Burma Constitutional Debate: Burmese way to federalism or non-Burman aspired federal union?

Friday, 18 October 2013 12:04 SAI WANSAI

By Sai Wansai
Friday, 18 October 2013

Sai Wansai
While the government proposed nationwide ceasefire is still pending for further deliberation, full of euphoric optimism for the successful forthcoming outcome abound, from the part of the Thein Sein regime, the next phase of constitutional rewriting and amendment debate has already begun in earnest. The cacophony of voices generated by this pressing issue is now impossible to be overheard.

The rewriting camp is headed by the United Nationalities Federal Council (UNFC) and United Nationalities Alliance (UNA) coalition and the amendment camp, led by the Union Solidarity and Development Party (USDP) and the Burmese military or the ruling Thein Sein regime and the military top brass. The National League for Democracy (NLD), although the basis tend to be for the rewriting camp, according to U Ko Ni, during his speech in Taunggyi Trust Building Conference last month, who is a famous lawyer with the NLD, Aung San Suu Kyi was for the mode of escaping between the horn; that is to ask the people’s will or some sort of opinion pool. Although it is not at all clear how she would like to pull it through to determine the real aspiration of the people in such a limited time span.

According to Eleven Media Group report of 16 October 2013, the NLD has already started its campaign to sound out the people regarding the issue of rewriting or amendment of the constitution in four Regions and one ethnic state. They were Rangoon, Irrawaddy, Mandalay, Pegu and Karen State. So far, according to U Ko Ni, on 15 October 2013, the majority of the pool result in Rangoon Region – North Okkalapa, South Dagon – was for amendment, but 70 percent of the Pegu Region – Phyu Township – was for the rewriting anew. But one common opinion was that all dislike the 2008 Constitution.

The same media outlet reported, on 07 October 2013, the USDP, in its statement released on 05 October 2013 that the party’s position is to review and amend the 2008 Constitution depending on time and circumstances. It also warned of the great danger for the people and unpredictable chaos if a new constitution is to be drawn and the current 2008 Constitution completely abolished. Accordingly, the party is said to be studying the 2008 Constitution in details and will focus on clauses that need to be amended and would submit its suggestions on necessary amendments to the respective parliamentary committee. 

In July, a 109-member Constitution Review Joint Committee was set up with the Deputy Speaker of the Union Parliament as its chairman, to review the Constitution and consider changes that might give states and divisions more power.

But, the ruling USDP party has 52 members and the Burmese military 25 members in the 109-member committee. In comparison, the opposition NLD has only 7 members and some 25 members from other small ethnic parties. And as such, it is questionable, whether the 77 stakes from pro-military camp would do anything to amend the constitution that would be against its own interest of holding on to power.

Not to be outdone by the NLD ongoing campaign, the committee has invited suggestions from the public, with a deadline for submission of advice until 15 November 2013.

Whatever the case, the hitherto unspoken delicate issue has been brought to the open by the UNFC-UNA coalition’s statement, during the last ethnic nationalities conference in Chiangmai, that the coalition is opting for the rewriting of the 2008 Constitution for it is not catering to the needs and values of the ethnic nationalities, as formerly agreed upon in 1947, in Panglong. In other words, the amending of presidential unitary system will in no way lead to the genuine federalism, which the ethnic groups considered to be non-negotiable

Part of the UNFC Statement of the Ethnic Nationalities Conference, dated 02 August 2013 writes: “The current 2008 Constitution practiced by U Thein Sein government is not accepted, as it is devoid of democratic essence and not in accordance with the principles of federalism. A new Constitution based on genuine federal principles will be drafted and promoted for practice”.

This move is, in fact, to underpin the past lesson learned, from the part of the ethnic armed groups and ethnic political parties, when the Burmese military stage a coup in 1962, which was carried out under the pretext to safe guard the union from disintegration. The ethnic nationalities were then demanding a genuine federalism through the amendment of 1947 Union Constitution, within the given parliamentary system of that time.

The 1947 Constitution, according to U Chan Htun, the constitutional adviser of General Aung San, is said to have declared, ten years later: “Our constitution, though in theory federal, is in practice unitary.” 

From ethical and moral point of view, the 2008 Constitution doesn’t even need to be amended or ask for public opinion, but should be just disregarded and rewrite it anew altogether. To quote the Shan Nationalities League for Democracy (SNLD) Chairman, Hkun Htun Oo: “Better to rewrite it from cover to cover”.

According to SHAN report of  23 September 2013, U Ko Ni, who is a lawyer pointed out, during his speech at the Shan-Kayah-Mon Trust-building for Peace forum held in Taunggyi, whether the 2008 constitution is democratic or not can be determined by answering two following questions:

•    The extent of the participation of the people
•    To whom power was transferred to

To the first question, his answer was that it was clear the people’s wishes and participation was never taken into consideration:

•    The National Convention, held in 1993 to lay down the basic principles of the constitution, was organized by the military with its handpicked delegates
•    In 1996, a law was issued threatening people with imprisonment engaging in constitutional discussions outside the National Convention
•    During the 2008 referendum, many had chosen not to cast votes while several others voted against the draft. It was nevertheless ratified by the military saying more than 92% had voted in favor.

