Myanmar’s Constitutional Reform Process: A pragmatic prioritization of process over substantive reform?
Despite electoral promises for urgent constitutional reforms to enhance democracy and federalism, the NLD government has recognized the practical challenges of pursuing such reforms, considering the de facto veto powers of the military. Instead, the NLD has opted for a more pragmatic, long term strategy that prioritizes process over immediate substantive reform. The low risk of electoral backlash has allowed the NLD government the liberty to adjust its approaches - writes Nyi Nyi Kyaw.
As of June 2018, there is no official process to amend Myanmar’s 2008 Constitution. Likewise, the peace process is moving at a slow pace with no end in sight. The National League for Democracy (NLD) party government, in power since March 2016, has been accused of not delivering on and abandoning its electoral promise of amending the constitution, which was enacted before the 1 April 2012 by-elections and the 8 November 2015 general elections, which brought the NLD government to power. There is acknowledgment that the substance of the constitution is not sufficiently democratic and federal by most political and social groups, including the NLD and ethnic minorities. The major exception is the Tatmadaw (military) that oversaw the constitution-making process to guarantee its political leadership in the post-military rule that began in 2011.
There is acknowledgment that the substance of the constitution is not sufficiently democratic and federal.
Notable constitutional provisions include, but are not limited to, the occupancy of a quarter of the parliamentary seats by unelected military representatives, who possess a de facto veto over constitutional amendment; the holding of all cabinet security- and defence-related portfolios by those nominated by the Commander-in-Chief; the lack of civilian control of and oversight over the military; requirements for presidential candidates that have precluded the now State Counsellor and de facto leader of Myanmar Daw Aung San Suu Kyi from assuming the presidency; and quasi-federal arrangements of power- and resource-sharing between the Bamar-dominated Union government and ethnic minority states. As flawed as it may be, it is undeniable that the framework established under this constitution opened a democratic space that eventually culminated in the coming to power of the NLD. Despite the questionable legitimacy of and the popular desire to reform the 2008 constitution, the prospects of constitutional change or reform are pegged at political change. In recognition of the military’s de fact veto on constitutional amendments, the initial urgency to reform the content of the constitution has now given way to a more indirect, pragmatic and long-term strategy more focused on process.
The NLD are waiting for the 'right time' to reform the constitution before 2020.
While the NLD has indicated that they are waiting for the ‘right time’ for constitutional reform and made a qualified promise that they will reform it before their term expires in 2020, it has recognized the practical impossibility of amending the constitution without the support of the military. It has therefore changed its strategies to first working towards peace with the hope of appeasing the military and reducing its political and security leverage. The 21st Century Panglong Conference series fits well within this change of strategy. While the new NLD strategy has attracted criticism even from its own supporters, it needs to focus on and is unlikely to lose the next general elections planned for 2020. This has allowed it the flexibility to have a long-term horizon to the constitutional reform agenda, and instead prioritize the peace process and ensuring better governance, rule of law and economic prosperity. When conditions are right, the NLD is likely to receive the crucial support of ethnic armed groups and affiliated civil societies and political parties, as well as national-oriented civil society groups. This long-term or indirect approach nevertheless seems incompatible with the original plans of the NLD before taking the helm of power. Whether the NLD may actually reform the constitution before 2020 remains unclear.
Pre-NLD-rule Constitutional Landscape
The coming to power of the democratically elected NLD government in March 2016 and the reduced military dominance in politics has not changed Myanmar’s flawed constitutional arrangement. The military-controlled constitution-making process involved incessant delays and intermissions between 1993 and 2008 and was completed at the mercy of the then (military) regime (State Law and Order Restoration Council/State Peace and Development Council (SLORC/SPDC)). The draft constitution was adopted in a controversial referendum on 10 May 2008. Having failed to transfer power to the NLD that won in a landslide in the 1990 general elections, the SPDC held a sham election in twenty years on 7 November 2010. Without the participation of the popular NLD, which declined the invitation to take part in the elections, and the lack of a free and fair election, the Union Solidarity and Development Party (USDP) led by ex-generals of the SPDC won the election. The 2008 Constitution came into operation on 31 January 2011 when the first session of the Union parliament dominated by USDP representatives was held. In March, ex-general Thein Sein was sworn in as the first pseudo-civilian president of Myanmar in transition.
