PRIO POLICY BRIEF 11 2012

VisitingAddress: Hausmanns gate 7 Box PO 9229Grønland, NO PeaceResearch Institute Oslo(PRIO) Can ’s 2008

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0134 Oslo,Norway

Satisfy Ethnic Aspirations?

VisitingAddress: Hausmanns gate 7 Box PO 9229Grønland, NO Centrefor theStudy of Civil War(CSCW) The ongoing political changes in Myanmar/Burma may provide on- ly partial solutions to the country’s problematic nation-building. For more than sixty years, ethnic conflicts and civil wars have pre-

vented the construction of a functioning state. While a new round - 0134 Oslo,Norway of ceasefire negotiations, beginning in 2011, between the govern- ment and various ethnically defined armed groups may constitute

the first steps towards a comprehensive peace, they are only first

steps. Ethnic leaders want a genuine political dialogue on the basis

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www.prio.no of equality. Much of that dialogue will need to be about constitu-

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978 tional amendments. Myanmar’s 2008 constitution does not satisfy

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7288 the aspirations of the country’s main ethnic groups, and it includes

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465 fundamental barriers to needed political change.

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(online) This policy brief examines the background for the 2008 constitu-

tion and its main problems from an ethno-political point of view; discusses some of the amendments needed in order to accommo- date ethnic aspirations; and discusses how such amendments might be agreed upon. Marte Nilsen Peace Research Institute Oslo (PRIO) Stein Tønnesson Peace Research Institute Oslo (PRIO)

The invited to take part in the convention, the to a civilian government, while having ob- number of ethnically designated delegates tained guarantees for the army’s ultimate Myanmar’s 2008 constitution formed a mile- increased significantly from 215 to 633, out of power. As of 2008, no one imagined that the stone on the ‘roadmap to discipline- a total of 1,086 delegates. Their influence, constitution and the following 2010 elections flourishing democracy’ presented by the coun- however, was limited. Some 104 basic princi- – boycotted by the NLD and many ethnic try’s State Peace and Development Council ples had already been settled, and although groupings – would pave the way for real (SPDC) in 2003. It must be viewed against the these included important provisions for Self- change. That this might be the case only background of the 1988 uprising (when the Administrated Areas for particular ethnic became clear when the new president, Gen- previous constitution was abolished), which nationalities, other provisions – notably those eral , launched his reform policy in revealed not just the economic bankruptcy of ensuring the dominant role of the military 2011. the era, but also the state’s lack of and a steadfast refusal of federalism – were legitimacy and the army’s inability to live up deeply problematic for the ethnic-minority What Needs To Be Changed? to its ideal of protecting the unity of the coun- delegates. Revising the constitution was initially not a try. The illegitimacy of the regime was further Opportunities for delegates to influence the part of the government’s reform plan, but it confirmed when SPDC’s predecessor, the will clearly be necessary if there is to be any State Law and Order Restoration Council drafting process were restricted. One of the main ceasefire groups, the Kachin Independ- possibility of satisfying the aspirations of the (SLORC), decided to ignore the results of the NLD and creating peace among the country’s 1990 elections, in which the National League ence Organization (KIO), submitted a 19- point proposal for how the Union of Myan- ethnic groups. In relation to Myanmar’s eth- for Democracy (NLD) won a resounding victo- nic conflicts, there are two key problems: the ry. With the roadmap, General ’s mar could be rebuilt along the lines of the Panglong Agreement of 1947. Its core de- prerogatives of the (the armed regime aimed to reinvent and maintain the forces) and devolution of power. political role of the military by making it con- mands were