Search

The constitutional implications of Myanmar’s peace process

This article was commissioned by International IDEA and was originally posted on ConstitutionNet, IDEA’s online knowledge platform supporting constitution builders globally. Read more

The National League for Democracy (NLD) is leading a major peace process that could see not only an end to decades of conflict against armed ethnic groups, but also a way forward for the future. If an agreement can be reached, this will undermine the military's efforts to block constitutional reform.

Peace remains an elusive goal in Myanmar. Conflict with armed ethnic groups continues in parts of Shan State and Arakan State. This is one of the biggest challenges facing the new NLD government. The revamped peace process is a critical part of the NLD’s agenda and an important step to possible constitutional reform.

As part of the peace process, the NLD has announced there will be a 21st Century Panglong Conference, the first of which is planned for August 2016. The Panglong Conference is seen as a crucial process in the ongoing negotiations with ethnic armed groups. The NLD government considers the peace and reconciliation process as a precondition to constitutional reform, while some ethnic groups have emphasized the necessity of reform for reconciliation.

Given the diverse ethnic composition of Myanmar with eight main ethnic groups (the Burmans, Shan, Kachin, Chin, Karen, Kayah, Mon and Rakhine) and the long history of ethnic armed opposition against the military regime, an agreement among these groups is vital. The success of the peace process requires serious reconsideration of notions of ethnic identity. Historical exclusions and rigid and inaccurate classifications underlie the current forms of special recognition. The arrangements in the 2008 Constitution privileging certain ethnic groups over others, crucial to the past military regime’s attempt to maintain legitimacy, are unsustainable.

Panglong and the 1947 Constitution
If you take a visit to the sprawling Defence Services Museum in Naypyidaw, you will find hanging on the wall a copy of the Panglong agreement. The Panglong agreement occupies a special place in the history of the nation. In many respects, it was the main written form of recognition for certain ethnic groups in the lead up to independence.

The 1947 conference at Panglong in Shan State was a meeting between General Aung San, leader of the independence movement, and father of current State Counsellor Daw Aung San Suu Kyi, with representatives of the Shan, Kachin and Chin ethnic groups. The conference resulted in the signing of an agreement that was a crucial step towards Burma’s independence from colonial rule. One of the key aspects of the agreement was the recognition of the “full autonomy” of the ethnic groups in the administration of their internal affairs.  

While there are many myths that surround the legacy of Panglong, it is widely recognised as an important and historic moment in the founding of the nation. Several months after the signing of the agreement, General Aung San’s political party met to put together a preliminary draft Constitution. The draft was submitted to the Constituent Assembly for discussion, debate and revision. The assassination of General Aung San and other members of cabinet disrupted the process, and significant changes to the draft constitution were made after his death.

In its final form, the 1947 Constitution recognised special arrangements for certain ethnic groups. Shan State and Kachin State were created. Kawthulay (Karen) Region was a provisional arrangement, in anticipation that a commission would consider the creation of a Karen State. Karenni State was also formed (although at the time it was anticipated this may merge with Karen State). The Constitution also established Chin Division. There was a constitutional option of secession after 10 years for some of these groups, a provision that generated significant controversy at the time.

Despite these forms of recognition, some ethnic groups later criticized the 1947 Constitution because it differed from the original draft in ways that they felt compromised the initial aspirations for a truly federal system. Further, in 1948-49, the Arakan, Karen, Karenni and Mon ethnic armed groups rose up against the government, which led to a period of serious instability.

Around the same time, the government established a Regional Autonomy Inquiry Committee to discuss the constitutional possibility of creating new states under section 199 of the Constitution. In 1951, after recommendations from the Committee, an amendment to the Constitution granted the Karen the full status of a state, but in turn removed its right to secession.
The Committee declined to recommend the creation of a Mon State or Arakan State, although attempts to establish these states remained ongoing in the 1950s-60s. There was significant opposition in parliament from Muslim minority groups in these areas, who feared the consequences of being ruled by a Mon or Arakan majority. In the end, it was Prime Minister U Nu’s decision not to create more states that stalled the conversation. The ensuing 1962 coup led by General Ne Win was partly a result of concerns over federal aspirations and fears of secession.

Today, the 2008 Constitution expressly prohibits the creation of new states or secession from the Union. But it does create new forms of recognition for certain ethnic groups. These need to be reevaluated in the process of considering options for reform.

