Sunday, August 20, 2017

NLD could draft new constitution

The National League for Democracy may scrap efforts to amend the constitution and instead seek to write a new charter, a legal adviser to the party has revealed.

Lawyer U Ko Ni said it was now clear that the party was “wasting time” trying to amend the current constitution, as the military holds veto powers and is currently unwilling to make major changes.

Stressing that it was only his personal view, he said the party may instead choose to hold a national referendum to gauge support for a new charter.

“The NLD has tried twice to amend the constitution within parliament but both times it failed. So I think the NLD will not choose the same way again. They will consider writing a new one instead of wasting time trying to amend [the constitution],” U Ko Ni said.

“If the military still focuses on protecting its interests, it will be impossible to change any part of the constitution within parliament. That’s why writing a new one is the best way to pursue a democratic constitution.”

Senior National League for Democracy officials refused to comment on the issue yesterday. “I can say nothing,” U Win Htein responded.

But both President U Htin Kyaw and State Counsellor Daw Aung San Suu Kyi have highlighted the constitution in recent speeches, insisting it remains the party’s top reform priority.

“The constitution needs to be one that will give birth to a genuine, federal democratic union. In our effort to amend the constitution, we’ll choose ways and means that would not adversely affect the people. We won’t resort to means which will affect national peace,” Daw Aung San Suu Kyi said in her New Year address.

Neither has specified how constitutional change would be achieved, however. The military leadership has publicly stated it must occur only through parliament.

The NLD has in the past attempted to harness public support to force through constitutional amendments. In 2014, it partnered with the 88 Generation to launch a petition calling for changes to section 436, which gives the military a veto over constitutional change, and section 59(f), which bars Daw Aung San Suu Kyi from the presidency. More than 5 million signatures were subsequently gathered and submitted to parliament.

Last year, the NLD also proposed changes through a constitutional amendment committee set up by former Speaker Thura U Shwe Mann. However, the two amendment bills put forward were both blocked by the military.

While the NLD now controls the government and both houses of parliament, the military still retains 25 percent of seats, giving it a veto over any change.

But U Ko Ni noted that the president or NLD parliamentary bloc could put forward a bill proposing a referendum on drafting a new constitution. The bill could be passed with a simple majority, and the military would not have the numbers to block it.

Local political analyst U Yan Myo Thein said he was also now convinced that the NLD would call a national referendum on the constitution issue.

“This is the only one way for the NLD to overcome the constitutional barrier. There’s nothing in the text of the 2008 constitution that forbids writing a new constitution. Also, the constitution says that the military is responsible for safeguarding the constitution – but it doesn’t specify that this means the 2008 constitution. It means that the Tatmadaw has to safeguard any constitution that has been written according to the people’s desire,” he said.

He suggested that any attempt to write a new constitution should be based on an all-inclusive political dialogue comprising the Tatmadaw, political parties, ethnic armed groups and other stakeholders.

“I think there is no reason the military would refuse to write a new charter because they will be involved in the writing process and give suggestions of what they want. If it would happen, we could build a good foundation for the sake of the country’s future,” U Yan Myo Thein said.

Others are less convinced that the military will accept a new charter, particularly after it spent the best part of two decades putting the current one in place.

In February, Senior General Min Aung Hlaing was quoted as saying in a speech to military officers that the constitution would be amended at “an appropriate time”.

“Since Myanmar has been undergoing democratisation only for five years, necessary provisions should be amended at an appropriate time in accordance with the chapter XII of the constitution,” the military newspaper Myawady quoted him as saying.

He has also repeatedly stressed the importance of the military’s role in national politics, most recently at Armed Forces Day celebrations.

Former MP Daw Dwe Bu said she believed the party should continue to pursue negotiations with Snr Gen Min Aung Hlaing to amend the constitution.

While acknowledging that the NLD has the numbers to pass a referendum bill, she said she was concerned about the potential consequences.

“We need to understand that not all civilians support the NLD; some still support another group. Anyone can create violent incidents intentionally. If that happens, the Tatmadaw can take state power under the current constitution,” Daw Dwe Bu said.

From 2004 to 2008, she participated in the process of drafting the current constitution as a Kachin ethnic representative.

“Even though I was a participant, I had no chance to discuss what was good or bad in the constitution. I know there are bad points in this constitution, but there are also good points so the NLD should accept the good points and try to change bad points by negotiating with the Tatmadaw,” she said.

The NLD has already shown itself willing to use its parliamentary majority to circumvent or stretch the boundaries of the constitution. In early April, the party passed a bill creating a new state counsellor position for Daw Aung San Suu Kyi, who was blocked from becoming president. Following the vote, the military, which had described the bill as possibly unconstitutional, accused the NLD of “democratic bullying”.

In the aftermath, some analysts said they believed the NLD should take more care to avoid conflict with the military.

But U Ko Ni said the wishes of the people, rather than the military, should be the party’s top priority.

He cited Daw Aung San Suu Kyi’s New Year speech, in which she said Basic Principle 4 in the constitution was the “most important point”. The clause states that sovereign power derives from the people of the country – something Daw Aung San Suu Kyi said was “the basic principle of democracy”.

“In her New Year speech, Daw Aung San Suu Kyi said clearly that she will take into account the role of the people,” U Ko Ni said.

“I don’t understand why people think that the NLD will only do something if the military agree. This concept is wrong. The NLD have to do things that are really effective for the people and the military have to accept something if it is good for the people.”