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


FEDERALISM IN BURMA

Federalism With A New Twist: Burma's Only Option 

B. K. Sen* 

The author of the article "The Panglong Spirit Lives On" (Chao-Tzang Yawnghwe in The Irrawaddy, July 2001) argued that the guiding principle of the Panglong Accord is "unity in diversity". He raised the question as to whether there is a formula for ending Burma's decades of ethnic strife, and answered it himself with "Yes, and it is none other than the political vision that brought modern Burma into existence half a century ago". 

This is begging the question: what is this political vision, which is abstract in terms of people's understanding? The meaning of terminology such as "unity in diversity" is academically attractive, but in the understanding of the activists it helps little. However, Yawnghwe retrieved much of the ground lost in the struggle evolving a viable concept for the establishment of a stable Burma by stating that the major goal is the establishment of a democratic, federal Union of Burma, to be composed of self-determining states living together in equality and peace. It is argued that core issues must be addressed, and the debate has to be brought to a fruitful end. 

The vagueness of the Panglong Accord has to be admitted. An accord, as for any law, cannot be ambiguous or vague. The Panglong Accord has two diametrically opposite theories: the formation of a Union, and the right to secession enshrined in Article 100 of the 1947 Constitution. How to interpret these two parts in constitutional terms? It could be argued that secession is the core issue which enabled the birth of the Union and other ethnic nationalities joining it. If that argument is accepted, then the secession part becomes the dominant element in the Constitution. If how ever it is argued that the part was only a tactical/ technical clause to enable the birth of the Union, it will deepen distrust and the vicious cycle of animosity and disharmony will continue. 

It is not disputed that the Panglong Accord has become the rock-bottom of the concept of the right of self-determination. If the Accord is read together with its deliberations in the Constitutional Assembly in June 1947, more light is thrown on the issue. If you go back further, the speeches of U Aung San (the architect of Burma's independence) made in relation to that issue confuse many in the present day. From there it appears that the right of secession was the operative part of the Accord. 

It is argued that this right was a right corollary to the determinant constituent of the Accord. This was to create one country and anything done in derogation of that, be it secession or sovereignty of states, cannot destroy the spirit of this Accord. In the given historical context, when the Accord was made in 1947, the understanding of the word 'secession' was limited. With the passage of time, events of world history, the functioning of the United Nations, and the long arm that international law has developed, the word 'secession' has undergone a realistic change of meaning. And whatever one may say about the sanctity of the Accord, its meaning as given internationally has to be accepted. The Accord should not be equated with holistic perceptions. It is negotiable— as all Accords in history have proved. 

Burma's junta has thrown an unprecedented challenge to human rights activists, political analysts, and democracy protagonists to evolve a strategy to end its authoritarian regime. For four decades it has ruled without constitution, parliament, elections, political parties or civil society. However, a sustained political opposition has hopefully confronted the challenge. This opposition has meaningfully emerged from the blood and sweat of the activists and has reached the stage of consolidation. The junta has technically and also politically retreated from the position of strength. The retreat began when the May 1990 elections under its aegis were held. The verdict of the people, to end the military rule with a landslide victory for the opposition led by Daw Aung San Suu Kyi, further fortified its retreat. The transfer of power became a stark reality and retreat was about to become a rout. The junta had no option but to refuse transfer of power on the silly excuse that a Constitution had to be drawn out first. A constitution drafting process was initiated with the participation of all concerned forces, including the winning party in the elections. This was a return to the constitutional path, however fake it might have been. 

The arrogance of the junta, drubbing it suffered in the hands of opposition at the hustings and fear of losing power, dictated the constitution process. Its domineering role and hidden agenda finally surfaced. The result was that the entire of opposition withdrew from the trap. Nevertheless, the junta gave birth to the SPDC National Convention Constitution in 1996, but it is a stillborn child. 

