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Myanmar's constitutional crisis reaching boiling point

Under the current military-drafted charter, Aung San Suu Kyi is banned from becoming president.

Under the current military-drafted charter, Aung San Suu Kyi is banned from becoming president.

An uprising looms unless the military releases its grip on power and allows Suu Kyi to run for president next year

Big questions loom about the future of Myanmar (Burma). Will the country allow changes to its constitution that lead to democratic reforms - or will it return square one? This is an issue of huge interest both in Myanmar and abroad.

Sometimes history repeats itself. The army could simply take political power again, before the election in 2015. In 1960, after two years of leading a caretaker government, army chief General Ne Win allowed an election and gave power back to an elected administration. But when ethnic minorities demanded genuine federal states and separation of political power, the military claimed the nation was at risk of disintegration and staged a coup in March 1962.

Now, under Thein Sein, a former general who became a "civilian" president, the same demands for a federal union and a separation of power have emerged, stronger than ever. This time, not only ethnic minorities, but also the majority of Burmans appear to share the demand for a federal union and real democratic change.

However, the constitution drafted by the military over 16 years and "approved" in 2008 is a unilateral charter, with no provision for a federal structure. It clearly favours military rule. The purpose is to secure the wealth and life of generals who stole the country's natural resources for their own benefit. The leading opposition party, the National League for Democracy, headed by Nobel laureate Aung San Suu Kyi, is trying to win mass support to amend the charter.

The problem is, even if a majority of the people endorse changes to the constitution, such a move would need to be approved by 75 per cent of the parliament, plus one of the unelected military representatives. Most MPs in Nay Pyi Taw are from the military-backed ruling party, and 25 per cent of seats are occupied by people appointed by the military. If the people want to change this, even if they were to get 75 per cent of elected representatives to agree, they would still need one vote from the military. But if the army chief does not agree, he can block any changes.

While the constitution says the president is the head of the country and government leader, there are limits to his (or her) power. Act 232 of the charter states that the president cannot appoint the Defence, Interior, and Border Affairs ministers, or their deputies. Only the army commander has the right to appoint those key ministers. This gives him important powers over and above the president - a situation unique to Myanmar.

The National Defence and Security Council (NDSC) is the highest authority in the state. It council has 11 members:

1. Thein Sein - President (former general)

2. Nyan Tun - Vice-President (former general; appointed by army chief)

3. Sai Mauk Kham - Vice-President (civilian)

4. Shwe Mann - People's Assembly Speaker (former general)

5. Khin Aung Myint - National Assembly Speaker (former general)

6. Senior General Min Aung Hlaing - Armed Forces Commander-in-Chief

7. General Soe Win - Armed Forces Deputy Commander (appointed by army chief)

8. Lt-General Wai Lwin - Minister of Defence (appointed by army chief)

9. Lt-General Ko Ko - Minister of Home Affairs (appointed by army chief)

10. Wunna Maung Lwin - Minister of Foreign Affairs (former colonel)

11. Lt-General Thet Naing Win - Minister of Border Affairs (appointed by army chief).

Of these, the army chief has appointed five, who are under his command. This means he controls six votes in the NDSC. The president has only two extra votes - the civilian vice president and Foreign minister. Thus, the army chief has more power in the Security Council than the president.

Another impediment to democratic forces is that someone whose child or spouse is a foreign citizen cannot be president. The president must also have military experience. This means Suu Kyi cannot contest the poll to be national leader, as her two sons are British citizens and she does not have military experience. The constitution also doesn't allow citizens who have been jailed to run. This rules out all former political prisoners from becoming president.

Many democratic forces like the NLD want to change the constitution, but their focus is on reducing the number of military seats in the parliament from 25 per cent to around 10 per cent. And some prominent activists have proposed an alternate parliament, under which amendments could be made if two-thirds of civilian MPs support changes. Despite this, it has become obvious that Myanmar needs changes before the 2015 election, as the constitution contains many undemocratic aspects. But if the parliament just amends one act after another, real change could take five to 10 years.

Meanwhile, a committee formed by the lower House to review constitutional amendments submitted findings to the parliament recently. It said 106,000 members of the ruling Union of Solidarity and the Development Party (USDP) signed a document stating that they do not want to change section 59(f), the clause that bars Suu Kyi from becoming president. Shwe Mann, chairman of the USDP and Speaker in the lower House, said he would accept Daw Suu as president if she were to win the election. But his party is trying to block her from running.

The USDP will only agree to minor amendments, not clauses related to military dominance. One USDP MP hinted that Suu Kyi should be satisfied with a post such as lower House Speaker. If people demand major changes to get rid of military dominance, the army may step in. Under the constitution, the army chief has the right to assume power "if necessary". Everyone knows that the charter is not democratic and that it gave the military control of the government. The USDP controls the parliament. For Suu Kyi to have a chance to be president, Section 59(f) needs to be amended. The parliament is forming another committee to analyse charter amendments. This has 31 members - 15 from the USDA, seven from the army, two from the NLD and the rest from other parties. The panel will decide which items will be amended. So, any changes are in the hands of the ruling party - not the NLD or the people.

Myanmar's future is unstable and unclear. Land grabs by the army have created much suffering. In the past 20 to 40 years, the army has taken land from farmers and ethnic people all over the country. Every state has army-owned land taken with limited or no compensation. Some of that land has been resold to businessmen and cronies to make a profit, or rented to farmers for income. Army chiefs are looking for opportunities to sell or rent such land when they have the chance. There is no law to prevent this.

Shwe Mann has said no one is above the law, but in reality this land grabbing is still going on, and farmers and local people have no protection from this.

The West is also pressing the regime to amend the constitution. Suu Kyi gave strong speeches recently, in which she said she was not ashamed of running in an election with "her legs tied" - only those who run to be president free of restrictions should be ashamed. Amid all this, people who helped draft the constitution are quiet. They are the ones who should be ashamed. Suu Kyi has been very cooperative with the military elite (former and current) after being elected as an MP, but her tolerance may be running out. She is more critical now than in the past year.

If changes to the constitution are only superficial and Daw Suu is blocked from entering the presidential race, the situation could reach boiling point by 2015. With the government allowing people to express their voices, more and more demonstrations have occurred, with demands for justice getting stronger by the day. This will not stop - it will continue for a long time because of the many years of oppression.

If there is no hope for democratic forces to rule the country through a fair and honest ballot in 2015, there is the possibility of civil upheaval this year or next. People resent the dominance of the military, and things are nearing breaking point. If Suu Kyi dared to call for a nationwide boycott, people would follow and that could spell the end of military rule - or it could result in more bloodshed. No one knows what Myanmar's future is. It will depend on the courage and determination of the people and their leaders, and whether the generals see the country and people as their property - or as a nation free from military rule, with a prosperous future ahead.

Htun Aung Gyaw is a former chairman of the All Burma Students Democratic Front. He now lives in the US.


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