Amendment or rewriting: 51 years on Burma still overwhelmed by constitutional crisis

By: Sai Wansai
Tuesday, 13 August 2013

On 07 August, Eleven Media Group reported that parliamentary speaker Thura Shwe Mann said that he is for the amendment, rather than the rewriting of the 2008 Constitution, to strive for a more federal system of governance, during the brain-storming, session, on 06 August, to amend the constitution, with the view of protecting the non-Burman ethnic nationalities’ and minorities’ right.

Sai Wansai
It is a great reliefe for all concerned parties that “federalism” is no more a taboo theme in Burma’s political arena now that the speaker Thura Shwe Mann has openly stated his position for the amendment of the 2008 Constitution to be in line with federalism. Although, at this moment, it is unclear on how he would like to go about with the amendment from presidential unitary to genuine federal system of governance.

Meanwhile, according to DVB report of 08 August, civil society groups convening in Rangoon to mark the 25th year anniversary of the 8888 uprisings released a declaration calling for the establishment of a “democratic federal state”.

BBC report of same date also said that the civil societies made known a three points resolution, which includes the establishing a federal union, amendment or rewriting the 2008 Constitution, and all-inclusive national reconciliation conference.

Regarding the resolution, Hkun Htoon Oo, SNLD Chairman said: “I endorse it for it is the will of all ethnic nationalities and as well, the whole population. People who don’t like it will try to destroy it. Some would like to rewrite it, while others would like to amend it from all angles. So it is better to rewrite it. As for me I prefer the rewriting it anew”, according to DVB report on 08 August.

In the same report, Nai Hong Sa, spokesman and Secretary of the United Nationalities Federal Council (UNFC), regarding the resolution, said: “Very good. It is exactly like our policy. I see that it is decisively and transparently informing the general public”.

On 02 August, the UNFC organized conference, which was attended by 18 armed groups, including its 11 member organizations. Others are: United Wa State Party (UWSP), National Democratic Alliance Army (NDAA), Myanmar National Democratic Alliance Army (MNDAA), Karen Peace Council (KPC), Democratic Karen Benevolence Army (DKBA), Arakan Liberation Party (ALP) and Arakan Army (AA), released a 6 points statement, that include the rejection of  2008 Constitution; reaffirming to establish a future, peaceful, prosperous and genuine Federal Union; and an agreement for the formation of a Bama/Myanmar state, with a view to express equality of all the national groups in the country.

Constitutional Crisis

In reality, Burma has been on constitutional crisis-footing since the 1962 military coup by General Ne Win.

Ten years after the independence, in 1958, fearful that the Shan and Karenni would make use of their right guaranteed in 1947 Union Constitution and disassociate from the Union, U Nu, as a precaution, invited the Commander-in-Chief, General Ne Win, to form a ‘Caretaker’ government to restore law and order for a period of 2 years.

In 1961, the then Shan State government produced a resolution widely known as “The Shan Federal Proposal”, which was later endorsed by all non-Burman delegates, at The All States Conference in June 16, 1961, in Taunggyi. Following the resolution, The All States Unity Organization was formed by the Taunggyi All States Conference, with Kachin, Karenni, Karen, Chin, Arakan, Shan and Mon as members.

Part of Shan Federal Proposal writes:

The provisions for equal and opportunities between the various states and nationalities are not adequately prescribed in the present Constitution of the Union of Burma.

The Steering Committee has therefore unanimously decided that to ensure equal rights and opportunities for all, the Constitution should be revised in accordance with the principles of a truly federal constitution.

The Steering Committee hereby resolves that in redrafting the Constitution, in accordance with genuine federal principles, the following basic requirements for ensuring equality shall be included:

  1. Establishment of a Burmese State;
  2. Assignment of equal powers to both Chambers of the Union Parliament;
  3. Each State to be represented by an equal number of representatives in the Chamber of Nationalities;
  4. The following Departments shall be vested in the Central Union, while all other powers, rights and entitlements shall be transferred to the States.
    (a) Foreign Affairs;
    (b) Union Defence;
    (c) Union Finance;
    (d) Coinage and Currency;
    (e) Posts and Telegraphs;
    (f) Railways, Airways and Waterways;
    (g) Union Judiciary;
    (h) Sea Customs. Duty.
  5. Union revenue to be distributed equitably.

The above proposals were unanimously adopted on Tuesday, the 24th January 1961.(Source: Sai Aung Tun – History of Shan State From Its Origins to 1962, 2009, Silkworm Books, Chiangmai, Thailand.)

