Ruling party reshuffle, provisions of constitution and other existing laws

Nay Tun Naing

The shift in the leadership of the ruling Union Solidarity and Development Party (USDP) happened sooner than political analysts had expected.

It was forecast that the USDP would call an inter-party convention in the early 2016 where the top positions – including the central executive committee members – would be reshuffled.

Aung Thaung, the party’s central consultant, passed away on July 23. The party’s leadership has been reshuffled 20 days after his death.

The welcoming ceremony for the USDP’s candidates was held on August 12 in Nay Pyi Taw. The list of the party’s 59 candidates from defense service was also announced at the ceremony.

The USDP accepted only 59 out of 143 personnel that were proposed by the military and 46 out of 55 officials proposed by the executive branch.

Maung Maung Thein, the party’s general secretary, confirmed at the press conference after the ceremony that President Thein Sein and the Vice-President Nyan Tun will not run for the upcoming election.

Then the upheaval followed: A curious event happened at the USDP’s headquarters in Nay Pyi Taw on the night of August 12 where police surrounded the building and was perceived as an inter-party coup. The concerned authorities later said it was not a coup.

The party’s leadership reshuffle was announced officially the next day.

The joint chairperson Thura Shwe Mann, the general secretary Maung Maung Thein, and the central executive committee members Thura Aung Ko, Aung Thein Lin, Aung Kyi, Maung Shein, Zaw Myint Pe and Maung Pa have been demoted to ordinary party members.

Htay Oo, the party’s deputy chairperson, has been promoted to the joint chairperson post and Tin Naing Thein has become the general secretary. Likewise, a recent military retiree Thet Naing Win has become associate general secretary.

Does the act infringe the constitution?

If the USDP is to be judged as an ordinary political party, its shake-up is just a normal party affair.

But it is the ruling party and its chairperson Thein Sein is indeed the President of Myanmar.

Section 64 of the constitution states: “If the President or the Vice-Presidents are members of a political party, they shall not take part in its party activities during their term of office from the day of their election”.

Thus Thein Sein does not have the right to involve in party activities since the day he became the President although he is the party’s chairperson.

The rumour had it that Thein Sein involved in the party reshuffle on August 12 and attended the party’s special meeting held the next day.

Both the presidential office and the presidential spokesperson Information Minister Ye Htut squashed the rumours.

Still there are two unclear matters.

The first one is included in the paragraphs of the USDP’s statement on August 13 stating: “...the party’s chairperson President Thein Sein transferred the deputy chairperson/joint chairperson position to the vice- chairperson Htay Oo instead of Thura Shwe Mann on (12.8.2015)”. Further the USDP’s newly reorganised central executive committee mentioned the President Thein Sein as its party chairperson.

The second is the presidential office’s explanation saying that the President transferred the joint chairperson post to Htay Oo at the request of party members.

Judging by the two events, it seems the President involved in the party’s leadership reshuffle. Both the presidential spokesperson Ye Htut and the director of the presidential office Zaw Htay explained that Thein Sein was not taking part in party’s affairs and his works were in consistent with the party’s structural rule (99/b).  

The rule states that the party chairperson can bestow the joint chairperson post to one of the deputy chairpersons while he is not participating in party activities. Both Ye Htut and Zaw Htay told media that both Thura Shwe Mann and Htay Oo were given joint chairperson task in line with the rule.

Coincidence of ministers’ resignation and party’s shake-up

Besides the matter aforementioned, there is still a lot to question.

The state-run media broadcast the news of the President allowing some ministers to resign early at the night of August 12.

Four union ministers, four deputy ministers, and one of the Union Civil Service Selection and Training Board (UCSSTB) were allowed to quit their posts. Other two union ministers and two deputy ministers were also allowed to go back to their military duties.

The ministers who were allowed to quit by “their own consent” included No 5 presidential office minister Tin Naing Thein, communications minister Myat Hein, minister of immigration and population Khin Yi, and rail minister Than Htay.

