LEGAL ISSUES ON BURMA NO. 11, APRIL 2002
BURMA LAWYERS' COUNCIL


FEDERALISM IN BURMA

Federalism as a Solution to the Ethnic Problem in Burma 

Josef Silverstein* 

From January 4, 1948, the day the Union of Burma came into existence as an independent nation, the people and their leaders have been divided over how to achieve national unity and structure their state. Until 1988, it was federal in name and theory, but unitary in practice. After five decades of political discussion, peaceful movements for secession or autonomy and warfare, the majority Burmans and most of the ethnic minorities remain disunited. From time to time efforts have been made by the Government of Burma and the minorities, either alone or in groups, to end revolt and disunity, but none have succeeded. 

Today, the basic problem is the same as the one the nation's founding fathers faced fifty years ago: how to construct a political system wherein diverse peoples feel free and equal, able to govern themselves in their own areas, protect and preserve their languages, cultures and traditions, while at the same time give their political loyalty to the nationstate. 

But today's political conditions are different than they were when the state was created. In 1947, the Burman leaders made a sincere effort to win the participation of the minorities in a common political union. Both at the Panglong Conference and, later, at the constitutional convention, the participants came as equals, seeking each other's help and agreement. The participants thought they found the answer in the idea of a federal union. However, the state they erected was soon challenged by misunderstandings and mistrust as faulty draftsmanship, fundamental disagreements about how power was divided, the degree of local authority and the threat of Burmanization led to disunity, discontent and rebellion. In 1962, the military overthrew the government, arguing that the move was necessary because the minorities were bent on breaking up the union and creating independent states. The coup leaders set aside the constitution and, under their decrees, created a centralized state with all power located in Rangoon. Twelve years later, in 1974, they institutionalized the unitary state in a new constitution while retaining a nominal federal form. Under the principle of democratic centralism, they concentrated authority at the apex, made all subunits of government subordinate and placed the whole system under a single political party created and controlled by the military. The new constitution did not bring peace and national unity. Instead, it brought wider revolution and new demands by some minorities for the right to leave the Union. 

In September 1988, the Burmese military leaders seized power from the government they created fourteen years earlier, abrogated the constitution they wrote and set the nation on a new course. Following their dissatisfaction with the outcome of a free and fair election in 1990, which would have handed power to the representatives of the people, the soldier-rulers wrote a charter (State Law and Order Restoration Council Declaration No. 1/ 90) empowering themselves to govern by martial law and began erecting a new state structure. Through force and negotiations, they created the illusion of peace by crushing all opposition in the Burman heartland and by signing ceasefire agreements with fifteen ethnic groups, leaving only two in open revolt. 

Today, the military rulers of the State Peace and Development Council (SPDC) are in the process of imposing their ideas about how to solve Burma's longfestering national unity problem. While the soldier-rulers have given the appearance of consulting some of the minorities and have brought them into the formal process, the majority of ethnic groups who have been at war with the state and have entered into ceasefire agreements have not been included. The ethnic minorities have been working since the early 1990s to develop their ideas about a state structure based on the principles of equality, federalism, democracy and human rights. They look to the future when a constitution-making process, on the order of 1947, will emerge that will enable them to participate and engage in full and open discussion with the leaders of the military and the peoples of Burma. Together, they hope a new constitution will be written which all will support, making it possible for the peoples of Burma to live peacefully together and solve problems by parliamentary means. 

Since 1990, the military has slowly revealed its ideas about the constitution and the political structure of Burma it wants to put in place. From its several statements about why it seized power and what it wants to see established before it transfers power, there are a number of implied as well as expressed assumptions: 

1. There must be an end to social and political disunity and the threat to the integrity of the state. The SPDC never tires of reminding the people that its primary purpose in taking and holding power stemmed from the "Three Causes": prevention of the disintegration of the Union, prevention of the disintegration of national unity, and perpetuation of sovereignty. The military leaders speak frequently of the threats to Burma posed by the rebellions of the Burma Communist Party (BCP), the ethnic minorities, the invasion of foreign forces, the breakdown in law and order in 1988, and the interference in internal affairs by foreign governments. With the demise of the BCP, the end of the threat of foreign invasion, the reestablishment of law and order in the heartland, and the ceasefires with most of the minorities, the military is now putting all its energies into writing a constitution which will eliminate forever the Three Causes and establish permanent peace and unity in the nation. 

