LEGAL ISSUES ON BURMA NO. 11, APRIL 2002
BURMA LAWYERS' COUNCIL
FEDERALISM IN BURMA
Federalism, Burma and How The International Community Can Help
Janelle Saffin*
International Community can help via systematic study and consideration of the world's federations, in pursuit of an understanding of what federalism can achieve when presented with a range of entrenched political and/ or ethnic problems. The international community thus provides and becomes the backdrop, and the actor/ participants can research, inform, educate, and consider whether and in what ways federalism can provide some solutions to the crisis of governance in which they flounder.
Burma has never progressed past the polarised and prevailing view of federalism, yet for so long an aspiration of many of Burma's leaders, notably the National Democratic Front (NDF) since its formation in 1976, and still today. 1 The United Nationalities League for Democracy (UNLD) an umbrella political organisation of non-Burman nationalities that formed in 1989 likewise embraces federalism as a path to political, therefore constitutional settlement, that will bring peace and prosperity. 2
Until the political actors in and of Burma have this debate, its ability to resolve its political differences by political means to effect a constitutional settlement will elude them. National reconciliation will remain a catch cry.
The international community can best focus its help by developing a similar understanding of the nature of federalism and how it has been played out in Burma.
Approach
Before exploring the scope and flexibility of federalism and pointing to and comparing a number of relevant federal arrangements for government, I must first outline the nature of the federalism debate in Burma that leaves Burma in a constitutional vacuum. It will become clear that the need to have a rational and informed federalism debate in Burma is paramount, and that such a debate needs to be informed by comparative international experience. I will conclude with some recommendations that have the capacity to move the debate forward beyond the present and continuing political stasis.
I have used as a point of reference for this article the ideas of two noted commentators: Principal Emeritus and Professor Emeritus Donald Watts, an international expert on federalism, and Larry Siedentop, Faculty Lecturer in Political Thought at the University of Oxford. From that point of reference, I want to use my experience of living, working and being a political actor within a federal system of government, my reading of Burma's political history and my work with Burma's democracy movement, including a large number of ethnic nationalities' organisations and leaders. These leaders, some of whom have been struggling for over fifty years, provide me with real inspiration. 3
It is important to understand Burma's historical and contemporary debates about federalism, as it is a concept that is understood within Burma as being capable of causing both the integration and disintegration of Burma. I will therefore give some background to Burma's political and constitutional struggles so that the reader can better understand how, if at all, the international community can help.
I am, however, of the view that the international community has a vital contribution to make. I agree with Professor Watts' approach which emphasises researching and understanding how and why federalism works in a variety of contexts and where, how and why it has failed.
Basics and Concepts of Federalism
To understand federalism it is necessary to master the basics. The essential elements of federalism are that is provides a peaceful means to accommodate political and cultural diversity, by organising a political, governmental and constitutional framework for both shared rule and self-rule, providing the institutional framework for working together, and, importantly, providing unity for fundamental common purposes, and maintenance of the integrity of the constituent states. Federalism gives expression to the broad view of self-determination with its self-government character, thus avoiding continuing armed conflict. Importantly, it is a compact that is entered into freely but with a strong and enduring commitment by all parties. Central to the success of federations is the adherence to the rule of law.
To usefully discuss and debate federalism it is necessary to understand the variety of concepts captured by the term, to comprehend the essential features of a federal system, to be able to articulate the inherent values, advantages and disadvantages of a federal system of government, to recognise the on-going tensions inherent in a federation and how to deal with them, to understand the operations of federal and state parliaments, governments and their corresponding bureaucracies, to be aware of the principles that underpin state-federal relationships in a federal system, and to come to grips with the concepts of democracy, autonomy, self-determination, power-sharing, shared-rule, self-rule, states rights, centralism, residual power, concurrent power, consensus, uniformity, local government, responsible government, separation of powers, etc.
A tall order!
Nevertheless, these requirements apply to any participant who wants to be involved usefully and actively in politics, although this contribution can only touch on some of these, and it is up to the parties to embark on a more detailed consideration.
For Burma it is also necessary, in a dispassionate way, to be able to reflect on the historical and political forces and problems of governance operational in Burma, including the failed state (which it is) and further reflect on how a federal system might be able to bring coherence through a national federal union.
Next, it will prove useful to look at other nations that have chosen federalism as the basis for their system of government.
