Country reports
Background
Myanmar’s 2008 Constitution is the country’s third constitution since its independence from British rule in 1948. It acts as the country’s supreme law and was enacted as part of the military regime’s ‘Seven-Step Roadmap’ which aimed in theory to help Myanmar transit into a “a genuine, disciplined, multi-party democratic system” starting from 2003.[1]
In accordance with the “Seven-Step Roadmap” to democracy, Myanmar went through an important political transition in 2010: general elections were held and were won by the Union Solidarity and Development Party (USDP), a military-backed party led by former general Thein Sein. The semi-civilian government started economic and political reforms the next year.
Despite the reforms however, it is clear that the Constitution is used as a means to ensure that the Myanmar army, the “Tatmadaw”, retains some of its powers during and after Myanmar’s political and economic transition.
For example, the Constitution guarantees that 25% of parliamentary seats are automatically attributed to members of the military in a voting system which requires a majority of 75% of votes for a proposal to pass.[2] The Constitution also forbids a citizen to be candidate for the presidency if said person has a foreign spouse or children. Such provision specifically targets Aung San Suu Kyi who has as a consequence created the post of State Counsellor to act as the country’s de facto leader.
The positions of Minister of Home Affairs, Minister of Defense and Minister of Border Affairs are also automatically attributed to members of the military. As a consequence, the Tatmadaw is responsible for the decision-making related to conflicts at the border areas of the country, such as in Rakhine.
Thus, despite the democratic progress made during the USDP’s term, the 2008 Constitution remains a major obstacle to reducing the influence of the military in the country. Amending the Constitution has been a sensitive topic in Myanmar politics, but garners 80% of public support.[3] To showcase its will to amend the Constitution, the USDP under the Thein Sein government, formed a Constitutional Review Committee in 2013 which received recommendations from the public and from other political parties, about amending the Constitution. However, none of the recommendations were approved by Parliament.[4]
The 2008 Constitution therefore continues to be a subject of debate in Myanmar.
A number of stakeholders demanding change in the country, in particular from ethnic organizations, wish for an entirely new Constitution to be drafted for a federalist system to be established. A majority of stakeholders however, believe that amending the Constitution, after several attempts, will be the most realistic course of action to further advance Myanmar’s democratic transition.[5]
Amending the 2008 Constitution became one of the electoral campaign promises in 2015 of the USDP’s opposing party, the National League for Democracy (NLD), led by Nobel Peace Prize Laureate Aung San Suu Kyi.
The NLD won a landslide victory in the general elections of 2015. Three years after it took power in 2016, what was deemed unattainable a few years ago was now being realized i.e. the undertaking of a constitution amendment process.
The Process
In February 2019, almost three years after it came to power, the NLD-controlled Parliament officialised the process to amend Myanmar’s 2008 Constitution with the approval and creation of a Joint Parliamentary Committee for Constitutional Amendment, or Charter Amendment Committee.[6] By doing so, Aung San Suu Kyi’s party showed its efforts to fulfil one of its electoral campaign promises. The Committee is composed of 45 members from all parties as represented in Parliament, as well as from the Tatmadaw.
In July 2019, the Committee submitted more than 3 700 amendment proposals to the Union Parliament.
However, members of the UDSP and the Tatmadaw refused to submit any proposals through the Committee as they believe that the latter’s existence is a breach of the Constitution.[7] They separately submitted amendment proposals to the Union Parliament.
The joint committee demonstrated efforts of inclusivity by consulting for the amendment process, ethnic affairs ministers, state and region executives, parliament and self-administered zones and divisions officials, members of the Union Government, the Supreme Court, judicial organizations and legal experts.[8]
Some members of the Committee however, resigned between September and December 2019 on the basis that they do not consider the majority voting system to be inclusive. Indeed, out of the total number of amendment proposals, only 114 were accepted as amendment bills by the Committee, all of them advocated by the NLD.[9]
Once the amendment proposals were approved through a simple majority vote within the Committee, these were submitted to the Union Parliament in January 2020.
According to article 436 (a), bills related to certain sections of the Constitution require a majority vote of 75% in Parliament to be approved, followed by a national referendum.[10]
According to article 436 (b), other sections of the Constitution only require a majority vote of 75% in Parliament for the bill to be approved, without a national referendum.
Voting on constitutional amendments at the Union Parliament occurred between the 10th and 20th of March 2020.
The Proposals and Results
Amendments proposed by USDP party members but which were rejected within the Committee, included:
-that the Chief Minister of the States or Regions be elected by their respective regional parliament instead of being appointed by the President.[11]
- that section 59 (f) on the prohibition for a presidential candidate to have foreign family relations, be added as a criterion in regards to candidates for the position of Union Ministers and Chief Minister of the States and Regions.
-that the National Defence and Security Council gain more powers such as advising the President to dissolve Parliament under certain circumstances.
The proposed amendments by the NLD which were submitted to Parliament included:
-a gradual reduction of the number of parliamentary seats allocated to the military, i.e. 15% after the upcoming elections, 10% after 2025 and 5% by 2030.
-the addition of the words “in accordance with the will of the people” to section 6(f) which states that the objective of the Union “is enabling the Defence Services to be able to participate in the National political leadership role of the State”.[12]
-the replacement of the membership of the military-appointed Minister of Border Affairs within the National Defence and Security Council by the Deputy Speakers of Myanmar’s House of Representatives and House of Nationalities.
-the removal of section 59 (f) requiring the President of Myanmar to not have “one of the parents, the spouse, one of the legitimate children or their spouses […] owe allegiance to a foreign power…”
Thus, none of the amendments proposed by the USDP and military within the Committee was accepted and neither any amendment proposal on the topic of federalism or decentralization, a crucial issue for ethnic groups.
