Friday, August 18, 2017

As the USDP departs, will checks on power go too?

With the dust well and truly settled on the National League for Democracy’s crushing election win, attention is quickly turning to who will be given the key positions of power: the presidency, chief ministers, parliamentary speakers and ministerial roles.

Daw Aung San Suu Kyi and other MPs sit through a parliamentary session on November 18. Photo: Aung Htay Hlaing / The Myanmar TimesDaw Aung San Suu Kyi and other MPs sit through a parliamentary session on November 18. Photo: Aung Htay Hlaing / The Myanmar Times

But some are also considering how the party will manage the twin institutions of the parliament and government, and what impact the scale of the November 8 victory will have on Myanmar’s democratic development.

Myanmar’s constitution creates a strong separation of powers between the parliament and the government. MPs appointed to cabinet must resign from parliament and the hluttaw has broad scope to hold the government to account. Under the leadership of the current Speakers, Thura U Shwe Mann and U Khin Aung Myint, these powers have been regularly exercised.

But with around 80 percent of seats in the Pyidaungsu Hluttaw, or Union Parliament, there will be few checks on the NLD. The military, which retains a political role through the constitution, and to a lesser extent the judiciary, will be the only institutions in a position to balance its overwhelming majority.

Additionally, Daw Aung San Suu Kyi has said she will appoint a puppet president, raising concerns that parliament will be a rubber stamp for the NLD government – particularly if Daw Aung San Suu Kyi becomes Speaker. The two Speaker positions in the Union Parliament – one for the Pyithu Hluttaw, or lower house, and another for the Amyotha Hluttaw, or upper house – are powerful, giving control over the agenda, and the tone and extent of debate.

U Aye Maung, head of the Arakan National Party, said the prospect of parliament “being under one person’s orders, or with MPs who are afraid to speak up”, was troubling.

He said he was also concerned about the lack of representation for ethnic minority parties in the new parliament. The NLD won the largest number of seats in five of the seven ethnic states, losing only Rakhine and Shan states. Many ethnic parties, which were the only real opposition to the Union Solidarity and Development Party five years ago, were wiped off the electoral map.

U Aye Maung said NLD and USDP representatives from ethnic minority areas would be forced to stick to a party line set by ethnic Bamar leaders in Yangon and Nay Pyi Taw.

“An ethnic minority political party is different from having ethnic minority members in a [national] political party,” he said.

With the NLD riding a massive wave of popularity, this is unlikely to be a problem in the coming months. But as the party’s term progresses, the risk of discontent setting in will also grow.

U Khine Maung Yi, a Pyithu Hluttaw representative for Ahlone in Yangon, said there were still a few avenues for those outside the parliament and government to act as a check and balance on the NLD.

Public pressure is one option. Like most incumbent MPs, U Khine Maung Yi lost his seat to an NLD candidate. He said he will remain politically active, raising awareness about the activities of the hluttaw from the outside – particularly its perceived failings.

“I have experience in parliament, so I will … lead demonstrations if an MP makes any error or parliament is running under one person’s orders,” he said.

Constituents could also use provisions of the constitution to keep representatives in check. Under section 396, a recall petition can be initiated with the support of just 1 percent of voters in a constituency. While the enabling legislation has not yet been enacted, it is expected to be passed by parliament during the current session.

U Khine Maung Yi said it was inevitable that some NLD representatives would face petitions from constituents seeking to “recall”, or remove, them from office.

“The performance of the [NLD] between 2016 and 2020 will be very important. People will decide if they like MPs or not based on their performance. If they don’t like a hluttaw representative, people could use the right to recall,” he said.

One way to assuage some of these concerns would be to place members of other parties, or even military personnel, in some important roles. Daw Aung San Suu Kyi has previously said that she wants to create a government of national reconciliation, but for now the details, to the extent they have been determined, remain a secret.

U Thiha Thwe, a political commentator and correspondent for a foreign news agency, said he believed current Amyotha Hluttaw Speaker U Khin Aung Myint should be given the speaker role again. Over the past five years, U Khin Aung Myint has put in a disciplined performance as leader of the upper house, he added, and could ensure the parliament remains an effective check on the government.

Some skilled members of the current cabinet should also be retained, he advised.

“U Khin Aung Myint should be assigned again to give the parliament balance,” he said. “And there will be many difficulties for the government if the qualified people in the current cabinet are not given the same roles.”

U Khin Aung Myint, together with U Shwe Mann, has been instrumental in ensuring the current parliament was not the rubber stamp that many envisaged when the USDP won a crushing majority in 2010.

However, this unexpected development was largely due to the competing interests of different factions within the USDP than any constitutional requirements. In particular, U Shwe Mann used the parliament to build a power base to rival President U Thein Sein.

Since the election, Daw Aung San Suu Kyi has made clear in meetings with MPs-elect that she will not tolerate factionalism, telling them that “there will be no small tents in the shadow of my building”.

Independent analyst Richard Horsey said this suggested she would keep a tight rein on her party members.

“The question is: Will the parliamentary NLD and the executive NLD administration have the same view on things? It’s obviously too early to say but the fact that Daw Aung San Suu Kyi is a very dominant character and uncontested leader of the party … suggests that there will probably be less disagreement [than within the USDP],” he said.

“If she’s controlling the presidency but also parliamentary party through a whip or speaker, all the indications are that she’s intent on keeping a pretty firm hold on the party.

“If she’s able to do that it will give her an extremely powerful position to make laws and then implement laws. The question then arises: Where are the checks and balances?”

The judiciary is one potential outlet, but decades of subservience to the military authorities have left it in thrall to the executive. The Constitutional Tribunal, a body formed under the 2008 constitution, has the power to prevent executive or legislative overreach. However, its members are appointed by the president and speakers, and the parliament’s attempts to impeach the tribunal en masse in 2012 have had a chilling effect, with few cases considered in the subsequent three years.

That perhaps leaves the military, but over the past five years it has only shown an appetite to intervene when its interests are seriously threatened, such as when proposed constitutional amendments were put to a vote in June and July.

Mr Horsey said checks and balances were important not only to control “autocratic or ill-intentioned leaders”.

“History shows that even well-intentioned leaders can tend to overuse their authority in ways that aren’t actually helpful. Checks and balances are incredibly important in ensuring leaders are held to account.”

NLD parliamentarians and officials declined to comment on the issue when approached by The Myanmar Times.

Translation by Thiri Min Htun