Professor Watts work provides a comparative examination of the well-developed federal systems of Australia, Austria, Germany, India, Malaysia, Switzerland, and the United States, the emerging federations of Belgium and Spain, and the failed federations of Czechoslovakia and Pakistan. He relates the comparative analysis to Canada, his home State, another well-developed federation. The most useful aspects of his work are, firstly, the clear manner in which he is able to describe the elements of these federations and the tables that he includes in his work. 4 Spain and Belgium are of interest in that they incorporate multiple identities, with both arising out of conflict around the major issue of identity, whilst India and Malaysia are premised on multiracial and multilingual diversity. I would add Ethiopia, which is an ethnic federal state, but has yet to develop marked characteristics beyond the form of the constitution. I also include South Africa which is unitary in form to some degree but federal in practice, given its recognition of eleven official languages and its large system of regional or provincial government.
Indonesia, like Burma, is highly militarised, was colonised, gaining independence at the same time as Burma, and is also afraid of federalism. It sits also on an explosive mix of peoples, languages and cultures, with demands for autonomy and no solution yet embraced, as federalism has been eschewed. With every cry for more freedom, the Indonesian Government through the powerful Armed Forces, the TNI, generally takes action that further represses the people, thus deepening the political cleavages. It is not unlike Burma in this respect.
Watts work is the best that I have read in terms of readability for those with little experience or understanding of federalism, yet it addresses a full mix of federations that represent the world's federal systems, and it provides a breakdown of the elements of federalism, so that the reader is left with a rich understanding of the characteristics of a federation or federal system.
The lessons to be drawn from a comparative consideration of federal systems are that federations are mostly successful, with the prevailing conditions being that of peace and prosperity, even if that prosperity is not evenly spread. The other key feature is that federations are able to protect national interests and the nation state, whilst recognising and reconciling a diversity of interests, ranging from the political to the language to the cultural differences. Malaysia and India are important to study regarding the last point. These aspects alone should be enough to motivate a state like Burma, besieged as it is by conflict, and bankrupt with least developed country status, to consider seriously the advantages of federalism.
Federalism is neither a new nor a novel idea. It is an ancient idea that has survived until modern times, with increasing popularity. Over forty per cent of the world's population lives within a federal system of government and many more nations live within some type of federal arrangement.
What is Federalism?
The first question to be addressed is simply, "What is Federalism?"
Penguin's Dictionary of International Politics describes it as best understood in two contexts:
* to describe and explain how legitimate power is shared in constituent political units and
* as an explanation and to some degree prescription of how integration might be achieved between separate state actors.
Some selected quotes from the definition are:
… Federalism is a favoured system of government in large, culturally diverse states…
… Federalism as a balance between centripetal and centrifugal forces should be distinguished from decentralization or devolution in unitary systems… 5
The dictionary definition raises an important notion and it is that federalism aims at providing balance to various forces and this must be distinguished from decentralization or devolution in a unitary state. This is of significant resonance regarding Burma, as Burma's constitutional history is replete with decentralization, without however the self-rule and a token shared-rule, that has served only to sharpen differences, not accommodate them.
Burma's Political and Constitutional Background
Burma has been locked into a series of civil wars since it gained its formal independence from colonial status from Britain. Whether it has been under civilian or military rule (and it has been military for nearly forty of those fifty-four years), Rangoon has been the focus of the wars. The warring parties have been the Tatmadaw (Burma's National Armed Forces), Ethnic Nationalities-based armies, the Communist Parties, the Burma Socialist Program Party (BSPP), Student-based parties, fronts and unions, the democratic parties, notably the contemporary National League for Democracy (NLD), the Sangha (Burma's monks at least equal in size to the current Tatmadaw strength of approximately 450,000), and the people.
What has led Burma into this political abyss, which all parties tell us is too complex and unique to understand? It is widely recognised that deep-seated conflict has three primary sources, namely:
* national identity
* resources
* land
There are issues of national identity with Burma's largest ethnic nationality, Burmans, dominant in most spheres of public and political life. This is most apparent in the military junta's incarnations of the executive, dominant in all spheres of public life including cultural dominance, maintained through an overarching 'Myanmarfication' or program. Resources and land too are flash points, with the center claiming ownership and all too frequently in the most brutal way, with forced relocation, violence including rape and death, all too common.
The tragedy is that approaches to resolve the political gridlock have been advanced by a large number of political leaders, but those approaches have been rejected by both the civilian government under U Nu's Prime Ministership and the Tatmadaw dictatorship which has affected civilian government under General Ne Win's leadership of a one-party socialist state regime, commonly known as the Burmese Socialist Program Party (BSPP), and then as the State Law and Order Restoration Council (SLORC) and finally as the State Peace and Development Council (SPDC). The best solution offered so far has been federalism, that is a federal form of government.
