Thursday, December 4, 2014

Constitutional rewriting a way out of the present political deadlock?

Shan Herald Agency for News
Monday, 01 December 2014

Within a time span of a little more than a month, quite a lot of things happened that have dashed the hope of peaceful reconciliation and political settlement. Many are disheartened and have given up all hope that the peace process and constitutional amendment would materialize anytime soon.

First, the Nationwide Ceasefire Coordinating Team/ Union Peacemaking Working Committee (NCCT/UPWC) meeting in September produced a back-sliding or stalled situation, when the Burma Army representatives withdrew their agreement of federal union and federal army proposed discussion, which was previously agreed in August, coupled with the demand of adherence to the military-drafted 2008 Constitution and the Commander-in Chief Min Aung Hliang's 6 guiding principles. Lately, he toned down his demand, when meeting the Karen National Union (KNU) delegates, that he was not insisting of adherence but only to take it seriously, according to Padoe Kwe Htoo Win, in the VOA report of 30 November.

Second, the shelling of Kachin Independence Organization/Army (KIO/KIA) Laiza cadet training school, where 23 trainees were killed and some 20 or so wounded.

Third, the six-partite meeting proposed by the Union Solidarity Peace and Development Party (USDP) and endorsed by the parliament, which includes President Thein Sein, speakers Shwe Mann and Khin Aung Myint, opposition leader Aung San Suu Kyi, Commander-in-Chief Snr-Gen Min Aung Hlaing and U Aye Maung an ethnic representative from within the parliament.
Fourth, the rejection of the proposed meeting by the President and Commander-in-Chief shortly after its endorsement by the parliament.

The connectivity of these episodes create a tremendous impact of the country's political future and development of the day-to-day politics.

After the September peace talk leading to the stalled peace process and deteriorating political atmosphere, due to the Burmese military rejection and withdrawal of the federal union, federal union army formation proposal that was already agreed in August, to be discussed at the future political dialogue phase, the USDP rushed in to to find a way out and limit the damage done, by hastily proposing the six-party meeting to iron out the constitutional debacle, which is at the heart of the ethnic and ideological conflicts.

Likewise, Myanmar Peace Centre (MPC) flew to Chiangmai to talk and secure for another meeting between the NCCT and UPWC, but was not fruitful.
Mizzima reported that nine members headed by presidential office minister U Hla Htun also visit Pang Sang, the United Wa State Army (UWSA) headquarters, on 28 November to talk about economic and regional development, according to U Aung Myint, the UWSA spokesman.

DVB report said this was followed by the General Mutu led KNU visit of Commander-in-Chief Min Aung Hliang, on 29 November, in Naypyidaw, which was the 7th meeting, a regular once every two months scheduled meeting, according to Padoe Mann Nyein Maung, the trusted, inner circle of the KNU chief.

The same report said that Min Aung Hlaing was said to have told the KNU delegation that he didn't see eye-to-eye with the parliament endorsed six-members talk but prefer only an all-inclusive meeting. According to Mann Nyein Maung, the Commander-in Chief also rejected the formation of federal army, proposed by the NCCT.

Two contending parties
Against this backdrop, we could see clearly the power struggle between two groups, each with its political axe to grind. One is the President Thein Sein, Commander-in-Chief Min Aung Hlaing coalition and the other, House Speaker U Shwe Mann and National League for Democracy (NLD) Chairperson Aung San Suu Kyi.

The position of the President and Commander-in-Chief is to stick to the 14-members type of meeting, held once in October prior to President Obama visit to Burma, to make it more inclusive, while the House Speaker and NLD stance is to materialize six-partitie talks to create speedy constitutional amendment within a short period.

Some accused the President faction as wanting to drag on the discussion so as to preserve the status quo situation for as long as possible, leaving the military with veto power in tact in all constitutional amendment procedure, due to its 25 percent appointed seats within the parliament.

In the same vein, the House Speaker and NLD coalition is being doubted for likely, secret agreement between U Shwe Mann and Aung San Suu Kyi to accommodate the political goal of each other. Accordingly, Shwe Mann will be endorsed to take the Presidential slot after the 2015 nationwide election, when NLD would be strongly represented with likely more seats in the parliament, and Suu Kyi will take the reign after 2020, the following legislature period after Shwe Mann presidency come to an end.

