Illiberalism and Democratic Illusions in Myanmar: Constitutional Reform as Political Capital

*This article first appeared in New Mandala on 20 November 2019 Available also in Burmese, and in Bahasa Indonesia.

Political actors in Myanmar are in a struggle over constitutional reform, which is a form of political capital. All the key political actors want to control the prospects for constitutional reform and benefit from the political capital this opportunity offers.

Among these actors are the military, as the most powerful and unaccountable political actor. It also includes the Union Solidarity and Development Party (USDP) which is the proxy political party for the military. Ethnic political parties also play a role as a small but diverse group connected to the multiple ethnic armed organisations scattered across the country. Finally, of course, the National League for Democracy (NLD), Aung San Suu Kyi’s political party. Each of these political actors want to claim that they pushed forward constitutional reforms in the hopes it will boost their popularity ahead of the 2020 elections.

Competition over Constitutional Reform

The NLD was the first to challenge in January this year, putting forward a legislative motion to form a committee to consider constitutional amendments. This move was controversial because the NLD submitted this motion on the second anniversary of the assassination of the country’s most prominent constitutional lawyer, Ko Ni.

The military strongly opposed the NLD’s move, with  the military delegates in the legislature refusing to vote on the legislative motion to form a committee for constitutional reform. They argued it was procedurally invalid, although they clearly do not want the NLD to lead discussions over constitutional reform.

In addition to opposition in the legislature, there has been opposition on the streets. Rallies have been staged in Yangon and other parts of the country in support of the military’s position to retain the essence of the Constitution.

For example, in early February, I was in Yangon, heading downtown one Sunday afternoon when my taxi passed a group of pro-military protestors preparing for a demonstration. The protestors were given two flags. One was the national flag that is a symbol of nationalism, but also of the 2008 Constitution and the power of the constitution-makers, the military. The flag appeals to a sense of nationalist-military pride.

The second flag had a white dove on a blue background, which evokes the peace process that has been ongoing since 2012. This is an exclusive peace process for recognised ethnic armed groups. Running separate and parallel to this process are other conflicts. The violence in Rakhine State and the mass displacement of the Rohingya is said by the government and military to be an issue of terrorism, and so is addressed outside of the peace process.

The symbolic power of flags is used to support the claim that the Constitution should not be changed.

Proposals for Change: What’s New is Old

The Union Solidarity and Development Party (USDP) has used this opportunity for constitutional reform in the legislature to push its agenda. The USDP first focused on article 261, the provision of the Constitution regulating the appointment of Chief Ministers of the States and Regions. In Myanmar, there are fourteen states and regions. Yet the sub-national governments’ powers are limited and they remain closely affiliated with the Union government.

This is because the President holds the power to appoint Chief Ministers, which reduces both the real and perceived independence of State and Region governments. This power ensures appointees are closely connected to the central Union government. The USDP has proposed to amend the Constitution to allow the legislature at the State and Region level to appoint the Chief Minister. This proposal is not new but is generally understood in Myanmar as a measure towards decentralisation.

The USDP wanted its proposal to be considered as a separate bill in an attempt to gain credit for this potential constitutional reform. The USDP seeks constitutional reform as a form of political capital in the lead up to the 2020 elections. The NLD has resisted the USDP’s claims and instead included discussion of the proposal as part of the broader review undertaken by the legislative committee formed by the NLD. This dispute represents a struggle over who gets to own and claim credit for constitutional reform.

The USDP and military have put forward other key changes. Among these changes include measures at decentralisation. For example, the President has complete power to determine the number of ministries at the State/Region level. The USDP has proposed constitutional amendment so that the president must consult with the State/Region legislature on this decision (revising article 248(c)). This would be a small step towards decentralisation and may allow variations in governance among the states.

Most recently, the military has proposed that a new constitutional provision be inserted in an attempt to prevent Suu Kyi from becoming a minister in the next government. The military argues that a person who has foreign citizenship or whose immediate family has foreign citizenship should be constitutionally prohibited from becoming a Union Minister. The same provision already exists in relation to the President, which is why Suu Kyi cannot become the president.

Other minor political parties, such as the Arakan National Party (ANP) have called for amendments to ensure the legislature only contains civilian representatives. This is a blunt challenge to the military and a consequence of the escalation of the conflict between the Arakan Army and the military.

The NLD has taken a middle path, suggesting a gradual reduction in the number of military representatives in the legislature over time. There are deep divisions over whether the military should remain in the legislature, and if so for how long. On its side, the military remains committed to its privileges under the 2008 Constitution, such as its seats in parliament.

In July, the Committee for constitutional reform completed its review. Much of the debate – in process and substance – is similar to the legislative debate in 2015. While new claims for constitutional reform continue to be made, much of this is related to old debates about aspirations for civilian rule, federalism and democracy in Myanmar.