Federalism was contemplated in the discussions that led to the famous and revered Panglong Agreement of the 12 th February 1947 in the lead up to independence. This was a political agreement that was to set the standard for agreements among ethnic nationalities, and can be best summarised with the 'one kyat for all' catch-cry, expressed differently but meaning equality for all with self-determination, in the form of self government at state of local level, within a federal union. The agreement provided the precursor to constitutional settlement, forged among some of Burma's political, ethnic nationality leaders, including Burma's hero of the independence struggle and founder of the Burma Independence Army, U Aung San. His daughter is Burma's highly respected political leader and Nobel Peace Laureate Aung San Suu Kyi, currently imprisoned in her family home in Rangoon by the military junta.
Federalism was at the heart of the decision of ethnic leaders' decision to join together to form a modern post-independence 'Union of Burma'. The constitution was hurriedly drawn up by an 111 member commission appointed by the Constituent Assembly itself, convened on the 10 th June 1947 and adopted in September of that year by the Constituent Assembly. It became operative on the 4 th January 1948, whereby the Constituent Assembly was declared provisional and elections were to be held within eighteen months. In between the ratification of the Panglong Agreement and the adoption of the Constitution by the Constituent Assembly, U Aung San was assassinated along with other Cabinet members, by a right wing fundamentalist political opponent. The ramifications of U Aung Sa n's early and untimely death are still felt today. The belief supported by evidence is that U Aung San would have ensured a federal system of government and that the constitution, if not entirely in form, in substance would be marked by federalism.
Following independence Burma descended into political turmoil, with widespread law and order problems. The nation had been ravaged by decades of British colonialism and occupation by the Japanese Forces during World War Two. Its institutions were stretched to the limit. The need to keep a reasonable degree of separateness of political parties from the executive government and the parliament was not recognised by some as being essential to the development of parliamentary democracy. Every political move was played out in both parliament and government. The military were quick to take advantage of this situation. The federalism envisaged by Burma's ethnic leaders was not being implemented. Burma's ethnic leaders in turn were not able to focus on democratic consolidation in the respective states and areas. There was also the underground communist forces to contend with.
Add to this potent mix the fact that the Tatmadaw, hugely popular nationally for its role in wresting independence from both the Japanese and the British was now breathing down the neck of the government, ready to take control. With a constitution that contained a secession clause, able to be invoked from 1958 ten years after independence, the turn of events is not so surprising.
In 1961 the Shan State submitted to the Union Government a proposal that recommended changes to the 1947 constitution. The central tenet was to amend the constitution so that its form became clearly federal. Delegates attendant at the Shan State Convention held in Taunggyi in February 1961 had ratified the proposal. 6 The proposals of themselves are neither scary nor novel and outline matters that essentially describe a standard model of federalism.
The first of five key proposals that could give rise to contention was the establishment of a Burmese State as they called it, understood to mean a Burman State. Many Burmans who are happy to have a federation, do not understand the necessity of having a Burman State, when it has no historical basis, whereas the other States do have clear historical basis. What was being proposed was a symmetrical federation, without first having debated the merits and demerits of symmetrical and asymmetrical federalism. The Shan State charged that under the 1947 constitution, specifically Article 222, Burma Proper had taken on the form of the 'Union Government'. This, understandably, was cause for concern.
Whilst the current draft federal constitution produced by the National Council of the Union of Burma (NCUB) contains a proposal for the establishment of eight states including a Burman one, its inclusion appears to have been added more to accommodate the desires of the seven major ethnic nationalities, and sensibilities of trying to effect equality, rather than having been determined within a debate about the suitability of symmetrical or asymmetrical federalism. Although some understand the issues vis-à-vis symmetrical and asymmetrical, it is not apparent that it has been widely explored. 7
The demand for equality has always been the real dominating factor and it has been equated with all things being prima facie equal. This results in a symmetrical federal arrangement, which may well transpire to be the best solution for Burma. However it requires more detailed understanding and debate before any such decision can be made. Aung San himself had issued seven directives, to be taken up as guidelines for the constitutional drafting committee, that strongly focused on equality and autonomy, particularly for the states. When he introduced the draft constitution to the Constituent Assembly he said it was as a basis of discussion. Due to his untimely death, the Constituent Assembly had to complete this task without the benefit of U Aung San and his Cabinet's input.
At least the parties outside and some inside Burma are seized by this debate, whilst the military, still trapped in its anti-federalism shroud, is unable to consider any aspects of its symmetrical-asymmetrical applicability.
