Myanmar’s Military-Allied Party Proposes Constitutional Amendment Increasing Civilian Powers

–Jason Gelbort, Legal Consultant

On February 25, the union parliament of Myanmar (formerly known as Burma) began debating bills to amend the military-drafted 2008 constitution,[1] including a proposal from the military-allied Union Solidarity and Development Party (USDP) that could significantly redraw the constitutional balance of powers between the military and the parliamentary-elected president. Among the USDP’s package of amendments is a proposal to establish the decision-making procedure for the powerful National Defence and Security Council (NDSC). This proposal would give decision-making authority over the NDSC to the parliamentary-elected president, and associated proposals would potentially further shift power to the president.[2]

The NDSC has been a source of ongoing tension between civilian and military leadership. Although the 2011-2015 USDP government regularly held NDSC meetings, the current NLD administration has never called a formal meeting, reportedly wary because the military controls six of the 11 constitutionally-specified NDSC members. The military and USDP have complained about the lack of NDSC meetings. The NLD has proposed a constitutional amendment for civilian council members to outnumber the military seven-to-five.[3] The Shan National League for Democracy proposed reconfiguring membership to decrease military participation and add the executives of Myanmar’s constituent states.[4] The Arakan National Party proposed eliminating the NDSC altogether.[5]

Under the 2008 constitution, the president coordinates with the NDSC on severing diplomatic relations, taking military action in response to military aggression, and declaring and managing certain states of emergency.[6] The president has the power to grant amnesties in accordance with the NDSC’s recommendations.[7] The NDSC also provides approval for the military’s involvement of the public in national defense and proposes and approves the president’s appointment of the commander-in-chief.[8]

The constitution is silent on how the NDSC makes decisions related to these matters.[9] Thus, despite holding a majority of seats, military members are not constitutionally required to have the final say on decisions. The USDP proposal uniquely addresses this gap by adding text to article 201 making the president the decision-maker: “Decision-making of the Council shall be by the president with due regard given to the views of all the Council Members.”[10] The president would be required to give “due regard” to the views of the council members, which is noticeably less binding than text used elsewhere in the constitution requiring approval by the council, especially given the likelihood of situations where there is a multiplicity of views among council members, one of whom is the president himself.

The USDP’s other proposed additions to article 201 potentially increase the president’s power even further, perhaps to a harmful degree. Notably, the proposal empowers the NDSC to recommend to the president whether or not to dissolve the parliaments under specific conditions. However, the constitution nowhere gives the president the power to dissolve the parliament. (The president can effectively suspend parliament during certain states of emergency, which may lead to its dissolution upon the expiry of its term.[11]) Where the constitution currently empowers the NDSC to make recommendations to the president, it also explicitly gives the president the power to carry out the recommendation.[12] Therefore, it is unclear whether the duty given to the NDSC to make recommendations should also be properly read to give new powers to the president. In addition to increasing executive power at the expense of the legislative branch, this potential dissolution power in some cases may relate to the state and region parliaments, which would greatly harm the peace process and its focus on commitments to “[e]stablish a union based on the principles of democracy and federalism.”[13]

If this amendment were read to give the president powers to dissolve the parliaments, then the amendment would also give the president powers over “matters relating to national defence, security, rule of law and internal peace,” because the bill similarly gives the NDSC the duty to give recommendations to the president on those matters. This may mark an additional significant shift in power from the commander-in-chief to the president.

In addition, the USDP’s proposal would require that NDSC meetings be held every two months and empower any five members to call ad hoc meetings. This serves the USDP and military’s interest in ensuring meetings occur.

The USDP’s proposal highlights the constitution’s silence on the NDSC’s decision-making rule, which could also be resolved through legislation or other methods. The NDSC is briefly mentioned in the 2010 Union Government Law,[14] and the only other “council” in the constitution, the Nay Pyi Taw Council, has its own legislation.[15] In 2015, the USDP developed legislation (never voted on) that would have established a consensus-based decision-making process for the NDSC, with a majority vote if needed and the president only voting to break a tie.[16] This bill would have diminished the president’s power, having the opposite effect of the USDP’s current proposal—neither of which follow a strict voting system. If parliament fails to amend the constitution, it could adopt the USDP’s proposed decision rule (or a different concept[17]) through legislation. However, the currently proposed decision-rule amendment may be politically more feasible and provide useful clarity.

