The NLD Cannot Circumvent the Military’s Veto Over Constitutional Amendments

Jesse Hartery responds to Jason Gelbort’s argument that the Pyidaungsu Hluttaw can circumvent the military’s veto over constitutional amendments.

In an article for the New York Times, Jason Gelbort advanced a bold (and, in my view, incorrect) argument about the composition of the Pyithu Hluttaw. He suggested that the Constitution sets no quota for military seats in the Pyithu Hluttaw, only a maximum number of seats. Therefore, he argued that the Pyidaungsu Hluttaw could “amend the Pyithu Hluttaw Election Law and change the number of military representatives in the lower house”. This would effectively mean that the NLD could circumvent the military’s veto over constitutional amendments because they would no longer hold 25% of the seats in the Pyidaungsu Hluttaw.

Section 109 of the Constitution stipulates that the Pyithu Hluttaw shall be formed with a maximum of 440 representatives, which includes “not more than 110 Pyithu Hluttaw representatives who are the Defence Services personnel nominated by the Commander-in-Chief of the Defence Services in accord with the law.” Gelbort is right to note that sections 141 and 161 of the Constitution are very clear that a 25% quota is afforded to the military in the Amyotha Hluttaw and in the State and Region Hluttaws. The same level of clarity is not present in section 109 as it relates to the composition of the Pyithu Hluttaw because of the words “not more than”.

That said, I must disagree with his interpretation. The power to appoint military members to the Pyithu Hluttaw is given to the Commander-in-Chief of the Tatmadaw. While the Constitution stipulates that this power must be exercised “in accord with the law” (similar wording can be found in sections 141 and 161), the Constitution does not allow the Pyidaungsu Hluttaw to impose numerical constraints on his discretion to appoint members up to the maximum.

This section certainly allows for procedural constraints, but I am not convinced that the Pyidaungsu Hluttaw can completely neuter a power that is constitutionally afforded to the Commander-in-Chief. The current procedural constraints found in the Pyithu Hluttaw Election Law include the necessity of sending the nomination of military members to the Union Election Commission so that they can ensure the appointed members meet the proper qualifications (section 31). It also provides the mechanism for substituting the military members who do not meet the proper qualifications (sections 32-33). I would add that the qualifications at issue in these provisions are constitutionally recognized (sections 120 and 122 of the Constitution), which means the Pyithu Hluttaw Election Law does not itself create these constraints on the Commander-in-Chief’s appointment power.

This textual interpretation is also consistent with the broader context. While the subjective intent of the drafters should never be dispositive in constitutional matters, it can certainly provide useful context when interpreting the text of the Constitution. It is abundantly clear from the constitution-drafting process that the goal was to give the military a veto over constitutional amendments. This also explains the overwhelming academic support for this interpretation of the constitutional text. As Andrew Harding has explained, “[t]his was clearly the intended outcome, given the ‘discipline-flourishing democracy’ mantra of the 2008 Constitution.”

In that sense, I agree with Gelbort that the Constitution only sets a maximum number of seats for the Pyithu Hluttaw. That said, any limits on the number of military members appointed to the Pyithu Hluttaw would have to be self-imposed by the Commander-in-Chief. The Pyidaungsu Hluttaw is not empowered to impose those constraints. This can be contrasted with the elected seats to the Pyithu Hluttaw, which must reflect the number of townships. The Pyidaungsu Hluttaw is explicitly empowered to determine the number of townships (“in accord with law on the basis of township as well as population”). However, if the number of townships eventually exceeds 330, the Constitution also stipulates that some townships should be considered combined for the purpose of electing a representative of the Pyithu Hluttaw.

Even if I were to accept Gelbort’s argument that the Pyidaungsu Hluttaw can impose numerical constraints on the Commander-in-Chief’s discretion, it could be argued that these changes must be consistent with the underlying structure of the Constitution – that is, to provide the military with 25% of seats in each house of the legislative branch. Put differently, if the Pyidaungsu Hluttaw were to hypothetically reduce the number of elected seats in the Pyithu Hluttaw to 300 (by amalgamating townships for example), it could potentially also reduce the number of military seats to 100, thus maintaining the constitutional equilibrium as understood by the military.

This is not to say that I believe the constitutional amendment procedure is consistent with democratic principles or federalism. I have made clear that it is not. That said, this is the state of constitutional law in Myanmar today, whether we like it or not. Ultimately, I take the view that the argument Gelbort raises should be subject to review by the Constitutional Tribunal if the NLD wants to make any changes to the Pyithu Hluttaw Election Law. As others have noted (namely Richard Horsey), to use this interpretation to alter the constitutional structure would be to blow a hole through the unilateral compromise concocted by the military. Surely, such a change would provoke the military establishment and result in a constitutional crisis.

I agree that the NLD should move ahead with its plans to reform the Constitution by putting forward specific proposals through the parliamentary joint committee. It should also make abundantly clear to the military that it has a democratic mandate for constitutional reform. On the specific argument advanced by Gelbort, however, the NLD should tread carefully.

(Image courtesy of Creative Commons, original image here)

Author: Jesse Hartery

Jesse Hartery works at international law firm Fasken LLP. He holds an Honours B.A. in History with a Minor in Asian Studies from the University of Ottawa, a graduate diploma in Federalism, Decentralisation and Conflict Resolution from the University of Fribourg, and degrees in common law (LL.B.) and civil law (B.C.L.) from McGill University. He was a Judicial Law Clerk at the Superior Court of Quebec in 2017-2018 and will be a Judicial Law Clerk at the Supreme Court of Canada in 2020-2021.