Jul 16, 2012

Myanmar - Trust deficit in Myanmar's 'transition'

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Aung San Suu Kyi, Nobel laureate and democracy icon of Myanmar, stated during her historic trip to Europe in June, "My major concern is that the people in Burma [Myanmar] could have no longer trust in the current processes for political transition."

Her statement came against a background of rising expectations not among people in Myanmar, but also of the international community about the prospects of a democratic transition in Myanmar.

In the aftermath of 2010 elections, an elected civilian government emerged. Respecting the demands of the people, the new regime suspended a controversial Chinese-funded major dam project and released hundreds of political prisoners. Several civil society organizations, national as well as international, are now being allowed to function in the country, while indications of the emergence an independent media can be seen now more than before.

The National League for Democracy (NLD), a major opposition party led by Suu Kyi, has also been allowed to operate relatively independently. The NLD even won a landslide victory again in a by-election held on April 1, 2012.

Everything generally looks fine. Suu Kyi herself has been able to make foreign trips freely. Why then, did she mention concerns over the people's "trust" in the seeming transition?

To evaluate the transition, the current political process needs to be scrutinized. The first undisputed factor is that almost all leaders of the new regime are former and current military leaders. Ko Ko Hlaing, the head of the political adviser team to President Thein Sein, has confirmed this fact by saying, "It is something like a play in the theatre. Although actors are not changed, the 'play' has been changed. That is why we no longer need to talk about previous play. Rather, we must focus only on this new play."

During a press conference with French President Francois Hollande in Paris on June 26, Suu Kyi also highlighted this fact by stating, "It is said that Myanmar has started to step on the way to a new road. Nevertheless, not only former persons but also new ones should get opportunity to take this new road. Only then, political transition would be meaningful."

Unfortunately, it is still not clear whether that new road will actually lead to democracy. As far as democratic transition is concerned, a constitutional framework is more important than the taking of political office by different leaders. A gradual change might happen in the long-term if the new constitution had laid the foundations for democracy, human rights, and the rule of law.

However, the 2008 constitution only strengthens the rule of the military dictatorship. It establishes the National Defense and Security Council (NDSC) is the most powerful institution in which the commander-in-chief (C-in-C) of the Defense Services and his deputies dominate. The president of the state is a part of the NDSC. The commander-in-chief assumes power in order to send army representatives into legislative bodies. The People's Assembly speakers and the National Assembly's speakers are included in the formation of the NDSC.

As such, the NDSC controls all lawmaking processes by means of military members of parliament who make up one-quarter of the total number of representatives in each legislative body, as well as the speakers who are also a component of the NDSC. State power lies mainly with the NDSC, and this institution is the undisputed characteristic of the authoritarian regime. So long as it continues to exist as a constitutionally instituted body, which exercises rigid centralization, Myanmar will only achieve superficial democracy in accordance with the 2008 Constitution.

"The 2008 constitution is an 'internationally wrongful act' that breaches Myanmar's intransgressible obligations to the global community,including its obligation under the UN Charter to comply with binding Security Council resolutions" said Janet Benshoof, president of the Global Justice Centre."This violation reaches the level of a serious breach of a peremptory norm of international law."

U Thein Nyunt, one of the representatives who was elected in the 2010 elections, said, "There is no constitution in the world which cannot be amended. The 2008 constitution of Myanmar can also be amended one step after another."

However, unfortunately, the NLD has been able to occupy only 43 out of 664 seats in the Union Assembly, the legislative body of the country. As such, gaining an opportunity to amend the structural backbone of the constitution is almost impossible. Even the chances of amending other unimportant articles of the constitution appear slim.

As a part of the constitutional amendment process, the first test case happened before the NLD's MPs joined the People's Assembly after winning the by-election that was held on April 1, 2012. The NLD demanded that the term, "respect" replace the word "uphold" mentioned in the form of oaths for the elected representatives, as far as the 2008 constitution is concerned. Even this was turned down and the NLD failed.

