In a move that could put Myanmar’s civilian government on a collision course with the powerful military, a parliamentary committee submitted this week proposed amendments to the country’s constitution.
The anticipated report contains more than 3,700 recommendations for proposed changes to the military-drafted charter, which carves out a strong political role for the armed forces including via control of the defense, home and border affairs ministries.
In 2015, the National League for Democracy (NLD) scored a landslide electoral victory, capturing 135 of the 168 seats up for grabs in the upper house and 255 of 323 in the lower.
Despite the heavily touted transition from direct military to quasi-democratic rule, the military controls 25% of all seats in each legislative chamber through constitutionally allowed appointments of its khaki-wearing representatives.
The NLD’s resounding election victory was won partly on a promise to amend the unpopular charter – and the party is now making the politically sensitive moves as it prepares for pivotal 2020 elections.
The NLD has long advocated for changes to the charter’s article 436, which requires approval from more than 75% of MPs to amend crucial articles, and 59(f), which states that the president and vice president must be born of Myanmar citizens and cannot have foreign spouses or children.
That clause was likely included to prevent then-opposition leader Aung San Suu Kyi from becoming head of state. One of the popular leader’s two sons is a British citizen and the other is a naturalized American; Suu Kyi’s British husband, academic Michael Aris, died in 1999.
The NLD’s way around the provision was to create a new government post for the long-time pro-democracy champion, that of “state counselor”, making her the nominal head of government and making the president’s position a more ceremonial role.
Such decisions, as well as minor constitutional changes, may be considered by the bicameral parliament if 20% of its members submit a bill. However, a tangle of 104 clauses outlined in article 436 cannot be amended without the prior approval of more than 75% of MPs, meaning military appointees wield de facto veto power.
That means that the NLD would need at least one military MP to break ranks for any constitutional amendment to pass, an unlikely scenario considering the military’s lawmakers are soldiers who take and obey orders from above.
The military’s veto power is the crux of the constitutional amendment debate and why the NLD is expected to fail in any attempt to reform the charter in ways that aim to make the country a functioning, rather than cosmetic, parliamentary democracy.
The idea to create the “state counselor” position was conceived by Ko Ni, then the NLD’s main legal adviser. But that was as far as the now deceased respected legal expert could go under military-imposed restraints to change.
Ko Ni argued that it would be an impossible to fundamentally amend the military-protecting constitution, and therefore suggested that the charter should be abolished altogether and replaced with a new one.
That nuclear option would not have posed any legal problems, as the military drafters of the current charter failed to include any provisions barring its abolishment through a single majority vote, a scenario the NLD has the parliamentary numbers to achieve.
Ko Ni was assassinated in January 2017 in circumstances that have never been made entirely clear, though many of his associates believe that he was killed because of his quiet work on drafting a new constitution that would have significantly curtailed the military’s powers.
It is thus not surprising that the NLD has since been reluctant to seriously challenge the military’s hold on power through attempted constitutional change. But, at the very least, the NLD can now show voters that they have at least gone through the motions.
In 2020, the NLD will compete for votes against the military-aligned Union Solidarity and Development Party (USDP), and amid widespread perceptions it has yielded too much power and control to the military in pursuit of national reconciliation.
By-elections held in November showed that while the NLD may still have strongholds in Yangon and other major cities, it is losing support in ethnic minority areas where a government peace initiative has failed to take hold.
The NLD’s bid to amend the constitution faces similarly narrow prospects for success.
Even if changes were approved by parliament, an unlikely scenario considering the military’s de facto veto power, a nationwide referendum must be held in which more than half of all eligible voters approve the suggested amendments.
Those slim odds, coupled with Myanmar’s record of holding bogus referendums – the first in December 1973 for the 1974 constitution and the other in May 2008 for the present charter, where nearly 94% reputedly voted in favor – makes it virtually impossible to change the clauses which protects the military’s now indirect but firm hold on power.
Indeed, one of the first sections of the 2008 constitution guarantees the military’s “national political leadership role of the state” and, in case of an “emergency”, the “commander-in-chief of the Defense Services has the right to take over and exercise state sovereign power” after consulting the president.
The constitution also states that no legal action can be taken against the military for its actions while exercising such emergency powers.
In 2008, Myanmar’s generals passed a constitution that firmly protected their interests, while the country’s move since from direct military to quasi-democratic rule has so far failed to change the country’s fundamental power structure with the armed forces at its apex.
Any attempt to change the constitution’s fundamental spirit would put the NLD in conflict with the military, for among the charter’s “basic principles” is a pledge that makes the defense services “mainly responsible for safeguarding the constitution.”
In an interview with Japanese newspaper Asahi Shimbun on February 14, Myanmar’s military chief, Senior General Min Aung Hlaing, stated that “In principle, we agree with the principle of constitutional amendment. But the important point is that no amendment should harm the essence of the constitution.”
That “essence” has so far upheld the role of the military in politics after decades of direct rule. In fact, any attempt to change the “essence” of the constitution – to use the words of Min Aung Hlaing – are a non-starter.
The hard truth is that after two general elections, in 2010 and 2015, Myanmar’s military will remain the country’s most powerful institution for the foreseeable future, regardless of how its proxy party performs at the 2020 elections.
Myanmar’s military, in direct power for decades and still the country’s main political force, did not design its carefully crafted constitution to yield easily its power and privilege to civilian authorities.
On the contrary, top brass aimed to ensure that no election or democratic government would undermine the power it has wielded, often ruthlessly, since the military ousted the country’s last truly democratic government in a fateful 1962 coup.