This paper was first presented at a workshop titled ‘Can Political Reforms Bring Peace to Myanmar?’ organized by the Peace Research Institute Oslo (PRIO) and Myanmar Peace Centrewhich was held the 13-14 October 2012 at the Chatrium Hotel, Rangoon.

Abstract

Since the beginning, in 1961 at the Taungyi Conference, the “Federal Movement”, which would eventually result in a militarycoup in 1962, theethnic nationalities in Burma have all been consistently demanding the rebuilding of the Union of Burma based on the spirit of Panglong and the principles of democracy, political equality and internal self-determination. They have further argued that the constitution of the Union should be formed in accordance with the principles of federalism and democratic decentralization, which would guarantee the democratic rights of citizens of Burma including the principles contained in the United Nation's declaration of universal human rights. On the formation of a genuine Federal Union, ethnic nationalities demand that all member states of the Union have their separate constitutions, their own organs of state, that is, State Legislative Assembly, State Government and State Supreme Court.

In their proposal, the ethnic nationalities demanded that the Union Assembly should be a bicameral legislature consisting of a Chamber of Nationalities (Upper House) and a Chamber of Deputies (Lower House), and each member state of the Union should send an equal number of representatives to the Upper House regardless of its population or size. They also demand that the Union of Burma be composed of National States; and all National States of the Union be constituted in terms of ethnicity or historic ethnic homelands, rather than geographical areas. Moreover, the residual powers, that is, all powers, except those given by member states to the federal center, or the Union, must be vested in the Legislative Assembly of the National State. In this way, the Union Constitution automatically allocates political authority of legislative, judicial, and administrative powers to the Ethnic National States. Thus, all member states of the Union would be able to exercise the right of self-determination freely through the right of self-government within their respective National States.

When the military regime, which traditionally was the strongest opponent of the ethnic nationalities’ demands, adopted a new constitution in 2008 it contained certain elements of federalism. These included a bicameral legislature consisting of aAmyothaHlutdaw and a PyituhHlutdaw, equal representation from each state at a Chamber of Nationalities, and all member states of the Union having their own separate State Assemblies and State governments.

This paper will addressto what extent the 2008 Constitution satisfies the aspirations of various the Ethnic Nationalities in Burma. I shall, however, limit myself in this paper within the constitutional framework of the “form of state” - that is, how the Union is structured and how much power and status is given to member states of the Union.

Background

On 12 February 1947, the Union of Burma was founded at the Panglong Conference by four former British colonies; these were primarily the Chin Hills, the Kachin Hills, the Federated Shan States and Burma Proper, all of which already had their own constitutions. The British had occupied these four colonies separately as independent nations in different periods of time and had applied different administrative systems in accordance with the different constitutions that the colonial power had promulgated for them. The British officially promulgated the Chinram Constitution, called the “Chin Hills Regulation,” in 1896, the “Kachin Hill Tribes Regulation” in 1895, the “1919 Act of Federated Shan States” in 1920, and the “1935 Burma Act” in 1937. The Chin Hills Regulation of 1896 covered present Chin State in Burma, present Mizoram State, Nagaland State, and part of Manipur and Meghalaya States in India. The 1935 Burma Act was applied to the area of the pre-colonial Myanmar/Burman Kingdom, which included the former Arakan and Mon Kingdoms as well as delta areas of Karen country.

The 1947 Panglong Conference, thus, was organized by the pre-colonial independent peoples and nations, who in principles had had the right to regain their independence separately from the Great Britain and to form their own respective nation-states, or to remain as a British Colony, or collective reclaim their independence and found a new nation-state together. As mentioned in the Preamble of Panglong Agreement, they all opted for the third options, which read:

Believing that freedom will be more speedily achieved by the Shans, the Kachins, and the Chins by their immediate co-operation with the interim Burmese government.

The Panglong Agreement therefore represented a joint vision of the future of the pre-colonial independent peoples: namely the Chin, Kachin, Shan and the interim Burmese government led by Chief Minister Aung San, who came into power in August 1946 according to the Burma Act of 1935. The interim Burmese government was a government for the region formerly known as Burma Proper or Ministerial Burma, which included such non-Burman nationalities as the Mon, Rakhine (Arakan), and Karen. The Arakan and Mon were included because they were occupied by the British not as independent peoples but as the subjects of the kingdom of Burman or Myanmar. The Karens were included in the Legislative Council of Ministerial Burma according to the 1935 Burma Act because the majority of the Karens (more than two-thirds of the population) were living in delta areas side by side with the Burmans.