democratic rights for all citizens, stitutional, before instituting a civilian gov- political equality for all nationalities, and the Military Prerogatives ernment. right to internal self-determination for all A main ambition of the SPDC was to institu- members of the Union. None of the KIO’s 19 tionalize a political role for the military. The The 2003 seven-step roadmap aimed to recon- proposals were taken into consideration – rights of the military take up a considerable vene the National Convention, adjourned something that disillusioned many Kachins, part of the constitution (Ch.I.20 in particular). since 1996 (Step 1), in order to gradually as well as members of other ethnic nationali- It is affirmed that the Union shall enable the introduce a ‘genuine and disciplined’ demo- ties. Today, against the backdrop of their defence services to participate in the national cratic system (Step 2) through the drafting of negative experiences, the KIO have become political leadership (Ch.I.6.f). In support of a new constitution (Step 3), which would be the most recalcitrant of all the armed groups this principle, military representatives, ap- endorsed in a national referendum (Step 4). within Myanmar. pointed by the commander-in-chief, are to This would in turn lead up to free and fair constitute 25% of the members of both cham- elections for the national legislative bodies Another problem with the drafting of the constitution was the absence of non-ceasefire bers of the national parliament (Pyidaungsu (‘hluttaws’) (Step 5), where elected representa- Hluttaw) (Ch. IV.109, 141) and one-third of tives would convene in accordance with the groups in the proceedings. Crucial actors like the Karen National Union (KNU), which had the membership of the state and regional new constitution (Step 6), so that a ‘modern, parliaments (Ch.IV.161.d). developed and democratic’ nation might be been in continuous armed conflict with the built (Step 7). government since 1949, were never consulted, Considerable power is vested in the National although some Karen representation was Defence and Security Council, of which at The Adoption of the 2008 Constitution ensured through other non-fighting repre- least six of the eleven members are to be sentatives of the Karen community. The roadmap was the second attempt to de- serving military personnel (Ch.V.201, velop a new constitution. The first was the A constitutional referendum was held on 10 232.b.ii). The military is also ensured at least National Convention (1993–96), where only May 2008 (24 May in some townships) just as one representative within the presidency 15% of the delegates were chosen among the cyclone Nargis had devastated the country. (Ch.III.60), and the commander-in-chief shall those elected in 1990. Ethnic-minority repre- Many criticized the authorities for carrying nominate candidates for the positions of sentation was limited, and members were by out a national referendum at a time when they ministers of defence, home affairs and border and large handpicked by the regime. In 1995, should have been concentrating on humani- affairs (Ch.V.232.b.ii). Furthermore, if there is those few members who represented the NLD tarian efforts. Allegations of ballot fraud were a risk that the Union or national solidarity were expelled after boycotting the meetings. also numerous, and few people discovered the may disintegrate, or that national sovereignty By 1996, the whole constitution-making pro- new constitution’s potential for underpinning may be lost, the armed forces have a constitu- cess was adjourned. genuine change. For its part, the SPDC tional right to rule by decree. In such a state of claimed that the process had been free and emergency, all power sharing is to be sus- In 2004, the National Convention was recon- fair, and reported an overwhelming voter pended and legislative, and judicial vened, with new members chosen by the turnout and approval of the constitution. The powers shall all be concentrated in the hands SPDC. Since ethnic armed groups, that the SPDC was content to finally see prospects for of the commander-in-chief (Ch.XI.417–420). regime had negotiated ceasefires with, were transferring the administration of the country The constitution even grants the military a PRIO POLICY BRIEF 11 2012 www.prio.org