The Union Government's Constitution Revision Committee, established by the Union Parliament and Chaired by the Honourable Judicial Minister Dr E. Maung, 8 came to consider the Shan State proposals and subsequently produced a report. Their terms of reference were, among others, to:
…Please examine the demands made by the Shan State people and its Government and, after consulting the leaders and representatives of the peoples of the States and Burma Proper, please give your advice and suggestions as to what steps should be taken …
The Committee did a good job of classifying the grievances as put in the Shan proposals, into what were essentially constitutional and political. They recommended those that were capable of resolution by political means, but it was the discussion contained under the heading 'Constitutional Question' that revealed the prevailing thinking regarding federalism. I must say that the federalism debate that has taken place in Burma has always been equated with secession, and this has added to the fear of federalism and the stifling of debate by all parties. The Committee pointed out that the Shan proposals demanded a true, real - what is called a 'genuine' federal system, but they don't describe what is meant by this demand. Whilst this is true to a point, the nature of the amendments proposed implied a standard model of federalism.
The term is still used today and I would recommend abandoning it, as it simply adds to the cleavage, and it is better to describe what is wanted in concrete proposals.
In answering this question about true federalism, the Committee examined the federations of the USA, Australia, Canada, South Africa, India, and Switzerland and concluded correctly yet disingenuously that:
…There is thus no real type of Federal Government…
They went on to say, incorrectly, that:
…Even if there is a real form of Federal Government on paper, yet in actual practice it becomes unitary…
To conclude that the USA, Australia, Canada, India and Switzerland were unitary states demonstrates a profound conceptual gap, which is surprising given that the erudite Dr E. Maung chaired the Committee.
They went on to examine whether or not the proposals would strengthen the Union and predicably concluded that they would not. They concluded this without proffering any evidence and decided that federalism would lead to the break-up of the Union.
Speaking at the first meeting of the Revolutionary Council upon the military seizing power on the 2 nd March 1962, General Ne Win pointed out the dangers of the Shan State seceding from the Union, giving rise to the possibility of foreign interference. He cited the recent example of Katanga's secession from Congo, after it had reclaimed independence from its Belgian colonisers. 9 The Union Government's and the Tatmadaw's fear of secession, despite its inclusion in the constitution, only served to further polarise the political situation. The Constitution prescribed the procedures to be adhered to, including a public plebiscite in the State concerned. The Shan State had not yet called for this nor had it made moves to acquire the votes of the necessary two thirds of the total number of members of the State Council required to trigger the process. Yet some were talking about secession. That is not surprising, given that it was a constitutional provision and that the States were generally unhappy with the Union Government's ability to effect good and inclusive governance.
With its royal system still intact, the Shan State had after all been governing its own affairs since the formation of the Federated Shan States Council in 1922, and were quite experienced in forms of governance despite the colonial administration. Prior to that a Shan Sawbwa had been represented on the Governor's Advisory Council. They had also suffered from Japanese occupation with the Japanese Government unilaterally handing over Keng Tung and Mong Pan to The Kingdom of Thailand.
Whilst discussed at length at both Panglong Conferences and included at point number five in the Kachin-Shan Committee at its Panglong meeting of the 6 th February 1947, and affirmed by the Chin-Kachin-Shan Committee at its Panglong meeting of the 7 th February 1947, the secession matter was not particularly specified in the 12 th February 1947 Panglong Agreement signed by representatives of the Chin, Kachin and Shan Committees and the Burmese Government. U Aung San, however, importantly requested that it be discussed and debated in the Constituent Assembly.
So, whilst the establishment of a federal system was not included in the Panglong Agreement, it was however premised on it, as was the Panglong meetings themselves, and it was agreed that it was also to be the subject of detailed consideration by the Constituent Assembly. As trust had been established by the parties at the Panglong Conferences, like a lot of political agreements, there was belief that the parties would properly advance these matters. Certainly some federal elements were included, not many, with secession included, but the essence of federalism was left out.
The Tatmadaw's official history has this to say about the Panglong Agreement:
…the Panglong Agreement came to manifest two conflicting principles. The first principle represented Sawbwas of the ruling class. It was the right of the Shan State to secede from the Union after ten years if it then were desired. The principle was not put down in writing but was in the form of a gentleman's agreement (see comments above) between the leaders of the Shan State and the Main Territory. The other principle represented all the national groups inhabiting the Shan State and their aspirations. This principle can be clearly seen as recorded in black and white in (the) Panglong Agreement. It was the principle of the solidarity of the Union." 10
The two principles are only conflicting but only if viewed through the prism of misunderstanding the essence of federalism, the way the Tatmadaw chose to view it. One of the gentlemen referred to is U Aung San, a point conveniently excluded from this statement.
The democratic leaders at this time charged the Shan Sawbwas of perpetuating feudalism and they came to equate, in rhetoric at least, feudalism with federalism. Given the endorsement of socialism by the key leaders including U Aung San, the political charge of feudalism against a royal system operative in Shan State is understandable, yet also politically convenient. The Shan leaders did have the foresight to know that federalism in some form was a way to govern to effect a share and peace for all.