In 1962, while the parliament was in session, debating the Federal Proposal to amend the Union Constitution, General Ne Win launched a military coup, claiming ‘to save the nation from disintegration’ and suspended the 1947 Constitution. But from the ethnic nationalities’ point of view, this abolishment of the legal instrument that bound their homelands to the Union, amounts to the nullification of the “Union of Burma” and has thus reverted back to pre-Panglong Agreement period. In other words, the Union has disintegrated and no more in existence. The present Republic of the Union of Myanmar is only seen as a forced-union, held by massive suppression and military occupation of ethnic areas, when in effect it resembles a form of colonization.

In 1974, General Ne Win’s Burmese Socialist Programme Party adopted a new constitution but this had no status in law as far as the ethnic nationalities were concerned. In any case, the 1974 Constitution was suspended by the State Law and Order Restoration Council (SLORC) in 1988.

In 1993, SLORC, which later became the State Peace and Development Council (SPDC) convened a new National Convention to draft a constitution that would guarantee a leading political role for the military in a future Burma.

After 15 years of on and off National Convention, finally the 2008 Constitution, which is a presidential unitary system, came into effect. Still, this military-drawn constitution failed to address the political aspiration of the non-Burmans and as well, the Burmans in a true sense.

Amendment or rewriting?

As it is, there is no argument or question about the shortcomings of the 2008 Constitution and that it has to be altered.

It seems the recent regime is bent only on amendment of its self-drawn constitution, while the majority of the opposition camps, including the non-Burman ethnic nationalities are for rewriting anew.

On 06 August, parliamentary speaker Shwe Mann hosted a meeting with other lawmakers, in a deliberation to move toward a system that gives states and regions more power over their own affairs.

According to Eleven Media Group’s report of 07 August, the meeting has made it known that it would be easier to amend the existing constitution than rewriting it altogether.

The same news source report on 10 August, during President Thein Sein’s meeting with union, states and regions ministers, the day before, urged to devolve some political decision-making power to the states and regions. This indicates that he is also only for the amendment and not rewriting anew. In other words, the centralized state authority, unitary system has to be continued and stayed intact.

The question arises on how a presidential unitary system could be made federal by amending some paragraphs of 2008, military-drawn constitution. For basically the unitary system is contrary to the federal form of governance. Even if the government delegate some decision-making power, it would hardly become federal in practice and would remain a unitary system.

It should be noted that unitary is a system of political organization in which most or all of the governing power resides in a centralized government, whereas federalism has two layers of government, the federal government and the constituent states, which equally share the legal sovereignty of a country.  It is also a system of government in which power is divided between a central authority and constituent political units.

Apart from that, the ethnic nationalities have joined the union, on voluntary bases, believing that the new political entity to be formed would be a federal union.  In addition, the desire for federal constitution has been present, since the struggle for independence, according to the States Unity Organization, formed in June 1961.

Thus, at the time of the formation of the Union, General Aung San had declared that the constitution must be a federal one, and U Chan Htun, the constitutional adviser, had also explained to the Constitutional Assembly that the Union of Burma had to be a federal union. Yet ten years later, at a meeting between U Chan Htun and Professor Hugh Tinker, U Chan Htun is said to have declared: “Our constitution, though in theory federal, is in practice unitary.” The States Unity Organization document quoted those words from Tinker’s book “The Union of Burma”. (Source: Sai Aung Tun – History of the Shan State)

As we can see, the successive military regimes – Revolutionary Council (RC), Burma Socialist Programme Party (BSPP), State Law and Order Restoration Council (SLORC), State Peace and Development Council (SPDC), and the present, military-back, quasi-civilian, Thein Sein  regime – have always only skirt around the real and justified aspiration of the non-Burman ethnic peoples and as well, the majority of the Burman mass, without addressing the core issues of full autonomy, democracy and equality, embedded in 1947  Panglong Agreement.

During the constitutional amendment period of 1961-62, the non-Burman ethnic nationalities bitterly complained that Burma Proper, which was supposed to be just one of the constituent states, had effectively taken over the Union Government and transformed all the other constituent units into its vassal states. They argued that in order to become a true federal union, the usurpation of  the central  powers of government by Burma Proper must be stopped to ensure equality and  Burma Proper be established as one of the constituent states, like all others.

The General Ne Win led 1962 military coup, which had replaced the Union Government, has further exacerbated the constitutional crisis, plunging the country even deeper into irreconcilable, armed, ethnic conflicts, which have lasted to these days.

To sum up, so long as the transformation of unitary system to genuine federal structure, desired by the non-Burman ethnic nationalities, is denied, the ethnic conflict will definitely rage on. And the desire of the reformers to forge “common national identity” and “national reconciliation” will remain an illusion. Hopefully, it is not the desire of the good will reformers, to deviate from “nation-building” process and instead lead to “nation-destroying”, for being indifferent and blind to the people’s political aspiration.

The contributor is the General Secretary of Shan Democratic Union (SDU) - Editor


Allwebsitetools © 2014 Shan Herald Agency for News All Rights Reserved