Since these peoples were included in the Legislative Council of Ministerial Burma, Aung San could represent them in Panglong as the head of their government. Thus, the Panglong Agreement should be viewed as an agreement to found a new sovereign, independent nation-state between peoples from pre-colonial independent nations of what they then called Frontier Areas (Chin Hills and Kachin Hills), Federated Shan State and Burma Proper, who in principle had the right to regain their independence directly from Great Britain, and to form their own respective nation-states.  In other words, the Panglong Agreement was an agreement signed between the peoples of a post-colonial nation-state-to-be.
The essence of the “Panglong Agreement”, declared in its preamble was not only to hasten the ethnic peoples own search for freedom but also to establish a new multi-national-state of the Union of Burma for those who struggled together to free themselves from colonial power. Therefore, based on the “Panglong Agreement”, the Constituent Assembly of the Interim Government of the Union of Burma promulgated a new constitution on September 24, 1947, thus paving the way for securing “independence” from Great Britain on January 4, 1948. Ever since, the day the Union of Burma gained independence in 1948, the same date as the Panglong Agreement was signed, has been celebrated as Union Day.

The observance of February 12th as Union Day means the mutual recognition of the Chin, Kachin, Shan and other nationalities, including the Burmans, as “different people historically and traditionally due to their differences in their languages as well as their cultural life.”   It is also the recognition of the distinct national identity of the Chin, Kachin, Shan, and other nationalities that had the right to gain their own independence separately and to found their own nation-state separately. In other words, it is the recognition of pre-colonial independent status of the Chin, Kachin, and Shan, and other nationalities as well as their post-colonial status of nation-state-to-be.

Finding the Method of Association: The Frontier Areas Commission of Enquiry (The FACE)

Under the Aung San–Attlee Agreement, the Frontier Areas Commission of Enquiry (the FACE) was formed to inquire through additional and specific consultation into the wishes of the frontier peoples in order to find what they called was the “Method of Association”. The agreement reads:

A Commission of Enquiry shall be set up forthwith as the best method of associating the Frontier peoples with the working out of the new Constitution for Burma. Such Commission will consist of equal numbers of persons from Ministerial Burma, nominated by the Executive Council, and of persons from the Frontier Areas, nominated by the Governor after consultation with the leaders of the areas, with a neutral Chairman from outside of Burma selected by agreement. Such Committee shall be asked to report to the Government of Burma and His Majesty’s Government before the summoning of the Constituent Assembly.

The British government appointed Col. D. R. Rees-William as Chairman of the FACE. Since the commission conducted its inquiry after the signing of the Panglong Agreement, during March and April 1947, the evidence they heard was generally in favour of cooperation with Burma Proper or Ministerial Burma. The reason for conducting the FACE inquiry, as defined in its objective, was to find out the “best method of association” with the purpose of formulating the basic principles of a new Constitution; but, whether this new Constitution would become a Constitution of Federated Burma or a Unitary Burma depended heavily on the finding of the inquiry. The key to such an endeavour, therefore, was to find out the desires of the Frontier Peoples: What kind of a new country they wanted to build together, a Federal Union or a Unitary State? And what kind of political system they wish to establish for themselves? As such, the FACE was assigned not only to find out the desires of the Frontier Peoples but to find the means and ways of the “coming together” of historically, politically, culturally, and ethnically different peoples as members of a new nation-state of federation called the Union of Burma.

Since the FACE inquiry was conducted in order to supplement the Panglong Agreement as a transitional process, or what can be called the second phase of a “negotiation process”, the findings of the inquiry, based on and together with the Panglong Agreement, would become the basis for a new constitution of the Union of Burma. As the commission was assigned such important tasks, the FACE conducted its inquiry in such a way that the peoples of the Frontier Areas would be allowed to express their desires not only through oral testimonies but also by submitting written memoranda both collectively and individually. The FACE, thus, conducted a series of interviews not only with the signatories of Panglong Agreement, namely the peoples from the Chin Hills, Kachin Hills, and Federated Shan States.

The FACE also granted a chance to express the desires of the non-Burma ethnic peoples from Ministerial Burma, or Burma Proper, namely the Arakan, Karen and Mon. Surprisingly, they, the FACE also conducted interviews with two groups of the Karenni. The Karenni actually should not be included; because it was recognized as an independent country during the entire colonial period. (In the later years, the Karenni people denounced those who met with the FACE as traitors to their people and their country.) The FACE, since knowing the background history of Karenni, suggested that the question of the future of Karenni, along with the political future of the Chin, should be “a matter for negotiation and discussion in the Constituent Assembly”.