Support for Aung San Suu Kyi

The constitutional reform process has not received significant international attention because of the more pressing humanitarian crisis. The situation for the Rohingya, both for those who remain in Rakhine State and those who fled to Bangladesh, remains dire. The situation badly taints the present government, if only at the international, rather than domestic, level.

On 19 September 2017, Aung San Suu Kyi addressed the United Nations and gave her opinion as the State Counsellor of Myanmar regarding the grave conflict and displacement crisis in Rakhine State. Her speech was widely criticised by the international community for failing to acknowledge the reality and enormity of the humanitarian and displacement crisis that had been unfolding since 25 August.

Yet Suu Kyi has benefited from the Rakhine State crisis domestically. On the same day as Suu Kyi’s speech to the UN, protests were held by pro-Suu Kyi supporters across major towns in Myanmar. In addition, the diaspora organised demonstrations at sites around the world, such as at the Australian parliament house in Canberra. These demonstrations were organised under the slogan of ‘We Stand with Daw Suu’.

The message was clear: many people in Myanmar support Aung San Suu Kyi and her position of denial on the crisis in Rakhine State. This demonstrates support for an illiberal view that sanctions the exclusion of the Rohingya from the political community of Myanmar.

The international community has been confounded by the strong, united response from within Myanmar that largely denies the state of suffering of the Rohingya who are displaced both within Myanmar and across the border in Bangladesh. The National League for Democracy government and the military have at various times denied the scale, scope and legitimacy of the suffering and the urgency or necessity of taking responsibility. While the NLD is not without agency in this situation, the military still has the upper hand in the struggle for political power.

The debate over constitutional reform is often presumed to be one about minority rights. Yet the illiberal nature of the debate means that the issue of the Rohingya does not feature in the discussions. This is despite the issues of citizenship, recognition of land, culture and basic rights being at the heart of the Rohingya crisis.

Civilian v Military Power Plays: The Power to Pardon

The constitutional reform debate is an arena where civilian actors are in a struggle against military power. Another way that the struggle between civilian and military authorities is on display is the power to pardon perpetrators of the violence in Rakhine State.

Two journalists, Wa Lone and Kyaw Soe Oo, spent more than 16 months behind bars on charges of obtaining state secrets. This case related to their investigation into a massacre in one village in Rakhine State and hit global news because they were reporting for Reuters.

The journalists were sentenced to jail, much to the condemnation of the international community, but then pardoned by the president. On 7 May, the two journalists were finally released on the decision of the President.

The President has the power to pardon or to grant an amnesty based on the recommendation of the National Defence and Security Council. The Council consists of eleven members including the Commander-in-Chief, with a majority of members from the military. The president has traditionally pardoned prisoners over Myanmar’s New Year.

Yet in a turn of events, some of the perpetrators of the Inn Din massacre were also pardoned in what appears to have been a secret process oversee by the military. Several military officers responsible for the Inn Din massacre were initially sentenced to ten years jail by the Courts Martials. The Courts Martial are under the control of the Commander-in-Chief. The decision was announced in March 2018, but by November that same year the soldiers were allegedly pardoned in secret. The pardon was only publicly discovered six months later in May 2019. A civilian who was also convicted for his complicity in the murder of the ten Rohingya villagers remains in jail.

The decision to pardon the soldiers could be unconstitutional. The military claims it has the power to pardon the accused tried in the Courts Martial. Yet the Constitution does not specifically grant the Commander-in-Chief the power to pardon or grant amnesty to someone convicted by a Courts Martial. The secret pardon by the military is a display of its power and independence.

There has been international backlash against the military for its decision to release the soldiers. In July 2019, the United States imposed sanctions on the Commander in Chief. The US noted that this was in response to allegations that the Commander-in-Chief and other senior military figures were linked to extrajudicial killings of the Rohingya in Rakhine State.

Illiberal Visions of Reform

Suu Kyi and the NLD have won support domestically for their stance in Rakhine State, but at the same time have lost the support of the international community. They still face domestic opposition from pro-military groups, as evidenced by anti-constitutional change protests.

The Rakhine State crisis has been isolated from both the peace process and debates about constitutional reform.

The Constitution helps to sustain illusions about civilian power and democracy in Myanmar. The example of the power to pardon shows how the presidents’ constitutional power is undermined by the power of the military to quietly pardon soldiers convicted for horrific crimes in Rakhine State. This is one example of how the military wins in power plays against civilian authorities.

All political actors know the people want some kind of constitutional change. All want to take credit for achieving such change. As such, constitutional reform is a kind of political capital in Myanmar. Yet the struggle for political capital through constitutional reform is not between liberal and illiberal visions of democracy, but rather between varying visions of illiberal rule, as the debate on constitutional reform shows. What all sides of politics share in common is a commitment to an illiberal politics that excludes the Rohingya.