The official history goes on to say:
… The emergence of insurrections and demands for federalism in 1959 was instigated by Shan Sawbwas. How ambitious were their aims at that time? The answer lies in the fact that more Sawbwas than actual advocates of federalism had then to be taken into custody … 11
This proves nothing and says more about the military's fear of secession and exasperation at and with Shan Sawbwas than it does about federalism.
Secession as a Right
Secession is an unusual right to see located within a constitution. I have only seen it written into the now obsolete USSR Constitution. This was the inspiration for its constitutional inclusion, if not the idea itself. As noted above, it did not form part of the Panglong Agreement, but was requested by the parties and U Aung San in turn requested that it be a matter for the Constituent Assembly, that subsequently decided to include it in the constitution.
The right of secession is recognised by international law, as an act of self-determination, but only as a right of last resort. Self-determination has a limited meaning in international law, but has been advanced by many oppressed peoples in a broader political framework, who seek political recognition and political power. It is not an essential element of a federal system, is not consistent with the essence of federal systems and more an issue that arises in confederations.
Drawing on his studies, Professor Watts cites the three main reasons offered for not including the right of unilateral secession in a federal arrangement, which is the right expressed in the 1947 Constitution:
…First, it has been feared that the right to secede would weaken the whole system by placing a weapon of political coercion in the hands of governments of the constituent units. Second, there has been anxiety that the possibility of secession would introduce an element of uncertainty and lack of confidence in the future, seriously handicapping efforts to build up federal economic development and unity. Third, theorists have argued that it would undermine the fundamental principle of coordinacy between levels of government in a federation since if a regional government acting alone had the unilateral right to leave the federation, or the federal government had the unilateral right to expel a regional unit, the other level of government would be subordinated."
Professor Watts tells us that Canada's Supreme Court in 1998, in ruling on whether or not Quebec was a constituent state of Canada, had the right to unilateral secession, decided that it did have the a limited right to move for secession but not unilaterally. Many issues were left untouched, but the Court "did recognize the possibility within certain terms of a non-unilateral secession." 12
Professor Watts says that in the few cases where secession has been managed peacefully, they have been marked by a "… high price in economic costs, diplomatic and defensive ineffectiveness, and lasting bitterness between the groups involved." 13
Such an inclusion creates both a secure feeling for those whose rights it seeks to protect but also creates instability for all parties to the federal compact, not just the holder of the right. However, parties to federal compacts are at liberty to negotiate the arrangement that suits them and their circumstances, and so it will be for this particular issue. Nevertheless, I would caution parties desiring and opposing it, to develop an appreciation of its essence, and its effect and the fears held by the other, that cause it to be both virulently demanded and implacably opposed. Its inclusion in contemporary times, would have to be weighed up with how it would impact on international financial institutions, and probable donor countries. These are pragmatic but necessary considerations given that Burma is bankrupt in so many areas.
Burma's 1974 Constitution
Burma's 1974 constitution, drafted by an 97 member commission, at first glance may appear to contain the essential elements of federalism, but it is really a unitary constitution with a decentralized, devolved form that lacks the necessary self-rule and affects shared-rule. It contains seven states, seven divisions, and these are further broken down into administrative and local areas. The defining Article states:
…Local autonomy under central leadership is the system of the State…
This puts beyond doubt the unitary nature of the constitution. The practice also supports this conclusion. It is important to recognise the unitary nature of the 1974 constitution as it has been presumed to give a large degree of autonomy to the states and the people. However, it served to consolidate the power of the centre, thus exacerbating the political tensions that beset Burma.
Military Junta's National Convention
Equally the 104 constitutional principles prescribed by the military junta's 'National Convention' outline another unitary framework that consolidates power at the centre with a large degree of decentralised and devolved administrative form. It is in effect the same as the 1974 constitution. If ever implemented it, too, will fail like its predecessors, as it does not attempt to formally resolve Burma's federalism problem.
Federalism, as we know, can take many forms, with some anchoring characteristics. Some federations operate on the principle of competitive federalism, whilst others adopt a cooperative federalism approach. Neither is supreme, it is a matter of which works or evolves in a state. The co-operative model is dominated by inter-governmental agreements and arrangements that demarcate functions quite clearly, and the competitive model has all governments covering areas and delivering the same or similar services. In Australia this happens particularly in the area of health, and social and community services. In many federations, however, both principles are visible and it is a case of the respective govern ments negotiating what works best for its citizens.
