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Subir Bhaumik
Date of Publish: 2016-01-15




The question the world is asking about Myanmar is how soon the Lady ( Aung Sang Suu Kyi) can take effective charge of a government she is destined to lead . Her party National League for Democracy (NLD) has won the sweeping mandate , cornering nearly eighty percents of the seats. But unless the Constitution changes and Art 59(f) is amended or dropped, Suu Kyi cannot contest for the country's all-powerful Presidency.  But this time on, she is determined to lead the government, whether she is President or not. 

For those in India's Northeast, the smooth transition of power in Myanmar is crucial. A new regime will surely spell out its foreign policy . Suu Kyi has called for transparency in country-insurgency operations along Myanmar's borders with Northeast India. But the army will , as per the 2008 Constitution, control three ministries -- including Home, Defence and Border Affairs. So India has to effectively deal with the military to get its country-insurgency operations going in what is the last trans-border regrouping zone of Northeastern rebels. Which means India cannot come out in open support of Suu Kyi as it may like to. But will that mean problems when and if Suu Kyi finally takes charge. The shadow of doubt hangs over the deep forests of Sagaing as much as it does in Delhi , Kohima and Imphal , Guwahati and Aizawl. Will Suu Kyi ever do a Hasina in throwing out these seperataist rebels from India's Northeast ! Or will she fret and fume if India howtows to  the army to get its done .

But let us first look at Suu Kyi's options.

President U Thein Sein has promised a smooth transition of power to Aung Sang Suu Kyi's National League for Democracy (NLD) -- but it is quietly lobbying with the NLD to clear a bill that protects former presidents from prosecution for crimes committed when in office. The bill surfaced during the final parliament session of the current government, which started just after the NLD's sweeping victory in the Nov 10 national elections. The session will continue until end of January. The Former Presidents Security Bill  is seen by analysts as the last attempt by Myanmar's long-ruling military junta to ensure that their leaders are not prosecuted for past criminal offenses.

It grants immunity to former heads of state “from any prosecution for actions during his term.” Outlined in article 10 of the bill , this provision is meant to protect former presidents from domestic prosecution for even the most serious crimes committed while in office, including war crimes and crimes against humanity.

“The Former Presidents Security Bill is a brazen attempt to shoehorn immunity from prosecution into the president’s retirement package,” Phil Robertson,  deputy Asia director at US-based Human Rights Watch is quoted in Mizzima News as saying. “The immunity provision should be stripped from the proposed law so that President Thein Sein and future Burmese presidents remain accountable for any crimes they commit.”

The draft law consists of 14 clauses that outline the government’s commitment to support retired presidents, such as lifetime funding for a bodyguard and other personal security measures. Now this may be a bargain -- if Suu KYi and her NLD accept to pass this law that effectively guarentees the leading lights of the military junta immunity from prosecution . the military may give way and accept the NLD proposal to drop Art 59 (f) . Once that happens, Suu Kyi can contest for President.

But the army will not agree to amend Art 436 that gives its representatives one-fourth of the seats in both houses of the parliament  and also complete control over three crucial ministries (Home, Defence and Border Affairs) . Since carrying an amendment without military support is impossible as it controls one-fourth seats of parliament and an amendment needs three-fourthparliamentary support, Suu Kyi may have to make a compromise. She has to accept the Former Presidents Security Bill, if she wants to become President . That is possible only if Art 59(f) is dropped. It bars anyone related to a foreigner from contesting for President and Vice-President. She has been  married to the late British professor Michael Aris and both her sons have British passport.

Suu Kyi has expressed her angst , even saying she will effectively run the government even if she is not the President. Former junta strongman Than Shwe and current army chief Senior General Ming Aung Hlaing have both welcomed the poll results indicating the military will honour it . Both have met Suu Kyi despite Tha Shwe's huge reservations about her not so long ago. Shwe however described Suu Kyi as the 'future leader of Myanmar' , while she clearly wants to lead the country right away.

And though there is no real chance of the powerful Tatmadaw (Burmese army) upturning the poll verdict , as in 1990, it is clear that the military is keen on a safety package for all those who have led the military junta in the past . That looks like the deal for a smooth handover of power. "The army will try extracting its pound of flesh," says a NLD leader but on condition of anonymity.

Immunity for Myanmar’s past military governments is already present in Article 445 of the 2008 Constitution, which prohibits prosecution of officials of the State Law and Order Restoration Council (SLORC) (1988-1997) and the State Peace and Development Council (SPDC) (1997-2011). Myanmar military personnel also enjoy effective immunity as the commander in chief serves as final arbiter in matters of military jurisdiction.But domestic immunity from prosecution may not spare past Myanmar leaders from prosecution for international crimes before international tribunals, including the International Criminal Court (ICC), Human Rights Watch's Robertson  said. 

Although Myanmar is not a member of the ICC, war crimes and crimes against humanity could still be tried by the court with United Nations Security Council approval. “Instead of providing another protective blanket for the already well-shielded officials of past military governments, the parliament should act to ensure that all Burmese are equal under the law,” HRW's Robertson said. That, in Myanmar, is easier said than done -- atleast as yet.

As far as India is concerned, its leaders know it will have to deal with the Burmese army Tatmadaw for a long time on issues such as insurgency because the army retains three important ministries -- Home, Border Affairs and Defence-- that effectively gives it control over foreign policy in the neighborhood . So it cannot come out in much bonhomie with Suu Kyi. But will that leave her sulking and throw spanners on efforts of those who want better Delhi-Yangon relations ! A difficult question to answer.

Subir Bhaumik 

( Subir Bhaumik is a former BBC Correspondent and now works as Senior Editor of Dhaka-based bdnews24.com. His books on Northeast "Insurgent Crossfire" and "Troubled Periphery" are well acclaimed. His forthcoming book "Agartala Doctrine" is being published by Oxford University Press. )


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