Pike Htway (deputy information minister), Dr Maung Maung Htay (deputy religious affairs minister), Than Tun (deputy cooperatives minister) and Win Maw Tun (deputy labour minister) also resigned. Dr Kyaw Kyaw Htay quitted from the (UCSSTB).

Defence minister Lt-Gen Wai Lwin and border affairs minister Lt-Gen Thet Naing Win were reassigned to their former military responsibilities. Maj-Gen Kyaw Nyunt (deputy defence minister) and Maj-Gen Tin Aung Chit (deputy border affairs minister) also were reassigned to their former military responsibilities.

The ministers reportedly retired from their military posts before the President’s official permission allowing them to quit their civil-positions.

It is significant when 10 of the resigned ministers and deputy ministers were included in the reformed central executive committee on August 13.

The new general secretary is Tin Naing Thein and Thet Naing Win is the associate general secretary. Pike Htwe, Dr Maung Maung Htay, Than Htun, Dr Kyaw Kyaw Htay and Win Maw Tun have taken central secretary posts. Than Htay, Khin Yi and Wai Lwin have become members of the central committee.

Therefore the doubt casts if the President planned in advance to let the ministers leave their posts in order to give them top positions within the party, or the two events are just coincidence.

The Section 232 (k) of the constitution says “If the Union Minister is a member of any political party, he shall not take part in its party activities during the term of office from the day he is appointed as a Union Minister.”

Likewise, the Section 234 (f) also states: “If the Deputy Minister is a representative of a Hluttaw or a Civil Services personnel or a Defence Services personnel, or a member of a political party, the provisions of sub-sections (i), (j), and (k) of Section 232 shall be applied.”

According to the two sections of the constitution, the union ministers and deputy ministers have no right to partake in party activities.

Therefore, political analysts grow doubt if the President planned the ministers’ resignations just hours before the leadership reshuffle in order to let them do party works.

Further, the USDP’s new central executive committee includes union ministers.

Thein Nyunt (No 1 presidential office minister), Soe Thein (No 3 presidential office minister), Aung Min (No 4 presidential office minister), Nyan Htun Aung (transport minister), Kyaw San (cooperatives minister), and Bone Swe (deputy relief and resettlement minister) remain as central executive committee members.

Formally, the union ministers and deputy ministers cannot participate in party activities if they are appointed in the executive branch. Since the new central committee keeps the ministers, and the rumours claimed that some union ministers showed up at the USDP’s headquarters on the night of August 12 and the morning of August 13, the whole act should be examined whether or not it violated the constitution.

The union ministers are included both in the old and the new central committees, and it was party leaders who requested the President to remove Thura Shwe Mann from his post. The central committee which can be called as the party’s head includes union ministers.

If the union ministers and the President involved in the party’s activities, it is up to the constitutional tribunal to look into the act if someone asked to take action.

Can Shwe Mann get ripped off from his parliamentary speaker role?

Any party can oust the party leader or a member of central committee from their positions according to its rules. The methods of ouster depend only on its own style.

But it is not that simple to remove a parliamentary speaker from his post. Thura Shwe Mann is the speaker of both the Parliament and the Lower House.

The power to oust the speaker is given only to the Parliament. If the executive branch interferes in the work of the legislative branch, it is infringing the constitutional conditions and parliamentary laws.

Section 11 (a) of the constitution stipulates that the three branches of sovereign power namely, legislative power, executive power and judicial power are separated, to the extent possible, and exert reciprocal control, check and balance among themselves.

According to the constitution, parliamentary speaker who is the key player in the legislative sector must be elected by parliamentary representatives.

Parliamentary procedures are therefore necessary if parliamentary speaker Thura Shwe Mann is to be deposed.