It is interesting to note that in its history of more than a century, the Constitution has been the crucial/ critical factor in Burmese politics. Three phases of Anglo-Burmese wars were legalized by acts of British Parliament and laws passed and administered by the Colonial administration. The authority was derived from an unwritten Constitution evolved by the mother of Parliament. Ironically, to demonstrate its sovereignty, an Act of Parliament with a one-line notification turned the country into a colony. The Burmese patriots learnt their first lessons in constitutionalism in the school of nationalism. The 1919 Government of India Act, applicable to Burma at that time, placated self-government in the form of diarchy. It took no time for the Burmese patriots to see through the game. Then, in 1937, came the Government of India Act with limited self-government and elections for the first time. Separation from India was made a big constitutional issue, as if it amounted to independence or self-determination. 

The Second World War saw Burma under Japanese rule and the people had another taste of Independence, which the Japanese rulers pretended to give. Right at the threshold of ending colonial rule and ushering a democratic sovereign Burma, conflicts both between Burmans and Burmans, and between Burmans and ethnic Nationalities, created obstacles to Burma's transition to an Independent sovereign state. A sovereign state has to have a Constitution. However the Panglong Conference provided the accord, out of which the 1947 constitution emerged. Sooner or later it had to become a bone of contention. The Karen and Karenni ethnic nationalities felt that there was Burman domination. Among the Burmans themselves, there were a major split. The Burma Communist Party dubbed Independence which the Constitution symbolized as fake. The constitution again became the focus in Burmese politics. In 1958, when the caretaker government headed by General Ne Win was installed by the then Prime Minister, U Nu, in complete violation of the constitution, the issue of constitutionality of installing the caretaker government became a hot issue. When General Ne Win seized power in 1962, the first thing he did was to put aside the constitution on the ground that there was a danger of disintegration. This was an oblique reference to the constitutional provision of the right of succession. The truth was that all the ethnic leaders and the then Prime Minister in a conclave (at Taunggyi in 1962, just one day before the coup) came to a consensus that the Constitution needed amendments to include equality and greater autonomy to the ethnic states. In other words, the country was poised for a transition toward a genuine federalism. General Ne Win pre-empted it, suspended the Constitution and set up a rule by the Revolutionary Council headed by him. 

In 1974, Ne Win floated the Burma Socialist Party, drafted a Constitution, put it to a fake referendum and promulgated the 1974 Constitution. It was a one-party rule composed of retired army officers. It was an unashamed attempt to constitutionalize an illegal seizure of power. Important was that it had to wear a constitutional coat. The 1974 constitution was a fraud, and totally disempowered the people. However, a facade of constitutional rule was imposed on the people. The historical 8-8-88 uprising exposed its bankruptcy and resulted in its collapse. Paradoxically, it did not lead to restoration of constitutional rule although the junta learnt a lesson that it could not risk, even with a fake constitution. It needed a constitution tainted, sugar-coated with peoples' representation, but with the core being in military hands. It would serve two purposes. It would appease the people and divide their ranks. And it would help to hoodwink the international community so that it will serve to woo investors. 

It is argued that (1) Constitution has been the fulcrum of Burmese politics for decades; (2) The democrats failed to remove the deficits of 1947 constitution in time; (3) The democrats failed because they wrangled in power politics and corruption; (4) The politicians' invitation, in 1958, to Ne Win to rule, giving parliamentary sanction, was the beginning of the end of constitutional rule; (5) The ethnic leaders failed to ride on the democratic wave released in the aftermath of Independence and capitalize on the divisions amongst Burman elites; (6) That the constitutional rule, never mind the defects, never reached the grassroots or resulted in empowerment of the people as the elites among all the players dominated politics; (7) The failure of the constitutional rule was the cause of the rise of military rule. The junta outsmarted the political leaders not once but at many crucial points of history during the last four decades. Repression was no doubt the main tool to keep the people living in fear. Its maneuverability and disunity of the opposition forces were contributory causes of its prolonged rule; (8) The junta has proved itself bankrupt in the matter of designing a constitution or running a good governance. 