constitutional right to take over the govern- minorities with an opportunity to practise a some extent accommodate proposals put ment on its own initiative if it should regard degree of internal self-governance forward in the past by the United Nationalities the unity, solidarity or sovereignty of the (Ch.IV.161–195). The problem is that, apart League for Democracy (UNLD), a coalition of country as being under threat (Ch.I.40.c). from stipulating how the assemblies shall be ethnic groups. The constitution establishes The paramount constitutional dominance of formed, who can run for seats, and how local regional and state parliaments and lays down the Tatmadaw is not only a democratic prob- legislation and submission of bills shall take the principle of a bicameral parliament, with lem, but also a major obstacle to the political place, the constitution says little about their equal representation from each region and integration of ethnic nationalities. To ensure contents. The constitution does not provide state in the . Together with political participation and respect for the them with real power, and the chief minister the demand for separate for constitution, changes will need to be made. in each state or region is appointed by and member states, these are elements that re- Amendments to the constitution, however, responsible to the president of Myanmar, not peatedly have been put forward by ethnic require more than a three-fourths majority in to the regional or state hluttaws. Furthermore, groups. the (Ch.XII.436), so the the new bodies have extremely limited budg- All reformist forces are wary of a military 25% of representatives that are military ap- ets (Ch.XV, Schedule 5). If they are to play a backlash if the Tatmadaw sees its interests as pointees have the power to block any constitu- constructive role in the country’s national threatened. They understand that constitu- tional change. reconciliation process, these assemblies will tional change is a delicate matter. In the pre- need to be filled with attributions and respon- sent situation, we see three possible ways Devolution of Power sibilities and must be provided with revenue A recurrent political dispute within the mod- through which constitutional change could either through allocations from the Union transpire. ern is the union-versus- level or through being granted the right to federation controversy. While all ethnic- retain a certain percentage of local revenues. The Constitutional Way minority groups argue for a federal solution The first alternative would involve formal and insist on the right to internal self- The question of political self-determination is proposals in the National Assembly and at- determination in accordance with ‘the spirit of the most important for the country’s various tempts to secure a three-fourths majority in Panglong’, the 2008 constitution holds the ethnic groups. This is of strategic interest for both houses of the Pyidaungsu Hluttaw. In Union as sacred and rejects any solution that any assessment of the possibility of constitu- regard to substantial parts of the constitution, might compromise the first three basic prin- tional change. For where , a national referendum would also be required, ciples enounced in Chapter 1: non- the NLD and the predominantly Burman in which 50% of all those eligible to vote must disintegration of the Union, non- democracy movement will primarily seek to endorse the changes (Ch. XII.436). These disintegration of national sovereignty, and reduce the military’s prerogatives at the Un- obstacles to change are further strengthened perpetuation of sovereignty (Ch.I.6.a–c). This ion level, many members of the major ethnic by the fact that the Tatmadaw controls 25% of does not preclude some decentralization of groups are primarily concerned with the rela- the MPs. It is therefore safe to assume that the power, but it does rule out any recognition tionship between their own states and the neither the NLD nor the ethnic parties will of sovereign powers at a different level. Union, as well as the protection of minority choose to rely solely on the constitutional way. rights. Since a three-fourths majority is re- Moreover, not all ethnic groups are duly rep- The equal rights of all citizens (Ch.I.21.a) quired, it will scarcely be possible to achieve follows naturally from the general principle of resented, since many parties were either any constitutional change unless the various excluded from or opted not to participate in Union sovereignty, but the constitution also ethnic groups and parties are able either to includes some general remarks on the right of the 2010 elections. The Kachins, for example, coordinate their political demands with the are hardly represented at all. ethnic minorities to political representation in NLD or to obtain support from the reform relevant (Ch.I.15, Ch.IV.161.b–c). faction in the government and its ruling Un- Tripartite Negotiations Moreover, it states that the union shall assist ion Solidarity and Development Party The second alternative is tripartite negotia- in developing minority languages, literature (USDP). So far, there is little to indicate that tions between the government, the NLD and a and culture (Ch.I.22.a), and promote socioec- the NLD and the main ethnic parties will be coalition of ethnically designated organiza- onomic development for less-developed ethnic able to develop a common platform before the tions. President Thein Sein has indicated a minorities (Ch.I.22.c). While these provisions elections in 2015. willingness to negotiate, but there are many recognize ethnic-minority needs, they are only obstacles to overcome. Can his government about what the Union shall do to ‘assist’, not How To Amend the Constitution negotiate on behalf of the Tatmadaw and about socioeconomic or cultural rights. While army conservatives may see the 2008 expect it to accept a reduction of its constitu- The most important and promising part of the constitution as a definitive document, Myan- tional prerogatives? Can the NLD unite be- constitution in terms of accommodating mar’s ethnic and democratic hind a constitutional reform package? Can the ethnic-minority aspirations is the establish- movements do not regard it as legitimate. main ethnic parties and organizations unite ment of elected regional and state assemblies. However, interviews with key ethnic-minority and navigate in negotiations both with the By creating seven regional and seven state actors reveal that many of them are willing to government and the NLD? hluttaws, Myanmar has established constitu- accept it as a transitional document that can If a negotiated solution were to be reached, tionally embedded bodies that might provide be amended. After all, the constitution does to the challenge is to get the result adopted in

