Chinks in the armour

In early 2016, the creation of the State Counsellor position for Daw Aung San Suu Kyi prompted cries of “democratic bullying” from unelected Tatmadaw MPs.

Since then, the National League for Democracy has seldom used its commanding majority in parliament to confront the military.

Though some have called this cowardice, there is a clear strategy at work. The 2008 Constitution, which entrenches military supremacy, grants the Tatmadaw an apparent veto over changes to the constitution. Therefore, the NLD must charm the Tatmadaw into accepting civilian oversight. Should this strategy one day succeed, many would be quick to consider the years of appeasement justified.

But, with less than two years to go before the next general election – and with another NLD super-majority increasingly in doubt – there is a creeping sense that Aung San Suu Kyi’s trust-building project is only making Tatmadaw generals settle more comfortably into their parliamentary and ministerial seats. This would defer the prospect of a genuinely democratic constitution even further.

That the NLD is now prepared to toy with a more adversarial approach was signalled in late January, when one of its upper house lawmakers, U Aung Kyi Nyunt, submitted an emergency motion to the Union parliament proposing a joint committee to recommend amendments to the constitution. Parliament gave a green light to the committee on February 19.

Any notion that this move had been blessed by a backroom handshake between the NLD and the Tatmadaw was dispelled by the way in which the Tatmadaw responded. Its members in parliament stood in protest and said the committee flew in the face of parliamentary procedure (though the Tatmadaw eventually conceded to depute members to it).

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Political commentators, both inside and outside Myanmar, were quick to damn the NLD’s scheme as futile, citing the need for constitutional amendments to be approved by more than 75 percent of MPs, and therefore have the support of Tatmadaw members, who consistently vote as a bloc. Some suggested the move was even insincere, serving as a hollow signal of the party’s commitment towards a key electoral pledge.

But among the raft of opinion pieces, there was one that stood out. Legal consultant Mr Jason Gelbort wrote in the New York Times about an apparent loophole in the constitution, whose Article 109 describes the Tatmadaw’s share of a quarter of seats in the lower house as being a maximum allocation, not a guaranteed minimum.

Gelbort contended that this gave the NLD the constitutional leeway to use its majority in parliament to amend a corresponding section of the Pyithu Hluttaw Election Law in order to set a smaller quota for Tatmadaw MPs. In this way, the Tatmadaw’s veto would be abolished, opening the door to constitutional reform.

Gelbort’s article prompted praise but also sharp criticism, even derision, from scholars and analysts who considered his argument to be naive and unhelpful. Some said by way of refutation that the constitution had been painstakingly designed by the Tatmadaw to frustrate any attempts to change the document without its say-so.

But Gelbort was attempting to point out a loophole in the constitution; the intention of the original drafters is beside the point. Some critics of the article said that, though the NLD could attempt to amend the Pyithu Hluttaw law in the way suggested, it would incense the Tatmadaw and prompt a constitutional crisis, a situation that would not end well for the civilian government.

Yet, the Tatmadaw is the prime beneficiary of the current constitutional order, and is invested most in its preservation. Were this order to go into crisis, the Tatmadaw would have to fall back on raw power, which is helpful to it only in the short term.

Constitutions in all countries are subject to different interpretations, hence the existence of constitutional courts. The Tatmadaw can take comfort from an orthodoxy that presents the constitution as an ironclad guarantee of its interests and autonomy.

Seeking out loopholes, or ways of circumventing the undemocratic strictures of the constitution altogether, is a dangerous endeavour. The assassination of esteemed lawyer and constitutional expert U Ko Ni made this painfully clear. But had he still been alive today, Ko Ni might have called it a democratic duty.

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