The NLD's political priorities and strategies appear to have shifted since taking power.
efore re-entering electoral and parliamentary politics in 2012, the NLD rejected the process of making, the substance and the legitimacy of the 2008 Constitution. But, their re-entry into formal politics meant that they have—willingly or unwillingly—agreed to work within the framework laid out by the constitution, however questionable and undemocratic it is. The party has pledged to reform the constitution—a key electoral promise they made before the 2012 by-elections and the 2015 general elections. More than two years after coming to power in March 2016, it is yet to fulfil the goal. This is unsurprising as the military has ensured representation in the political institutions which makes it impossible to amend the constitution without its active support. While the NLD has not dropped its promise, it has shifted its approach from the initial plans propounded before coming into power.
Four key players in Myanmar’s constitutional chessboard: the Tatmadaw; democrats headed by the NLD; ethnic minorities; and civil society.
As a negligible minority occupying six percent of the total seats of the first parliament (2011-16) with no power to reform the constitution from within the parliament, the NLD joined hands in May 2014 with ‘88 Generation’ (Peace & Open Society)—the second most important democratic political group composed mainly of ex-university student protesters in the 1988 popular uprising against the Burma Socialist Programme Party regime. They launched a high-profile popular constitutional amendment movement from May through July 2014 aimed at Section 436 of the constitution that gives veto powers to the non-elected Tatmadaw bloc in the parliament to block any constitutional reforms unfavourable to them. The campaign included a signature petition, which collected about 5 million signatures, constitutional talks by Aung San Suu Kyi, Min Ko Naing, and others, and public rallies. But it was not successful because the USDP-dominated parliament and Thein Sein administration were not on their side. A parallel but superficial 109-member constitutional review joint committee at the parliament composed mainly of USDP and unelected Tatmadaw parliament representatives initiated by the parliament in July 2013 did not result in making any significant amendments.
Present Constitutional Landscape
The constitutional reform efforts were unsuccessful simply because they did not have the support of the USDP—and the Tatmadaw by extension. The NLD has apparently learned a lesson and taken a different constitutional path since they came to power in March 2016. Since then, the NLD’s political priorities have shifted, which has directly and significantly affected Myanmar’s constitutional trajectory. Whereas the Tatmadaw wants to keep or guard the constitution as it is now, other important political actors and groups including the NLD, ethnic minorities, and civil society all remain committed in principle to constitutional reform. The amendment of the constitution or adoption of a new one depends on how (non)constitutional politics plays out in the next few years.
Key Political Players and Their Constitutional Aspirations
In the contemporary context and dynamics of Myanmar’s constitutional chessboard, there are four key political players: the Tatmadaw; democrats headed by the NLD; ethnic minorities; and civil society. The NLD and Tatmadaw are two Bamar-majority-dominated—or perceived as such by the minorities—entities that are better institutionalized and more empowered than the rest.
The Panglong meetings aim at grand nation-state building that includes amending the 2008 Constitution.
When it came to power, the NLD inherited Thein Sein’s peace project that was partially successful with the signing of a nationwide ceasefire agreement (NCA) on 15 October 2015. In February 2018, two more Ethnic Armed Organizations (EAO) signed the NCA, increasing the number of signatories to ten. The NLD also announced the Union Peace Conference-21st Century Panglong that is symbolically named after the historic Panglong treaty signed between Aung San - Aung San Suu Kyi’s father - and representatives of the Kachin, Kayah, Kayin, and Chin. The 21st Century Panglong with its expected constitutional implications has been held twice in August-September 2016 and May 2017. It essentially aims at grand nation-state building that includes amending the 2008 Constitution after principles for the future democratic, federal Union of Myanmar are formulated – as laid out in the NLD’s so-called roadmap for national reconciliation and peace announced in October 2016.
The combination of the desire not to antagonize the military and the need to secure victory in the 2020 elections appear to have quelled the initial urgency towards constitutional reform.
Despite its persistent demands for constitutional reform in previous years, the NLD government in power - not the usual opposition party any more - has learned that it can still work without urgent constitutional reform, which could directly antagonize the Tatmadaw, which wants to keep its constitutional guardianship role and remains focused on peace for the time being. Moreover, the NLD now must be eyeing the 2020 general elections so that they will continue to be in power and perhaps finish what they promised to do, i.e. constitutional reform. The combination of the desire not to antagonize the military and the need to secure victory in the 2020 elections appear to have quelled the initial urgency towards constitutional reform.
