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.

In order to establish a “Genuine Federal Union”, it was suggested in the “Proposed Amendment of the Union Constitution” to amend the Union Constitution that the “structure”, or what the social scientist called “form of state”, should be amended first. A “Genuine Federal Union” was meant to be a Union based on, and formed by, the constituent states, all of which have an equal powers and the right to self-determination. Thus, the formation of Union of Burma, according to the proposed document, should be based on the constituent states of ethnic nationalities, including the ethnic Burman/Myanmar; and all member states of the Union must have an equal political powers of legislation, administration and jurisdiction; and all of them must equally enjoy the right to internal self-determination, as it was agreed and envisaged at the Panglong Conference.

They therefore demanded that the Union Constitution be amended and a Genuine Federal Union be established, composed of national states, including the Burman or Myanmar national state, all of which would have the full rights of political autonomy by establishing their own separate state legislative assembly, state government, and state supreme court. In order to exercise the legislative, administrative and judicial powers freely, and in accordance with the right to self-determination, all member states of the Union should be granted the right to promulgate their respective “state constitutions” within the legal framework of the Union Constitution. They also demanded the establishment of Chin State, Mon State and Rakhine (Arakan) State with full autonomous status and equal right to self-determination.

Regarding the distribution of power, or what can be termed as the “states and federal relations”, the proposed document pointed out that the “distribution of power under the present Union Constitution was contrary to the wishes of the frontier leaders”. Although “the Burma Proper was not a constituent state, it held all the powers of the Union government, which should not be the case” (SaiAungTun, 2009: 398).In  contrast to the federal principle, the Union Constitution had given the residuary powers to the Union Assembly while strictly enumerated the state legislative powers. Although the state legislative powers were listed in the constitution, the member states of the Union could not enjoy political powers, especially the legislative power, in practice. Since the states did not have separate state constitutions for their respective states, the legislative power in a sense of the right to make laws was in the hands of the Union Assembly. The state councils could discuss or debate the bills, but they were not granted the legislative powers of passing the bills into the laws, as Silverstein observes:

Thus, the ethnic nationalities at the Taungyi Conference, who eventually became members of the States Unity Organization, demanded that in revising the constitution, the principles of a genuine federalism must be applied, with the central government being given only those powers concerning subjects common to all, while allowing the states to retain all residual powers.

In order to establish a genuine Federal Union, the third point they wanted to amend in the Union Constitution was the structure and power of the Chamber of Nationalities, under the heading of the “Establishment of Parliament”. The 1947 Union Constitution established the Union parliament with two houses, the Chamber of Nationalities (Upper House) and the Chamber of Deputies (Lower House). However, the Chamber of Nationalities did not enjoy the same power as the Chamber of Deputies.  Since the Union government was responsible only to the Chamber of Deputies, Chamber of Nationalities had “little influence and as such could not defend the rights of the states” (ibid). Moreover, as mentioned in chapter one, the states did not have the right to send an equal number of representatives to the Upper House. In revising the constitution, the proposed document suggested that “the Chamber of Nationalities must be given powers equal to those of Chamber of Deputies and every state should also have the rights to send an equal number of representatives to the Chamber of Nationalities” (SaiAungTun, 2009: 398).

The fourth point they would like to amend in the Union Constitution was concerned with the Union revenues and budget allocation, for which the document of the “Proposed Amendment of the Union Constitution”, stated:

Finally, the Taungyi Conference adopted three principles for “Complete Autonomy for the States” as part and parcel of “the “Establishment of a Genuine Federal Union”. The principles read as follows:

1. The right of every constituent state, including the Burman State which shall be established, to complete autonomy shall be spelled out in the new constitution. The constitution shall require that there be no interference by the central government or by other state in the internal affairs of any state.
2. Since the revised new Constitution of the Union of Burma will be of the genuine federal type, the states shall each have their own constitution, their own State Legislative Assembly, their own separate government, and their own distinct and separate judiciary and courts of law, provided that these state institutions are not inconsistent with the Central Union Constitution.
3. For those peoples who lack the qualifications for forming a state, national areas shall be established, and guarantees for the protection of their national rights shall be entrenched in the new constitution.

