By Jason Gelbort
Feb. 21, 2019
It was one of those small, dull and bureaucratic bits of news that could have tremendous political implications: On Tuesday, Myanmar’s Legislature approved the creation of a committee to review the Constitution.
Some have said that the initiative is doomed. No amendment can be passed — certainly none that would weaken the power of the military — unless the military acquiesces: According to conventional wisdom, the Constitution itself gives the military veto power over any amendments.
Although the party of Daw Aung San Suu Kyi, the National League for Democracy (N.L.D.), won a commanding victory in the last general election in 2015, the military still reaches far into Myanmar politics. And longtime Myanmar watchers, independent policy groups, various academics, mainstream media, the American ambassador to Myanmar and the United States Senate majority leader all agree that the 2008 Constitution of Myanmar can be amended with no less than a 75 percent majority in Parliament — and that 25 percent of Parliament is reserved for the military.
They are wrong. The military, or Tatmadaw, does have the numbers to block reform at the moment, but that state of affairs isn’t guaranteed by the Constitution. The elected members of Parliament have the authority they need even under this very undemocratic Constitution to change the text itself — and to start changing the country — right now.
The Constitution, which was drafted and came into force under military rule, does require a lofty 75 percent of the combined houses of Parliament to pass amendments. (For some changes, it also requires the approval of a majority of eligible voters in a national referendum.) And the military holds 166 of the 657 parliamentary seats currently occupied, or just over 25 percent.
But the Constitution sets no quota for military seats in the lower house, known as the Pyithu Hluttaw, only a maximum number. Article 109 stipulates that the Pyithu Hluttaw will have “a maximum of 440” representatives, including “not more than 330” to be elected and “not more than 110” representatives from the defense services personnel “to be nominated by the Commander-in-Chief.” If the Constitution’s drafters had wanted to give the Tatmadaw a 25 percent quota in the lower house, they would have done so, presumably — much as they did for the upper house (Article 141) and the state and regional legislatures (Article 161).
What’s more: There currently are 323 popularly elected representatives in the lower house — less than the 330 maximum. (Polling was cancelled in several constituencies because of fighting or instability.) If the number of elected representatives can be less than the maximum set by the Constitution, then the number of military appointees can also be.
And if that number is lowered enough that the Tatmadaw then has less than 25 percent of all parliamentary seats, the Tatmadaw loses its power to block constitutional amendments.
The N.L.D. holds about 59 percent of all the parliamentary seats currently filled (385 seats, according to the most reliable tallies) — and that’s all the majority it needs to amend the Pyithu Hluttaw election law and change the number of military representatives in the lower house, up to the maximum. Even if the N.L.D. voted to give the Tatmadaw no seats at all in the Pyithu Hluttaw, it still wouldn’t meet the 75 percent threshold required to pass constitutional amendments on its own. (By my count, it would have about 70 percent.) But it could pass that threshold by making deals with other pro-amendment groups, such as ethnic political parties.
So why hasn’t the N.L.D. done so? And if the text of the Constitution is this plain, why is an erroneous interpretation of it so prevalent?
Since its landslide victory in 2015, the N.L.D., as a matter of strategy, seems to have focused on trying to win the military’s support. After all, the Tatmadaw has considerable powers beyond those in Parliament: It nominates three key ministers, holds ultimate powers during certain states of emergency and independently administers its own affairs. It also is a central player in the country’s many civil wars, some 70 years old.
The brazen assassination in 2017 of the lawyer U Ko Ni, an N.L.D. member and adviser of Ms. Aung San Suu Kyi, may also have discouraged others to push for change. Mr. Ko Ni advocated replacing the 2008 Constitution altogether, arguing that the N.L.D. could propose (and pass, by simple majority) a bill calling for a popular referendum on a new constitution. He is credited with the plan that tailor-made the position of state counsellor for Ms. Aung San Suu Kyi, allowing her to take power, in effect, even though — under the Constitution — she was banned from becoming president because her children are foreign citizens.
But the N.L.D.’s stance overall has been much tamer: By and large, it seems to have wanted to appease the military.
And that approach has scuttled the country’s once-promising progress toward democracy. Trust in a partial cease-fire agreement signed in 2015 and in various peace negotiations is at its lowest in years. Both the military and the government continue to oppress smaller ethnic groups across the country, in addition to the Rohingya. Journalists face mounting restrictions, in some cases prison terms.
The usual commentary about the military’s supposed veto over constitutional amendments tends to point to that power as the ultimate proof of just how undemocratic this Constitution is. But it also has become something of an excuse, a pretext to argue that the civilian government is essentially handcuffed, or “powerless,” and cannot enact real change.
In fact, the N.L.D. already has all the formal authority it needs to implement its promises to revise or replace the Constitution. Pushing for significant amendments would only strengthen the N.L.D.’s negotiating position with the Tatmadaw. And it would be a chance to rebuild relationships between the N.L.D. and leaders of ethnic political parties and ethnic armed resistance organizations, a necessity for both peace and democratization.
The window of opportunity is limited, though. The N.L.D. lost seats to the military’s proxy party, the Union Solidarity and Development Party, in both the 2017 and the 2018 by-elections. The N.L.D. should act before the general election next year. It has a mandate for change, and it must make good on it while it still can.
Jason Gelbort is an independent legal consultant who has advised ethnic resistance groups and civil-society organizations in Myanmar on constitutional design, cease-fire negotiations and human rights.