Beginning in late February, the parliamentarians from opposing parties took so many pot-shots at each other that the Speaker of the House threatened to sue some of the members. In one such exchange, a member of the military-backed Union Solidarity Development Party (USDP), U Maung Myint, attacked members of the ruling National League for Democracy (NLD), led by Aung San Suu Kyi, for being so old that it will “throw the country into chaos if it is led by those old enough to be in their second childhood”. The intense and heated debates in the Pyithu Hluttaw, Myanmar’s lower house of Parliament, continued into March, reflecting the contentious nature of reform in the nation-state.
The issue of constitutional amendments is highly contentious in Myanmar, and, as expected, the debates concluded on 5 March with minor modifications but no substantial change. The constitution in question was introduced in 2008 by the Tatmadaw, Myanmar’s military, and is part of its roadmap towards a “disciplined democracy” to ensure its supremacy in state affairs. Following the NLD’s historic landslide victory in 2015, many hoped that a transition towards democracy was in the offing.
However, the NLD, which won the election on the promise of amending the constitution, has thus far failed to do so. Moreover, the NLD took nearly three years after coming to power even to initiate the process of amending the constitution. The party maintains that it is following the timeline outlined in the seven-point roadmap prescribed in Suu Kyi’s speech on the first anniversary of the Nationwide Ceasefire Agreement (NCA) in October 2016. Regarding the delay in revising the charter, Kyaw Zwa Moe, the editor of local newspaper The Irrawaddy, claims U Than Shwe, a top leader from the former military regime, “asked” Aung San Suu Kyi to “wait a couple of years” to amend the constitution during a meeting in December 2015. Although the validity of these speculations remains uncertain, it is clear that the ruling party is holding back on amending the constitution, in part due to many challenges obstructing such moves. One such obstacle came in 2017, when the NLD’s legal adviser and prominent advocate for reform, U Ko Ni, was assassinated, in what was seen as a warning against moves to amend the constitution.
Apart from guaranteeing the military a prominent role in politics, the existing constitution also ensures that state institutions reflect the ideology espoused by the Tatmadaw. This ideology draw from Tatmadaw’s three national clauses: the non-disintegration of the Union, the non-disintegration of national unity, and the perpetuation of national sovereignty. In order to safeguard the implementation of these clauses, the constitution allocates 25% representation of unelected military officers in Myanmar’s Parliament, thereby giving them veto power, as articles 436 (a) and (b) require more than 75% of members to vote in favour of approved amendments. The constitution also grants sovereign powers to the Commander-in-Chief of the armed forces in emergencies, including rights to exercise control over the executive, legislature, and judiciary. In Myanmar, an emergency is defined as any situation that could lead to the nation’s disintegration, loss of sovereignty, or attempts to forcefully take power through insurgency. Thus, any amendments to the constitution would severely claw back the Tatmadaw’s iron grip on the Myanmar government.
The military’s power is further buttressed by the National Defense and Security Council (NDSC), the most powerful decision-making body on Myanmar’s security issues, which is dominated by military members and includes the president, two vice presidents (one of whom is appointed by the military), speakers from the upper and lower house of Parliament, the Commander-in-Chief, minister of defense, home affairs, border security, and foreign affairs. Furthermore, the military is in charge of appointing the defense, home, and border affairs ministers, which effectively gives the armed forces control over hand-picking the most senior and influential positions in government. In light of this, it is clear that civilian-elected members of Parliament, to say the least, face an uphill task to amend the charter.
Hence, instead of eliminating the military’s representation in Parliament, the NLD has proposed gradually reducing the percentage of unelected military officers from the currently prescribed 25% to 15% and eventually reducing it to 5%. It has also proposed amending the composition of the NDSC, by excluding the minister of border affairs and including two deputy parliamentary speakers. Since taking office, the NLD-led government has not convened a meeting with the NDSC, indicating its continued mistrust of the military. Other changes proposed by the NLD include reducing the minimum age of the president from 45 to 40, curbing the special powers of the C-in-C during emergencies, and making the Supreme Court the highest legal body in the nation (an honor that currently rests with military courts). However, as expected, these vital amendments to strengthen civilian control of the state have not been passed, leaving the military in firm control of the government.