As for the second question, the constitution says sovereign powers belong to the people. However, it was negated by other articles:

•    25% of military appointed representatives at all levels of the legislature
•    The Executive does not have any say in the appointment of defense, home and border affairs ministers
•    The military also conducts its independent judiciary
•    No matter how many people want to amend the constitution, it must be approved by “more than 75%” of the Union Assembly representatives

Moreover, although the constitution stipulates that the country is a Union, the Chief Minister of each state is appointed by the President and state governments are run by the home ministry. “Chapters 4, 5 and 6 need to be amended to straighten out things,” he said.

All three constitutions, the 1947 Union of Burma Constitution, the 1974 Burma Socialist Programme Party (BSPP) Constitution and the present 2008 Constitution are unitary or centralized system of governance, where a genuine from of federal system was not practiced.

The 1947 Union of Burma Constitution, although a multi-party system, is deeply flawed for it is federal only in theory, but unitary in practice.

The 1974 BSPP Constitution is a one party system, which the Newsweek magazine in a February 1974 issue, described the Burmese Way to Socialism was as “an amalgam of Buddhist and Marxist illogic”. Another controversial political burden initiated in it was the creation of 7 Divisions, from the original Burma Proper or Ministerial Burma, which should be a Burman or Bama State unit on equal footing with all other ethnic state units. This, in effect, has changed the originally agreed ethnic-based federal union to a territorial-based forced-union, with 7 States and 7 Divisions, under one party, military-dominated dictatorship.

The 2008 Constitution, although a multi-party system, with some federal features, is a presidential unitary system as well. The major political burden is the built-in Burman-dominated military supremacy insistence in the constitution. It also continues to make use of territorial-based union from the 1974 BSPP Constitution, with centralized system.

And as such, the agreed ethnic-based federal form of governance, voluntarily participated by the ethnic nationalities, was forcibly replaced by territorial-based form. In other words, the 7 Divisions, now renamed Regions, will be in a position to counter-balance the power of 7 non-Burman ethnic States, should there be a consensus taken in any future political issue, in a possible, future, watered down “Burmese way to federalism” setup of governance. In this way, the Burman-dominated 7 Regions, with the majority population residing within their territories, will continue to exercise a near, absolute political power monopoly over the whole country and non-Burman ethnic nationalities.

The USDP and the military, who have moulded the 2008 Constitution and come to power through all irregularities, from manipulated constitutional drafting, constitutional referendum to flawed 2010 nationwide election, understandably would not easily agree to rewrite the constitution.

Reportedly, a few of the NLD awareness-building campaign or opinion pool, regarding the making of 2008 Constitution and the question of whether to rewrite or amend it, has produced some mixed results, but said all asked dislike the constitution. One wouldn’t know for sure, if the warning of some top NLD leaders to be on a precaution stance, not to push too hard, and  treat the military softly with the knitted gloves, is an overly cautious posture or yielding to the bullying of the military, in “beggars’ cannot be too choosy” mode.

In contrast, SNLD Chairman, Hkun Htun Oo, regarding his advocation for rewriting the constitution, according to Irrawaddy report of 07 October 2013, said: “This constitution is not workable. We can’t get ethnic and citizenship rights. It cannot become federal, that’s why we need to rewrite it anew. If the rewriting would revert back the trend, it cannot be helped either. We’re just only discussing and they (the military) can do whatever they like. Besides, the constitution also allows the military coup. This is politics. We have to walk our own path and the people will decide on who’s right and who’s wrong”.

The reasoning not to ruffle the Burmese military's feather by just agreeing on the amendment, rather than the rewriting the 2008 Constitution to become federal, would be disastrous. For the same reason, in 1962, the Burmese military stage a coup, when the ethnic nationalities demanded a just federal union. Now the history is poised to repeat itself for the ethnic groups are again asking for the same thing. It wouldn’t do, by entertaining the false reason of not to ruffle the Burmese military’s feathers would likely spare the ethnic nationalities from total devastation. They have suffered tremendously, for more than half a century, under the occupation of Burmese military and colonial-like treatment.  And if they would now yield to the pressure and accept the watered down version of "Burmese way to federalism"; that is, the amendment of the 2008 Constitution with some power-sharing agreement, within the recent presidential unitary system of government, their more than 50 years of struggle for the rights of self-determination, democracy and equality will again go down the drain.

There is nothing wrong to demand back one’s birthright, self-determination and equal status, within the fabric of “unity in diversity”. 

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


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