2. There must be recognition of the rights and interests of the several minorities and they must approve of the constitution before it can be implemented. Under the two previous constitutions, the rights and interests of several minorities, especially the smaller ones, were not clearly stated and this led to misunderstanding, discontent and revolt. The military wants all minority groups recognized, their participation in the drafting of the constitution and approval of the final draft. In the past, the larger ethnic minorities spoke for the smaller ones living amongst them, but for many, this was unsatisfactory. To avoid a repetition of the past, the military is determined to win minority support by granting of nominal control of local administration in their areas and allowing them to preserve their cultures and traditions. 

3. The future constitution must be based on a multiparty political system. After fulfilling a promise, to hold multiparty elections, the military talks about the creation of a "multiparty democratic system" as a goal for the new constitution. It makes no mention of a federal union. It is clear that the SPDC, rather than establish democracy on the Western model used in the past, intends to create a directed state in which elected representatives will be able to ratify the policies, legislation and actions of the leaders. The SPDC looks to the military-led polity of Soeharto's Indonesia as one model. 

4. The military must be given a permanent role in governing the future state of Burma. In the past, when national and territorial unity and sovereignty were threatened, the military, as a last resort, was called upon to save the situation. The SPDC argues that it paid a heavy price in personnel losses as it fought to save the nation in the face of opposition forces which had been allowed to grow strong and entrenched. The SPDC believes that this cycle can be broken only if the military has a leading role in the government during normal times and can shape national policies which will settle disputes before any threat matures. 

Acting under the authority it has given itself in Declaration No. 1/ 90, the military created a National Convention to draw up the principles for the new constitution. It began its work in January 1993 following the selection and invitation of 702 delegates representing political parties, the ethnic minorities, social classes and distinguished individuals, to carry out the task under its guidance. With the exception of delegates who were elected in 1990 to the national parliament, the others neither have a popular mandate nor do they head groups for whom they are authorized to speak. Amongst the minorities invited, there are none from those who entered into ceasefires after the Convention began. The members of the National Convention are restricted in discussing the meetings with people outside; they are also restricted in discussing the issues under consideration in the meeting with other delegates except in accordance with the narrow rules imposed by the conveners. Some of the delegates, dissatisfied with the process, left and sought refuge either among the minorities still outside the military's control or have gone abroad. Others have been arrested and imprisoned. After more than nine years, the National Convention still has not completed its mission. 

On two important issues, the National Convention has finished its work, namely the state structure and the role of the military in the political leadership of the nation. The National Convention has agreed that there will be a nominal federal union consisting of a national government and fourteen states and regions. Within the states and regions, there will be selfadministered areas for the ethnic groups. The larger of these areas will be designated as selfadministered divisions and the smaller as self-administered zones. Although it remains for the constitutional convention to define the powers and limits of these divisions and zones, it is agreed that they should be able to practice and preserve their traditions and cultures while the State will have responsibility for helping develop local languages and literature, fine arts and cultures of the national races. The State also shall help promote social-economic development. One representative from each of the self-administered divisions and zones will be sent to the National Parliament. 

Thus far, the National Convention has adopted no principles to guide the authors of the future constitution on how the states and regions, the self-administered divisions and areas will finance their governments and programs. Since the land and economic resources have been designated as belonging to the State, the power to tax residents and businesses, if granted, will provide limited income, especially in the smaller and poorer subdivisions. Thus, as under the previous two constitutions, the subunits of government will be dependent upon the national government for most funding and this will open the door for interference in local affairs. 

The principles adopted regarding a leading role for the military reflect a great concern for the security of the state from enemies both inside and outside. The military's draft constitution stipulates that the future president of the nation must have extensive military experience and have resided in Burma continuously for twenty years. Also, the two houses of the legislature must reserve 25 percent of seats to the military representatives chosen by the Minister of Defense. Moreover, the budget and administration of the military will be under the control of the Minister of Defense and beyond the scrutiny of the civilian-dominated legislature. In times of national emergency, the chief of the armed forces can take all state power and exercise it "for as long as necessary". 

In this blueprint for the garrison state that the National Convention is planning to build up, the military will have a permanent role in the sub-units of the State through participation in the administration at all levels and responsibility for defense, security, and border administration. In times of national emergency, it will have the same powers in the subunits as it will have at national level. 

If it is the military's objective to create a multiparty democratic system, it is hard to see what powers and responsibilities remain for the people to exercise. If the adopted principles for the new constitution are compared with the structure of the government and the powers of the Burma Socialist Programme Party (BSPP) under the 1974 constitution, it is clear that the SPDC intends to recreate the earlier model. Only, this time it replaced the party with the military and has given it all powers necessary to overcome popular opposition wherever and whenever it occurs. 