The speculation based, according to an opinion piece in The Irrawaddy, on 29 November, said that while Shwe Mann had previously said that the constitutional amendment would be pulled through six months prior to the scheduled 2015 election, he now said that it could only be done after the election, which means the clauses 436 and 59F, that prevent Suu Kyi from becoming president, could not be amended in time. It was speculated that Shwe Mann might have promised to amend the clauses during his presidency to make way for Suu Kyi's take over by 2020. And thus the endorsement of Suu Kyi for the postponement of the amendment. Apart from that Shwe Mann has scrapped the Proportional Representative (PR) scheme advocated by the USDP for First Pass the Post (FPTP) system of winner take all, according to NLD's liking.
Whether this is true or not remains to be seen. But one thing is sure that the Nationwide Ceasefire Agreement (NCA) stalemate will continue and so is the armed conflict, with the military having a near power monopoly, in the similar form of stratocracy form of military regime, in which the state and the military are traditionally or constitutionally the same entity, and government positions are mostly occupied by retired military officers and military leaders.
Where do we go from here?

It is now becoming clear that the constitutional amendment is not possible within the parliament for the Commander-in-Chief has time and again rejected to amend it and openly stated that federal union and federal union army formation are not on his agenda. And with the military veto votes, there is no way that this could be pulled through within the parliament. And so we are left with the only other option of political settlement, outside the parliament, to overcome this political deadlock.

One suggestion, comprehensive enough comes from U Ko Nyi, a brilliant orator and sharp thinker, legal adviser of the NLD. In his interview with DVB, on 27 November, he said since, the controversial, military-drafted, 2008 Constitution stems from the national convention, redoing it or amending it should also start there. He said only in contrast, the convening body should be all-inclusive and has full uninterrupted, decision-making power and rights to call and manage the convention. And after the new charter is drawn and later approved by the free and fair referendum, it would replace the old one without having to think about time-consuming amendment, which could take 15 to 20 years, loosing valuable time debating in the parliament. He further explained that instead of amending the 436 clause, which would open the gate of amendment and later leading to tackle the unproductive and undemocratic clauses, could take years to finish, according to U Ko Ni.

Unelected military representatives currently make up a quarter of Burma's legislature, a hangover from military rule that ended in 2011 which ensures that the army continues to hold sway. Under Section 436, any significant changes to the constitution require a majority vote of more than 75%, thereby giving the last say to soldiers.

U Ko Ni argued of rewriting the 2008 Constitution for it is drawn by the committee appointed by the military, under oppressive atmosphere, where people who criticize the charter could be jailed form 5 to 20 years, under paragraph 5/96. That is why this constitution is good only for the military but not for the people.

Current situation
Meanwhile, some one hundred civilian based organizations wrote an open letter to the President to order the military to withdraw from the surrounding of KIA Laiza headquarters, to show good will and also to protect some 17000 IDPs living in the area.

RFA also report yesterday that KNU, Chin National Front (CNF), New Mon State Party (NMSP) and Karenni National Progressive Party (KNPP) have asked Norway foreign minister Borge Brende, when they met him in Bago or Pegu, on 30 November, to host peace talk between the government, the military and the ethnic armed organizations to overcome the differences and rebuilt trust, according to Dr. Sui Khar of CNF.

With the prospect and likelihood of parliament proposed six-partite talks to take place waning and heightened military confrontation and political hard stance, the peace process now seems to be completely stalled, with no tangible outlet to change the situation. Perhaps, it is high time to think differently and U Ko Ni proposal of starting it anew by going back to the beginning could be a good try. After all, as he rightly pointed out, we have written three constitutions within some 60 years and have a lot of experience. What are we going to lose, if we would produce another new one? It only need it to be done in a free, fair and all-inclusive manner, unlike the last one, where it was written to protect the interest and power monopoly of an institution. Perhaps this would save all of us from muddling through and beating around the bush and come to the core problem of solving the “constitutional crisis” head on.