Posted in Ideas & Impacts, Legislative Research on Mar 26, 2020

On 29th of January 2019, MP U Aung Kyi Nyunt, on behalf of the National League for Democracy (NLD), submitted an urgent motion to the Pyidaungsu Hluttaw. The motion proposed forming a Joint Committee on Amending the 2008 Constitution. While the motion was opposed by Army Representatives and MPs from the Union Solidarity and Development Party (USDP), the Hluttaw overall voted in support. On the day of the committee’s formation, the Hluttaw Speaker used his constitutional responsibility for establishing Hluttaw committees and set up the new committee in accordance with the motion. He added that different parties would be included in the Committee in proportion with the parties in the Hluttaw.

The Bills

The Joint Committee submitted a report to the Pyidaungsu Hluttaw, having collected 3,766 suggestions through committee discussions. During the committee’s preparation of draft legislation, some committee members from non-Bama ethnic parties resigned, citing their dissatisfaction with voting arrangements within the committee. Finally, nearly one year after the Committee was formed, two bills were submitted to the Hluttaw – one for changes that require confirmation in a public referendum (Article 436a), and one for changes that do not require a public poll (Article 436b).

During the same period, the USDP and Army representatives separately submitted another 5 bills proposing amendments to the constitution. In spite of their objections, those bills were fed into the same Joint Committee and MPs were asked to discuss them along with the other two bills.

The Debate

The debate on the Amendment Bills to the Constitution started on 25th February 2020 (the 12th meeting day of 15th regular session at the Pyidaungsu Hluttaw). Eight minutes were allowed for each of 147 MPs to make representations on a total of 7 bills.

For the non-Bama ethnic parties, they found it difficult to support the two bills submitted by the Joint Committee, as those bills did not include their own suggestions. They were also unable to fully support the bills submitted by Army representatives and USDP, as they contained many proposals in opposition to their wishes. However, some amendments those parties agreed with were included in the Joint Committee’s bills, whilst at the same time the UDSP/Tatmadaw provisions included the election of Region/State Chief Minister and Ministers, believed to be widely supported by non-Bama parties.

Nonetheless, by the time the 7 bills were debated in the Hluttaw three main blocs were clearly established: the NLD, non-Bama ethnic parties, and the Army representatives and USDP. Therefore, during the debate, NLD MPs supported the 2 bills submitted by Joint Committee member U Htun Htun Hein, and spoke against the 5 bills submitted by Army Representatives and USDP. Similarly, Army Representatives and the USDP were against the 2 bills and for the 5 bills. The non-Bama ethnic parties spoke in support of any provisions that were in accordance with their wishes. Which amendments were passed?

Minimal changes were passed by the Hluttaw. In Chapter 1 of Basic Principles of The Union, terms “ma-tan-ma-swam” and “o-min-ma-swam” were changed into “ma-tan-swam” and “tat-gyi-ywe-o”, literally meaning “the disabled” and “the aged”. In Chapter 5 - Executive, the redundant phrase requiring that State/Region Ministers be selected “from among the Region or State Hluttaw representatives or from among persons who are not Hluttaw representatives concerned” was removed (Article 262a(i)). And in Chapter 8 - Citizen, Fundamental Rights and Duties of the Citizens, the term “the disabled” was also amended to be consistent with the Chapter 1 change above.

What were the barriers to amendment?

The technical, legal and political reason for amendments failing to pass is commonly cited as the need for approval of 75% of MPs, giving Army Representatives an effective veto. This is the legal barrier, however we must also analyse whether there are other barriers contributing to the failure of the government to pass amendments.

All political forces in Myanmar had publicly agreed to the need for amendments to the Constitution. Last year, even the Commander-in-Chief of the Defense Services expressed his agreement. It is against that backdrop that the sum total of the amendment effort is the change of two words. Updating terminology relating to social inclusion is important, however the aim of updating the charter was to address the roots of domestic conflict that have afflicted the country since Independence. In this, the efforts have been an abject failure, and arguably this comes down to a lack of effort to build trust.

Back in February 2019, when the urgent motion was submitted, this should have marked an opportunity to being open negotiation with all the political forces who showed willing to amend the Constitution. The end of this opportunity was effectively when the bills were submitted to the Hluttaw, because at this point the bills cannot be substantially changed beyond amending or removing proposed amendments. It appears this window of opportunity, between establishment of the committee, and before submitting the bills, where all political forces needed to work together to find consensus, was squandered. The approach to amendments followed party lines from the beginning, in spite of the show of the joint committee and its formal representation of various parties. MPs had little opportunity to openly debate provisions and terms so as to produce a bill that might have broad support. This kind of mature negotiation and trust-building was entirely absent.

Five years wasted

Government, Tatmadaw, Ethnic Armed Organisations (EAOs) and political parties were included in the negotiation of the National Ceasefire Agreement (NCA) and signed the Pyidaungsu Accord (1 & 2), which included committing to amend the Constitution. That process appears in hibernation for some reason and later we instead saw U Aung Kyi Nyunt submit an urgent motion to amend the Constitution. Some political parties and analysts criticized the NLD, saying that the amendment attempt was a show of political maneuvering, with the coming 2020 election and a need to demonstrate a concerted effort to fulfill their electoral promises. The NLD has consistently promised peace, rule of law and Constitution amendment from 2012 to 2015. Such promises are interlinked but have been dealt with as separate challenges. We must question whether the party has fulfilled its promises, or even built a good foundation for addressing these challenges in future.

Since all these promises demand a long-term effort, expecting the NLD to have fulfilled them already is probably unfair. However, the question of whether the party has built a good foundation is, on the other hand, a reasonable query. One such foundation to these challenges – trust-building – is perhaps the most important for a conflict-torn country like Myanmar.

Between the time of the submission of the urgent motion, and the voting in Hluttaw, the NLD had in total one year and seven days to amend the Constitution. During that time, there were no negotiations, not with the army, nor with non-Bama ethnic parties. Perhaps because the NLD felt they had an arithmetic majority in the Hluttaw and did not need to speak to other parties, we can nonetheless conclude that the party did not attempt to build trust.

To conclude, the NLD has made a visible show of following both the NCA process and the Hluttaw path towards peace, rule of law and constitution amending. However, both of these processes have failed to attempt to build trust among stakeholders, whether within and outside politics. We all must live with the dissatisfactory results.

By Hla Myo Kyaw