*This article first appeared in New Mandala on 20 November 2019
Available also in Burmese, and in Bahasa Indonesia.
Political
actors in Myanmar are in a struggle over constitutional reform, which is a form
of political capital. All the key political actors want to control the
prospects for constitutional reform and benefit from the political capital this
opportunity offers.
Among
these actors are the military, as the most powerful and unaccountable political
actor. It also includes the Union Solidarity and Development Party (USDP) which
is the proxy political party for the military. Ethnic political parties also
play a role as a small but diverse group connected to the multiple ethnic armed
organisations scattered across the country. Finally, of course, the National
League for Democracy (NLD), Aung San Suu Kyi’s political party. Each of these
political actors want to claim that they pushed forward constitutional reforms
in the hopes it will boost their popularity ahead of the 2020 elections.
Competition
over Constitutional Reform
The
NLD was the first to challenge in January this year, putting forward a
legislative motion to form a committee to consider constitutional amendments.
This move was controversial because the NLD submitted this motion on the second
anniversary of the assassination of the
country’s most prominent constitutional lawyer,
Ko Ni.
The
military strongly opposed the NLD’s move, with the military delegates in the legislature
refusing to vote on the legislative motion to form a committee for
constitutional reform. They argued it was procedurally invalid, although they
clearly do not want the NLD to lead discussions over constitutional reform.
In
addition to opposition in the legislature, there has been opposition on the
streets. Rallies have been staged in Yangon and other parts of the country in
support of the military’s position to retain the essence of the
Constitution.
For
example, in early February, I was in Yangon, heading downtown one Sunday
afternoon when my taxi passed a group of pro-military protestors preparing for
a demonstration. The protestors were given two flags. One was the national flag
that is a symbol of nationalism, but also of the 2008 Constitution and the
power of the constitution-makers, the military. The flag appeals to a sense of
nationalist-military pride.
The
second flag had a white dove on a blue background, which evokes the peace
process that has been ongoing since 2012. This is an exclusive peace process
for recognised ethnic armed groups. Running separate and parallel to this
process are other conflicts. The violence in Rakhine State and the mass
displacement of the Rohingya is said by the government and military to be an
issue of terrorism, and so is addressed outside of the peace process.
The
symbolic power of flags is used to support the claim that the Constitution
should not be changed.
Proposals
for Change: What’s New is Old
The
Union Solidarity and Development Party (USDP) has used this opportunity for
constitutional reform in the legislature to push its agenda. The USDP first
focused on article 261, the provision of
the Constitution regulating the appointment of Chief Ministers of the States
and Regions. In Myanmar, there are fourteen states and regions. Yet the
sub-national governments’ powers are limited and they remain closely affiliated
with the Union government.
This
is because the President holds the power to appoint Chief Ministers, which
reduces both the real and perceived independence of State and Region
governments. This power ensures appointees are closely connected to the central
Union government. The USDP has proposed to amend the Constitution to allow the
legislature at the State and Region level to appoint the Chief Minister. This
proposal is not new but is generally understood in Myanmar as a measure towards
decentralisation.
The
USDP wanted its proposal to be considered as a separate bill in an attempt to
gain credit for this potential constitutional reform. The USDP seeks
constitutional reform as a form of political capital in the lead up to the 2020
elections. The NLD has resisted the USDP’s claims and instead included
discussion of the proposal as part of the broader review undertaken by the legislative
committee formed by the NLD. This dispute represents a struggle over who gets
to own and claim credit for constitutional reform.
The
USDP and military have put forward other key changes. Among these
changes include measures at decentralisation. For example, the President has
complete power to determine the number of ministries at the State/Region level.
The USDP has proposed constitutional amendment so that the president must
consult with the State/Region legislature on this decision (revising article
248(c)). This would be a small step towards decentralisation and may allow
variations in governance among the states.
Most
recently, the military has proposed
that a new constitutional provision be inserted in an attempt to prevent
Suu Kyi from becoming a minister in the next government. The military argues
that a person who has foreign citizenship or whose immediate family has foreign
citizenship should be constitutionally prohibited from becoming a Union
Minister. The same provision already exists in relation to the President, which
is why Suu Kyi cannot become the president.
Other
minor political parties, such as the
Arakan National Party (ANP) have called for amendments to ensure the
legislature only contains civilian representatives. This is a blunt challenge
to the military and a consequence of the escalation of the conflict between the
Arakan Army and the military.
The NLD has taken a middle path,
suggesting a gradual reduction in the number of military representatives in the
legislature over time. There are deep divisions over whether the military
should remain in the legislature, and if so for how long. On its side, the
military remains committed to its privileges under the 2008 Constitution, such
as its seats in parliament.
In
July, the Committee for constitutional reform completed its review. Much of the debate – in process and substance – is similar to the legislative debate in 2015. While new claims for
constitutional reform continue to be made, much of this is related to old
debates about aspirations for civilian rule, federalism and democracy in
Myanmar.
