Mael Raynaud presents new elements in the debates around Article 261 (b) of the 2008 Constitution.
On January 29, 2019, in a rather obvious, if unspoken, homage to the late U Ko Ni, the National League for Democracy (NLD) started a process of constitutional reform, a key promise during the party’s campaign for the 2015 general election, which it won in a landslide. That day, a proposal was submitted to parliament by NLD MPs so that a committee would be formed to amend the Constitution.
Two years earlier, on January 29, 2017, U Ko Ni— the lawyer and NLD member credited with writing the State Counsellor Law of 2016— was assassinated, a crime that was universally seen, as politically motivated, and “a warning against attempts to reform the charter”.
Killing U Ko Ni, a close aide to Daw Aung San Suu Kyi for many years, can only be understood as an act of intimidation to those trying to bring more democracy to Myanmar than was intended by the authors of the 2008 Constitution. Certainly, then, the choice of the second anniversary of his death as the official start to the process through which the Constitution would be amended, was one of defiance. The message was clear: intimidation had not worked, reform would indeed be set into motion, and it would be carried out in U Ko Ni’s memory, which by extension meant in memory of all those who had died in the fight for democracy since 1988.
The following month, on February 6, 2019, the Union Parliament, or Pyidaungsu Hluttaw, voted in favor of the formation of a parliamentary committee to amend the Constitution.
Almost immediately, on February 13, 2019, as a response to the NLD, the USDP proposed to draft a bill to amend the Constitution to allow the election of Chief Ministers.
As the heads of the executive in each of the 14 States and Regions, Chief Ministers are of particular interest, indeed, when it comes to the form of governance adopted in Myanmar. The fact that they are appointed by the President, in Nay Pyi Taw, as opposed to being elected locally, either directly in general elections, or by the members of the respective regional parliaments, says a lot about whether decentralization is real— leaning towards a federal system— or if it is limited— with Chief Minister de facto simply implementing decisions made in Nay Pyi Taw, from where they take their orders. Their specific powers are described later in this article.
After five months of work, on July 12, 2019, the committee presented the report on its findings and observations. An astonishing 3,765 recommendations had been submitted by the various political parties participating to the work of the committee— almost 90% of which were made by Ethnic Political Parties (EPPs), and just over 100 by the NLD.
The present article focuses on what has become the main issue at the center of this process: the debate over the election of Chief Ministers, i.e. article 261 (b) of the 2008 Constitution. And specifically, it tries to answer two questions:
Let’s try and understand, first, how this issue came to be so important in Myanmar— as arguably the most debated issue in the context of constitutional reform and democratization.
The text of the Constitution was drafted by the military between 1993 and 2007, was released to the public in the last quarter of 2007, and was approved in a shameful and fraudulent referendum in May 2008. From there, it took almost ten years for most people to really notice that it included the creation of 14 State and Region parliaments and governments. And yet, they were the first concrete elements of a federal system ever to see the light of day in Myanmar.
There were two main reasons why this aspect of the 2008 Constitution went largely unnoticed for so many years. The first was that the Constitution, and the political process it was meant to kick start, were not believed to be of any real significance by most of those associated to the democracy movement, as well as by many the international community, meaning, here, essentially, by Western countries. One needs to remember that only weeks before the 2010 elections took place, few people in the Burmese democracy movement, including ethnic nationalities, believed the elections would even take place, and neither did many western diplomats, scholars, journalists and activists.
This led, of course, to most observers, activists and politicians having to spend the following few years catching up with reality, adapting, in other words, to the new normal of the transition.
The second reason why the issue of Chief Ministers being appointed by the President, as opposed to being elected locally, only came to light in recent years is that the State and Region parliaments and governments only took a slow start, in terms of their relative importance in the system of governance, during the first legislature, between 2011 and 2016. This was in contrast to the role of the Union Parliament— and particularly the Pyithu Hluttaw— which, under the leadership of U Shwe Mann, played a major role in the burgeoning transition process.
After the NLD took power in 2016, things started to change, significantly. On the one hand, and quite sadly, the NLD did not build on the work done by U Shwe Mann, although he is now an advisor to Daw Aung San Suu Kyi (but also, probably a candidate to the Presidency after 2020). Furthermore, in the last three and a half years, the Union Parliament has played a much-reduced role in reforming Myanmar, forced into a back seat position by the government, and by State Counsellor Daw Aung San Suu Kyi herself. On the other hand, State and Region parliaments and governments have become much more active and influential, as institutions, and have therefore attracted significantly more interest from all sides. Decentralization, today, has become a major theme in Burmese politics.