Ethnic groups under the 2008 Constitution
Almost 70 years since the first agreement, the 21st Century Panglong conference comes in the wake of shifting government policies on the recognition of ethnic claims. The debate is no longer about secession, although many ethnic groups still demand greater recognition. In considering a way forward, any constitutional proposal as a result of the peace process needs to evaluate the forms of recognition inherent in the 2008 Constitution.

First, the 2008 Constitution retains ethnic-based States corresponding to the seven largest minority nationalities (Karen, Shan, Mon, Kachin, Kayah, Rakhine, Chin), and seven Regions that are majority Burman. Despite the appellation, both states and regions are the same level of government with the same powers. This division of power and territory was first fully crystalised by General Ne Win’s socialist regime in the 1974 Constitution. The recognition of these states and regions is therefore not self-evident, but should rather be seen as a relatively recent construct. In many ways, the linking of certain ethnic identities with territorial claims obscures more than it explains, particularly as ethnic demographics do not map neatly onto state boundaries.
At any rate, the legal and de facto centralization and concentration of power in the Union government under the 2008 Constitution means that the state and regional parliaments have little substantive power. There are no demands for changes to the territorial boundaries of the states and regions or for the creation of new states. There is demand for greater decentralization of power to the states and regions. For example, there have been calls to reform the presidential appointment of the head (chief minister) of the states and regions so that the head is chosen from among the elected representatives of the state/region parliament.

Second, the 2008 Constitution creates the new and unprecedented category of Self-Administered Zones and Divisions. This may have drawn inspiration from the original draft constitution proposed by Aung San and its ideas of differentiated ethnic recognition.  In the 1990s, this idea came to prominence in the drafting of what was to become the 2008 Constitution, at a time when the military regime was offering generous concessions to certain ethnic armed groups who were willing to enter into ceasefire agreements.  There was fierce debate over which ethnic groups would get such recognition. Only six of the 16 ethnic groups that applied were successful. Five of the six areas are in Shan State. Four of the six areas (Pa-o, Palaung, Wa and Kokang) were clearly part of concessions to ethnic armed groups who agreed to enter ceasefire agreements with the military.

How meaningful the new designation is remains debatable, but it may be difficult to take away such status now. Part of the original criteria to become a Zone or Division was based on population and township location, yet the current status is based on old census data. If the Zones were to be reconsidered once the 2014 census data on ethnicity is released, this may potentially lead to demands for the creation of new zones.

Third, the 2008 Constitution provides for Ministers for National Race Affairs at the state and region level if a population has more than 0.1 percent of the population in a state or region. The role and position of these Ministers is somewhat opaque and has been the subject of several constitutional challenges. Initially, the government was going to pay them less than other Ministers, but after a constitutional challenge, it was held that these Ministers are equal in status to other Ministers and should receive the same wage and benefits.

A second controversy arose over ethnic groups trying to assert their dominance in the state parliament. In a separate Constitutional Tribunal case, Kachin political leaders tried to argue these Ministerial positions should only be for the eight main ethnic groups. That is, they suggested groups such as the Lisu and Rawun are merely “sub-groups” of the Kachin, rather than distinct groups. This was a blatant attempt by the Kachin to assert their dominance over minority groups in their area by denying them representation in state parliament. The Constitutional Tribunal held that the Union Election Commission has responsibility on this issue, which effectively affirmed the right of the Lisu and Rawun to representation.

What all three forms of recognition have in common is that they reinforce the military’s idea of a set number of races, a rigid concept of identity and the recognition of a few to the denial of others. The figure of “135 races” is often mentioned, although this number has been hotly debated in recent years. Many ethnic groups have raised concerns that they have been wrongly categorized. Other groups are not even recognised at all.

The constitutional implications of a Panglong Agreement
Concepts of ethnicity remain deeply contested in Myanmar. What is clear is that there is a need to consolidate the peace process. The 21st Century Panglong Conference has broad acceptance in many quarters, despite the questions on who gets to attend, what the agenda will be and whether agreement will be possible.

The primary goal of the peace process is a lasting national ceasefire. At the very least, a tangible agreement would give Daw Suu and the NLD further evidence for their claims that their mandate comes from the people.

The peace process may also lead to important conversations for constitutional reform regarding federalism, the decentralization of power and the recognition of ethnic claims. Yet the military still retains a veto on any constitutional amendment and so any proposal for change will require its support. In the meantime, the NLD may also resort to other legal mechanisms to address certain ethnic demands, as they did by creating the position of State Counsellor to circumvent the presidential requirements. Indeed, the NLD has already created a new Ministry for Ethnic Affairs.