Ultimately, out of the 114 amendments proposed by the NLD, only 4 were accepted in Parliament.
3 of these consisted in amending the language used when referencing disabled people and seniors.
A fourth one related to amending the language used in the provision on the appointment of regional and state ministers.[13]
Two of these amendments according to the Constitution still need to be approved by national referendum (in addition to an earlier amendment approved of during the Thein Sein government) and on May 21st 2020, it was announced that said referendum has been postponed indefinitely.[14]
The poor result of the Constitution’s amendment process was to be expected on account of the 75% majority voting rule in parliament.
Although the amendments that passed were superfluous in nature, the benefit of this process for the NLD is political considering the upcoming elections: it confirms the narrative that the military blocks all democratic efforts made by the NLD. The military however, argues that the NLD is uncompromising in the discussions.
Perspectives on the Future
The USDP is not the only party to criticise the NLD. A number of MPs from ethnic minority parties feel that their voices are not hear in the amendment process, specifically in regards to federalism.[15] Ethnic parties had backed the USDP’s proposal of having state and regional ministers elected by state and regional parliaments instead of being appointed by the central government in Nay Pyi Taw. Indeed, such an amendment would have increased the number of ethnic ministers as they receive more support at the local level than at the Union level. However, this would also enable the military which represents 25% of the seats in regional parliaments, to also have decision-making powers it did not used to have, in the choice of chief ministers.
The military had thus put the NLD in the position of either having to give up some of its local power, or of further fuelling ethnic parties’ sentiment of underrepresentation. The eventual rejection of the amendment supports the prognostic that the NLD will lose more votes from ethnic minorities in the next general elections.
As Mael Raynaud and Tinzar Htun argued in their research supported by KAS, several trials will be necessary before any concrete progress is made in the amendment of the Constitution. Special focus should be given to the Constitution’s Schedule Two, which establishes the powers of the state and regional parliaments. Although this year the issue of federalism or of decentralization was set aside during the Constitution’s amendment process, Mael Raynaud and Tinzar Htun argued that in the future this would not be the case, as the democratization of the country will go hand in hand with the peace process. This section of the Constitution will be of increasingly more importance to both democracy supporters as well as to ethnic groups.[16]
[1] “Constitution_de_2008.Pdf,” accessed May 14, 2020, http://www.myanmar-law-library.org/spip.php?page=pdfjs&id_document=64.
[2] Ibid.
[3] Swe Lei Mon, “Public strongly favours amendments: IRI”, The Myanmar Times, Accessed 17 May 2019, https://www.mmtimes.com/news/public-strongly-favours-amendments-iri.html.
[4] Daljit Singh, Southeast Asian Affairs 2015 (Flipside Digital Content Company Inc., 2016).
[5] Mael Raynaud and Tinzar Htun, Schedule II of the 2008 Constitution: Avenues for Reform and Decentralization and Steps towards a Federal System, (Myanmar: Konrad-Adenauer-Stiftung Ltd., 2018), https://www.kas.de/c/document_library/get_file?uuid=bfad1bfa-8dc9-f8e0-f62c-0a618d4b14b4&groupId=252038.
[6] Mon, Ye. “Parliament Approves Committee to Amend Constitution.” Frontier Myanmar. Accessed May 18, 2020. https://frontiermyanmar.net/en/parliament-approves-committee-to-amend-constitution. The Committee is named differently according to the different translations from Burmese to English.
[7] The Irrawaddy. “Analysis | Why Does the Myanmar Military Rebuff the Work of the Constitutional Amendment Committee?,” December 30, 2019. https://www.irrawaddy.com/opinion/analysis/myanmar-military-rebuff-work-constitutional-amendment-committee.html.
[8] “Looking Back at the Myanmar Constitution Amendment Process | International IDEA.” Accessed May 20, 2020. https://www.idea.int/news-media/news/looking-back-myanmar-constitution-amendment-process.
[9] Ibid.
[10]“Con & Repub (Myanm & Eng) Big-1.Pmd - Myanmar_Constitution-2008-En - Constitution_de_2008.Pdf.” Accessed May 22, 2020. http://www.myanmar-law-library.org/spip.php?page=pdfjs&id_document=64.
[11] Myint, Sithu Aung. “Is Constitutional Reform a Journey to Nowhere?” Frontier Myanmar. Accessed May 17, 2020. https://frontiermyanmar.net/en/is-constitutional-reform-a-journey-to-nowhere.
[12] The Myanmar Times. “NLD Seeks Charter Changes to Increase Civilian Control,” Accessed May 18, 2020. https://www.mmtimes.com/news/nld-seeks-charter-changes-increase-civilian-control.html.
[13] The Irrawaddy. “Myanmar Parliament Indefinitely Postpones Referendum on Charter Amendments.” May 21, 2020. https://www.irrawaddy.com/news/burma/myanmar-parliament-indefinitely-postpones-referendum-on-charter-amendments.html.
[14] Ibid.
[15] Nyi Nyi Kyaw.”Democracy First, Federalism Next? The Constitutional Reform Process in Myanmar.” ISEAS Yusof Ishak Institute. Accessed May 19, 2020. https://www.iseas.edu.sg/images/pdf/ISEAS_Perspective_2019_93.pdf
[16] Thu, Mratt Kyaw. “Changing the Constitution.” Frontier Myanmar. Accessed May 19, 2020. https://frontiermyanmar.net/en/changing-the-constitution.