Adopting ethnic state constitution and the issue of secession

Within these few days a lot of political maneuvering have been going on, like Kachin Independence Organization (KIO), Wa National Organization (WNO) resignation from United Nationalities Federal Council (UNFC); Karenni National Progressive Party (KNPP), New Mon State Party (NMSP) and Arakan National Congress (ANC) confirmation to stick to the Nationwide Ceasefire Agreement (NCA)-based peace negotiation process, provided their nine-point alteration proposal of the NCA is accommodated; China’s Special Envoy on Asian Affairs Sun Guoxiang meeting with the NCA-non-signatory five Ethnic Armed Organizations (EAOs) in Kunming; Commander-in-Chief Senior General Min Aung Hlaing receiving a delegation led by Jonathan Powell from Inter Mediate group, who is said to be an adviser to State Counselor Aung San Suu Kyi on peace process; and Union Peace Dialogue Joint Committee (UPDJC) making public that the ethnic states and regions would now be able to individually draw their own constitution, which has to be in line with the 2008, Military or Tatmadaw-drafted constitution.

Out of all the issues, the UPDJC's decision that ethnic states being allowed to draft their constitutions is worth emphasizing, as the crux of the whole peace process dwells on the ability of whether or not a genuine federal union constitution is going to be formulated and agreed upon. In other words, the constitutional crisis that has plagued the country since independence from the British in 1948 would now be addressed, in a serious manner, which has been the cause of ongoing ethic conflict and shelved for more than five decades.

While the move is hailed by Zaw Htay, the director-general of the State Counselor's Office, including Hkun Okker of Pa-O National Liberation Organization (PNLO) and Kwe Htoo Win of Karen National Union (KNU), as a breakthrough, some are skeptical if this is going to be really beneficial to the ethnic states and their people.

“All are based on federal principles. It is an agreement that has never been made in our country. We will allow adoption of constitution in states and regions and all has agreed. That is why the forthcoming convention will be a historical milestone for Burma,” said Zaw Htay, according to the recent Irrawaddy report.

However, a condition that the ethnic states would not seek to secede from  Burma was attached, which was said to be the guarantee the Military has asked for, in drafting the ethnic states constitutions. Furthermore, a federal right to adopt their own constitutions should not contradict the 2008, Military-drafted constitution, as it would take precedence in any possible disputes.

“Due to our [Burma’s] geopolitical status, it is strategically imperative that we do not break into pieces,” said Zaw Htay.  “We reached a consensus with ethnic delegations that they will be granted the right to draft their own constitutions, provided unity is maintained,” according to the DVB report of May 15.

Some members of the tripartite UPDJC, that includes representatives of the government (including the Tatmadaw), political parties and eight signatory armed groups to the NCA, said the agreement to let the ethnic states adopt their own constitution is “extraordinary”, and hoped that the conference which will commence on May 24 would produce good results, according to the Myanmar Times recent report.

But against such optimism, there were reservation from some quarters, involving experts and ethnic politicians.

Than Soe Naing, a political analyst, pointed out that in addition to granting states and regions a chance to draw their own charters, stakeholders should come up with a plan to make changes to the 2008 constitution, according to Myanmar Times.

“It seems that the Tatmadaw is changing its stance by allowing these matters to a certain extent. However, the truth is that the military wants the least amount of constitutional changes as possible. We cannot have a functional federalism unless we have effective power sharing. This is different from just letting the states or regions write their own charters,” he said.

In the same vein, Sai Nyunt Lwin secretary general of the Shan Nationalities League for Democracy said such an important agreement, which in effect would encompass the whole country, needs a wider range of participants.

“What if the other groups are not involved in UPDJC’s meeting, like the non-signatory groups or those that have not yet held national-level dialogues, then it would be a problem at a later time,” he said.

But a more precise argument comes from Twan Zaw joint-secretary general of the UNFC, in an interview with the Radio Free Asia on May 14.

Regarding the question on what he thought of the UPDJC's endorsement of the ethnic states adopting their own constitution, he said: “This opportunity to draft its own constitution would not make much of a difference. The main point is that if this country is to be built as a federal union, there has to be a federal constitution and the ethnic states would need to have constitutions that cater to it accordingly.”

He said that the Military had maintained that its 2008 self-drawn constitution has federal characteristics, but everyone knows that it is not the case. And if the ethnic constitutions were to be drawn under this prevailing condition, it wouldn't make much difference.

“During Thein Sein's government tenure, there were well publicized claims that `federalism is being accepted´, but it still hasn't been turn into reality. Likewise, the allowance of `ethnic states adopting their own individual constitution´ would be just a meaningless thing on the paper, if real norms of federalism wouldn't be included and materialized,” he said.

Concerning the non-secession demand of the Military, he said that it was like shadowy ghost haunting, as far as the Military is concerned.

The Military staged a coup in 1962 with the pretext that the ethnic nationalities' Federal Amendment proposal would tear the country apart and labeled that it would lead to disintegration. This wrong indoctrination is still very much alive and he said this false thinking need to be corrected, as federalism  depicted unity or fusion and not disintegration, adding secession issue didn't even need to be discussed.

However, Dr Tu Ja, a Kachin leader who took part in the recent UPDJC meeting seems to be quite optimistic, as he said that although under the 2008 constitution equal ethnic state constitutions would not be able to be drawn, according to the seven-stage peace road-map of NCA, the stage four, Union Peace Conference, could be used to amend the constitution.

“And if the stage five of “Union (Pyidaungsu) Accord” would take the form of federal, the 2008 constitution must be amended. After that a new federal constitution would have to be promulgated by the parliament,” Tu Ja said, according to the Irrawaddy recent report.

To sum up, the move to let the ethnic states have their own constitution is, no doubt, a positive move. But as mentioned by observers and ethnic leaders, first of all the federal constitution at union level needs to be agreed upon, after which ethnic states' constitutions could be drafted, with proper power-sharing between federal and state governments.

Regarding the demand of the non-secession from the Military, it is better to be left untouched, as the ethnic nationalities' political-historical legacy of “1947 Panglong Agreement; 1948 Union of Burma Constitution; and 1961 Ethnic Federal Amendment Proposal” are all intertwined and cannot be separated or nullified. The first two are legal bonds between the Bamar State and the ethnic states, and the third one, the only legal approach that would have resolved the ethnic conflict in 1962.*

The termination of the parliamentary, national conference on Federal Amendment Proposal by the Military coup in 1962 has pushed us further into a more deeply divided society, which we are still witnessing after more than five decades.

Apart from the fact that the issue of secession is the sole responsibility of the individual ethnic people concerned, in short, securing non-secession promise or signature won't be doing the trick to live together, which the dominant ethnic group sees – in this case the Bamar majority - it as a lost of territory, but more sincerity and trust-building will definitely do.

As the late General Aung San said, “The right of secession must be given, but it is our duty to work and show (our sincerity) so that they don’t wish to leave”. It is Burma’s, or shall we say the government and Tatmadaw,  responsibility to prove their sincerity so the states do not wish to secede.

*For detailed explanation on ethnic nationalities' historical-political legacies please read “Jump-starting the stalled peace process - Is Revitalization of the 1961 Federal Amendment Proposal the Way to Go?”, in Transnational Institute.



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