Myanmar's NLD could submit proposal to suspend constitution for Suu Kyi: legal adviser

Ko Ni, Supreme Court Advocate and legal adviser for Myanmar's National League for Democracy (NLD), discussed Myanmar's presidency in an exclusive interview with the Mainichi Newspapers' Yangon Bureau on Feb. 3, saying NLD members of parliament are considering submitting a proposal to suspend Section 59(f) of the Myanmar Constitution, which bars Aung San Suu Kyi from holding the presidential position. Questions and answers from the interview follow:

--

Question: The constitution defines the president as the head of state. Do you think it is legal to have a position of what we call being "above the president?"

Answer: The phrase "above the president" has become extraordinary, as it has been used by Aung San Suu Kyi. The existing constitution defines the president as the head of state as well as the head of government. Three sections -- 16, 58, and 199 -- in the constitution attest to this fact. Section 59(f) restricts or prohibits Aung San Suu Kyi from becoming a president. She is the leader of this country, according to the will and desire of the people shown in the Nov. 8, 2015 general election. She has the legal mandate of the people, as they trust her and want to empower her as the head of state. Accordingly, Aung San Suu Kyi must become the head of the country.

There is a conflict between people's will and the constitution. In this situation, one has to decide which one is more important. It would have to be the desire and will of the people. The present 2008 Constitution was drawn (up) by the previous military government, and all powers are granted to the military leaders. People don't view it as a democratic constitution. We, the people of Myanmar, abhor this constitution, and we have always been trying to change it.

If Aung Suu Kyi cannot become the president, she will have to appoint someone instead. So, in this situation, she is essentially above the president. And, as the head of the winning party, being "above the president" is not only legal, it is also consistent with the existing constitution.

Q: Aung San Suu Kyi usually emphasizes the importance of law and order or the rule of law. Initially, when she became a member of parliament, she took an oath to work within the framework of the 2008 Constitution. Won't there be a contradiction between what she said in the past and what she has been saying now?

A: She always talks on the importance of the rule of law. You would think that it would go against the rule of law, if she stays above the president. But, it's not. Let me explain. The real definition of rule of law is very broad. All laws must be fair and just. If not, there won't be any rule of law. First of all, I want to point out about the 2008 Constitution. Do you think it's fair and just? Actually, it goes against the will of the people. So, in this situation, we cannot talk about the rule of law. Matters relating to rule of law must be initially enacted fairly and justly by the parliament. Then, all people need to start obeying those laws. The present constitution is not fair to the people, and so, it has nothing to do with the rule of law.

Q: But, didn't she say that she would work within the framework of the 2008 Constitution when she became an MP?

A: She has been trying to amend the constitution at all times. Her 2012 by-election manifesto mentions that she will be amending the constitution. She has been declaring that she will try to amend this constitution, and although she tried in the last parliament, she failed. This is a good example. So, what should we be doing to move forward? We need to change the constitution, or maybe suspend some sections. This is how we can overcome the conflict and the deadlocked situation.

Q: Do you think the concept of "above the president" is acceptable to the military? Because the military usually highlights that they are the guardian of the constitution.

A: This concept of guarding the constitution is presented by the military personnel. Actually, the responsibility of the military is to protect the state, and not to draw (up) a constitution. People need not obey this concept. It's quite clear. The real owner of the state power is the people, not the military personnel. We need to have a clear distinction regarding this matter.

Q: For Aung San Suu Kyi to become a president, there are two choices -- one is to amend the constitution, and the other is to suspend clause 59(f) of the constitution. Which would be a better choice for the military?

A: First of all, we need to amend the constitution. If we cannot, we need to suspend Section 59(f). Otherwise, she cannot become the president. Now we are trying to suspend this section. If the military does not want to amend the constitution, the easiest and shortest way is to suspend the section for the time being.

If we cannot choose to suspend the section, we need to appoint a president before Aung San Suu Kyi becomes one. After that, we have to try to amend the constitution. Once it's done, and after the president resigns or retires, then Aung San Suu Kyi might become the next president.