As my colleague Tinzar Htun and I have explained in our report on Schedule Two of the Constitution in 2018, there are two major avenues for constitutional reform in Myanmar. One has to do with further democratization, the other with decentralization and federalism.
With regards to democratization, demands for constitutional reform focus on the 25% of seats afforded to the military in all 16 parliaments, the three ministries controlled by the military, and article 59 (f) that prevents Daw Aung San Suu Kyi from becoming President.
With regards to decentralization, and as mentioned above, most debates center around the election of Chief Ministers. More specifically, many call for the amendment of article 261 (b) of the Constitution, among other elements of a “chain reaction” that would be provoked in the case of further decentralization.
It is easy to understand why EPPs— formed by members of the larger ethnic movement that has called for federalism for decades— would support the election of Chief Ministers. It is all too easy, too, to understand why the NLD would oppose this one specific constitutional amendment: the NLD believes it will continue winning national elections for years to come (which has led me, in previous posts to compare it to South Africa’s ANC), but it fears it might not be able to win all 14 States and Regions. In other words, in the present situation, as long as the NLD wins the elections nationwide, it is able to chose all Chief Ministers. This would no longer be true if Chief Ministers were elected, and the NLD did not get a majority in one or several States or Regions. It must be noted that, in the current legislature, if Chief Ministers had been elected by their respective regional parliaments, the Chief Ministers of Rakhine State and Shan State would most probably not be NLD members.
Yet, what remains unclear for many is why, exactly, the USDP—supposedly a party that supports the constitutional status quo and the letter as well as the spirit of the 2008 Constitution—would push for what has, again, been a demand associated with ethnic calls for federalism. These have been, historically, rejected by the military and those associated to it, such as the USDP.
There are, I believe, three primary reasons:
This, to me, might be the best proof that there is a democratic system in Myanmar, as limited as it is: how sadly predictable and petty the politics of political parties have become.
In 2014, and admittedly on a different topic, I was already writing:
“The National League for Democracy has opposed attempts to change the first-past-the-post system (of elections), for the obvious reason that the party is favoured by this system, which is likely to grant it a greater number of MPs from 2016 to 2021. The NLD should be aware, though, that democrats around the world generally see the proportional representation system as being more democratic in nature, as it favours more diversity in the parliament.”
So, for obvious electoral reasons, the USDP is now the champion of diversity in the parliaments, a cause that makes it a de facto, if surprising, ally to EPPs, a champion of democratization, and a champion of decentralization. And the NLD is in the position of opposing reforms that would be good reforms, for the sake of retaining as much power as it can after 2020.
In fact, another reason why the NLD is opposed to the election of Chief Ministers is that the NLD itself is not really (to say the least) a party with a democratic internal life. Anyone working with NLD MPs in the States and Regions parliaments know that many of them are quick to complain about the lack of internal democracy, the way the NLD is even more centralized, arguably, than the whole political system, and the way orders come from the very top that they have very little space to discuss.
In other words, the NLD is not only trying to retain as much power as it can from other parties. The leadership is also trying to retain as much power as it can over its own MPs, and certainly, specifically, over the States and Regions parliaments and governments.
Yet another reason why the NLD opposes the election of Chief Ministers, and that’s one that should give pause to foreign observers, is that in Rakhine State the Chief Minister, if elected, would logically be a representative of the Arakan National Party:
The ruling party’s spokesperson U Myo Nyunt was interviewed by Chinese media Caixin’s subsidiary publication Globus in the NLD’s party headquarters in November 2018. “I admit that power is centralised in the Myanmar government, because we see difficulties in decentralisation,” he said. “For example, the majority of ethnic Rakhine in Rakhine State are extreme nationalists,” U Myo Nyunt said. “If we decentralise more power to the state level, given their extreme nationalist stance, there will be an extreme level of tension between the state and central government”.
This, of course, has not escaped the attention of ethnic parties, including the ANP. Towards the end of the same Myanmar Times article quoted above, we can read:
“Daw Khin Saw Wai, the Arakan National Party’s MP for Rathedaung in the Pyithu Hluttaw (Lower House), has said that she would cooperate with any attempt to amend Section 261.”
