Myanmar's Constitutional Challenges

Nehginpao Kipgen *

In what some thought could be a game-changer to Myanmar's political landscape, several constitutional amendments were voted down in the Pyidaungsu Hluttaw, or Union parliament, on June 25. It was a crucial vote for the pro-democracy forces, especially the National League for Democracy (NLD), which hopes to see its leader, Daw Aung San Suu Kyi, become the country's next president.

On June 23, the hluttaw began debating some controversial clauses in the 2008 constitution, most notably one that grants the military the opportunity to veto constitutional changes through its 25 percent bloc in parliament. Articles 436(a) and (b) require more than 75pc of lawmakers to vote in favor of charter changes for the proposed amendments to be approved. The amendment rejected on June 25 proposed lowering the threshold to 70pc, which would check or limit military power. However, the military used its veto to reject the change.

The NLD boycotted the 2010 election partly because it felt that the 2008 constitution was undemocratic. However, after the release of Daw Aung San Suu Kyi from house arrest, the party decided to participate in the 2012 by-elections, promising to implement constitutional reform from within the system. The NLD launched a petition campaign across the country to garner people's support for constitutional change. The party submitted the collected signatures to the parliament as evidence of public support to their campaign.

After the vote on June 25, Daw Aung San Suu Kyi said she was unsurprised by the result. She argued that the military's unwillingness to support constitutional amendments could ultimately benefit the NLD. "People are now crystal clear about who they have to support," she said. The unelected military lawmakers said that while they are not opposed to changing the constitution in the future, they think that doing so now risks instability. "We are making the country's situation stable by putting 25pc military MPs in the parliament," said Brigadier General Tin San Hlaing.

The question now is: Can the constitution be amended without the support of the military?

The political scenario we see in Myanmar could be called an incomplete or illiberal democratic transition, or even a defective democracy. One needs to understand that the dominant role of military in politics was instituted in the seven-step roadmap to "discipline-flourishing" democracy, which was announced by then-Prime Minister General Khin Nyunt in August 2003.

It was later consolidated in the 2008 constitution. U Khin Nyunt is no longer in power, but during my meeting with him in Yangon last year he unequivocally stated that Myanmar needs a federal democracy that best suits the country. That speaks volumes and I believe that the objective of present military leaders is more or less the same.

Any constitutional amendment through the legislative process will be extremely difficult without full military support. Even if a military lawmaker wants to support charter changes, they are bound to obey the commander-in-chief's directives. There is also the possibility that the incumbent military chief is not authorized to take a decision on major issues, such as constitutional amendment, by himself.

Against the backdrop of recent unsuccessful attempt, there are some people who even suggest that attempts to amend the constitution should be waged outside of the parliament. If that route is to be considered, how would it play out? Will sanctions or pressure from the international community deliver the desired results?

On June 26, a spokesperson from the US embassy in Yangon said, "There are provisions in Burma's constitution, such as the lack of civilian control of the military and the military's veto power over constitutional amendments, that contradict fundamental democratic principles. It will be important to the ultimate success of Burma's democratic transformation that the constitution be amended to make it appropriate for a democratic nation."

This statement suggests it is unlikely that the international community will pursue sanctions or pressure over the constitution. Most countries are now either working to normalize or strengthen bilateral ties with Myanmar. Since the days of the military regime, Myanmar's leaders have been saying that they were impressed by the way the military in Indonesia gradually reduced its role in politics over the years.

By now, one should be quite clear that present and former military leaders are concerned about the safety and security for themselves as well as their family members. They obviously want to avoid the exit experienced by leaders like Hosni Mubarak of Egypt or Slobodan Milosevic of Yugoslavia.

Also, with the continued armed conflicts in some parts of the country, some military leaders may also hold - explicitly or implicitly - the opinion that it is still too early to transfer absolute power to civilian control.

Myanmar's transition is a gradual or incremental one that will drag on for years, if not decades. It is also one form of consensual transition, where the authoritarian leaders actively participate in the process of change by controlling or limiting that change. In this type of transition, there is a degree of political continuity between authoritarianism and democracy.

Nehginpao Kipgen

* Nehginpao Kipgen's doctoral dissertation was titled 'Democratic Transition in Myanmar: Patterns of Political Change'. His new book titled 'Democratization of Myanmar' will be published by Routledge (Taylor & Francis) in early 2016.
The writer can be contacted at nehginpao(at)gmail(dot)com

This article was posted on July 21, 2015 .