The States Unity Organization submitted its proposal for the “Establishment of a Genuine Federal Union” to the Union parliament in the following months, and also organized a series of seminars, meetings, and press conferences which became to be known as “federal movement” in an unfulfilled history of the Burma’s ethnic nationalities.

In response to the demands of the Taungyi Conference, U Nu had no choice but to invite all the political leaders and legal experts from both the Burman and the non-Burman nationalities to what came to be known as the Federal Seminar, at which “the issues of federalism and the problems of minorities would be discussed with a view to finding a peaceful solution”. The States Unity Organization launched a series of discussions and debates both inside and outside of the parliament, and conducted a number of press conferences, even before the first round of “Federal Seminar” was opened.

While the parliament was in session, the first round of “Federal Seminar” was opened and chaired by Prime Minister U Nu, at 6:00 PM on 24 February 1962. In order to broadcast the discussion alive on radio, the seminar was held in the main hall of the Burma Broadcasting Service. After Prime Minister’s opening speech, the “Federal Principles” was presented by Sao HkunHkio, Chairman of the States Unity Organization. His presentation was seconded by DuwaZau Lawn, Kachin State representative, Captain Mang Tung Nung, Chin Special Division representative, U HtunMyint (Tuangyi), Shan State representative, and U Sein, Karenni (Kayah) State representative.

SoaHkunHkio,as the Chairman,presented the “Federal Principle” as part and parcel of the document of the “Establishment of a Genuine Federal Union” that the States Unity Organization had adopted at the Taungyi Conference. He highlighted in his concluding remarks, saying that: “I would like to present on behalf of the States Unity Organization the form of union we desire.” This will involve:

After Kayah U Sein’s presentation, who was the last person to speak on behalf of the States Unity Organization, the first round of Federal Seminar was concluded. The second round of the seminar was held on 1 March 1962, and third round of seminar was scheduled on 7 March.But before the third round of seminar was opened and before U Nu was scheduled to speak, the military led by General Ne Win seized state power in the name of the Revolutionary Council. In the early morning of 2 March 1962, he arrested all the non-Burman participants of the Federal Seminar and legally elected cabinet members, including U Nu himself, dissolved parliament, suspended the constitution and thus ended all debate on federal issues.

The United Nationalities League for Democracy (UNLD)

After 27 years in power, General Ne Win was forced to resign during the student-led democracy movement in 1988. The nation-wide popular uprising for democracy also created an opportunity for ethnic nationalities to unite and struggle together for their common goal of rebuilding the Union as it was envisaged in the 1947 Panglong Conference. As a result, the United Nationalities League for Democracy was formed as an umbrella political organization of all the non-Burman ethnic nationalities in 1988.

On the formation of a genuine Federal Union, the UNLD has adopted seven principles of federalism for the future constitution of the Federal Union of Burma, at its conference held in Rangoon, on June 29 - July 2, 1990. These seven principles are:

The Basic Principles for Future Federal Union of Burma (2005)

On the Union Day of 2005, democratic forces and ethnic nationalities in exile adopted “The 8 Basic Principles for Future Federal Union of Burma”. The document was signed by 104 representatives from 42 organizations, which read as follows:

What has been achieved in the 2008 Constitution? And What Challenges still Remain?

After all these years of struggle what has been achieved? It may be argued that nothinghas been achieved because many of the ethnic peoples are still powerless. However, this point must be approached from a different perspective in that how much and how far has the Government adopted our policies and adopted them into their own policies. The best policy is the policy that is adopted even by our adversary and implemented for the people in the country. This is the common ground for the ethnic movement.If both parties have the same policiesthere will be common ground and the opportunity to move forward and face what challenges still remain.