The Chin, Kachin, and Shan, the signatories of the Panglong Agreement, collectively submitted a written memorandum to the FACE in the name of the Supreme Council of United Hills Peoples (SCOUHP), which was formed as the Interim Authority for the Frontier Areas for a transitional period at the Panglong Conference, in parallel with the interim Burmese government headed by Aung San. The SCOUHP memorandum highlighted three main issues, namely, (i) Equal rights with the Burman, (ii) Full internal autonomy for Hill Areas [that is, ethnic national states of the Chin, Kachin and Shan], and (iii) The right of secession from Burma at any time.  The SCOUHP memorandum also specified the composition and selection method of the “Constituent Assembly”, which would draft the Constitution of the Union of Burma; the State and Federal relations, especially the division of powers between the two levels of government by emphasizing the subject that should be dealt by the Federal Government; and the form of Federal Government in which they demanded equal rights and equal opportunity for Hill States. The full texts read as follows:


Since the Chin, Kachin and Shan had already signed the Panglong Agreement, in which they had agreed to join the interim Burmese government, the essence of the Memorandum they submitted to the FACE was to establish the conditions for joining the Union and to find the method of association with the interim Burmese government. The Memorandum, therefore, highlighted the fact that the conditions for joining the Union would be a federal basis with a strong emphasis on the federal principles of both “self-rule” and “shared-rule”, and the right to secede from the Federation at any time after the attainment of freedom.

The 1947 Constitution and Ethnic Issues

At the Panglong Conference in 1947, the Chin, Kachin, Shan and other non-Burman nationalities were promised, as Silverstein observes, the right to exercise political authority of [administrative, judiciary, and legislative powers in their own autonomous national states] and to preserve and protect their language, culture, and religion in exchange for voluntarily joining the Burman in forming a political union and giving their loyalty to a new state.

Unfortunately, Aung San, who persuaded the Chin, Kachin, Shan and other non-Burman nationalities to join Independent Burma as equal partners, was assassinated by U Saw on July 19, 1947. He was succeeded by U Nu as leader of the AFPFL. When U Nu became the leader of the AFPFL, the politics of Burmese independence movement shifted in a retro-historical direction, backward toward the Old Kingdom of Myanmar or Burman. The new backward-looking policies did nothing to accommodate non-Myanmar/Burman nationalities who had agreed to join Independent Burma only for the sake of “speeding up freedom”.

As a leader of the AFPFL, the first thing U Nu did was to give an order to U Chan Htun to re-draft Aung San’s version of the Union Constitution, which had already been approved by the AFPFL Convention in May 1947. U Chan Htun’s version of the Union Constitution was promulgated by the Constituent Assembly of the interim government of Burma in September 1947. Thus, the fate of the country and the people, especially the fate of the non-Burman/Myanmar nationalities, changed dramatically between July and September 1947. As a consequence, Burma did not become a genuine federal union, as U Chan Htun himself admitted to historian Hugh Tinker. He told Tinker, “Our country, though in theory federal, is in practice unitary.”

U Chan Htun had reversed all these principles of a Federal Union after Aung San was assassinated. According to U Chan Htun’s version of the Union Constitution, Burma Proper or the ethnic Burman/Myanmar did not form their own separate National State; instead they combined the power of the Burman/Myanmar National State with sovereign authority of the whole Union of Burma. Thus, while one ethnic group, the Burman/ Myanmar, controlled the sovereign power of the Union, that is, legislative, judiciary, and administrative powers of the Union of Burma; the rest of the ethnic nationalities who formed their own respective National States became almost like “vassal states” of the ethnic Burman or Myanmar. This constitutional arrangement was totally unacceptable to the Chin, Kachin and Shan who had signed the Panglong Agreement on the principle of equality, a view that was shared by the other nationalities.

The second flaw in the 1947 Union Constitution, in the view of ethnic nationalities, was the structure of the Chamber of Nationalities. The original idea of the creation of the Chamber of Nationalities was that it was not only to safeguard the rights of non-Burman nationalities but also the symbolic and real equality envisaged at the Panglong Conference. Thus, what they wanted was that each National State should have the right to send equal representatives to the Chamber of Nationalities, no matter how big or small their National State might be. But what had happened, based on U Chan Htun’s Union Constitution, was that while all the non-Burman nationalities had to send their tribal or local chiefs and princes to the Chamber of Nationalities; it allowed Burma Proper to elect representatives to the Chamber of Nationalities based on population. Thus, the Burman or Myanmar from Burma Proper, who composed the majority in terms of population, was given domination of the Union Assembly.