Section 113(b) also states if the speaker or the deputy Speaker resigns or has ceased to be a lower house representative, or has no right to continue to stand as a lower house representative, or is suspended from his position as the speaker or the deputy speaker by the lower house, or has passed away, he shall have ceased from his position.

Under the provisions related to the Lower House of Parliament, the duties of the speaker may be terminated for four reasons—high treason, breach of the constiutitutional provisions, misconduct and inefficient discharge of duties assigned by law.

There are two ways to terminate the duties of parliamentary speaker. The first is to table a motion in accordance with the concerned law. The second is to terminate the speaker’s duties after he has been recalled as MP. These two ways however will not find it easy to depose parliamentary speaker.

What does the Law relating to the Pyithu Hluttaw (Lower House) say?

Section 19 of the Law relating to Pyithu Hluttaw (Lower House) said the Speaker, the Deputy Speaker or both of the Speaker and Deputy Speaker may be recalled from duty by the parlimanet in accord with the prescribed manner for any of the following reasons: (a) high treason; (b) violation of the provisions of the Constitution; ( c) misconduct; and (d) being unable to fulfil the duties assigned by the law.

The Pyithu Hluttaw by-law prescribes how to recall the speaker from duty.

Sectoin 87 says a petition signed by 25 percent of MPs must be submitted through deputy speaker. Then the deputy speaker shall take over and perform the duties of speaker temporarally, according to Section 88.  

Section 89 says the deputy speaker shall include the recall petition in the agenda of a parliamentary session. One MP who gave his signangure has to submit the petition. Meanwhile, a list of MPs must be registered to discuss the motion. Secret voting must be used as to whether action should be taken against the proposal or not. The MP who submitted the proposal also has the right to vote.

After voting, continued measures must be taken as per Section 91. Unless more than 66 percent of the total MPs show their support, it must be announced that there will be no action. But if they gave ‘yes’ votes, it must be announced that action will be taken.  

Even if 66 percent of MPs show their support, investigation must be carried out before taking action. The investigation team must be formed with parliamentarians who are to make and submit a report withing 30 days. According to Section 93, secreting voting is also necessary as to whether action should be taken based on the findings of the investigation team.    

Section 94 says again that unless more than 66 percent of MPs show their support, it is must be announced that no action will be taken. If they support, it must be declared that the speaker will be recalled.

Although the speaker could be recalled through these ways, he would remain in parliament as MP, according to Section 96. It is necessary to use Section 396 of the constitution to totally recall a parliamentary representative. However, it is not an easy way either.  

Section 396 of the constitution

Sectoin 396 is related to Section 38 (b) which says electorate concerned shall have the right to recall elected people’s representatives in accord with the provisions of the constitution. Section 396 is therefore based on that.

Section 396 (a) says that a parliamentaury representative may be recalled on any of the following reasons: (1) high treason; (2) breach of any provision of this Constitution; (3) misbehavior; (4) disqualification prescribed in this Constitution for the parliamentary representative; and (5) inefficient discharge of duties assigned to.

Section 396 (b) stipulates that a minimum of one percent out of the original voters of the electorate of the constituency concerned shall submit the complaint to the Union Election Commission against the parliamentary representative on whom it wishes to recall.

Section 396 (c) says the Union Election Commission shall conduct the investigation in accord with the law while Section 396 (d) in conducting the investigation on an allegation made to a parliament representative, he has a right to defend himself in person or through an agent.

Section 396 (e) if the Union Election Commission considers that the allegation is true and that the alleged person should not continue to serve as a parliamentary representative any longer, the Union Election Commission shall proceed in accord with the law.

However, Section 397 says Pyidaungsu Hluttaw (Union Parliament) shall enact the necessary laws on matters relating to ‘Election’ and on matters relating to ‘Recall’.

Any necessary law as per Section 397 has not been enacted to take measures under Section 396 (c), (d) and (e). So this way canot be employed either to easily depose the parliament speaker.