The question of all questions in Burmese politics is: What will be its future Constitution? Constitution is the only guarantee for good governance, amity between ethnics and minorities for equality, stability, democracy and rule of law. Different players in Burmese politics have put in place their respective versions of a Constitution. The NLD, as the winner of the 1990 Elections, has not put in place any blueprint of a Constitution. The DAB has put in one of their own. The NCUB has also one of its own. Whatever weaknesses these may have, by and large the principles laid down have projected federalism. The ruling junta's fear of risks of federalism is baseless. It is not true that federalism will provide the ethnic nationalities opportunities to mobilize their resources and to break away from the federal center. Three federal states, Yugoslavia, the USSR and Czechoslovakia are now broken up into 22 independent states. This federalism was based on one-party rule. The case of Indonesia is cited as one case to reject federalism. It has two thousand inhabited islands with various ethnic groups and it is feared that federalism will result in fragmentation; this fear is unfounded because federalism without democracy is illogical, and Indonesia has just entered into democratic transition after 30 years of authoritarian rule. Federal constitutions by and large provide advanced systems of democratic government that allow citizens to be part of the democratic process and decision-making in all levels of government. 

Some argue that federalism will lead to warlordism by ethnic leaders, fiefdom, no respect for the central government and a continuation of cold war over who gets what. As if federalism would serve as a recipe for deeper divisions amongst diverse ethnic groups and as if it would lead to subsequent disintegration. These arguments against federalism cannot be summarily rejected. A constitution, however cleverly designed, cannot ipsto facto be the panacea of all the evils. The federal constitution has to be vigorously embedded in constitutionalism. Federalism divorced from constitutionalism is like a body without a head. 

A deeply divided society is likely to be held together peacefully through a 'consociational' power-sharing system of government. It is a form of government based on the cooperation among political elites of the segments of a divided society, an institutional framework. Its immediate aim is to turn a society with a fragmented political culture into a stable democracy. It has shown remarkable success in The Netherlands, Switzerland, Austria, Colombia, Malaysia, and Belgium. Consociationalism has four basic and indispensable characteristics: a power-sharing coalition, proportionality, mutual veto, and segmental autonomy. In order for consociationalism to be implemented successfully, four factors are important: (a) The political leaders from the rival segments should have the ability to accommodate the divergent interests and demands of their own community and they must have an effective control over it; (b) They should be able to transcend cleavages and to work jointly, to cooperate to a large extent with the elites of the rival segments; (c) They should be committed to the continuance of the system and to its stability; (d) Finally, the elites should understand the perils of political fragmentation. As can be seen, consociationalism needs cooperation of the elites, because its establishment and success depends almost completely on the willingness of the political elites to cooperate. And it requires wise segmental leaders, "more tolerant than their followers", capable of understanding the importance and the benefits of inter-elite cooperation, as well as capable of creating solutions to the political problems of their countries. If the elites are not willing to make the system work, consociationalism breaks down, leading usually to violent interethnic conflicts. 

Having stated the imperative condition, which must be present to develop a power restricting system, it is now necessary to go into a question as to which would be the model. There need not be any bias to focus exclusively on the model offered by the United States. A multi-national polity is inappropriate for Burma. The United States' federation was the result of a bargain whereby previously sovereign polities agreed to give up part of their sovereignty in order to pull their resources to achieve the goals. The federal bargain accorded the same constitutional competences to each state that is equality of this state. Most of the democratic countries that have adopted federal systems have chosen not to follow the United States' model. This model is known as "coming together". At the root is the question as to how a democratic federal system is actually founded. There is a system called "holding together" and not "coming together" federalism. India, Belgium, and Spain had political systems of unitary features. But now they have initiated processes to devolve power constitutionally and transform into federations. The 1950 Indian, 1978 Spanish, and 1993 Belgian constitutions are all federal. 