There is an alternative set of principles for the organization of state and society developed by the Democratic Alliance of Burma (DAB). This is an enlarged coalition of the National Democratic Front (NDF, an organization of the minorities), Burman students, monks and other individuals. Drawn up by a small committee of the DAB, the authors began their work by studying various federal systems. They mixed borrowed ideas with their own to produce a constitutional solution for Burma's long-standing problem of national unity. The committee produced three drafts under its original Kachin chairman, and a final draft after the Kachins withdrew from the NDF and DAB. The third draft was reviewed and discussed at a seminar of international experts. The final draft, reflecting the criticisms and comments made at the seminar, was adopted by the first Congress of the DAB in July 1993. 

The object of the study/ drafting committee was to find a way to end a state of warfare and disunity in Burma and to create a federal system where all parties could preserve d protect their cultures and traditions. Anticipating the day when representatives, freely chosen by the people, would be able to sit together to exchange ideas and arrive at a common acceptable consensus, the committee hoped to prepare its future representatives so that they could articulate the interests of their groups and contribute to erecting a lasting political structure all could accept and defend. 

At the heart of the DAB proposals is the idea that the source of power resides in the people. The people must be free, equal, and enjoy the rights of self-determination. They must have rights and freedoms as set forth in the constitution and the political process must be democratic. The society must be organized as a federal union in which the constituent units are based on the principles of equality and self-determination. The territory of Burma will be divided into National States and Nationalities States. Under conditions set forth in the proposed constitution, the States will be subdivided further into National Autonomous Regions and Special National Territories. National States will be based on the existence of a large national group, representing two thirds of the population and recognized as a historical group, with a common territory, language, customs, culture, and a viable economy. Nationalities States will be composed of two or more ethnic groups, none of which have two thirds of the population, a common territory and a viable economy. National Autonomous Regions will be formed inside States among nationalities, making up one fourth of the State population, living on historic lands, each having a separate language, literature and culture. Special National Territories will be formed in areas where the nationalities have a majority in the territory, a separate language, culture, and customs. 

Recognizing that the military in the past abrogated the constitutions, changed the political configurations and usurped the power of the people, the DAB proposals set forth the idea of civilian supremacy with the military subordinate to the elected government and not an independent actor. According to the DAB, the military shall never interfere in political matters and it shall have no place in the national legislature or administration and have no role in the subunits of government. The armed forces are to be commanded by the Minister of Defense and no active member of the defense forces shall be appointed as Minister. Defense policy will be set by the Defense Minister and the Federal Cabinet. The armed forces shall be formed from troops drawn proportionally from the member states. Each State will send a proportionate number of candidates to the military academies for training as officers. The President shall appoint, upon the recommendation of the Prime Minister, the Commander-in-Chief; the office shall be rotated among the military commanders from each State who together will form a Board of Commanders. The constitutional draft of the DAB also would restrict members of the armed forces, at any time, from interfering in political matters, involving themselves in business and from declaring a state of emergency, a military administration or martial law. 

A careful reading of the DAB constitutional proposals makes clear how differently its authors view the problems and solutions of Burma's disunity and civil war. By the solutions the minorities offer, in the way of a new basic law, the problems are seen as stemming from an absence of human rights and the existence of a true federal union. The most important denial has been the right of the people to rule themselves. It was taken from them by the military coup of 1962 and was not returned under the 1974 constitution, and it is not granted in the proposals of the National Convention. In the past, the national army misused its arms against the people and usurped what little power they had. Because the minority-written constitution starts from assumptions the other will not acknowledge and offers solutions the other has not even considered, there seems to be no way to resolve the problem of disunity. There is a strong probability that there will be a renewal of warfare in the future. 

At the 1994 United Nations General Assembly meeting, the assembly adopted a Burma resolution which included a request to the Secretary-General to help the Government of Burma achieve national reconciliation. In the same year, his deputies made efforts to speak to the members of the SLORC and to the minorities— both in revolt and in ceasefire agreements with the armed forces. The fact that the world body asked the Secretary-General to offer assistance in solving the problem of national unity reflected the belief in the General Assembly that a third party was necessary to move the issue forward in a positive way. It remains to be seen if the military will depart from its previous position (that the issue is an internal matter and not the concern of the world body) and allow the Secretary-General to contribute to a lasting solution. If the Burmese military acknowledges the request in the General Assembly resolution, the Secretary-General will find the DAB constitutional proposals a good starting point. With their emphasis upon human rights, popular rule and federalism, they offer the outlines for the only solution likely to succeed. It should be clear to the Secretary-General that the military proposals for a unitary state cloaked in federal dress was intended to disguise the real outcome of its National Convention's principles and will not provide a lasting solution. The Secretary-General should know from the talks his deputies had with the minorities that the people do not want a "Potemkin Village", they want a real federal union. The Secretary-General also should know that if the SPDC is to surrender its power to popular rule peacefully, there must be some kind of role in government offered to the military. Here the creativity and wisdom of the Secretary-General will prove invaluable. There is a useful model for this problem in Chile which he might want to consider. 

