SPEAKING
FREELY Trust deficit in Myanmar's
'transition' By Aung Htoo
Speaking Freely is an Asia Times
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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 is
a human-rights lawyer. He can be reached at
aunghtoo50@gmail.com
Speaking
Freely is an Asia Times Online feature that allows
guest writers to have their say.Please
click hereif you are interested in
contributing. Articles submitted for this section
allow our readers to express their opinions and do
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