the constitutional way. A political deal would seats; see Ch.IV.109). At present, the NLD is tion lists and the taxes collected by the regions need to be endorsed by the Pyidaungsu Hlut- far from consolidated on a clear political plat- and states (The Pyidaungsu Hluttaw has taw, as well as in a referendum. A high degree form. Many of its members have been in already considered a proposal from the of national consensus would thus be required prison, house arrest or exile for over two dec- Rakhine Nationalities Development Party in order to make a negotiated solution consti- ades. The NLD may need the time until 2015 (RNDP) to allocate some revenues from natu- tutional. One option might be for the gov- to work out a durable political strategy. For ral resources to the local state or region – a ernment to conduct tripartite negotiations their part, the ethnic organizations are also proposal that has gained support from the while simultaneously consulting with the not yet unified behind a common agenda. President’s office). National Assembly. Such a delicate process And moreover, disagreements exist between This could give local politicians time to build would require skilled mediation, strong lead- political parties that participated in the 1990 political and administrative capacity, generate ership and highly disciplined parliamentari- and 2010 elections. The main driver of reform and regulate economic and social develop- ans. And it is by no means certain that the in today’s Myanmar is neither the NLD nor ment in their home regions, and ensure pro- situation will become easier after the 2015 the ethnic organizations but the government tection and furtherance of minority rights. elections. If these are free and fair, increased of President Thein Sein, who has opted to Facts could be created on the ground as a political diversity could generate an even less leave the present constitution in place while basis for a more strongly recognized principle predictable parliament. In other words, there concentrating on economic reform. This may of self-governance. It might also be possible to may be a window of opportunity now that will have been wise, since any attempt to change seek agreement on a time period during remain slightly open only until 2015. Assum- the constitution at this stage could provoke which the principle of internal self- ing that both the government and the army the Tatmadaw. The fear of a military backlash determination would be implemented – for have ownership of the reform process and are has not gone away. example, ten years. Government representa- willing to commit to a negotiated result, it The third and most likely approach to consti- tives have already indicated a willingness to seems plausible that loyal USDP MPs and tutional change is therefore a strategy of post- consider constitutional changes that may MPs appointed by the army would endorse a ponement, lasting well beyond the 2015 elec- secure revenue for states and regions. This negotiated solution. Then again, this would tions. The NLD and the ethnic organizations could partially satisfy the aspirations of the depend on the opposition being coordinated will make some demands known; there may ethnic minorities and provide them with a and unified. As of today, there are few indica- be some dialogue; but there will be no genu- platform for a long-term legal and political tions that any of these preconditions can be ine negotiations or parliamentary process struggle, thus reducing the risk of further civil met in time. leading to real constitutional change. The war. The Long Road to Democracy most realistic option for those who aim for It seems most likely that few, if any, constitu- constitutional change may be to take the long Further Reading tional amendments will be agreed upon be- view, initiate a long-term dialogue on how to Constitution of the Republic of the Union of fore 2015. Given Aung San Suu Kyi’s promi- reconcile the principle of the Union with Myanmar (2008), Available at: nence as the country’s leading politician and ethnic-minority rights and how to reconcile http://www.wipo.int/wipolex/en/text.jsp?file_ the results of the April 2012 by-elections, the the army with the principle of democratic id=181169 (3 Oct. 2012) next National Assembly could well be domi- rule. Slow step-by-step amendments could Ghai, Y. (2008) The 2008 Myanmar Constitu- nated by the NLD and a number of ethnic then be imaginable. tion: Analysis and Assessment, Available at: parties, leaving the Tatmadaw representatives One of the least difficult tasks might be to fill http://www.burmalibrary.org/docs6/2008_My as guardians of the constitution. The struggle the state and regional assemblies with financ- anmar_constitution-- for constitutional change could then become a es and powers by adding some content to analysis_and_assessment-Yash_Ghai.pdf tug-of-war between a NLD-dominated gov- Ch.IV.161–198, which regulate the form and (3 Oct. 2012) ernment and the army (note that it is constitu- procedures of the regional and state assem- Taylor, R. H. (2009) The State in Myanmar, tionally possible to reduce either the military blies, and expanding Ch.XV, Schedules 2 and Singapore: NUS Press  or the civilian representation in the Pyithu 5, which specify the regional and state legisla- Hluttaw by reducing the total number of

THE AUTHOR THE PROJECT PRIO

Marte Nilsen is a historian of religions and a This policy brief was produced as part of a The Peace Research Institute Oslo (PRIO) is a Senior Researcher at PRIO. project on ‘Myanmar’s Political Opening: Its non-profit peace research institute (estab- E-mail: [email protected]. Impact on Ethnic Conflicts’, funded by the lished in 1959) whose overarching purpose is Norwegian Ministry of Foreign Affairs. to conduct research on the conditions for Stein Tønnesson is a historian, a Research peaceful relations between states, groups and Professor at PRIO and leader of the East people. The institute is independent, interna- Asian Peace Program at Uppsala University. tional and interdisciplinary, and explores is- E-mail: [email protected] sues related to all facets of peace and conflict.

PRIO POLICY BRIEF 11 2012 www.prio.org