Q: Once the NLD has an agreement of suspending the section with the military, what kind of legal procedures need to be taken in the parliament? For example, do we need to ratify a special law or act?

A: If the winning party wants to suspend Section 59(f), one or a group of the parliament members should submit an emergency proposal to the meeting. It would be something like this: "The people of this country had already chosen Aung San Suu Kyi as the next leader of the country. But, Section 59(f) of the constitution restricts her from becoming a president. This is a conflict of law or a constitutional crisis. To avoid this problem, we need to suspend Section 59(f)." This must be submitted to the lower house or the upper house. The parliament members would discuss that proposal, and then decide whether the parliament approves it or not. If approved, the parliament needs to submit this proposal and a draft bill to the supreme parliament. Members of the supreme parliament would discuss that bill and by voting or by consensus agreement we can enact a special law to suspend Section 59(f). We can do it easily because the NLD has a majority of 60% in the parliament. If we choose to do that, it may cause some misunderstanding between the military and the NLD. So, Aung San Suu Kyi is trying to first discuss or negotiate with the military to find a good solution.

There is also another problem. We can submit this proposal within two or three days, but for a bill to become a law, there are two steps. In the first step, the parliament must accept that bill, which is possible. In the next step, the president must put his signature on the bill. President Thein Sein will be in his post until the end of March. So, if Thein Sein signs it, it would go along fine. If he doesn't and objects that it goes against the constitution, he has to return the bill within fourteen days to the supreme parliament for reconsideration. Again, the supreme parliament will make deliberations on the president's suggestion and vote and decide on the issue. If the parliament approves the bill, then it would become a law, even without the president signing it. This process will take at least a month.

We need a president very soon. If we cannot choose a president in time, all the processes would be delayed. After we appoint a president, the president has to form a government, submit the list of the government to the parliament for approval, appoint chairperson and members for the election commission, the constitutional tribunal, the public service commission, the attorney-general, the auditor-general, etc. To do these things, we need to appoint a president immediately. This is the problem we are facing now.

Q: The bill does not have to be approved by the president when it comes back to the parliament. Does that mean President Aung San Suu Kyi could become a reality?

A: Yes. It depends on whether this happens before or after forming a new government. It would be very difficult to become a reality before forming a government, because the process would take at least a month.

Q: That is, if President Thein Sein refuses to sign it. But if he accepts it, it won't be difficult?

A: Yes, although it will take at least one month. But, if we already have someone as a transitory president of the country, the parliament can decide, and the president can sign on that bill. When the law has been enforced, the temporary president can resign from his or her post leaving the position vacant. At that time, we can choose another president, and Aung San Suu Kyi may then become the actual president of the country. It may occur after forming a new government, around June or July of this year.

Q: I heard that there was an instance in the past when Prime Minister Nu handed over the power to the military in 1958 to establish an election-administration government, and that this suspension had to be approved by the parliament every six months, according to a section in the 1947 Constitution. Could this example be relevant this time?

A: This is a good precedent to suspending Section 59(f). In 1958, the ruling party split into two parties. Facing this situation, the parliament decided to abolish the government and to empower the military chief at that time, General Ne Win, to rule the country (with) a caretaker government. And so, the parliament authorized the prime minister post to General Ne Win in 1958, and he accepted it. After governing the country for about five months, Prime Minister Ne Win told Nu that he would resign from his post because Section 116 of the 1947 Constitution did not allow someone who is not a parliament member to be a prime minister for more than six months. He said, if the parliament wanted to continue to appoint him as the prime minister, the constitution has to be amended.

The parliament members started discussing amendment of Section 116. Most of them didn't wish to amend it, as they said this section was the heart of the constitution, and that if it were amended, it would be like wrecking the constitution. Consequently, it turned into a political crisis, where if they could not amend it, they could not continue to appoint General Ne Win as the prime minister as necessitated. The chief minister of the judicial affairs then gave an advice to suspend Section 116 for a designated period. All the parliament members agreed and ratified a special amendment law to suspend Section 116 of the constitution until the next election when a new prime minister would be elected.

