For the past 60 years the ethnic nationalities of Burma have been in rebellion against the union government. Central to that revolution is the call for a “federal union” and the question of the nature of the Union of Burma, its constitution and how its many people live together. As one Karen activist put it to me, “All governments in Burma, past and present, under democracy and dictatorship alike, have refused to accept Burma as a country of many ethnicities and religions. They want to impose their Burman Buddhist vision of Burma on everyone.” In my view this is best illustrated by, Thein Sein proposed in a letter to Shwe Mann that a marriage law and three other laws be drafted by the National Assembly to “preserve race and religion.” A countries constitution can be regarded as a framework for governing a country which encapsulates the philosophy of the society.
The constitution is the political and lawful foundation, upon which the country is built. It’s importance cannot be overstated, particularly for a country such a Burma/Myanmar, with its muti-ethnicity and different religions. The 2008 Myanmar constitution, encapsulates the philosophy of the former Generals such as Shwe Mann and Thein Sein but unfortunately many ethnic nationals feel it also reflects the views of many Burmans, especially when they see the racist actions of Buddhist monks such as Wirathu. It is not just the undemocratic nature of the constitution with its 25 % appointed military nominated seats in Parliament, or the clauses that prohibit Daw Aung San Suu Kyi from becoming president, that is so very unacceptable. But it is the centralist nature of power that is framed in the constitution that is of paramount concerns to many ethnic nationalities. Local governance and local government is key to any genuine peace process, whatever the exact nature of the constitutional definition of the Union of Burma. The call for a federal Burma is a means of expressing the need for real and accepted devolution of power.
The 2008 constitution does make some provision for local government and recently Hamish Nixon, on behalf of the Centre for Economic and Social Development, part of the Myanmar Development Resource Institute (MDRI) and supported by The Asia Foundation wrote a paper entitled “State and regional governments in Myanmar.” The paper examines the state of today’s local government in Burma. In my view it is a very well researched paper and its contents should be looked at by all who are interested in progressing peace.
I have picked out what I think are the most important and relevant parts of the paper and added some of my own opinions, however the paper should be read in full by all who have the time. The paper states that:- `Sub national governance institutions and central--‐local relations are critical to the future of Myanmar, state and region structures created under the 2008 Constitution and their relationship with broader governance, peace and decentralization processes. These new sub national governments have started to open political space, but they face significant limitations. State and region budgets are yet small, and prepared in a way that reinforces central influence further reforms are needed to align the new political structures with administrative and fiscal arrangements, broaden the scope of decentralization to more significant areas, and link it with wider democratization, peace and public administration reform processes’.
The paper also looks at the structure of state and region governments under the 2008 Constitution:- State and region governments consist of a partially elected unicameral hluttaw, an executive led by a Chief Minister and cabinet of state/region ministers, and state/region judicial institutions. The hluttawis composed of two elected members per township, representatives for “national races”, and appointed military representatives equal to one quarter of the total. The Chief Minister is selected by the President from among elected or unelected hluttaw members, and confirmed by the hluttaw.
I agree with the papers assertion the attitude of the armed groups in the country—on all sides—towards the potential and perils of further decentralization will be central to the success or failure of Myanmar’s transition, and state and region governance cannot be addressed without considering its impact on the peace process. The government peace roadmap involves armed groups joining the political process as parties under the constitution, while opposition proposals envision a fundamental renegotiation of the relationships between groups. Decentralization to states and regions within current constitutional constraints cannot provide the degree of political autonomy, security, or share of national wealth that the non state armed groups in conflict or cease fire with the government desire in order to agree sustainable peace agreements. The need to negotiate these “big picture” questions does not mean that strengthening state/region governments cannot influence the peace process. Issues such as education policy, oversight of development projects, and management of mining concessions are important dimensions of conflict in Myanmar. However, these significant ethnic and identity issues and state/region level influence over major resources or development projects currently remain outside the framework of decentralization to states and regions. Clearly further development of decentralization reforms to states and regions is needed. It is fair to say that much has changed for the better in Burma, abuses of human rights has greatly decreased and many government reforms are being introduced. Burma’s society is changing , however women still are very underrepresented in politics but this too may change. However the feeling of most ethnic nationalities is that Burma's generals are unwilling to share power and are demanding a unilateral or one sided ceasefire. In other words, ethnic forces should disarm, surrender and then "join the legal fold."