But beyond the political games, the issue of changing the way Chief Ministers are selected is trickier than what meets the eye.
I have asked, above, if there were any valid arguments against amending the Constitution so that Chief Ministers would be elected. The answer to this question actually lies in the Constitution itself.
As most observers of Burmese politics know, article 96 of the Constitution establishes that the powers conferred on the Pyidaungsu Hluttaw are detailed in an annex called Schedule One. Similarly, article 188 establishes that the powers conferred on State and Region Hluttaws are detailed in Schedule Two. And, just to be complete, article 196 establishes that the powers conferred on the Leading Bodies of the six Special Administered Zones and Special Administered Division are detailed in Schedule Three. Schedule Five is dedicated to taxes collected by Regions and States.
Article 249, then, provides that “subject to the provisions of the Constitution, the executive power of the Region of State Government extends to the administrative matters over which the Region or State Hluttaw has power to make laws”.
In other words, and in simple terms, regional governments’ executive powers correspond to matters detailed in Schedule Two, since these are the matters their respective regional parliaments are entitled to write laws about.
This is what I will call the powers of State and Region Governments, and therefore, of Chief Ministers, under Schedule Two.
Until this point, it seems only logical, self-evident, even, that Chief Ministers ought to be democratically elected, at the local level, either directly by popular vote, or indirectly, as is the demand formulated by most political players in favour of this reform, by the members of each State or Region Hluttaw.
Article 249, however, does not stop there. It continues: “Moreover, it also extends to the matters which the Region or State Government is permitted to perform in accord with any Union Law”.
And here, things become a lot more complicated. What this second sentence in article 249 means, and which is confirmed, then, by articles 250, 251, 256 (b), 257, 258 (b) and 259, is that State and Region Governments, and therefore Chief Ministers, also have powers and responsibilities under Schedule One.
These constitute a second element in what are in fact the dual powers of State and Region Governments, and of Chief Ministers, under Schedule One, on the one hand, and under Schedule Two, on the other.
While the role of Chief Ministers in relation to Schedule Two is well understood, little attention has been paid, so far, to their role in relation to Schedule One.
While this aspect of things is covered to some extent by The Asia Foundation in their 2018 report “State and Region Governments in Myanmar” (pages 55-57), it has appeared very clearly in the work me and my colleagues, both at Urbanize and in other organizations participating to the “Decentralization Project” I have been coordinating in the last year, and that is supported by the Konrad Adenauer Foundation (KAS), do in States and Regions.
In Mon State, Karen State, Chin State, Kachin State, Shan State, Kayah State, Bago Region, Sagaing Region, and Mandalay Region, what we have witnessed is that, everywhere, the same scenario unfolds.
Whenever a meeting is held, for instance, on a matter falling under Schedule One, where representatives of various departments, many of which answer directly to their line ministry in Nay Pyi Taw, as well as representatives of the private sector, representatives of civil society organizations, and sometimes even representatives of UN agencies, sit around the same table, in any given State or Region, the meeting is chaired by either the Chief Minister or one of their respective State or Region ministers.
In the context of Myanmar, this is not simply a strict application of article 249 and other articles mentioned above, though.
What me and my colleagues witness is that, in the minds of all participants to such meetings, the Chief Minister, or the State or Region Minister who chair the meeting, do not simply represent themselves. They are the direct representatives of the NLD government in the room. Which means, obviously, that they are the direct representatives of Daw Aung San Suu Kyi in the room.
This is where the constitutional framework and the reality of Burmese politics become undistinguishable from one another.
In Myanmar, the Tatmadaw, the USDP, the NLD, ethnic political parties, but also, critically, the civil servants corps, are all seen by other political players as being institutions with their own independent strategies, and politics.
Civil servants from, say, the Education Department of a given State or Region, are not necessarily seen, and do not necessarily see themselves, as directly answering to the NLD government. They just as well may be answering to a superior who happens to be a retired military officer having benefited from the “parachute policy”.
It is obvious, Burmese democracy is not only limited in the context of the hybrid system of governance established by the 2008 Constitution. It is also a nascent democratic system, even where the elected government, the NLD government, supposedly has complete power over a given field (no one else, supposedly, has power over education, in this case).