We are having a similar situation now. Our people have chosen Aung San Suu Kyi as the leader for the next five years, but the constitution is against their decision. In this situation, we have to decide whether to amend the constitution or whether to suspend Section 59(f). Amendment of the constitution will take a long time, and if the military chief doesn't agree, it's going to be a hard task. If the military chief agrees, we still need to have a referendum which will also take a long time. Suspending it would be the easiest method.

Q: I think it is acceptable for the military to suspend the section of the constitution on a temporary basis, in line with a five-year presidential tenure. What would be your opinion?

A: Maybe it could be acceptable, through discussions and negotiations between Aung San Suu Kyi and the military leaders. In fact, the will and decision of two persons -- Aung San Suu Kyi and the military leader -- is what matters.

During the next five years, we have to amend this constitution. If we can amend it, Section 59(f) would also be changed in its entirety. At that time, we don't even have to suspend it any more. We can repeal or totally abolish this section and other sections as well.

Q: Without the military's agreement, it is impossible to amend the constitution. To do so, first, I think, Aung San Suu Kyi must become president.

A: Most of the people, especially most of the journalists, always take into account the military's role. We understand well the current situation and how important the role of the military is in our country. What politicians and media members should know is that the military is not the decision maker. It is a public servant body, and its duty is to protect the state and its sovereignty, and not to be governing or making decisions concerning the country. Everyone thinks the military is above the country, the party, or the people. This notion is totally wrong. The military must be under the people.

Q: What percentage of reality would there be for Aung San Suu Kyi to become a president?

A: Except for some military personnel, everyone (would like) Aung San Suu Kyi to be the president. Most of the people and most of the military personnel would agree to Aung San Suu Kyi becoming the president.

Q: How about Min Aung Hlaing, the Commander-in-Chief? I think everything depends on him right now.

A: Senior General Min Aung Hlaing is the Chief of Staff. The 2008 Constitution greatly empowers the military chief. For that reason, his role is very important. Otherwise, if we are able to abolish this constitution or amend it, a military chief would be one of a number of normal government staff chief posts. (The chief) would not have any important political role. But, currently, according to the existing constitution, the chief of the military post is rather important.

Q: So, is it acceptable for Commander-in-Chief Min Aung Hlaing to accept President Aung San Suu Kyi? Because it all depends on him ...

A: You are using the title "Commander-in-Chief." Senior General Min Aung Hlaing is Commander-in-Chief, according to our constitution. I want to make clear the distinction between "Commander-in-Chief" and "Chief of Staff." According to military law, the post of Senior General Min Aung Hlaing is Chief of Staff and not the Commander-in-Chief. The Commander-in-Chief means the head-of-state post. The president is actually the Commander-in-Chief. Senior General Min Aung Hlaing would not be the Commander-in-Chief, according to democratic practices. But, in our present constitution, the post of the Commander-in-Chief is empowered to Senior General Min Aung Hlaing. Actually, this post has to be possessed by the president. The constitution is incorrect, and it has to be amended.

Q: But, under the present condition, could Commander-in-Chief Min Aung Hlaing accept President Aung San Suu Kyi, if (this) is proposed?

A: He should accept it, because the people of the country have already decided that the next leader of the country is Aung San Suu Kyi, in the Nov. 8, 2015 general election. If Senior General Min Aung Hlaing does not accept it, it would mean that he is going against the will of the people. This is not a proposal by Aung San Suu Kyi; this is a decision of the people. This is very critical. All responsible personnel should obey and recognize the decision of the people.

Q: I heard that negotiations are going on between Aung San Suu Kyi and Senior General Min Aung Hlaing.

A: They are negotiating, but secretly. I think within this week or maybe in the coming week, there may be some resolution between them. This is my hope. We are hoping for a surprise. All of us are hoping for this kind of solution or decision.