Political, Moral, Cultural and Intellectual Framework
There are forces that work against Burma coming to terms with its past and forging a workable system of government to shape its future. Its development at all levels remains stunted, stifled, cut-off almost at independence and at least during the period of military dictatorship of General Ne Win. Politics is eschewed by the dominant military and writ large as being a dirty business, and by extension only the business of unfit persons.
As Dr Maung Maung puts it, the tradition had been to look upon politics as the 'refuge of scoundrels. ' 14
Given the prevailing view of politics, there is an absence of political debate, (with constitutional debate specifically prohibited by SLORC Order No 5/ 96). That has been the situation in essence since the 2 nd March 1962, the date of the first military coup. There is no intellectual development of note, given the absence of freedom of speech, hence media, and the censorship applied even to the entire educational system. Even university curricula have to be submitted for approval by the Press Scrutiny Board, which is propped up by the Dickensian Printers and Publishers Registration Law 1962, with even more draconian amendments passed in 1989.
No economic development, despite the BSPP's endorsement of an open market policy at its last Congress in July 1988 and then picked up by the current military junta. No moral debate, as 'Myanmar' morals are deemed for one and all. Cultural debate is expressly prohibited by a variety of 'laws'. The military junta' is obsessed with the self-promotion of a mono-cultural society that in reality does not, and has never, existed in the land we know as Burma.
Constitutional Settlement
The constitutional settlement envisaged at the Panglong Conference has not yet been achieved, with Burma's military and political leaders polarised in their views towards federalism. Federalism is seen as both the saviour and the destroyer.
This polarised view shrouds any debate in Burma about federalism, but equally provides the entry point for the debate. It is this polarised view that has kept Burma suspended in a constitutional vacuum, and this vacuum or crisis cannot be resolved until all parties are able to both understand the nature of federalism, its advantages and disadvantages and together explore how it may be suitable if fashioned to suit the multi-ethnic state of Myanmar known as Burma. 15 There well may be other systemic solutions for Burma, but they are not apparent, as many have tried for over fifty years to effect a political settlement and are as yet unable.
A comparative study of federal systems of government by all the parties would lessen fears also and provide some realism for those who might be tempted to see federalism as a panacea for all their political ills. The knowledge-base of the current political and constitutional debate is extremely narrow.
Culture of Consent
Larry Siedentop, Faculty Lecturer in Political Thought University of Oxford, is able to bring profound clarity to the federalism debate. In his groundbreaking work he correctly characterises the federalism debate being forged in Europe through the European Union, but not necessarily characterised as such by the actors. In commenting on federalism and Europe he says that:
…One of the pre-conditions of successful federalism is a consensus on which areas of decision-making belong to the centre and which ought to be reserved for the periphery … 16
Burma's political actors have not reached consensus on fundamental political issues, except for the need to have unity. This is explicitly expressed in all political parties platforms and other political organisations' charters and key documents, as is federalism except in military circles.
There is sadly no culture of consent, even on the means to move forward. Larry Siedentop rightly states that judicial review is inescapable in a federation. 17 All commentators define constitutional supremacy as a defining and essential element of a federation, which means that judicial review, with the highest court of the land or a specially constituted constitutional court such as in South Africa having original jurisdiction to settle constitutional disputes. Burma removed judicial review in 1962 when it abolished the state's judiciary, suspended the constitution and did not re-introduce it into the 1974 constitution. In addition to having been de-legalised, Burma has also been de-constitutionalised. Further that a federal form requires considerable intellectual and moral development." 18
He further charges that British critics of the further integration of the European Union, frequently equate 'federalism' and centralization'. In Burma, the military have equated 'federalism' and 'disintegration'. 19 In both cases, Britain and Burma the criticisms are borne out of a desire not to lose political control and owes more to political posturing than reality.
Siedentop identifies the current paucity of debate around great and big ideas. He concludes that:
…Thus the political tradition that once inspired Montesquieu and the American federalists today produces spokesmen who seem not to understand that federalism seeks to disperse authority and power between the centre and the periphery, creating a political system which protects local autonomy in the absence of aristocracy." 20
…That is why, in the long run, active citizenry encouraged by a devolved form of the state is the only satisfactory filter for a democratic political class."… LS p 129…
In his introduction, Watts whilst citing the benefits of comparative study also cautioned us about the limitations of comparing federations. He reminded us that there is no one system of federation capable of universal application, but equally importantly highlights the essence of federalism which is its inherent ability to accommodate a system of government that inculcates shared-rule for some agreed common purposes and regional self-rule for purposes particular to those polities, but that all is contained within a single political system so that neither one is subordinate to the other. He further describes how this model (my characterisation of his description) has been applied in different ways in different circumstances. 21
The key issue, though, is that peoples are at liberty to negotiate what is best for themselves and, having negotiated the broad political framework expressed in their constitution, they continue to negotiate day to day matters and needs as they arise and change. This is done through the political process and state-federal inter-governmental and institutional arrangements.