It is safe to say that one of the goals of federalism is to protect individual rights against the central government all against majority. In the United States, each of the states accorded the same constitutional competences. That is symmetrical. Many democratic federations emerge from different historical and political circumstances— holding together India in 1948, Belgium in 1969, and Spain in 1965, had unitary features. But later to hold together these countries change to devolve power constitutionally and turned those threatened politics into federation. In India, holding-together federalism was created differently from the American coming-together style. What is the characteristic of the two? Holding it together means to maintain the unity. In India, the state has much less sovereignty than the American States, and was created not as the result of an agreement among the state, but by an act of constitutional assembly. The bargaining condition between the states did not exist. In fact, only three states existed and the rest were created later on the principle of holding together. The formation of the federal system fixed into a sort of continuum. There are differences in unitary democracies and federal democracies, as in the latter many policy areas are constitutionally assigned to the exclusive competence of the state. At the center there are two legislative chambers. One has both principles, the second represents the territorial principle. The judiciary is more powerful. It is the demos-constraining and protects individual rights against the center. The principle of equality is apparently violated, as the 'one citizen - one vote' principle is not observed. Empowering the upper house and its veto power result in the situation were legislators, representing less than ten percent of the electorate, are able to thwart the wishes of the mass majority. However concrete the situation, by and large if a polity has great diversity and is multi-ethnic, its chances of being a democracy are much better if it adopts a federal system.

Although it amounts to constraining it cannot be helped if the country so needs, for example, Brazil. However, the German federal system is demos-enabling. India is more so than Germany's. The party system is also an important factor. Over-representation in the territorial chamber and greater representation of the less popular states is a common feature. In the United States and Brazil, each state gets the same number of senators. In Brazil, one vote in mistake equals 144 senator seats in another. The first would have had 144 seats but it actually has 70. The first should have the seat but it actually has 8. The Brazilian constitution specifies that no state can have more than 70 seats in the lower house. 

Many democratic federations have different formulas for the constituency of their upper house, not necessarily the principle of equal representation. In Germany, the most populous states get six votes in the upper house. The lesser four get three. In India, six states were carved out in recent times, containing barely one percent of India's population. If India had followed the United States' model, the new states would have to be given 25 percent allotted to the Upper House. The other states would never allow it, under the United States' principle of representation of each state equally it would have been impossible. India therefore did not follow the United States' model. Where two Houses have exclusive competence, the issue becomes to identify the areas. In Brazil, 13 percent of the total electorate can block ordinary legislature. In Germany, the Upper House seldom vetoes. The limitation of the Upper House is that it has no hand for government formation and government termination. It can delay but not veto. Although joint committees of both the houses in reconciliation meetings resolve their problems, they cannot move non-confidence votes. It is largely a revision chamber. The power distribution between Center and States is an aspect that makes a difference between democratic fed erations. The 1988 Brazilian constitution is an extreme case of constitutionality. A normal majority cannot decide these issues. In India, although there were fifteen languages, the states did not correspond to linguistic boundaries. It made provisions to carve new states, i. e. a "holding together" federation. This is impossible in the United States: this prevented secession of some of the States. Unlike the United States, multi-national democracies are constitutionally asymmetrical. They are mono-national. Austria, Germany, India, Belgium, Canada, Spain, and Australia are multi-national and their federations are all asymmetrical. 

There can be no dispute that Burma falls in the second category. However, there is a difference in the concept of collective rights. The symmetrical democracies depend more on individual rights. But rule of law in the entire polity has to be guaranteed and enforced by the center and cannot be delegated to the states. However, no group-specific rights can violate individual or universal rights. Unless they have given certain groups specific rights, they can never become full democratic citizens with a sense of loyalty. Social loyalties or feelings are influenced by structures of underlying societal operation of political systems. The United States' constitution is of historical interest but has its limits as a model for other democracies. Two centuries have passed, and no sovereign democratic nation states have "come together". Unitary states have constructed a "holding together". If, for example, the United Kingdom became a federation, it would also be "holding together" in origin. The United Kingdom's federation cannot follow the model of the United States. 

A federation could emerge from the repressive regime in Burma in the form suitable to its conditions. The United States' model of "coming together" with symmetrical federalism may not be pursued. In this context the issue of drafting State constitutions may be examined. Has the process of drafting by the rest of the states to be suspended until the emergence of a federal constitution? The issue has to be properly addressed. States which have drawn up their constitutions cannot argue that by virtue of these acts, they have become independent states and that a federation would have to be created by treaties with theses states on the principle of "coming together". However, this is a fallacy. Drawing out a constitution by groups of states does not vest the state with legitimacy of a state. If all of the ethnic states in minority, say, the seven states, have drawn out they respective constitutions and dictate to the majority ethnic to accept them and form a Union, they will be devoid of legitimacy however large popular support they may have. The right and legal process is to actively participate in the constitution-drawing process of the federal constitution and bargain for the powers incorporated in the states. The drawn state constitutions are a part of the learning process that is imperative for growth. All players have to be in the mainstream of the drafting of the federal constitution and garner cumulative strength which alone can accelerate the transition and end the unconstitutional rule over decades. 