Afterwards, NLD parliamentarians led by Aung San Suu Kyi had to take oaths by reciting swearing to uphold the 2008 constitution, contrary to their former position, mentioned in the NLD's Shwe-gone-daing declaration, publicly announced on April 29, 2009. As a result, the newly created military regime, which camouflages itself with civilian dress, has already achieved legitimacy to rule over a country that now how greater foreign investment potential due to its "democratic transition".

Another expectation is that the NLD might win a landslide victory in the elections to be held in 2015, occupy the majority seats in the legislative assembly, and amend the 2008 constitution effectively. Unfortunately, the legal chances of this are quite low. Article 436 provides that the basic structures of the constitution shall be amended with the prior approval of more than 75% of all the representatives of the Union Assembly; in addition, a nationwide referendum must follow with votes of more than half of those who are eligible to vote. Actually, getting the prior approval of more than 75% of all the representatives is an insurmountable problem for the NLD, before going to referendum.

In the previous by-election held on April 1, 2012, there were only 45 seats contested. However, in the forthcoming general elections to be held in 2015, 498 seats are up for grabs. The NLD can constitute 75% of the assembly only if it wins all 498 seats. However, these seems unlikely for the following reasons:

1.     The Election Commission is not independent.
2.     Judicial supervision of the election is totally prohibited.
3.     As was the case for the previous by-election, the observations of international election monitoring institutions-mainly the UN and EU teams-might not be allowed.
4.     The operations of national election monitoring teams are tightly restricted.
5.     Election frauds allegedly committed by the regime in the general elections in 2010 and in the by-elections in 2012, have not been thoroughly investigated by a national independent commission or the international community. Contrarily, U Nyan Win, chief of the NLD election campaign team, who submitted a complaint for an election fraud, is being indicted by the Election Commission. The trial started on June 26, 2012.
6.     The current ruling party, the Union Solidarity and Development Party (USDP), which is mainly led by ex-army personnel, will certainly occupy several seats. In addition, the ethnic national parties, some of which are closely associated with the military, will also occupy many seats. After the 2015 elections, even if the NLD occupies the majority of the 498 seats, will still not be possible to achieve the support of the other parties mentioned above in order to amend the basic structure of the 2008 Constitution. This still would not be enough. More than seventy-five percent is needed.

This indicates that some military delegates sent by the commander-in-chief must also agree to amend the statute. This may not happen as the military delegates have to obey the order of their commander; and, they themselves may not be happy to do so as the 2008 Constitution upgrades the role of the military. That is why the expectations of amending the basic structure of the 2008 Constitution after the 2015 elections might never become a reality.

The NLD may be in chaos from now on due to the legal pressures created by institutions that have arisen out of the 2008 constitution. On June 28, 2012, Suu Kyi herself was even warned by the Election Commission because she used the term "Burma," as the name of the country, rather than "Myanmar," provided for in the constitution, during her European trips.

"The return of Suu Kyi to homeland after her recent successful trips in European countries was welcomed by the military regime with a negative sense. It is because she warned the countries and companies, who would be invested in Myanmar, to be cautious, to make investments with accountabilities and to also focus on protections of human rights," said Zaw Win, a former 1988 student generation activist.

The military regime has pushed Suu Kyi into a corner, one step after another, to comply totally with the 2008 constitution. The rule of law has become a popular term not only for people in Myanmar, but also for the ruling regime and its military-dominated political party, the USDP.

The difference is that while the former expect the rule of law positively, the latter uses that term negatively. The latter consistently alleges that a person - even if it is Suu Kyi -does not pay respect to the rule of law if he or she does not comply with the 2008 constitution.

Suu Kyi's concern is in regard to the people's trust in the current processes for political transition. The people's trust depends on whether Suu Kyi herself and the NLD will be able to amend the basic structure of the 2008 constitution now without having to wait for the 2015 elections. If they are unable to do so, then people may no longer have any trust in the current political processes and they may find other alternatives.

Aung Htoo


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