The decision by National League for Democracy leader Daw Aung San Suu Kyi MP to include herself in the cabinet of incoming President U Htin Kyaw has, by simultaneously removing her both from control of her party and from parliamentary activity, raised unprecedented political and constitutional questions.
Under the constitution that bars her from the presidency, cabinet members must quit their parliamentary seats and forswear party membership. Even under the Union Solidarity and Development Party government, despite the close links between party and army, ructions arose between leading party and military figures over, for instance, the presidential aspirations of former Speaker Thura U Shwe Mann. How the new alignment of NLD, parliament and cabinet will work out is a question that has aroused intense interest.
U Htin Kyaw, who takes office on April 1, announced on March 22 that he will reduce the number of ministries from 36 to 21. Under the constitution, three of those ministries – defence, home affairs and border affairs – remain under military control, and the Tatmadaw commander-in-chief has already named their incumbents.
Of the remaining 18 posts, Daw Aung San Suu Kyi will take four: foreign affairs, the President’s Office, education, and energy and electricity.
Her position as foreign minister will entitle her to membership of the shadowy but apparently powerful 11-member National Defence and Security Council, a predominantly military body charged with key functions under the military-drafted 2008 constitution.
Members include the president, the two vice presidents – one of whom is appointed by the military – the two parliamentary Speakers, the military commander-in-chief and his deputy, and the ministers of defence, foreign affairs, home affairs and border affairs.
The NDSC has the constitutional right to grant amnesty, cut diplomatic ties with foreign countries and draft civilians into the Tatmadaw. Most importantly, in case of a state of emergency, the council can approve a request from the president to hand over power to the military.
However, the full extent of its powers and responsibilities, rules of procedure and methods of functioning, are unclear. Little is known about how it operated over the past five years; of its members, only former Pyithu Hluttaw Speaker Thura U Shwe Mann discussed meetings publicly. It is not known, for instance, whether decisions in the council are taken by majority vote, which would give six members representing or appointed by the military a slight edge over the five civilian members.
Commentators see worrying potential for gridlock in the council as its military and civilian members square off in a body whose role is vague and whose rights lack legitimacy.
The secretive council will pit the country’s two most powerful people against each other across the table: Daw Aung San Suu Kyi and armed forces Commander-in-Chief Senior General Min Aung Hlaing.
Many have welcomed her decision.
“She has been in talks with the commander-in-chief for quite a while about national reconciliation. The two are now the most important figures in the NDSC. It’s very much in the national interest that they should get along,” said political commentator U Than Soe Naing.
He said the lack of detail on the NDSC, however, was one of the major weaknesses of the 2008 constitution.
“The constitution does not stipulate the council’s rights: what it can do and what it cannot do. Rivalry between the two groups will not bode well for the country.”
Last December, with the results of the election already known, parliament attempted a codification of the status of the council, and a draft bill was published in the state-run media. The text encountered widespread criticism for seemingly strengthening the position of the military and granting continued military participation in the exercise by civilians of executive management. It was never enacted.
The Tagaung Institute, a civil society organisation, has published six recommendations for civil-military engagement in the democratic transition.
“The NDSC’s rights and responsibilities should be clearly and precisely defined,” it said.
The institute further recommended that, in the interests of political legitimacy, transparency and confidence-building, the strategies and policies of the NDSC should be drafted and submitted to parliament for approval, promoting the role of civilian security specialists, organisations and the media.
New legislation should strengthen civilian control over the military, an important democratic norm, and a new model of civil-military relations should be developed.
“In joining the council, Daw Aung San Suu Kyi will have already made plans for her party. She will also lend more power to the council by joining it,” said analyst U Yan Myo Thein.
“However,” he said, “cooperation takes two, and Tatmadaw has to demonstrate its commitment as well.”
