Daw Suu changing what, the 2008 Constitution?

(A Direct translation of Han Tin Aung’s excellent Article.)

AS the coming by-elections are gradually nearer and nearer the calls from Daw Aung San Suu Kyi for the urgent needs to change the Constitution (2008 Constitution) are becoming louder and louder. 

Before discussing the possibility of changing the 2008 Constitution we really do need to consider how far NLD (National League for Democracy) can go in the coming by-elections since the only significant political parties able to contest for all 48 vacant seats in the coming by-election are the USDP (Union Solidarity and Development Party) and Daw Su’s NLD.

All the vacant seats had been vacated by USDP and all are from the USDP’s well-organized constituencies. And USDP will try anyway possible (including the trickery and the dirty methods) not to let go of their once-already-won constituencies. If there will be a fair elections, NLD will definitely win most of the contested seats simply because of Daw Suu’s massive influence in the country.

But, according to the bitter experiences from last 2010 General Elections, what exactly is an independent and fair election? Important is which sort of ruler will be used to measure the fairness? Whatever the West has been saying (about the coming by-elections to be independent and fair), we are not to forget that this Government is the very Government sitting comfortably on the Election Commission and the Election Acts used basically as its own fairness ruler.

Before, there were cases of exaggerating a bed-bug to become a turtle in last 2010 General Elections. There were examples of the winners eventually losing out in that election. So one should not daydream that NLD will easily win. Even if they won all the seats one needs to calculate up to what degree NLD will be allowed to do drastic things (like changing the Constitution)?

What exactly are By-elections?

This coming election is called By-elections because it is a special election to fill the vacant parliamentary member or MP (Member of Parliaments) positions vacated by the original MPs who have been elected in the 2010 General Elections and also become the President, Vice-presidents, Union Ministers, and Deputy Union Ministers elected as per the 2008 Constitution.

All those original MPs are USDP MPs and thus all the 48 vacant seats are in the USDP-controlled constituencies. In other words these seats are in the USDP’s deep pockets. And the NLD candidates are to contest these hardcore USDP seats.

Another fact is that present U Thein Sein’s Government has only three years, out of its five years mandate, left to rule Burma. So even if NLD wins the coming by-elections its MPs will have only three years life in the Parliament. Especially since the Parliament has already been sitting now for the year 2012, there will be no more Parliamentary regular sessions for this year after the coming April First (or April Fool) By-elections.

Even if Daw Suu and her NLD candidates won the coming by-elections they will have to sit at their homes and wait till the end of year 2012 and get into the Parliament only in 2013. So many Government-affiliated sites on the internet have already been pointing that reality out seriously or just as an April-Fool prank.

What could NLD do even if they won (all 48 seats)?

The contest is for the 48 vacant seats in coming by-elections. Out of 48 seats 40 seats are in the People Parliament, 6 are in the National Parliament, and 2 in some Regional Parliaments. Thus for the NLD their aim must be the People Parliament as that parliament has most of the vacant seats.

Before talking about what NLD could do in the People Parliament once they won the seats one needs to know the overall allocation of all the seats in that Parliament after the last 2010 General Elections. Please look at following pie chart.

Present People Parliament (Pyi-thu-hlut-taw) without NLD.

As shown in the pie chart above the ruling party USDP with 59% controls the majority in the present People Parliament while other parties have only 16%. And the military MPs automatically control 25% as per the 2008 Constitution.

So the major point to consider right now is the possibility of NLD winning all important 40 vacant seats in the People Parliament (Pyi-thu-hlut-taw). Practically impossible but if we consider the remotely possible scenario of NLD winning all 40 seats the significantly-changed People Parliament would look like this in the following pie chart.

People Parliament with NLD holding 40 seats.

As shown in the pie chart even if NLD won all vacant 40 seats it will still have only 9% of the People Parliament. USDP will have slightly-reduced 50% while the military MPs and other parties will still have 25% and 16% respectively. Since the majority of those 16% of other small parties are somehow connected (both politically and financially) to the ruling USDP the opposition block in the People Parliament will still be weak as if there is no opposition at all (like in the Singapore Parliament).

Since the NLD having 9% is the outcome of the best possible scenario of NLD winning all vacant 40 seats, in reality NLD will surely have less than 9%, for they will never win all 40 vacant seats.

So one dead sure thing is, after the by-elections, USDP MPs will still be controlling the People Parliament with their 50% majority even if NLD won all 40 seats presently vacant. So NLD will not have any significant influence to say much in the People Parliament. That basically points out the fact that NLD will not be able to stand as the major opposition party in the People Parliament even after the coming By-elections.

What it means is, it is absolutely impossible for the NLD to change (amend) the 2008 Constitution from inside the People Parliament because of the undisputable fact that the NLD will have only 9% at most in the People Parliament (Pyi-thu-hlut-taw) after the coming By-elections. It is absolutely clear that NLD will have not a chance to amend the 2008 Constitution within the three years still left from the five years mandate of the First Pyi-thu-hlut-taw.

Above conclusion is only from the logistic POV of political number-crunching in the People Parliament. The details of why 2008 Constitution cannot be easily amended from the legal point of view are explained in the following paragraphs.

How to change (amend) the 2008 Constitution?

While Daw Suu is continuously calling publicly to change the 2008 Constitution U Htay Oo the official leader of USDP (and a former Burmese army general) has been consistently replying that there is absolutely not a thing that needed to change in their 2008 Constitution. So why are the opinions of NLD leader Daw Suu and USDP leader U Htay Oo on the 2008 Constitution totally different from each other like the tail and head of the same coin.

That is because of Daw Su’s standing as the representative of the people demanding the genuine representative democracy while U Htay Oo continues to represent the military Government leaders who had used all sorts of dirty trick to bring in the 2008 Constitution.

But there is a serious weak-point in Daw Suu’s part in demanding to change the Constitution.

That is Daw Suu’s inability (or unwillingness) to clearly explain to the people which Acts of 2008 Constitution should be amended and why. While Daw Suu kept on saying there are Acts in 2008 Constitution not beneficial to the people, she said nothing about which particular standard she used to measure whether some particular Acts are beneficial or not for the people.

On the other hand she just recently told the Washington Post that the 2008 Constitution has given the military the over-reaching power.

So what Daw Suu has been actually saying is simply not following the logical steps.

What she should be bravely or clearly saying is that there are undemocratic Acts in the 2008 Constitution and because of these Acts Army has over-reaching constitutional powers and as long as these undemocratic Acts are not amended the democracy will never be achieved in Burma.

Why do we have the 2008 Constitution?

If we look back at the main reason for the existence of this 2008 Constitution we will find the result of 1990 General Elections had direct connection with the present Constitution.

NLD won the 1990 General Elections with a landslide victory. People were very decisive back then. They didn’t like the Military Government at all and they voted NLD en masse and gave Daw Suu a very clear mandate.

Once NLD had won the Military (SLORC) had to call the elected parliament and transfer the power. But the SLORC didn’t really want to do it and thus they said the new constitution has to be written first. When NLD’s elected parliamentarians proposed to write the new constitution the generals declared it was their job not NLD’s.

So to kill two birds with one stone the military had called the Nyaung-hna-pin National Convention in 1993 to write the present 2008 Constitution so that not only they didn’t have to transfer the power to Daw Suu’s NLD but also to establish their own USDP Government according to their own Constitution.

(To be continued ……..)