Aftermath of the regime change: Constitutional amendment deliberation all over again?


Hardly has the historic power transfer from quasi-civilian, military dominated regime of Thein Sein to National League for Democracy (NLD)-led civilian majority government settled in, a series of governmental formation were announced, which included the formation of National Defence and Security Council (NDSC), the union government including the states and regions, Union Election Commission (UEC) and appointment of a chairman to constitutional tribune.

But the most outstanding news is the report tabled by NLD regime’s first bill to create a new “state advisor” or “state counsellor” role for Aung San Suu Kyi, leader of the NLD. At this writing, the proposed bill, particularly aimed to accommodate the creation of such a post for her has already sailed through the upper parliament, with the motion passed 137 to 70 in a secret ballot vote, to the chagrin of the USDP-Military bloc that have voted against it. And no doubt, the bill would certainly be adopted for the NLD won’t have difficulty garnering a simply majority in the lower house, as the upper house voting has already indicated.

The NLD’s first move, which is to circumvent the constitutional clause of 59(f) that have prevented Aung San Suu Kyi to take the highest office, due to her two sons being British citizens, exemplifies the fact that the constitutional amendment is a must, if good governance leading to a genuine federalism is to be achieved.

In the same vein, President Htin Kyaw’s inauguration speech mentioned the same message that the constitutional amendment is vital to be democratic and federal, which all the ethnic nationalities armed and unarmed are in agreement.

The core message delivered by the new President, underlined the NLD’s overall policy on how it intended to guide its administration for the good of the country. He said: “The present new government will consummate the following policies of national reconciliation, internal peace, realization of federal democratic union and uplifting the socio-economic standard of the majority of the people.”

He further stressed: “Other than this, there is a duty to perform the emergence of a constitutional law that is befitting to the democratic principles. (I) understood that patience is needed to strive and realize the people’s years-long, political aspirations.”

Constitutional crisis all over again

No matter where one started, in order to resolve the conflict encompassing all the multi-ethnic groups of the country, we repeatedly fall back on the amendment of the flawed constitution. This is the problem that has plagued the country, since we achieve independence from the British in 1947.

Ten years after the independence, the ethnic nationalities found out that the 1947 Union of Burma Constitution was only federal in name, but in practice unitary. In trying to correct the imbalance of political power-sharing, they made federal amendment proposal, spear-headed by the then Shan State government and ratified by “All States Unity Organization”, comprising of all the ethnic nationalities in 1961, in Taunggyi, Shan State.

The main argument for the constitutional amendment was that Burma Proper transformed itself into a constituent national state like all the others, rather than usurping the powers of union government, which had let to economic, political and administrative oppression of the Bamar on other ethnic nationalities.

The ethnic nationalities’ point of argument remain very much the same today, although it might differ among themselves on the point of 14 States and Regions or 8 States configuration, apart from the aspirations of national state-level administration among some of the ethnic groups.

Major stakeholders

The major stakeholders could generally be said to include, the military (Tatmadaw), the NLD together with other Bamar political parties, non-Bamar ethnic political parties and Ethnic Armed Organizations (EAOs).

The Tatmadaw’s position vis-a-vis federalism is somewhat hazy and non-committal as it only says: “establish a union based on the principles of democracy and federalism in accordance with the outcomes of political dialogue”.

For this could mean anything from the recent unitary presidential system, minimum to maximum devolution of power under the present system, to full-fledged federal union with strong states governments and weak federal central government.

But it is safe to conclude that the military only wants unitary centralized system with just minimal devolution of power to the states, so that there is a semblance of federalism. The present Commander-in-Chief Min Aung Hlaing has time and again stressed that the military would defend it self-drafted constitution of 2008 with its life and refused to be amended.

The NLD’s exact position on federalism is also not known, while Suu Kyi personally has on several occasions said that genuine federalism is her aim, we still need to know the details of nuts and bolts on how her party stands, regarding this crucial issue. But one of her close aide was said to be furious, when the an ethnic representative, during discussion at the Union Peace Conference in January, raised the question of 14 States/Regions versus 8 States configuration, suggesting that the Bamar dominated 7 Regions should become a national constituent state like all the others, hinted that the party could only go along with 14 constituent units, as it is now administered.

