“Panglong Spirit” under the 2008 Constitution (Part II)

Editor’s Note: Today’s post is a follow-up to a previous post, “‘Panglong Spirit’ under the 2008 Constitution,” which was written by Mael Raynaud as part of our forum on the 21st Century Panglong. Raynaud is an independent political analyst who has been researching Myanmar politics and society since 2002.

 

In the first part of this article, I explained where I thought the notions associated with the so-called “Panglong Spirit” came from, where different political organizations stood, historically, in relation to it, and why I thought the only realistic way forward, for the next few years at least, was what I dubbed “federalism under the 2008 Constitution.”

Before I explain what “federalism under the 2008 Constitution” could mean in further detail, I first need to acknowledge the fact that, to many political activists on the “ethnic” side and certainly for several ethnic armed organisations involved in the peace process as well as in the political process, the idea that federalism is an objective that can be reached without writing a new constitution is an anathema. Many do not accept the 2008 Constitution, and it will be quite a challenge to get them to change their minds.

But what the NLD did in 2012, in accepting to play the game offered by the Tatmadaw after refusing to do so in 2010, ethnic nationalities organisations could do as well. The NLD won the elections and formed a government, so this strategy has already proved it can be successful. As a matter of fact, many ethnic parties did participate in the 2015 elections (and some did in 2010 as well) and it could prove to be only a matter of time (and a significant amount of convincing, on both the NLD’s and the Tatmadaw’s part) before ethnic armed organisations agree to negotiate regarding their participation in the current political process.

This, as I argued in the first part of this article, does not mean that the notion that a better constitution should be written, at some point in the future, must be abandoned. Rather, it means realizing that Myanmar and its ethnic nationalities cannot wait for that to start working towards a federal system. It is then—when peace, a stronger form of democracy, and some sort of federalism have been achieved—that writing a new constitution will become possible.

What this means is that a two-stage approach needs to be developed. The first stage would be to reach an agreement on how federalism can be realized under the 2008 constitution, which is the topic of this article. The second stage would be the writing of an entirely new federal constitution, at some point in the future.

How long in the future? This question obviously cannot be answered now. But it is safe to assume that new elections will take place in 2020, and that a new government will be formed in 2021, with the 2008 Constitution still standing. It is not impossible that it would take much longer before a new constitution is drafted. If that’s the case, then surely it is vital to start by working towards “federalism under the 2008 Constitution.”

A two-stage approach means being clear about the objectives of the second and final stage (a new constitution) so that the first stage (federalism under the 2008 constitution) can successfully help with getting there.

There has been talk, in the last few days and weeks of what a new federal constitution could look like. One important issue discussed is whether all States (or whatever the new entities would be called) should be equipped with their own individual constitutions (as is the case with the 50 American States) as well as calls for new State boundaries to be drawn. There is also an argument made that there should be only 8 States in Myanmar, made of the seven existing States and one big “Burman” State made of—essentially—the seven existing Regions. All these points, one must notice, have already been discussed among ethnic armed groups and political organisations associated with them at least two decades ago.

 

What can be said of these ideas?

 

First of all, the 8 States concept is deeply flawed, completely impractical, and contrary to the stated objectives. According to the 2014 census, the population of the seven ethnic States amounted to just over 15 million, while the population of what would form the Burman State (i.e., the 7 Regions) amounted to over 36 million. A federation made of 8 States where more than 70% of the population lives in one State alone is highly unlikely to end up serving the interests of the minorities living in the smaller States than the current system. By comparison, the most populated American State, California, only accounts for 12% of the country’s population. Also, the Burman State’s population would be 127 times that of Kayah State. It is true that California, to continue this comparison with the US, has a population 65 times that of Wyoming. But the current situation, where the Yangon Region only accounts for 25 times the population of Kayah State and 14% of the population of Myanmar, still seems a lot more reasonable. And a lot more likely to give the existing 7 States an equal footing in deciding of the federal laws that would in any case strongly weigh on what States could and could not do, as is the case in any federal system.

In addition to this, it should be noted that, according to article 141 of the 2008 Constitution, each State and Region is provided with the same number of representatives (12) in the House of Nationalities, the Amyotha Hluttaw. This should answer the concern many on the ethnic side have that the Regions would be over-represented against the States, because, as we’ve seen, they’re more populated. An 8 States solution that would provide 7 times as many representatives to ethnic States than it does to the Burman State could in no way be seen as being fair, on the other hand, and would de facto create a two-speed system that could only end-up reinforcing the marginalisation of the ethnic states. The current system, with its 14 local entities (States and Regions), plus the Union Territory of Naypyidaw, seems better suited to allow space for most of the demands associated with federalism.