In fact, the NLD proposed a whopping 114 amendments to the constitution, of which only minor ones concerning changes in the language of clauses pertaining to the appointment of state and regional ministers were approved. In essence, by attempting to introduce so many changes, the NLD is trying to convince the populace that the military and the USDP stand in its way. of it being able to uphold its mandate of changing the constitution. This strategy has not gone unnoticed by the army or the USDP. A USDP parliamentarian, U Thaung Aye, said, “I am concerned that this will spread not only inside the country but also reach outside the country,” insisting that the military’s international image will be harmed further.
Indeed, the Tatmadaw and the USDP are seeking to change this narrative by proposing amendments of their own that focus on the demilitarisation of state institutions and, in turn, expand civilian authority. The military bloc proposed revising article 261 by electing regional chief ministers through local legislatures instead of being appointed by the central government through the president. Such an amendment primarily seeks to make the nation-state federal in structure by distributing more powers among peripheral regions. This comes as somewhat of a surprise as, in the past, the Tatmadaw opposed federalism and even equated it with the disintegration of the country. The underlying motive for proposing such an amendment is to take advantage of the ethnic minorities’ growing disillusionment with the NLD. For instance, when the NLD drafted its proposal for constitutional changes at the Joint Parliamentary Committee for Constitutional Amendment (JPCCA) in 2019, it was criticised by minorities for not including any of their proposals. In fact, the National Unity Party and members from the Arakan National Party withdrew from the JPCCA over the NLD’s unilateral decision-making.
Ethnic minorities in the country—such as the Kachin, Shan, Chin, Kayin, etc.—have continuously strived for a federal system wherein their states are given more powers and control over natural resources. Ethnic Armed Organisations (EAOs) continue to fight the military in what is often regarded as the world’s longest-running civil war. Therefore, when the NLD came to power in 2015, it received the support of minorities in the hope that the party would uphold its promise of navigating the peace process in favour of the minorities and creating a federal-state system. So far, the NLD has not met either promise, and although Aung San Suu Kyi reiterated her commitment to federalism, the lack of progress paints a less than promising picture. Therefore, the military’s intent by introducing such amendments appears to be an attempt to take advantage of the growing rift between the ethnic minorities and the NLD. That being said, it is unlikely that ethnic minorities will side with the military’s proposal of a pro-federal constitutional amendment, given the deep-rooted mistrust arising from long-drawn conflict coupled with the lack of concessions the Tatmadaw is making in the peace process. Yet, by changing the narrative, the military further undermines the already dwindling image of the NLD and reveals its duplicity. Furthermore, in the wake of the Rohingya crisis, Aung San Suu Kyi and the NLD are facing mounting international pressure, with questions about the latter’s commitment to democracy continuing to be raised.
Domestically, the rift between ethnic minorities and the NLD is only growing wider, and the ruling party is fully aware of this dissatisfaction. Following the by-elections in November 2018, the party’s spokesperson Myo Nyunt, conceded, “We lost five out of six ethnic areas. Ethnic people are not satisfied with our performance on the peace process.” The party placed third in the Kachin state after the Kachin Development Party (KDP). The USDP won the seat in Myitkyina, the Kachin region’s capital, with votes pouring in from the military cantonment. “The NLD failed us miserably,” said San Htoi, joint general secretary of the Kachin Women’s Association based in Thailand. Referring to the lack of progress on ethnic representation and human rights, Htoi added, “We have seen enough.” In contrast, Aung San Suu Kyi’s party retained its hold in central Myanmar, which is composed of the majority ethnic Bamar, further reflecting the nation-state’s center-periphery divide.
In light of growing dissatisfaction from ethnic minorities and the military’s attempt to capitalize on this divide, the NLD is predicted to hasten its resolve in pushing for constitutional amendments in the elections later this year, both to stave off excessive military influence and to gain the support of disenfranchised communities. At the same time, the NLD is growing increasingly wary of other political parties forming a viable alternative to its governance. For example, several ethnic political parties have merged to be able to contest more seats and stand a chance against the NLD. Amid this political instability, the military has severely reduced the possibility of constitutional amendments, which impacts the freedoms of both the majority Bamars and ethnic minorities of Myanmar. It remains to be seen whether push will come to shove during the upcoming election and whether the intense uprising in the peripheries will spread across the nation to force the constitutional changes that both those at the margins of society and those at its core are now demanding.
Navigating Constitutional Amendments in Myanmar
Constitutional changes are complicated by the military’s stronghold over the government.
August 26, 2020
Myanmar's State Counsellor Aung San Suu Kyi (centre) attends the first day of new parliament session in Myanmar on Feb 1, 2016. SOURCE: EPA