I have argued that in the given conditions of Burma and its historical background, federalism is the one and only option— not the best— to reconstruct its polity and move toward sustainable development. My argument will be flawed if it gives an impression that having put federalism into place, the rest of the factors will take care of themselves. That is not so. Federalism will have to be reinforced with many other tools, which are constituents of development. It has to be invigorated with constitutionalism, injected with a system of functioning political parties dedicated to democracy, human rights and rule of law. Federalism does not spring from political vacuum. The absence of a meaningful role for political parties will render federalism ineffective. Political parties must accommodate political opposition and respect time-honored methods of conflict resolution. 

Federalism must have an open society and promote civil society. This is of central importance. It is a no-win situation for all parties. However new activities will unleash new forces which will sweep away the legacies of the past and usher in a new order. The sine quo non is however federalism. Those who find history attractive, let them have centralism, monarchy, autocracy, and the rest of things associated with the dark ages of history. But for the new generation, federalism will be the banner of democratic transition. There are no perfect options but several wrong options, such as oppression and domination, ethnic cleansing, and separation and assimilation. They are not solutions but form the very core of the problem. Legacy of history, or past accords, need not cloud the issues. One way may be to start on a clean slate with an open mind and bargain on constitutional designs of power-sharing. The integrity of the country is non-negotiable. 

Germany and Japan both have a history of serious human rights violations. Nevertheless, they have turned to democratic transition overcoming the past and consolidating the transition. Harvard scholars drafted the Japanese constitution, which was imposed by the victorious powers, in six days and it has been working well for over fifty years. Burma needs to end the unconstitutional rule and put into place a constitution to begin with, though it may not be perfect. Time will heal the cleavages, provided there is the political will and genuine federalism. It needs enlightened leadership and a dedicated political party. A successful federal bargain depends upon a solid institutional framework as well as on the capacity to generate consensus between difficult contradictory interests and demands. If this process can be started, the states in course of time will voluntarily relinquish more powers to the federal center because a reasonably stable center can do more for the whole country in terms of development activities for all people concerned. Time will take the people in the learning process of understanding the virtues of good governance, transparency, accountability and decision-making at all levels. 

When rule of law is entrenched in a federation, it erodes all authoritarian disease which now fragments the ethnic people. Respect for rule of law generates new perspectives, new attitudes. New generations of ethnic peoples, reoriented in new ideas of federal democracy, will enter into reconciliation and ensure an arrangement that works. The last two, three generations have been steeped in chauvinism the suppression of the military rulers who belong to the ethnic majority. This has deepened mutual mistrust. Ethnic nationalism is the most egocentric of all nationalisms. Federalism is a democratic middle path, a way of negotiation and compromise. The new generations, open to ideas of democracy and information technology if drawn into this vortex, will be liberated of all mistrust and a working arrangement to mutual benefit of all will become viable. The mentality of ethnic leaders will not continue as of to day. Changes will sweep away old dust euphemistically seen as holistic rights. The blinkers will be removed from their minds and they will be drawn into the mainstream of nation-building and good governance. By and large there is consensus in federalism, only a twist is required to make it viable. 

One last word about federalism is that however good a constitution may be, it will not deliver anything unless there is a strong political party based on its constitution and elective systems, and decentralized leadership which enables decision-making at all levels. It should not leave any space where corruption can creep in. The greatest tragedy of Burmese history is not the forty years of military rule, but the disappearance of all political parties which had played major roles in its changes at different stages of its history. As the search for federalism is intensified, so is also the process of perfecting their political parties. Only they can promote a political system that has to be carried on. For the Burmese people, the choice is either to become more Balkanese or to become more European. 

Endnote * B. K. Sen is an Executive Committee Member of the Burma Lawyers' Council.