The issue becomes clear when we imagine what would happen in States or Regions not controlled by the party in power in Nay Pyi Taw. If the Union Government is a NLD government, as is currently the case, and that the Shan State Hluttaw is controlled by the USDP, as is currently the case, and that the USDP dominated Hluttaw was able to elect its own Chief Minister, then we would see the meetings I have described above not only chaired by a USDP Chief Minister, or Minister. We would see that USDP Chief Minister or regional minister chair meetings where their role would be to represent, according to articles 249 and following, laws voted and decisions made by the NLD government, and with which it might be in strong opposition.
In this case— and to put it in the terms that best describe the reality me and my colleagues witness— who represents Daw Aung San Suu Kyi in the room?
This question is not new to federal systems. In fact, two kinds of answers seem to exist:
One is that there is a level of trust between political parties, what is sometimes referred to as “federal good faith”. The executive branch of a given federated State is supposed to, is meant to, is given the duty to, faithfully and democratically respect the laws voted and the decisions made by the central government, and enforce these laws and decisions, where the central government has power, according to the Constitution. It is doubtful that anyone will disagree, here, that such a federal good faith, this level of trust, is absolutely not imaginable in present day Myanmar. And beyond the lack of a deep democratic culture, the personalization of politics, in Myanmar, does mean that there will be, for many years to come, a need to have representatives seen as truly representing the central government, the Union government, in the room, whenever such representatives are needed.
This is where the second answer found in federal systems come into play. There can also be local representatives of the central government, in the States and Regions, who would be a different person from the Chief Minister or their State or Region ministers.
One of two solutions (or a slight variation on them) needs to be chosen, in coming years, to this conundrum:
One will be not to amend article 261 (b) of the Constitution, and continue to see Chief Ministers appointed by the President. The other will be to amend the Constitution so that Chief Ministers are elected, in which case a solution needs to be found to the issue raised in this article, which most probably will mean creating a new, specific position, or positions, potentially one for each line ministry overseeing a field covered in Schedule One , for representatives of the Union Government in States and Regions, in place of the Chief Minister and the regional ministers, today.
This question, it must be understood, is not just a technical question. It’s a political question. It is the question of what kind of decentralized system, and in the future, what kind of federal system, Myanmar wants to adopt
Indeed, this article can be seen as an argument in favour of critics of decentralization, in the way it currently takes place. Indirectly, what it shows is the kind of decentralization that is made possible by the 2008 Constitution. All articles relevant to the position of Chief Minister, and not only 261 (b), point to a decentralization where States and Regions are, by and large, and with the exception of “minor” issues included in Schedule Two, supposed to implement decisions made in Nay Pyi Taw, according to Schedule One.
This is not, obviously, how most people think of a federal system.
I do not believe, however, that this disqualifies the argument I made when I wrote, in Tea Circle, three years ago, that there could indeed be federalism under the 2008 Constitution.
I have explained, in the Schedule Two paper referred to, above, and in other articles, how a gradual process of amending the Constitution, starting with Schedule Two, and other elements of this “chain reaction”, could lead to a de facto federal system. I believe this article presents one such potential scenario where it would be possible to answer, by amending the Constitution, to issues that arise as the process of decentralization progresses and reaches new steps.
One of the most important achievements of the recent process that led to the submission of almost 4,000 recommendations to amend the Constitution is that, now, all actors actually know the content of the Constitution. This is particularly important in the context of the upcoming 2020 general election. While it is highly unlikely that any groundbreaking constitutional amendments would be adopted before the election takes place, the third legislature, between 2021 and 2026, will be a critical moment for constitutional reform, in Myanmar.
A greater diversity in the parliaments, and in particular a greater representation of ethnic political parties, a greater knowledge and understanding of the 2008 Constitution by all political players (political parties, but also others such as civil society organizations), a deepened democratic culture, should all lead to a process through which the Constitution is indeed amended, gradually, towards more democracy, on the one hand, and more decentralization, on the other hand. All of which, in parallel to a peace process that is currently almost grounded to a halt, should lead, one day, to peace, democracy, and a federal system.
No one should be oblivious to the fact that the road will be long. But Myanmar and its people have no other choice than continue on the courageous path they have taken towards a better future.
Mael Raynaud is head of research at Urbanize: Policy Institute for Urban and Regional Planning, based in Yangon. He wishes to thank Cheryl Saunders, at the University of Melbourne, for some fascinating conversations on various aspects of Constitutional Law.