While equipping all States and Regions with their own constitutions is not a provision of the 2008 Constitution, Articles 433 to 436 do provide details on how it could be amended. Whether the Tatmadaw, the government, and ethnic nationalities can agree on that point or not, only future negotiations will tell, depending on the ability of each side to compromise in one area in order to get their way in another.

Beyond this specific issue, though, it is important to notice that it is indeed possible to amend the 2008 Constitution, and this, I believe, could be done to a point where Myanmar would have a de facto federal system.

Article 53 states that it is possible to re-delineate the boundaries of States and Regions. As history has showed in various places around the world (and which has led to a wide consensus on the matter), trying to redesign controversial boundaries often leads to a lot more trouble than that being faced because of existing boundaries. Opening this Pandora’s box, in Myanmar, would take the form of a call for a Wa State separate from Shan State, fighting between the Mon and the Karen over what should constitute each of their two States, potentially a call from the Karen to gain parts of present day Bago Region, calls from the Kachin to gain parts of Sagaing Region and maybe even parts of northern Shan State, and so on. Again, I will argue that the existing 14 States and Regions, with their equal status and reasonable proportions, are one issue that should be better left aside so negotiations can concentrate on more pressing topics.

“Federalism under the 2008 Constitution” can be said to be made up of two main elements: a political/constitutional element, and a cultural element. No constitution will in itself solve the issues of discrimination and second-class citizenship that so many among the ethnic nationalities so rightly complain about. Changes in education, not least in the teaching of history, and improvements in the way Burmans and other ethnic nationalities look at each other and respect each other will have to occur over a very long period of time, in addition to federalism, to reach a point where all citizens of Myanmar feel they and their communities truly enjoy equal status.

What this all comes down to is the fact that associating ethnicity with political representation is not necessarily the best way to promote equality. The call for States to be “ethnic States” beyond their name, meaning that one ethnic group would, as such, control one State it feels belongs to it, could create more problems than it solves. This is why I would now like to suggest an alternative model, based on the four different layers of political administration which I think are necessary to such a federal system

 

  1. The State and Regional Parliaments

The first and most obvious way to get Myanmar closer to federalism while keeping the 2008 Constitution is to reinforce the powers and the budgets of the 14 local parliaments. Articles 161 to 198 of the 2008 Constitution provide details of how these parliaments work.

Article 188 confirms that local parliaments have the right to enact laws, in a wide range of fields described, towards the end of the Constitution, in Schedule 22, as including finance, planning, the economy, agriculture, land, energy, electricity, mining, forestry, industry, transport, communications, construction, development, housing, and the social sector. This means pretty much every sector, with the exception of education. Including education in the decentralization efforts could be one objective of the negotiations taking place under the banner of the “21st century Panglong.”

While it is normal, in a federal system, that the local parliaments would be based in their respective States capitals, it would be important for Region and State parliaments MPs to be able to gather and discuss federal issues. Maybe at some point the local parliaments could meet in their States’ or Regions’ respective capitals when they discuss their own State’s or Region’s affairs, and use the parliaments in Naypyidaw for special gatherings associated with relations between the States and Regions and the Myanmar government and the Pyidaungsu Hluttaw.

Article 170 describes how the commander in chief nominates military representatives in the local parliaments, as he does in the two chambers of the Pyidaungsu Hluttaw. Maybe the Tatmadaw and ethnic armed organisations could agree that some of these seats will be reserved for non-Tatmadaw armed groups, as part of any future agreements in the peace process. That the Kachin Independence Army would sit in the Kachin State Parliament as part of a peace agreement would certainly seem like a good way to make a positive use of one of the most controversial provisions in the 2008 Constitution.

 

  1. Institutions of ethnic nationalities

If identity is to be kept separate from political representation (although there already is a level of representation of specific ethnic nationalities in the various parliaments enshrined in the 2008 Constitution), then certainly there must be institutions dedicated to managing and making decisions on issues associated with ethnic cultures, identities, and languages. Virtually all ethnic nationalities already harbour a number of cultural associations promoting local culture, identity and language. There could be institutions such as a Mon Center, a Shan Institute or a Chin Bureau. If such institutions were public institutions, meaning that they would be independent but funded by the Government (maybe through the Amyotha Hluttaw, the House of Nationalities), they could be the guardians of their respective culture, identity and language, working with the relevant ministries and all relevant political institutions on matters related, for instance, to education (both regarding the teaching of local language and local history).