The last words I have reserved for Professor Watts, who concludes that
…The essence of federal political systems is to reconcile diversity and unity within a single political system by assigning sovereignty over certain matters to the constituted provinces and sovereignty over other matters to the federal government with each level of government responsible directly to its electorate… 22
Overarching this is the need for a central focus of loyalty to be able to deal effectively with matters of common interests if the federation is to secure the citizens' loyalty over the long term. 23
…Where diversity within a society is deep-rooted the effort simply to impose political unity has rarely succeeded, and indeed has often instead proved counter-productive creating dissension… . 24
The author could have been describing Burma, but was in fact expressing a general observation supported by a lifetime of study of federal systems. The aggregate of the international community's experience in federal systems can hopefully help by its exposition of the advantages and disadvantages of federalism, with the advantages for states that are multiethnic, and multi-linguistic. Burma is a nation that cries out for some form of federally agreed political settlement which will then allow them to effect the constitutional settlement that is desperately needed. Only when a constitutional settlement is wrought will Burma be able to kick-start its development and consolidate its peace and prosperity. That has to be a common interest desired and committed to by all.
Endnotes
* Janelle Saffin is an Executive Committee Member of the Burma Lawyers' Council.
1. The National Democratic Front (NDF) formed on 10 th May 1976 with an alliance of ethnic nationalities' organisations that opposed politically and military the Tatmadaw and BSPP Government and the military's SLORC and SPDC today, the NDF has long advocated a federal union as a way to peace so as to effect a nation wide ceasefire. They have consistently said that "What the ethnic nationalities want is not racial discrimination and hatred, they simply want to co-exist peacefully…. They wish to stay in a genuine Federal Union where all ethnic nationalities enjoy equal rights and have (the) right of self-determination to shape their own future…" 'A Brief History of The National Movement of Ethnic Nationalities' by Khaing Soe Naing Aung pl Author, Burma, August 2000] Their message has not altered since 1976, it has however suffered from not being able to be progressed to take on a tangilbe form.
2. The UNLD successfully contested the 1990 multi-party general elections, and its its conference held in Rangoon, June 29 th – July 2 nd , it adopted seven key principles that they determined were necessary for a national constitution, and they are premised on federalism. The UNLD was banned by the SLORC in 1992, but now operates in exile as the UNLD-LA, the LA standing for 'Liberated Area', and it continues to give voice to the UNLD's aspirations embodied in the seven principles.
3. Ronald Watts is Principal Emeritus and Professor Emeritus of Political Studies at Queen's University. He has held numerous posts that recognise his outstanding knowledge of federalism, federal systems and the like. He is also President of the International Association of Centres for Federal Studies. The work I draw on for this article is his book titled 'Comparing Federal Systems', second edition McGill's-Queen's University Press, Montreal 1999. This work offers a useful description of a number of developed federations, and gives insight into some failed ones. The theme of this work is that by comparing federal systems, thus understanding them, we can utilise that knowledge to think broadly and creatively about the diverse possibilities that federalism throws up. I am currently an elected member of the New South Wales Parliament's Legislative Council, or Upper House as it is referred to, Australia's dominant state within our federation. I have had an opportunity to be an actor in a federal system at parliamentary, governmental and political level, as well as living it daily as a citizen. For many years I have worked collaboratively with many actors within Burma's broad democracy movement and the ethnic nationalities organisations, both of which in some forums, collaborate for the common purpose of advancing democracy within a federal framework in Burma. Much of my work focussed on teaching and advising in the areas of federalism, state-federal relations and arrangements, state constitutions, constitutionalism, politics, law in general and the rule of law. This work has enabled me to read widely about Burma's history and to learn from some of its key political actor.