Finally, the Secretary-General knows that, after five decades of struggle, the minorities have been willing to sacrifice life and property to achieve what they were promised in 1947 and there is little likelihood that they will accept anything less now or in the foreseeable future. A careful reading of Burma's history will show that long before the British arrived, the minorities lived under their own leaders, spoke their own languages, and developed and passed along their culture and traditions. Only in 1947 did the minorities voluntarily accept the Burman invitation to join in forming an independent union. It was the promise of that union the minorities sought to achieve and still desire. They stand ready today to form a union with the Burmans provided that it is based on the principles they fought for and enunciated in the several DAB constitutional proposals. They are ready to discuss their proposals alongside those offered from other quarters. They will accept refinement and further elaboration when they are discussed in a future constitutional assembly and will leave it to the elected representatives of the people to decide. 

Today, the SPDC has the power to solve the problem and end the threat of war and disunity forever. With the help of the Secretary-General, the SPDC may be convinced that a peaceful federal union under democratic civilian rule is better than a permanently hostile population and the threat of renewed internal war. 

In 1997, there were important name and personnel changes in the military ruling group. The name, State Law and Order Restoration Council (SLORC) was changed to State Peace and Development Council (SPDC). The membership of the ruling group was enlarged to include all military regional commanders and raising their military rank. A few of the original ruling group were dropped because of corruption and taking advantage of their power to enrich themselves. While these changes were important, especially by including all regional commanders at the highest level, their local authority increased informally as the areas they commanded became the equivalent of as private fiefdoms. During the next few years there was no rotation of field commanders and several acted with unbridled power. 

These personnel changes and the powers they wielded had different impacts upon the people under their rule. But in no case did the changes benefit the ethnic minorities who lived under their authority. Forced labor continued and was widely reported by the UNHCR, was acknowledged in the annual Burma resolutions unanimously adopted by the UNGA and in the detailed 1988 study of the problem by the ILO. 

There is no evidence that the SPDC made any effort in the years it has ruled Burma to reach out and talk with the leaders of the minorities about the content of a new constitution. Their spokespeople continue to say that work on a new constitution is going forward, but they have produced no evidence or documents which affirm such action. Meanwhile the ethnic minorities continue to discuss amongst themselves the content of a future basic law for Burma, but their words and speeches fall upon deaf ears amongst the rulers. 

In the Fall of 2000, following an incident wherein Daw Aung San Suu Kyi was returned to house arrest following her attempt to leave Rangoon and visit party headquarters outside, the military intercepted and forcefully returned her to her home. In this new atmosphere of heightened tensions, Am. Razali Ismail of Malaysia, was appointed as the special representative of the Secretary-General of the United Nations to Burma to help find a lasting solution to the present impasse. Following discussions with the military leaders and Daw Aung San Suu Kyi, direction discussion between the two, called, "confidence building" led to a reduction in verbal attacks upon her in the newspapers, the beginning of the release of political prisoners and the opening of a few party headquarters. While these steps were views as progress in the stalemate between the rivals for power in Burma, there were no threeway talks between the SPDC, NLD and the ethnic minorities as a first step in a discussion by the key leaders who will one day have to agree upon the content of a new constitution. 

A new federal constitution is a long way off; there is no sign that the military will agree to one which it does not dictate and there is no sign that the NLD leaders and ethnic minorities will agree to a basic law which is not federal and reflects their goals and aspirations. Thus, as the days of 2002 pass, the struggle for a new constitution remains deadlocked, the chief protagonists still are not talking and the world leaders still are unable to find a way to bring about real change in Burma. 

Endnote 

* Professor Josef Silverstein is an academic from the United States of America. He is a well-known Burma expert with a long history of involvement in the issues of Burma. The Professor witnessed political changes in Burma from democratic regime to dictatorship in 1962, as he was teaching at Mandalay University in central Burma during that period. He has written and edited several books and articles on Burma. His book entitled "Burma: Military Rule and the Politics of Stagnation" (Cornell University Press, 1977) is a well-known text.