In this way, the Union Assembly, according to U Chan Htun’s version of the 1947 Union Constitution, was completely under the control of the Burman or Myanmar ethnic nationality. Not only did the powerful Chamber of Deputies have the power to thwart aspirations and the interests of non-Burman nationalities, but the Burmans also dominated the Chamber of Nationalities. That was the reason why the total votes of non-Burman nationalities could not block the state religion bill in 1961 even at the Chamber of Nationalities. Thus, all the non-Burman nationalities now viewed the Union Constitution itself as an instrument for imposing “a tyranny of majority” and not as their protector.

The 1961 Taungyi Conference and Federal Seminars

On 8-16 June 1961, the Supreme Council of the United Hills Peoples (SCOUHP) organized a conference in Taungyi to discuss the constitutional crisis that all ethnic nationalities had endured, and to find means and ways to amend the Union Constitution. The conference, financially sponsored jointly by the governments of Shan State and Karenni State, was attended by all the non-Burman ethnic nationalities who demanded statehood in the Union, namely, for the Chin, Mon, and Rakhine; and those who had already formed States, namely, the Kachin, Karen, Karenni and Shan. No Burman or Myanmar ethnic nationality and parties were invited.

After nine days of deliberations and heated debates, the Taungyi Conference passed five resolutions, which read as follows:

1. To strive in unity for the perpetuation of the Union of Burma, for the developments of the states, and equality of all ethnic nationalities, the conference unanimously passes a resolution for the formation of an All States Unity Organization.
2. As the present Constitution of the Union of Burma does not contain sufficient provisions for the equality of states and ethnic nationalities, and also with the desire for perpetuation, and out of the consideration for the good of the Union of Burma, it is deemed that a revision of the constitution has necessary. Therefore:
   (a)    The conference unanimously agrees to endorse in principle the proposal for revising the Constitution of the Union of Burma,
   (b)    A request will be made to revise the Constitution of the Union of Burma, based on the principles proposed by Shan State.
   
3. The conference expresses the desire that a National Convention, composed of all nationalities in the whole Union, be immediately called at an appropriate place to ensure that the development and prosperity of the Union of Burma; for the better and closer relationship of the peoples of the states within the Union; for consultation with one another on the question of equality of all citizens of the Union.
4. This conference passes a resolution urging the Union government to immediately create new states within the Union that meet requirement of statehood, to fulfil the strong desire of the Mon, Rakhine and Chin nationalities.
5. The conference passes a resolution denouncing the Kuomintang forces which are committing armed aggression against the Union, and earnestly praises the Armed Forces which are driving out the KMT forces with might and aim (SaiAungTun, 2009: 422)

As the resolution stated, the ethnic leaders also decided to reform the Supreme Council of United Hills Peoples (SCOUHP), which was established at the Panglong Conference in 1947, comprise of the Chin, Kachin and Shan. They changed the name, from SCOUHP to the “States Unity Organization”, and the membership also was extended, including, the original members of the Chin, Kachin, and Shan, and the new members of the Karen, Karenni, Mon and Rakhine. The States Unity Organization was to be steered by a supervisory committee composed of six representatives from each state. The Taungyi Conference formed an Interim Executive Committee of the States Unity Organization, and Sao HkunHkio, Chief Minister of Shan State Government was elected as the first Chairman of the organization. The States Unity Organization eventually led the constitutional reform, which came to be known as the “Federal Movement”.
At the Taungyi Conference, all the delegates, apart from three cabinet members of U Nu’s government,agreed to amend the Union Constitution, and adopted the document known as the “Establishment of a Genuine Federal Union”, which served as the guiding principles for the “Proposed Amendment of the Union Constitution”. The proposed document contained the following headings:

1. The Structure
2. Distribution of Rights and Powers
3. Establishment of Parliament
4. Distribution of Union Revenues and Finance
5. Complete Autonomy for the State.

The proposed document was based on what came to be known as the “Shan Principles”, for it was first adopted by the Shan State Council on January 24, 1961. Theoriginal version of the “Shan Principle” read as follows:

1. 1. Establishment of a Burman [Myanmar] state;
   2. Assignment of equal powers to both chambers of the Union parliament;
   3. Each state shall be represented by an equal number of representatives in the Chamber of Nationalities;
   4. The following departments shall be vested in the Central Union, and all other powers, rights, and entitlements shall be transferred to the states:
      (a)    Foreign Relations
      (b)    Union Defence
      (c)    Union Finance
      (d)    Coinage and Currency
      (e)    Post and Telecommunications
      (f)    Rail, Air, and Water Transport
      (g)    Union Judiciary
      (h)    Collection of Custom duties are Seaports
      
   5. Union revenue shall be distributed equally.