UNLD Policies & 8 Basic Principles

1. Popular Sovereignty
2. Bi-cameral Legislature at Union Assembly;
3. Equal Representation at Chamber of Nationalities;
4. State Assembly, State Government & State Supreme Court
5. Multi-party Democracy
6. State Constitutions (self-determination & constitutional rights);
7. Democracy, Human Rights & Gender Equality (30% reserved seats for women at all levels of National & State Assemblies) 
8. Equality and Self-determination   

2008 Constitution

1. Popular Sovereignty
2. Bi-cameral Legislature at Union Assembly;
3. Equal Representation at Chamber of Nationalities;
4. State Assembly, State Government & State Supreme Court;
5. Multi-party Democracy
6. No State Constitutions (gradual transition is needed);
7. 25% Military; No quota for women (gradual transition is needed).
8. Equality but Ambiguity & No real self-determination.

This simple diagram reveals the fact that among the five most important demands that ethnic nationalities had made during the past sixty years; three demands are met in the 2008 Constitution. Based on what has already been achieved, there is the potential to establish a genuine democratic Federal Union: which can guarantee democratic rights for all citizens, political equality for all ethnic nationalities, and the internal rights to self-determination for all member states of the Union of Burma.

The most important and long term challenges that still remain include the internal rights to self-determination for ethnic nationalities who are also member states of the Union. Consequently, the UNLD policy and the “Basic Principles for Future Federal Union” clearly define the rights to self-determination, and have sought to achieve it through the right to adopt their respective state constitutions within the framework of a federal arrangement. They argue that without having state constitutions for their respective states, they cannot claim in this Union that ethnic nationalities have their rights of self-determination. They also argue that having a State Assembly, without a state constitution will be no guarantee of the right of self-determination; without a State Constitution, the State Assembly cannot make a genuine law because it will merely be done through the law promulgated for them by the central government, or outside of their power. Thus, the internal rights of self-determination for ethnic nationalities and member states of the Union by having state constitutions is one of the main challenges for ethnic nationalities in Burma

Concluding Remarks

In this paper, I addressedto what extent the 2008 Constitution satisfies the aspirations of various Ethnic Nationalities in Burma but limit myself within the constitutional framework of “form of state”. In so doing, I first explored what ethnic nationalities have demanded in order to rebuild the Union of Burma based on what they call “the Panglong Spirit”, and what kind of political system they have chosen for their future.

The major achievement in the 2008 Constitution, in terms of the form of state, is the certain elements of a federal system that it has adopted, such as a bicameral legislature consisting of AmyothaHlutdaw and PyituhHlutdaw, equal representation from each state at the Chamber of Nationalities, and that all member states of the Union now have their own separate State Assemblies and State governments. However, there is no state constitution for member states of the Union. So long as there is no state constitution, ethnic nationalities in Burma have argued since the 1961 Taungyi Conference that internal self-determination cannot be guaranteed. So long as internal self-determination is absent, there is no guarantee that ethnic nationalities in Burma would be able to protect, promote and preserve their respective languages, cultures, religions, ways of life, homeland and their respective ethnic national identities.

There are many more pitfalls and flaws that can still be identified in the 2008 Constitution, even from the point of view of “form of state” (let alone the “form of government” and the “rule of law” perspectives).  For instance, the composition of “states” and “divisions” are very ambiguous, though they are given more or less the same power. For ethnic nationalities, as it was described in the document entitled “Proposed Amendment of the Union Constitution” at the Taungyi Conference, a “Genuine Federal Union” is meant to be a Union based on, and formed by, the constituent states, all of which have an equal powers and the right to internal self-determination. Thus, the formation of Union of Burma should be based on the constituent states, and all member states of the Union shall enjoy not only equal power and status but even bearing the same connotation. As such, if the member states of the Union are called “state” or “pyi”, there should be no “division” or “taing”. After all, “pyi” and “taing” have more or less the same meaning as a country, according to the 1852 Judson’s Burmese-English Dictionary, which read as: (ျပည္) - n. a country), (တိုင္း) - n. a country; more extensive than (ျပည္).

It is hope, however, that after fifty years of military rule, the 2008 Constitution would, one way or another, be able to usher a democratic transition and eventually lead the country into a genuine federal Union as it was envisaged in the 1947 Pang long Conference, and ethnic nationalities are striving for since then.