Despite their disparate aims, both the NLD and Tatmadaw are expressly committed in principle to democratic federalism that will gradually reduce the influence of the military in politics and decentralize power and resources to ethnic minorities. Considering the challenges of pushing the military out of politics, the NLD’s main goal appears to have shifted to pressuring EAOs that have not signed the NCA and the Tatmadaw to agree on peace so that nation-state building and constitutional reform can proceed. Despite criticisms, the NLD expects to win again in the 2020 elections so they may not feel the time pressure as they can still make progress, even within the constraints of the current constitutional framework, in the areas of governance, development, and rule of law.
The military is unlikely to leave politics unless there is peace and stability.
The Tatmadaw retains a veto on any constitutional reform and is adamant that EAOs must first sign the NCA and accept the 2008 Constitution before actively participating in the 21st Century Panglong. The military is unlikely to leave politics unless there is peace and stability. Unfortunately, continued fighting and disagreement over security sector reform between the Tatmadaw and various EAOs have stalled the entire peace process and delayed the third 21st Century Panglong meeting.
The third group, i.e. ethnic minorities, generally includes NCA signatory and non-signatory EAOs and their various alliances, ethnic civil society organizations, and ethnic political parties with or without parliamentary representation. Suffering the most due to the ongoing conflict, they are most vocal about the stalled peace process and delayed constitutional reform. Some ethnic civil society organizations-cum-policy research institutes such as the Centre for Development and Ethnic Studies and the Ethnic Nationalities Affairs Centre closely work with ethnic political parties, EAOs, and the public and offer concrete policy advice to ethnic representatives attending the series of the 21st Century Panglong meetings.
A finalization of the constitution reform process is unlikely before 2020, despite the commitment of the NLD.
The last category includes the broader and nationally interested civil society. Rather than making specific constitutional demands, they tend to focus on broader issues such as peace, political rights, women’s rights, and the like. These used to be an important partner of the NLD and ‘88 Generation’ (Peace & Open Society) in their constitutional campaigns and other political activities. They are now unhappy with the little attention they are receiving from the NLD and weak protection for media freedom and freedom of assembly. But, they remain democracy advocates with keen interest in national issues. When the time comes, civil society groups are expected to get involved as supporters of constitutional reform and to help mobilize the people due to their perennial opposition to military dominance and repression.
Conclusion: What lies ahead for Myanmar’s constitutional reform?
A finalization of the constitution reform process is unlikely before 2020, despite the commitment of the NLD. The armed and non-armed ethnic minorities will continue to demand more federal autonomy within and without the 21st Century Panglong. Most of them, except those EAOs still engaged in fighting with the military, seem focused on the NLD-installed platform. Whereas the ethnic minorities and the NLD look toward a newly formed democratic, federal union at the conclusion of the 21st Century Panglong and revision of the constitution as necessary, the Tatmadaw holds a short-term perspective of pressuring the EAOs to agree to a ceasefire first. Against this backdrop, the NLD now in power has to conduct every-day governance and looks forward to the 2020 elections. Also, the Tatmadaw and the NLD government now find themselves embroiled in the mounting international criticism for their allegedly excessive action on the part of the former and inaction on the part of the latter in dealing with the Rakhine issue. This has effectively slowed the peace process.
Despite the slow progress, political actors, think tanks and CSOs must keep constitutional reform on the agenda and prepare the groundwork in support of informed and sensible choices.
Taking everything into consideration, while the constitution reform process and debates are likely to continue to occupy the attention of politicians and the broader public, a breakthrough is unlikely in the near future. It will depend on what is going to happen within and without 21st Century Panglong mainly between the NLD, Tatmadaw, ceasefire EAOs, and warring EAOs, each supported by various sections of the larger society of Myanmar. As usual, and it has occurred before, there will be more backtracking and derailment than progression and leapfrogging. Nevertheless, this is not a call for pessimism and political actors, think tanks and CSOs must keep constitutional reform on the agenda and prepare the groundwork in support of informed and sensible choices.
Nyi Nyi Kyaw is Postdoctoral Research Fellow at the Centre for Asian Legal Studies, National University of Singapore.