In my view, the regime refuses meaningful discussion on power sharing. The nine ethnic members of the Nationwide Ceasefire Coordination Team (NCCT) have been selected and will draft a nationwide ceasefire agreement together with a government team. We will see if the ethnic demands for the cessation of attacks and abuses, and creation of codes of conduct come to fruition. I suspect the countries peace process is stuck exactly at the point most advantageous to the Tatmadaw (Burma Army), insurgency has been curtailed, the Tatmadaw has been able to strengthen its position and equipment. The lack of law and order still allows them to behave as they like in ethnic areas. Divide and rule tactics have left the armed groups not just divided but seriously weakened. The president, Thein Sein, has found the high ground from which to defend the 2008 constitution, a parliamentary constitutional Review Committee. What better place to kick the issue into the long grass but still play lip service to reform on the international stage and get aid and investments at the same time. But not all is lost, the elections of May 2015, are a chance open political space, and test the Tatmadaw’s commitment to democracy. The Tatmadaw are well aware of this and realistically one must expect they will come up with every trick in the book to divide the electorate, along ethnic and religious lines. To encourage some to abstain and others to participate.
One should also not be totally surprised if there is election fraud and in some areas they may not hold elections at all due to security reasons that they created. The peace process needs to be a parallel and interlinked process with the election and governance changes leading to strengthening of democratic local government. This is not just an issue for the ethnic nationalities for as Hamish Nixon paper states `It is still early in the decentralization process, and the emergence of new local political and institutional space is already increasing the awareness and interest of diverse groups in further decentralization. This interest is not limited to ethnic minority or regional parties, but is shared by local branches of national parties and local officials themselves. Increasingly, civil society organizations and the local media already openly discuss sub national governance issues’. The truth of this can be seen in the growing community interest in the dam projects, industrial development and land ownership issues. Most ordinary people find it hard to identify with constitutional issues but are motivated by very local and personal issues. Existing structure and institutions need to be strengthened, democratised and made more accountable to the electorate. Village heads and township administrations need to be democratised. It is at the township level that many key functions of government take place. States and regions, despite the terminology distinguishing historically “ethnic” states from majority Burman regions, are constitutionally equivalent. The local hluttaw, or assembles must be democratically strengthened.
The acceptability or even desirability of the military representatives and presidential appointment system has got to be reappraised together with the question if states should have shared powers over security. However even within the 2008 Constitution reform is difficult but possible, for it does lists the areas over which the “Region or State Hluttaw shall have the right to enact laws”, establishing a loose basis for a division of powers between the national level (the “Union”) and the states and regions. These areas are divided into eight sectors, each with specific responsibilities, several of which are deferred for future definition “in accord with the law enacted by the Union”. In some sectors, such as Agriculture, the assigned responsibilities are broad, while in most they are quite narrow and limited. For example, in “Energy, Electricity, Mining, and Forestry”, responsibilities are limited to power generation that is off the national grid, regulation of salt products, polishing local gems (but not mining gems), and firewood. Similarly, the social sector is limited to some areas of traditional medicine, welfare and cultural heritage preservation, leaving the major areas of education and health excluded.
The Chief Minister and cabinet ministers are drawn from among the members of the hluttaw. The appointment process for chief ministers involves the President selecting a state/region hluttaw member possessing the required qualifications, who is then confirmed by the hluttaw. As a candidate may only be rejected for proven failure to meet the constitutional qualifications, effectively the selection of the Chief Minister is entirely in the hands of the President, with the proviso that he or she is a member ( elected or appointed) of the state/region hluttaw. In other words what little devolved power there is, is controlled directly by the Presidents appointee. The stated intentions of President Thein Sein’s sub national governance policies have been to spur economic development, focus administrative reforms on state and region governments, and enable political reforms to support the peace processes with ethnic armed groups. President Thein Sein has pushed governance reforms by creating collective bodies of different compositions at the district, township, village tract, and village level; however these bodies have been established to varying degrees and effectiveness. The President has expressed hope that this “new administrative system … will reduce public grievances caused by the high handed actions taken by individual administrators. So reform is possible. However using ethnic nationalities members in that Presidents appointee system is also not a substitute for democracy.
The road to peace must include recognition that the present system of a military nominated presidency, with the power to rule the country through constitutional patronage has to change. However there also needs to be an acceptance that all sides have to understand each other’s needs and that there will have to be compromise.
As I see it the Tatmadaw require parliamentary mechanisms to prevent a break up of the Union and a fragmentation of the Union army. They wish to maintain a special role within the constitution as guardians of the Union. The mainstream democrats in the Divisions of Burma require open and fair elections a strengthening of democratic processes and institutions. They also need some constitutional amendments to enable all their members to hold high office. The ethnic nationalities in the State need the same as the Divisions of Burma as well as very tangible control over aspects of security and culture.
If all sides are sincere in their commitment to national reconciliation, genuine peace and democracy, a way can be found.
Paul Sztumpf is a guest contributor to the SI Blog. He can be reached at firstname.lastname@example.org.