Support
for Aung San Suu Kyi
The constitutional reform process
has not received significant international attention because of the more
pressing humanitarian crisis. The situation for the Rohingya, both for those
who remain in Rakhine State and those who fled to Bangladesh, remains dire. The
situation badly taints the present government, if only at the international,
rather than domestic, level.
On
19 September 2017, Aung San Suu Kyi addressed the
United Nations
and gave her opinion as the State Counsellor of Myanmar regarding the grave
conflict and displacement crisis in Rakhine State. Her speech was widely
criticised by the international community for failing to acknowledge the
reality and enormity of the humanitarian and displacement crisis that had been
unfolding since 25 August.
Yet
Suu Kyi has benefited from the Rakhine State crisis domestically. On the same
day as Suu Kyi’s speech to the UN, protests were held by pro-Suu Kyi supporters
across major towns in Myanmar. In addition, the diaspora organised
demonstrations at sites around the world, such as at the Australian parliament
house in Canberra. These demonstrations were organised under the slogan of ‘We
Stand with Daw Suu’.
The
message was clear: many people in Myanmar support Aung San Suu Kyi and her
position of denial on the crisis in Rakhine State. This demonstrates support
for an illiberal view that sanctions the exclusion of the Rohingya from the
political community of Myanmar.
The
international community has been confounded by the strong, united response from
within Myanmar that largely denies the state of suffering of the Rohingya who
are displaced both within Myanmar and across the border in Bangladesh. The
National League for Democracy government and the military have at various times
denied the scale, scope and legitimacy of the suffering and the urgency or
necessity of taking responsibility. While the NLD is not without agency in this
situation, the military still has the upper hand in the struggle for political
power.
The
debate over constitutional reform is often presumed to be one about minority
rights. Yet the illiberal nature of the debate means that the issue of the
Rohingya does not feature in the discussions. This is despite the issues of
citizenship, recognition of land, culture and basic rights being at the heart
of the Rohingya crisis.
Civilian
v Military Power Plays: The Power to Pardon
The
constitutional reform debate is an arena where civilian actors are in a
struggle against military power. Another way that the struggle between civilian
and military authorities is on display is the power to pardon perpetrators of
the violence in Rakhine State.
Two
journalists, Wa Lone and Kyaw Soe Oo, spent more than 16 months behind bars on
charges of obtaining state secrets. This case related to their investigation
into a massacre in one village in Rakhine State and hit global news because
they were reporting for Reuters.
The
journalists were sentenced to jail, much to the condemnation of the
international community, but then pardoned by the
president. On 7 May, the two journalists were finally
released on the decision of the President.
The
President has the power to pardon or to grant an amnesty based on the
recommendation of the National Defence and Security Council. The Council
consists of eleven members including the Commander-in-Chief, with a majority of
members from the military. The president has traditionally pardoned prisoners
over Myanmar’s New Year.
Yet
in a turn of events, some of the perpetrators of the Inn Din massacre were also
pardoned in what appears to have been a secret process oversee by the military.
Several military officers responsible for the Inn Din massacre were initially sentenced
to ten years jail by the Courts Martials. The Courts Martial are under the
control of the Commander-in-Chief. The decision was announced in March 2018,
but by November that same year the soldiers were allegedly pardoned in secret.
The pardon was only publicly
discovered six months later in May 2019. A civilian who was also convicted for
his complicity in the murder of the ten Rohingya villagers remains in jail.
The
decision to pardon the soldiers could be unconstitutional. The military claims
it has the power to pardon the accused tried in the Courts Martial. Yet the
Constitution does not specifically grant the Commander-in-Chief the power to
pardon or grant amnesty to someone convicted by a Courts Martial. The secret
pardon by the military is a display of its power and independence.
There
has been international backlash against the military for its decision to
release the soldiers. In July 2019, the United States imposed sanctions on the Commander
in Chief. The US noted that this was in response to allegations that the
Commander-in-Chief and other senior military figures were linked to
extrajudicial killings of the Rohingya in Rakhine State.
Illiberal
Visions of Reform
Suu
Kyi and the NLD have won support domestically for their stance in Rakhine
State, but at the same time have lost the support of the international
community. They still face domestic opposition from pro-military groups, as
evidenced by anti-constitutional change protests.
The
Rakhine State crisis has been isolated from both the peace process and debates
about constitutional reform.
The
Constitution helps to sustain illusions about civilian power and democracy in
Myanmar. The example of the power to pardon shows how the presidents’
constitutional power is undermined by the power of the military to quietly
pardon soldiers convicted for horrific crimes in Rakhine State. This is one
example of how the military wins in power plays against civilian authorities.
All
political actors know the people want some kind of constitutional change. All
want to take credit for achieving such change. As such, constitutional reform
is a kind of political capital in Myanmar. Yet the struggle for political
capital through constitutional reform is not between liberal and illiberal
visions of democracy, but rather between varying visions of illiberal rule, as
the debate on constitutional reform shows. What all sides of politics share in
common is a commitment to an illiberal
politics that excludes the Rohingya.
