee on constitutional reform would be open to lawmakers from all parties.

“I am not proposing a draft law to amend the Constitution,” he said. “This is just to form a joint committee on constitutional reform, which can work transparently on a draft law systematically and speedily.”

Under the previous government led by then-President U Thein Sein, lawmakers only succeeded in passing a few minor amendments to the Constitution having to do with regional legislation.

Military lawmakers stand in Parliament on Jan. 29, 2019 to show their displeasure with the Speaker’s decision to call a vote on a proposal to discuss the formation of a joint committee to work on constitutional reform. / Htet Naing Zaw

Key campaign vow

In 2015, the NLD made reform of the 2008 Constitution one of its key campaign promises, along with economic development and achieving peace. So far, however, the ruling party has failed to fulfill those promises.

Indeed, many have warned that making substantial changes to the charter will never be easy so long as the military maintains its current level of control and power.

Under the Constitution, 25 per cent of seats in all parliaments at both the Union and regional levels are reserved for military appointees, who do not represent any constituency. Moreover, the military controls three key portfolios—Defense, Home Affairs and Border Affairs—and reserves the right to appoint a vice president.

The NLD government has faced several serious challenges since it came into power: the ongoing crisis in northern Rakhine State and the resultant international condemnation; its failure to achieve substantive progress in peace talks; and a stubbornly sluggish economy. Nonetheless, Daw Aung San Suu Kyi, who is now State Counselor, attended an investment forum in Naypyitaw recently in an effort to drum up foreign investment. The government believes that by prioritizing peace it can promote economic progress in this ethnically diverse nation.

In the cities, the public’s frustration is obvious, but Daw Aung San Suu Kyi and the government still enjoy considerable support in the countryside. At any rate, the public has few alternatives, as there is little support for the formerly ruling Union Solidarity and Development Party.

In November, NLD leaders were alarmed by the outcome of the by-election, in which the party won just seven of the 13 seats it contested—far below its expectations. In the end it won just 54 percent of the seats that were up for grabs, giving party leaders a real wake-up call.

But the NLD’s senior leaders say they remain focused on fulfilling their campaign promises, including amending the Constitution.

In May last year, Dr. Myo Nyunt told the Irrawaddy, “There are concerns that our government has done nothing to change the Constitution. In fact, all the things we are doing—from mobilizing [public] support, reconciling with the Tatmadaw [Myanmar’s military] and fostering the public’s trust to improving their daily lives—are about constitutional amendment. It is utterly impossible to amend the 2008 Constitution without those foundations. We are waiting for the right time, while working toward national reconciliation and building substantial support among the people. In politics, you can’t just make demands all the time; you have to wait for the right time.”

The party’s leaders appear to have decided that the time has come. With support building for the ethnic parties and the election in 2020 approaching fast, the party needs to demonstrate that it is a force to be reckoned with.

The move to amend the Constitution received considerable support from ethnic representatives in Parliament. Some ethnic parties still believe the NLD is committed to establishing a federal Union and moving the country along the path of democratization and reform. But many are also frustrated, seeing little progress on a range of issues amid a deepening sense of crisis, division and growing mistrust.

Thus, the NLD leaders will have to work hard to reach out to major ethnic parties such as the Shan Nationalities League for Democracy and many other parties. Some party faithful believe there has been progress on this front.

Naypyitaw’s unseen game

Recently, control of the General Administration Department (GAD) passed from the military-controlled Ministry of Home Affairs to the Ministry of the Union Government Office.

There is speculation that the Police Department—now under the control of the Ministry of Home Affairs—will follow suit and soon be under the control of the Union government.

These changes are encouraging, but the “game” in Naypyitaw continues to be played largely out of sight, and appears to still be unfolding.

The NLD wants to amend over 160 articles of the Constitution, including sensitive ones relating to the military’s role in national politics; Article 59(f), which bars anyone with a foreign spouse or children from holding the presidency; and Article 436, which requires that proposed changes to the Constitution be supported by more than 75 percent of legislators.

Article 59(f) bars NLD leader and State Counselor Aung San Suu Kyi from becoming president because she has relatives who are foreign nationals.

However, the powerful military cannot be excluded from the constitutional amendment process; without the military’s cooperation, any amendments will have little meaning.

In fact, the primary aim of amending the Constitution in ethnically diverse Myanmar should be decentralization—not only political but administrative.

This is not going to be a smooth journey, and there is no guarantee of success. It is a small step and a late start, but if the NLD thinks the time is right, so be it.

One thing is certain; we can expect some interesting developments—and headlines—in the coming months.