Finally, it is vital that any efforts at reform on ethnic recognition are frank about the current artificial construction of constitutional recognition for ethnic groups and the way that certain groups have not only benefited from but exploited the system. The NLD must facilitate honest discussion on constitutional reform in a way that shifts the conversation from demands for hegemonic ethnic privilege to the need for greater recognition of the diverse and multicultural foundations of the nation.


Labels

2015 (1) access to justice (1) ACICIS (1) ADB (3) administrative courts (1) administrative law (3) Ahmadiyah (1) Ahok (5) All Indian Law Reporter (1) Allah (1) amendment (3) anthropology (1) ANU (4) article (1) ASAA (1) Asia (8) Asia Research Institute (1) Asian Development Bank (1) Asian law (7) Asian Law Centre (1) Asian Studies (1) AsianLII (2) Attorney General (2) AustLII (1) Australia (10) authoritarianism (1) banking and finance (1) Bawaslu (2) blasphemy (7) blasphemy charges (1) Blasphemy Law (2) blogs (1) book (3) book chapter (1) book launch (3) book review (3) books (1) Buddhism (4) Buddhism and law (1) Buddhist law (1) Burma (54) Burmese language (1) Burmese translation (1) Business (4) call for papers (1) Canada (1) capacity building (2) Cause lawyers (1) Chicago (1) Christianity (1) colloquium (1) commercial law (6) common law (2) comparative constitutional law (1) comparative law (1) conference (17) conflict (3) constitution (20) constitution-building (1) constitution-making (1) constitutional amendment (2) Constitutional Court (4) constitutional law (10) constitutional review (1) constitutional rights (1) Constitutional Tribunal (3) Constitutional Writs (1) Constitutionalism (2) constitutions (1) corporate law (2) course (1) courts (9) Crisis (1) Culture (1) database (1) death sentence (1) deference (1) delegation (1) democracy (7) development (1) Economics (3) edited book (1) election (1) elections (9) electoral disputes (1) emergency powers (5) engagement (1) ethnic recognition (1) Ethnic rights (1) fatwa (1) Federal Court of Australia (1) Forum (1) global law (1) globalisation (1) governor (1) handbook (1) Harvard Law School (1) Hong Kong University (1) Hooker (1) human rights (5) Human Rights Commission (1) ICON (1) IGLP (1) Indonesia (33) Indonesia Council (1) Indonesia Ulama Council (1) Indonesian studies (1) international law (1) international students (1) Interview (5) investment (1) IS (1) Islam (18) Islam and the state (1) Islamic law (1) Islamist (2) Jakarta (9) Jokowi (1) journal (3) journal article (6) judges (1) judicial independence (3) judicial review (1) judicial selection (1) justice sector (1) korea (1) law (22) law and society (2) law faculty (2) law reform (3) Law School (1) lawyer (2) lawyers (2) lecture (1) legal education (5) legal pluralism (1) legal reforms (1) Legal Training (1) local governance (1) major projects (1) Malaysia (2) marriage (1) military (3) minorities (1) moving (1) Muslims (8) Myanmar (103) Myanmar law (1) Naypyidaw (2) Nemo (1) New Constitutions (1) new year (1) newsletter (1) NLD (1) NUS (2) Oxford (1) panel (1) peace process (1) people smuggling (5) Pluralism (1) podcast (1) podcasts (1) political Islam (1) Politics (5) President (1) principles (1) professional legal education (2) radio interview (1) Rakhine State (3) rally (1) referendum (1) reform (4) religion (12) religious intolerance (1) report (5) reports (1) research centre (1) resources (1) Risks (1) RMIT (1) roundtable (2) rule by law (1) rule of law (4) scholars dialogue (1) scholarship (1) scholarships (1) section 144 (1) seminar (17) Shan State (1) Shi'a (1) Shi'ism (1) Singapore (5) social conflict (1) socio-economic rights (1) socio-legal studies (1) Southeast Asia (11) Southeast Asia; Islamic law; electives; UNSW Law; Rule of Law (1) Sri Lanka (1) State (1) statelessness (1) students (1) success (1) Supreme Court (5) Sydney (5) terrorism (1) Thailand (2) tolerance (1) training (2) transition (1) tribute (2) Trisakti University (1) U Ko Ni (4) UAGO (1) UNHCR (1) University of Indonesia (2) University of Melbourne (4) University of Sydney (1) University of Yangon (1) UNSW (20) UNSW Law (3) violence (1) West (2) West Java (1) Windsor Faculty of Law (1) women (1) working paper (1) workshop (18) world bank (1) writs (2) Yangon (3)