There would be several advantages to that formula. One is that the Karen in Mon State, or in the Bago, Yangon and Irrawaddy Regions, the Shan in Kachin State or in Magway Region, or the the Ta’ang (Palaung) in Shan State, could all belong to, participate in, and be represented in an institution associated with the community they feel they’re a part of, regardless of where they live. At a time when Mother-Tongue Based, Multi-Lingual Education (MTB-MLE) is the topic of so many conversations in Myanmar, who is going to be responsible for producing the textbooks in the Shan language that pupils in Magway Region may need to use? That’s only one of many examples that show that language, identity and culture cannot, and must not, be strictly bound to a geographic political entity.

Also, as the third decade of the 21st century is already approaching, culture, identity and language cannot be bound to a single country any longer either. A Shan Institute, while based, for instance, in Taunggyyi, could very well build bridges with universities in Kunming, Yunnan, Luang Prabang, or Chiang Mai. A Mon Center, while based in Moulmein, could build bridges with Mon communities in Thailand and develop research on Mon-Khmer languages with Cambodian scholars, etc.

What I’m describing here is an attempt to open local cultures to the world. If a Chin Bureau could serve as a bridge between Myanmar and India, then the whole region, and certainly the Chin themselves, would greatly benefit from it.

Last but not least, the Burmans themselves would need to create an institution of their own. Federalism means that the Burman culture, identity and language is just as much one of the components of the cultures, identities and languages of Myanmar as all the others.

 

  1. The GAD and the “prefecture” model

As I wrote in the first part of this article, there are other countries where the Ministry of Interior, or Ministry of Home Affairs, maintains a level of control over Territorial Administration. Here, as in the rest of this analysis, a strong focus is kept on the fact that change in Myanmar has come, and will continue to come, only within the Tatmadaw’s comfort zone. The General Administration Department is one institution that the Tatmadaw is very keen on keeping under its control, through the Ministry of Home Affairs, one of the three ministries the elected government does not oversee. The whole process of democratization in Myanmar is a game of using the space made available by the Tatmadaw, and negotiating expanding that space with the Tatmadaw. So far, the country has indeed changed tremendously, so working within that frame is both inevitable and relatively successful.

The GAD could evolve, though. It could make space for elected bodies at the local level, as I will describe below. But it could also make space, within its own hierarchy, for some of the armed groups that the Tatmadaw is negotiating with in the peace process. It is simply a matter of looking at reality as it is: the Tatmadaw does not control a number of parts of the country. Armed groups and militias do.

While ethnic political parties participate in the democratic life of each of the States and Regions, and compete with parties like the NLD and the USDP, maybe the GAD could be turned into an administration where armed groups can maintain the control they already de facto have over some areas while entering what the Tatmadaw calls “the legal fold.”

 

  1. Local democracy

In all “contested areas,” armed groups have organised layers of local administration that, for several decades at least, are the only forms of administration hundreds of thousands of citizens of Myanmar have ever known and been confronted with. As local democracy develops in Myanmar, as it very likely will, local forms of democracy implemented by various ethnic nationalities, often based on historical ways they organised politically, could be very useful in smoothing the transition from absolute local control (as a response to war being waged on them by the Burmese State) to being fully part of the Union of Myanmar.

The 74 districts of Myanmar could be an important component of federalism, in that sense. Article 51 of the 2008 Constitution, which describes the relations between the various levels of administration (the Union, the States and Regions, the Districts, the townships and village-tracts, the wards and the villages), seems to be a good basis for a federal system.

These different layers of local administration will need to interact in order to deal with a number of issues, from healthcare to education to security. Here too, federalism will be an answer to many of these issues, in the sense that it will build on existing networks beyond simply the Myanmar State.

Dozens of organisations work in each of these fields, many of them associated with ethnic networks and often even with ethnic armed groups. Giving them the opportunity to continue to exist while providing a level of coordination is the best way the Myanmar State can promote unity and peace.

There are two risks that each side is worried about. The Burman side is concerned that ethnic nationalities will not belong to Myanmar or live within the boundaries of the Myanmar State. The ethnic side is concerned that living under the control of the Myanmar State means living under the control of the Burmans.

Federalism has long been identified as a means of answering both concerns at the same time, and rightfully so. Making Myanmar a truly federal system means compromise on both sides, and being creative about the answers being sought. The ideas described here may not be the best, but the general spirit behind them, the “Spirit of Panglong,” is the only way forward.

Author: maelsweb

Mael Raynaud is an analyst with 15 years experience researching Myanmar politics, society, conflict, and economy. He is the Political Information Program Director at the Enlightened Myanmar Research Foundation (EMReF) in Yangon: www.emref.org