4. Watts op cit pp 64, 86-87
5. As a means of describing and explaining the division of legitimate power or authority in federations, federalism postulates as an initial position a tension or conflict between centripetal and centrifugal forces. This conflict will be settled by the several parties signing a constitutional bargain that will stipulate where the jurisdictions of the centre and the periphery lie. Thus certain issue areas will be reserved for the centre, others retained by the periphery. Normally defence, foreign affairs and macro-economic policy are handled exclusively at the centre. Conversely, the periphery will retain some revenue raising power, control over social and welfare services and some small discretion regarding penal codes and provisions… In federalism the centrifugal forces are already in place when the initial constitutional divisions of labour are effected. In decentralization the centrifugal forces come to the surface after the initial constitutional arrangement has been made… Federalism, as a theory of regional or even global integration, derives its inspiration from seeing the positive benefits of federalism as a system of government… Federalism remains the only empirically tested theory of regional integration that combines unity with diversity. Implicitly it is also a theory of limited government as the Founding Fathers of the United States well understood. Whether it should proceed by the elitist or by the populist modes is a point of debate within its adherents. By tackling the issues of high politics directly, the federalist approach to integration is far more ambitious and controversial than functionalism. This is its latent mass appeal. It confronts the key issue areas of state sovereignty and national interest by proposing a power-sharing arrangement which is enshrined in a constitutional bargain. ['The Penguin Dictionary of International Politics', by Graham Evans and Jeffrey Newnham Penguin Books ply by The Penguin Group London 1998 pp 169-170]
6. The proposal referred to is titled 'Document containing proposals for the Revision of the Constitution Of The Union Of Burma submitted by The Shan State' pl by the The Shan State Government (7, 000 16-3-61) printed at the Do-Ta-Wun Press (30-32) Thingaha Street, Kyaukmyaung, Rangoon.
7. The National Council of the Union of Burma (NCUB) is a consociational coalition arrangement formed in Manerplaw originally to operate as a Parliament of the National Coalition Government of the Union of Burma (NCGUB) (the exiled government previously a Cabinet of Ministers but now a Council of Ministers), the Democratic Alliance of Burma (DAB), the National Democratic Front (NDF) and the National League for Democracy-Liberated Area (NLD-LA), with the NCGUB now replaced by the Member of Parliament Union (MPU) that formed in 1992 and it was charged with a 'constitutional consultation and drafting process' that culminated in a draft model federal constitution. The NCUB has a Constitution Drafting Committee chaired by U Thein Oo who is both a lawyer and an elected MP. I have the post of the CDC's International Co-ordinator. The document is not meant in any way to be prescriptive but a model for debate that contains most elements of federalism. It is currently being reviewed and revised for an improved draft that can take account of inter alia the current developments made by the formation and work of the State Constitution Drafting Committees and the recent study tour they undertook together to Germany to study federalism.
8. The Constitution Review Committee came into existence after agreement had been reached between the Government of the Union of Burma and the Government of the People's Republic of China on boundary issues and the Union Parliament realised that constitutional amendment was necessary to give effect to this agreement. In debating this, the Parliament decided that it should also review the constitution, not comprehensively, but to "… round off the rough edges of the Constitution, if there be any. "[ p1 of its report on the Shan State Proposals] There were three principles articulated for the guidance of the Committee. They were, (1) Not to infringe the principle underlying the Constitution, (2) Not to infringe the principle of Democracy, and (3) Not to suggest any amendment that will sow dissension or promote discord among the races living within the Union. I find the last principle demonstrates a patronising attitude towards the ethnic nationalities, excluding Burmans. It is what they would call 'chauvinism'.
9. General Ne Win's comments and attitudes are expounded in the Tat madaw's official history book, titled 'A Concise History of Myanmar and The Tatmadaw's Role 1848-1988 Volume (1) A Tatmadaw Researcher with an introduction by Bo Thanmani.
10. op cit p10
11. op cit p12
12. Watts op cit p108
13. op cit p115
14. See Dr Maung Maung's the 1988 Uprising in Burma monograph 49/ Yale South East Asia Studies New Haven, Connecticut 1999, which sheds light on historical and contemporary events but through his very biased position as apologist for successive military regimes sometimes cast in civilian guise such as the Revolutionary Council and then the Burmese Socialist Program Party (BSPP) (also called Lanzin regime) governments. It is useful for some facts and details and gives a prism through which it is easier to understand the delusional thinking that produced current day events.
15. Burma was renamed Myanmar in 1989 by military decree called the Adaptation Expression Law 1989 which the military junta then known as the State Law and Order Restoration Council (SLORC) promulgated, claiming that Myanmar was inclusive of all the peoples. This gives rise to four issues. 1. The notion of inclusivity is not universally accepted. 2. A military junta having seized power by military coup d' etat does not have the legitimacy nor legality to change laws. 3. Such a fundamentally important issue such a country's name should be a matter for all the people to have a say, and a referendum or large-scale community consultation should precede any such change. 4. It continued a pattern of polarity that marks Burma's political history and further deepened cleavages.
16. 'Democracy in Europe' Larry Siedentop, Allen Lane, The Penguin Press London 2000 p231
17. op cit p95
18. op cit p94
19. op cit p79
20. ibid
21. Watts Chapter One Introduction p1
22. op cit p80
23. ibid
24. op cit p16