But as for the ethnic nationalities, they all prefer a system along the line of “building a federal union based on national states, with equality, rights of self-determination and democracy”, which more or less would cater to the fully fledged federalism category.

Political debate ahead

As it is, there is no question on the issue that the way forward for the country is through constitutional amendment, paving way to realize a genuine federalism. And to be able to do this a level playing field is a necessity.

So in concrete terms what should be done?

Even an uninformed person would say that getting rid of the military’s privileges of 25% allotted MPs in all parliaments – lower, upper, states and regions -, including the advantage to name and administer the home, defence and border affairs ministries; plus the majority vote within the NDSC with an edge of 6 to 5 against the NLD.

The military has on its side the Vice-President, Commander-in-Chief, Deputy-Commander-in-Chief and three Ministers of Home, Defence and Border Affairs, while the NLD has the President, Vice-President, two Parliamentary Speakers of lower and upper houses, and minister of foreign affairs.

On top of that, the NDSC is seen as the top decision-making establishment of the country, according to Ta Kaung Research Group’s Director, Ko Ye Myo Haing, reported recently by BBC on 1 April.

The same report stressed that in other countries such an establishment is designed to advice the President on defence and security matters, but in Burma the NDSC has the power to participate in political decision-making.

The latest Time report of 1 April also writes: “The NLD government will have a very hard time to control the conflict because they don’t control the [relevant] ministries, they don’t have a majority in the NDSC, and they aren’t in charge of the Myanmar army,” explains Tom Kramer (from Trans National Institute). “Even if the President says we should stop this conflict and there should be no more offensive operations, it won’t actually have any impact.”

During the term of ex-President Thein Sein, NLD and its ethnic ally parties tried in vain to amendment the constitution, for it was impossible to overcome the hurdle of 75% ceiling even to sail through the first motion within the parliament. And with the appointed 25% military representatives sitting in the parliament, it is next to impossible to amend the constitution.

Thus another outside of parliament track is becoming a necessity to amend the constitution, which the ethnic nationalities have pinned their hope on. Lately, the United Nationalities Federal Council (UNFC) members are becoming more convinced that the only way to change is through the political dialogue that would lead to a Panglong-like treaty, from which the constitutional amendment could be conducted, without having to care or follow the 2008 military-drafted constitution procedure. In short, to push for amendment of the constitution through peace agreement treaty or “Union Accord,” to term it differently.

In other words, a peace agreement is instrumental to change or rewrite the constitution, without having to go through the procedure written in the constitution, if it serves the purpose to end the cause of internal conflict or civil war. For the abnormal situation like civil war needs special procedure to resolve it. Therefore, to resolve the cause of war, constitutional law could be amened by making use of the peace agreement.

Two tracks deliberation

Having said that, the way to genuine federalism is becoming a bit clearer, but it doesn’t mean it is going to be easily achievable.

The NLD is doing what it can, as could be seen with its tabled first bill, together with the ethnic parties, within the parliamentary track, while it would also need to cooperate and coordinate with the EAOs, ethnic and other Bamar political parties, not to forget the civil society organizations, in trying to realize the outside parliamentary track, to push through the constitutional amendment and eventual establishment of a genuine federal union.

True, we all have to go through the uncomfortable debate of 14 versus 8 constituent units and not to mention the national state-level administrative aspiration of Shan-Ni, Pa-O, Wa, Palaung and the likes. But as the new President rightly and explicitly pointed out, patience and endurance are needed from all of us.

We could eventually overcome the constituent units disagreement through negotiation and the national state aspirations of the other ethnic groups. But we still need to build the genuine federal union first, before criterion could be drawn and agreed upon, to determine the feasibility of a state-hood.

For now, the first priority is to revitalize the second track movement outside the parliament, to energize and boost the amendment push within the parliament. Of course, the military must not be made to feel that it is losing its political edge, but instead should instil an awareness that it is for the benefit and welfare of the whole country and not just for a particular group.

It is now up to the skilfulness and tactfulness of the NLD to deliver this noble message to all quarters, specifically the Tatmadaw, that it is properly understood.



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