The elections taking place in Burma/Myanmar on Nov. 8 are the first ‘free’ electoral competition to be held since 1990 and the first – bar for a surprise – whose results should be respected since the military took power in 1962. The event is attracting the world’s attention, driven by a battalion of journalists who have registered to cover “Burma’s transition to democracy.”
But will it really be so? Many people in Yangon would probably shake their heads and to understand why, one needs to go no further than the current constitution. Drafted by the former military junta in 2008, it gifts the armed forces with sweeping powers and makes it basically impossible for any elected parliament to take them away.
Chapter four entitles the military to retain 25 percent of the seats in parliament. As a majority of 75 percent of votes is needed to modify the constitution, this means that the armed forces enjoy de facto veto power over amendments.
They are not shy when it comes to using it. On June 25, only months before the vote, the parliament was summoned to vote on a draft law that would have reduced the majority required to pass a reform. Ironically, a proposal to amend their de facto veto right was de facto vetoed by the military.
The military designed the Constitution to allow for an NLD government but limiting the power of the government, so it is not a threat to military control.
“The military designed the Constitution to allow for an NLD government but limiting the power of the government, so it is not a threat to military control,” wrote Mark Farmaner, the Director Burma Campaign UK, in an email statement to Asian Correspondent. “The elections cannot pave the way for constitutional reform. The Constitution is specifically designed to prevent that,” he argued.
The armed forces also have the right to choose the minister of home affairs, border affairs and defence, while chapter 13 states: “If there arises a state of emergency that could cause disintegration of the Union, disintegration of national solidarity and loss of sovereign power or attempts therefore by wrongful forcible means such as insurgency or violence, the Commander-in-Chief of the Defence Services has the right to take over and exercise State sovereign power in accord with the provisions of this Constitution.”
This clause allows the military to get complete control over the State machine if a crisis takes place – or, some may say, to stage a ‘constitutional coup d’état.’
The Constitution is fundamentally flawed, from the very start. The Commander in Chief could just walk into the President’s office and say: look, we have a serious crisis, we have to take over.
“The Constitution is fundamentally flawed, from the very start,” says David Mathieson, an analyst with Human Rights Watch. “The Commander in Chief could just walk into the President’s office and say: look, we have a serious crisis, we have to take over.”
It is also worth remembering that Myanmar is plagued with conflicts that involve “insurgency or violence,” something that would make it easy to use such privilege.
As this article is being written, bitter clashes are taking place in Shan State, where an army offensive that began in early October has left over 6,000 people displaced. It is not even clear why the fighting is going on in the first place: some say it is a tactic to punish the Shan State Army – North (SSA-N) for not signing a national ceasefire, others argue that strategic reasons are at play.
Then, of course, there is section 59 (f), according to which the president “shall he himself, one of the parents, the spouse, one of the legitimate children or their spouses not owe allegiance to a foreign power, not be subject of a foreign power or citizen of a foreign country.”
The provision may seem general enough, but as it happens only one major political figure fits that description: it is Aung San Suu Kyi, the leading opposition politician who would be widely expected to get the presidential post, were it not for the constitutional text.
This peculiar provision has come under scrutiny recently. On November 5, Suu Kyi held a press conference and told her audience that if her National League for Democracy (NLD) wins, she will be “above the president”, as “the Constitution says nothing about someone being above the president.”
Such statement, if taken as a serious policy line and provided the NLD actually wins the elections by a significant margin, could herald a serious conflict in the future parliament. Or maybe even outside it.
According to Mr. Farmaner, “Aung San Suu Kyi running the government is not something that they [the armed forces] are willing to accept, which is why they put clauses in the Constitution to block her being President. If she is too overt in exercising her unofficial power the military could object she is violating the Constitution, and this could cause problems in the future.”