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Myanmar: NLD’s Bid for Constitutional Changes- An Analysis.

Paper no: 6497            Dated 21-Feb-2019

By S.Chandrasekharan

On January 29, the Ruling Party NLD made a surprise move in the Parliament to form a Committee for proposing Constitutional Changes to the existing 2008 Constitution.  The proposal as expected was vigorously opposed by the Army Representatives led by Brig. Maung Maung who did  not speak on the idea of Constitutional amendments but on the procedure adopted by the Ruling Party to push through amendments.

On 15th of February , the second Coordination meeting for Constitutional amendments met for forming a Joint Committee to consider the issue.   Two Parties- the unofficial party of the Army- the USDP and the Arakan National Party in whose area fierce fighting is going on between the Tatmadaw and the Arakan Army did not send the names for the Joint Committee to be formed.

On 19th of February, a Committee with 45 members to amend the Constitution was approved by a vote in the Pyidaungsu Hluttaw (Assembly of the Union).  Members of Parliament from 14 political parties , the Army (Tatmadaw) and independents met to form this committee and a total of 389 MPs voted for, with 192  against and with three abstentions. 

Significantly, in the proportionate representation to the committee to look into the amendments, the names for the 8 MPs from the Army and two MPs from the USDP could not be announced as no names were forthcoming neither from the Army or from the USDP.  The message is clear- that the Army is not for any amendment now. 

The Gateway to the charter amendment is Article 436 that prescribes that any amendment would need the approval of more than 75 percent or three fourths of all members of the Parliament. 

Thus, in Article 436, the Army is the “elephant in the room” and no one can expect the Army to cede its own veto on Constitutional changes however undemocratic it may be.  As some analyst had said that getting the Army to amend Article 436 of the Constitution is like “Turkeys voting for Christmas”.

The second article that is of relevance which the NLD in the past had tried to amend was Article 59 (f) of the Constitution that bars any candidate from the Presidency whose spouses, children or Parents are foreign nationals.  It was “Suu Kyi specific” but no longer relevant as Suu Kyi has circumvented the provision by creating the post of State Counsellor.  The Army that was outwitted once is likely to be very vigilant now in any move on amendments.

The third Article- 261gives the President the powers  to nominate Chief Ministers of States and Regions regardless of the representation of the parties in the said State and Regional Legislature.  This has given rise to an anomalous situation in Rakhine State in 2015 when an NLD representative was appointed as Chief Minister  much against the wishes of the Arakan National Party who had more than twice the number of seats than NLD in the Assembly!

In this connection the Army Chief who holds the key to all amendments made a few very significant points in his interview with Asahi Shimbun on 14 of February.  The points made were

  1. The Army accepts that the Constitution needs amendments  like the election of Chief Ministers and the assignment of Governors.
  1.   The Army holds 25 percent of seats in order to ensure national security but may change if security is no longer an issue.
  1.   The Parliamentary debates, administrative affairs, public involvement, actions of ethnic groups show that the country still needs a little more stability.
  1. Even if the NLD has the majority in Parliament, no section can be changed without the consent of Members of Parliament appointed by the Military.

In essence, he has ruled out any amendment to the constitution other than that of article 261 that deals with the appointment of Chief Ministers and Governors to the States and Regions. He has thus drawn the redline that no amendment is possible without Army’s approval whether or not the Army holds 25 percent of the seats. 

It is for the Army to decide when the security situation has improved to such an extent that it can relax on the representation of the Army in the national Politics.  Some incremental changes would however by allowed but not the Gateway- Article 436 of the Constitution.

Despite China’s initiative and its desperate hurry to find a solution to the ethnic insurgency on its borders, it is very unlikely that a quick solution to the insurgency could be found in the near term.  And so long as the ethnic strife continues, the Army will not allow any amendment to the Constituting that would dilute its power and its decisive role in the politics of country.

The Non Bamar ethnic groups who had regularly demanded equal rights, equal  opportunities and self-determination have in  return received only repression, violence and armed conflict.  The Bamar community that represents over 65 percent of the population but occupying less than fifty of the land should realise that they cannot continue with their privileged position with regard to national identity indefinitely.  Until and unless they do,  any ethnic reconciliation is out of question for the present.  This helps the Army too to continue with its stranglehold in the name of “National Security”.  

Annexure:

Article 436:

 (a) If it is necessary to amend the provisions of Sections 1 to 48 in Chapter I, Sections 49 to 56 in Chapter II, Sections 59 and 60 in Chapter III, Sections 74, 109, 141 and 161 in Chapter IV, Sections 200, 201, 248 and 276 in Chapter V, Sections 293, 294, 305, 314 and 320 in Chapter VI, Sections 410 to 432 in Chapter XI and Sections 436 in Chapter XII of this Constitution, it shall be amended with the prior approval of more than seventy-five percent of all the representatives of the Pyidaungsu Hluttaw, after which in a nation-wide referendum only with the votes of more than half of those who are eligible to vote. (b) Provisions other than those mentioned in Sub-Section (a) shall be amended only by a vote of more than seventy-five percent of all the representatives of the Pyidaungsu Hluttaw.

Article 59:

Qualifications of the President and Vice-Presidents are as follows : (a) shall be loyal to the Union and its citizens; (b) shall be a citizen of Myanmar who was born of both parents who were born in the territory under the jurisdiction of the Union and being Myanmar Nationals; (c) shall be an elected person who has attained at least the age of 45; (d) shall be well acquainted with the affairs of the Union such as political, administrative, economic and military; (e) shall be a person who has resided continuously in the Union for at least 20 years up to the time of his election as President; Proviso: An official period of stay in a foreign country with the permission of the Union shall be counted as a residing period in the Union; (f) shall he himself, one of the parents, the spouse, one of the legitimate children or their spouses not owe allegiance to a foreign power, not be subject of a foreign power or citizen of a foreign country. They shall not be persons entitled to enjoy the rights and privileges of a subject of a foreign government or citizen of a foreign country; (g) shall possess prescribed qualifications of the President, in addition to qualifications prescribed to stand for election to the Hluttaw.

Article 261.

Appointment of the Chief Minister of the Region or State 261. (a) …[sets out qualifications for post] (b) In order to appoint the Chief Minister of the Region or State concerned, the President shall : (i) select a suitable Hluttaw representative who has the prescribed qualifications from among the Region or State Hluttaw representatives concerned; (ii) submit the list of the elected Hluttaw representatives to the Region or State Hluttaw concerned for its approval. (c) The President shall appoint the Hluttaw representative approved by the Region or State Hluttaw as the Chief Minister of the Region or State concerned. (d) The appointment of a person as a Chief Minister of the Region or State nominated by the President shall not be refused by the Region or State Hluttaw unless it can clearly be proved that the person concerned does not meet the qualifications of the Chief Minister of the Region or State. (e) The President has the right to submit again the list with a new name replacing the one who has not been approved by the Region or State Hluttaw for the appointment of the Chief Minister.

 

 

 

 

 

 

 

 

 

 

 

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