The Union Electoin Commissoin (UEC) drafted a recall of MPs bill and sent it to the Union Parliament speaker three times— Agust 2012, Agust 2013 and July 2015 (this year).

The bill however could not be approved and negotiation is still underway with some controversies.

On July 24, a compliant was reportedly sent to the UEC to recall Lower House speaker Thura Shwe Mann as parliamentary representative. The petition was signed by one percent of the electorate in Zeyathiri Township, Nay Pyi Taw, where military personnel and their families mostly live. Shwe Mann became MP representing the Zeyathiri Township constituency.

Like Shwe Mann, MP Thein Zaw for Myitkyina Township constituency (now a member of the new central executive committee of the ruling USDP) also faced such a complaint.

The UEC said despite those complaints, no action could be taken as related laws have not been passed.

After the ruling party’s leadership changes on August 13, the UEC sent a letter to speaker Shwe Mann urging him to promptly approve the recall of MPs bill.  

The state-run newspapers did not cover news about the USDP leadership reshuffle. They however noticeably features news about the UEC’s letter calling for the approval of the bill.

The right to recall

Every country does not hold a refereudum on recall of MPs or the right to recall. It is mostly used in Switzerland, Venizula, the US and Britain. But they use different laws. India is still struggling to pass such a law.

What is strange is that no country in the world practises any provision like Sectoin 396 (a) of the 2008 constitution of Myanmar saying that a minimum of one percent out of the original voters of the electorate of the constituency concerned shall submit the complaint to the Union Election Commission against the parliamentary representative on whom it wishes to recall.

Switzerlan has not granted the right to recall on federal level. Its states have the right but they use different cantons. A petition needs to be signed by 3 to 13 percent of the electorate.

The US follows suit. Different states have different procedures. In 2003, about 100 MPs in Califonia were recalled after the petitions were signed by 12 percent of the original voters. Such percentage is minimum and 25 percent is necessary in some other states.

Britain had conducted investigation after a complaint signed by 10 percent of the electorate and held by-elections.

It is not natural for Myanmar to recall MPs only through the support from one percent of the electorate. So the issue is still under heated debate. MPs comment that continued measures should be taken after such a clause has been amended. They also blame the constitutional weaknesses for delays in passing the law.

Nonetheless, the recall of MPs bill is not in the final stage of discussion. It is likely to be discussed when parliamentary meetings resume on August 18.

What is their standing?

The authorities say the current events are related to party affairs and not concerned with the administrative sector. It can also be deduced from other remarks that the executive is not supposed to intervene with parliamentary affairs.   

However, the newly reconstituted CEC of the USDP is formed with incumbent ministers and deputy ministers and other ministers who have just retired, sparking some controversies. CEC members are indeed key players or decision makers.

In this context, the role of two organisations outside parliamanet has become important. They are the Constitutional Tribunal and Union Electoin Commission. Poltical analysts are watching whether they will act independently or not.  

Under the existing law, the right to recall parliament speaker is only in the hands of parliamentarians. Under current circumstances, the 25 percent military MPs will continue to push the UEC for dealing with their complaint.

According to the results of the 2012 by-electoin, the Lower House represents 68.3 percent of MPs from the ruling party, apart from 25 percent military personnel. It is therefore up to the decision of the ruling party MPs.  

Palriamentary affairs are not like party affairs. Parliament must prove how genuine Myanmar’s democracy is. If the MPs, especially those from the USDP, holds the common stance or decision, it will cast doubts over the exectutive sector.

Allegations will also erupt tthat the executive overwhelms not only the judiciary but also the legislative. If that happens, any relentless efforts for democratization will be nothing.  

The existing ways to recall the parliament speaker from his duty will not work out. The parliament’s term will be over in January 2016 and the general election will take place on November 8 this year.

The end of the parliament’s tenure is only five months away. From August 18 onwards, we have to wait and see how the MPs can ensure stability in parliament in 80 days before the election.