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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