April 01, 2010

The Same Old Road to Nowhere

By NAW MAY OO

from The Irrawaddy, Thursday, April 1, 2010

The 2008 Constitution and the upcoming election guarantee a
continuation of Burma’s longest civil war, and the only hope for a
peaceful Burma is to constitutionally accommodate ethnic diversity.
Beginning with independence, Burma has a history of ignoring critical
issues and interests. In 1947, Aung San and his Anti Fascist People’s
Freedom League (AFPFL) tried to aggressively secure Burma’s national
independence from the British by securing the ethnic minorities’
agreement to join a proposed Union of Burma.

As a result, the Panglong Agreement was signed designed to reward
Burma with independence. The 1947 Constitution was drafted for an
independent Burma and ratified in 1948. In theory, a federal union
(Pyidaungsu) and a democratic government was established.
The newly independent Burma, however, was understandably fragile.
First, the young country was not prepared to implement democratic
principles. Second, the promised democratic union never came to be,
and the ethnic groups who agreed to join the non-existent union
rebelled.

A decade of constitutionalism and electoralism gave way to the first
military coup d’├ętat in 1958 and then to the more permanent military
takeover in 1962.

A careful look into the handling of the ethnic discontent would
indicate that the government deliberately avoided constitutional
discussion which might have helped to reach a peaceful resolution.
Instead, the fledgling parliamentary democracy regime turned to the
army (Tatmadaw) for help in quelling perceived threats from ethnic
groups.

A second Constitution (1974) was ratified to affirm the first military
coup of 1962, through which the military government transformed itself
to civilian rule by adopting the “Burmese Way of Socialism.” The Burma
Socialist Program Party (BSPP) ruled until the demise of the party in
1988. Now, the third Constitution (2008) paves the way to affirm the
second military rule, planning to transform itself to a civilian
government through upcoming elections.

What will be the outcome of the 2008 Constitution and attempts to
transform the ruling military leadership into a civilian government?
While we cannot say for certain, we can point to distinctions between
this constitution and prior constitutional efforts. We also can
identify key issues, which may present challenges and obstacles for
the future based on Burma’s past.

There are substantive differences between the 1947 Constitution and
the 2008 Constitution. But, there are also striking similarities
between the two documents.

The 1947 and 1974 Constitutions

An inadequate basis for federalism in a multi-ethnic society is one of
the factors contributing to the failure of democracy. The government’s
consistent refusal to address the question of ethnic diversity
constitutionally is the fundamental root-cause of the ongoing civil
war in the country.

Generally speaking, ethnic discontent began with the broken promises
following the drafting of new constitution in 1947. Minorities joined
or agreed to join Pyidaungsu (the Union) based upon the premise that
all members of the Union would adhere to the federal principles and
thus enjoy full-membership in the Union. Although the word “federal”
never appeared in either of the Constitutions, both documents
mentioned repeatedly the equivalent Burmese word “Pyidaungsu.”
Some said that the 1947 Constitution established a federal framework
by establishing a bicameral national legislature and provisions that
spelled out minority rights. The territories of four ethnic groups,
the Karen, Karenni, Shan and Kachin, were recognized and each was
designated a separate state in the Constitution but with unequal
status. For example, while Shan State and Karenni State were
constitutionally granted the right to secession, while the other
states were not. Moreover, spelling out the right to secession in the
Constitution is operationally meaningless.

The 1974 Constitution continued to term Burma as Pyidaungsu or the
Union. Some analysts say it also provided a federal theory. For
example, ministerial Burma was divided into seven states and seven
divisions with little real power and autonomy. But, the same
Constitution provided for a unicameral legislature and centralized all
powers even further and entrenched the Burma Socialist Programme Party
(BSPP) as the only legal political party in the country.
The same constitution continued to recognize the Burmese language the
only official language, and prohibited the teaching, publishing and
printing of any other ethnic languages by law.

The 2008 Constitution

It is normal to expect that the constitution would address the
problems of democratization and the recognition of Burma’s ethnic and
linguistic plurality, principally by engaging these stakeholders in a
dialogue regarding reconciliation. The general understanding is that
most civil, armed or unarmed, disputes are about 1) the structure of
the state, 2) control over natural resources, and 3) the question of
groups’ right to self-determination, or some combination thereof.
These issues are most commonly matters necessarily dealt with in a
constitution and constitutional laws governing a country. It is then
natural to expect that the coming into effect of a new constitution
can mean the end of civil (often armed) conflict. And, a constitution
producing this sort of result ought to be comprised of the
negotiations and debates between the stakeholders.

However, such a dialogue and collaborative process were largely
forsaken by the current regime. The constitutional drafters failed to
actively involve the participation of the people governed, throughout
the process of deciding and drafting the Constitution. on the
contrary, the upcoming 2010 election appears only to affirm two
things: first, the hegemony of Burma’s Armed Forces and second, the
guaranteed continuation of the current civil war.

The 2008 Constitution acknowledges the multi-ethnic character of
Burma. The constitution gives token significance to the separation of
power between the branches of government, spheres of government and
the military but practically provides little to no mechanism in which
this division can occur.

Constitutional law experts observe that the sub-national governments
at states and local levels have very little effective powers and
almost no self-government as they are subordinated to the Pyidaungsu
legislature and especially to the executive. In effect, regardless of
the repetitious use of the term Pyidaungsu or the Union, Burma is by
no means a federal state under 2008 Constitution.

What should bother all citizens most, regardless of their ethnicity,
is the way in which the 2008 Constitution addresses civil rights. The
way rights are formulated and the limitations placed upon them are
even more problematic. The people of Burma will, if at all, enjoy
their most fundamental human rights at the pity of the regime.

The Upcoming Election

Will this attempt at legalizing elections and forsaking the question
of minorities succeed? Or will Burma continue to repeat the
well-established patterns of its past? The Burmese military regime is
moving forward with a plan to legitimize and solidify military rule.
The recent election law released by the Burmese regime is shocking to
many, given the regime’s persistent rejection of concerns of the
people of Burma and the global community.

As for Burmese expatriates, experience tells us that the military has
repeatedly used elections and the constitution as a platform to
shepherd in new military leadership under the guise of reform.
As for ethnic minorities, we sense the impact of an unfolding
political fiasco. We are haunted by the ghost of our country’s
history. Twenty years after staging the coup, the Burmese military
once again launched another reform effort through the 2008
Constitution. Bold public proclamations declare the government will
now transform itself to a civilian government via an election in 2010.
Once again will this be a shuffling of rank, responsibility and
fiefdoms?

Burma is at a crossroads, the country could advance, or fall back into
the well established pattern of military rule and human rights abuses.
How the United States and the United Nations respond to the upcoming
election and the Burmese regime could probably impact the course of
the election, the Burmese Constitution, and set a precedent for the
rest of the world.

The actions taken by the Burmese regime are simply a repeat and
repackaging of old tactics and without a new approach, the country
could easily fall back into its historic conflict patterns and civil
war.

Naw May Oo is a doctoral student writing her dissertation on
constitutional design and federalism for post conflict states with a
concentration on Burma at Indiana University Maurer School of Law and
a fellow at the Center for Constitutional Democracy.
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