Suggested citation: Jason Gelbort, Myanmar’s Military-Allied Party Proposes Constitutional Amendment Increasing Civilian Powers, Int’l Const. L. Blog, Feb. 25, 2020, at: http://www.iconnectblog.com/2020/02/myanmars-military-allied-party-proposes-constitutional-amendment-increasing-civilian-powers/

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[1] Htun Htun and Kyaw Myo, “Myanmar Parliament Sets Debate for Charter Reform, Caps Military Participation,” The Irrawaddy, 21 Feb. 2020, available at https://www.irrawaddy.com/news/burma/myanmar-parliament-sets-debate-charter-reform-caps-military-participation.html.

[2] Amendment Bill 4, U Sai Than Naing (unofficial English translation by International IDEA), Circulated by the Office of the Pyidaungsu Hluttaw on 20 September 2019, ¶4 on article 201(b)(7), available at http://constitutionnet.org/sites/default/files/2020-02/Amendment%20Bill_4_%20U%20Sai%20Than%20Naing%20ENG.pdf.

[3] “Proposals by Political Parties, Clusters and Individual Representatives (Members of Parliament) for changes, additions, removals and additional articles” (unofficial English translation by International IDEA), Circulated by the Office of the Pyidaungsu Hluttaw on 15 July 2019, art. 201, available at http://constitutionnet.org/sites/default/files/2019-07/Amendment%20Annex%20English%20Translation.pdf.

[4] Id.

[5] Id.

[6] Constitution of the Republic of the Union of Myanmar (2008), arts. 206, 213(a), 410, 412, 417, 421, and 422.

[7] Constitution of the Republic of the Union of Myanmar (2008), art. 204(b).

[8] Constitution of the Republic of the Union of Myanmar (2008), arts. 340, and 342.

[9] Crouch, Melissa, The Constitution of Myanmar: A Contextual Analysis, Hart Publishing (2019), 47 (“… there are no constitutional or legal procedures that set out how [the NDSC] operates or the scope of its powers.”); International Crisis Group, Myanmar: Towards the Elections, 20 Aug. 2009, 7 (“The Constitution does not set out how decisions are made by the council.”).

[10] Amendment Bill 4, U Sai Than Naing.

[11] Constitution of the Republic of the Union of Myanmar (2008), art. 418(a).

[12] “The President has… (b) the power to grant amnesty in accord with the recommendation of the

National Defence and Security Council.” Constitution of the Republic of the Union of Myanmar (2008), art. 204.

[13] The Nationwide Ceasefire Agreement Between the Government of the Republic of the Union of Myanmar and the Ethnic Armed Organizations, 15 Oct. 2015, art. 1(a).

[14] The Union Government Law (The State Peace and Development Council Law No. 15/20), The Union of Myanmar (21 Oct. 2010), available at http://www.asianlii.org/mm/legis/laws/uglpadcln152010575.pdf.

[15] The Nay Pyi Taw Council Law (The State Peace and Development Council Law No. 18/2010), The Union of Myanmar (21 Oct. 2010), available at http://www.asianlii.org/mm/legis/laws/nptclpadcln182010579.pdf.

[16] Kyaw Phyo Tha, “Concerns Raised over Last Minute Defense Council Bill,” The Irrawaddy, 29 Dec. 2015, available at https://www.irrawaddy.com/news/burma/concerns-raised-over-last-minute-defense-council-bill.html; Hoo Thant, “New bill would strengthen military hold over powerful security council,” Myanmar Times, 24 Dec. 2015, available at https://www.mmtimes.com/national-news/nay-pyi-taw/18288-new-bill-would-strengthen-military-hold-over-powerful-security-council.html.

[17] See, e.g., the proposal for legislation put forward by former MP Ye Tun (Hsipaw) in “Taming the defense and security council,” Myanmar Times, 5 April 2016, available at https://www.mmtimes.com/opinion/19833-taming-the-defence-and-security-council.html.