Unitary system hinders reconciliation and ethnic self-determination rights

 By: Sai Wansai>>

The latest move of President Thein Sein shelving the construction of the $3.6 billion Myitsone dam project in Kachin state is the right decision and hopefully would expand to other problem areas, leading to reconciliation and conflict resolution.

President Thein Sein’s note was read out in parliament by lower house speaker Thura Shwe Mann, on Friday, for a halt to the construction.
According to Reuters, "The president sent a message comprising 10 points to the parliament this morning. One of them said that the construction of the dam on the Irrawaddy will be shelved during the term of his government."

"He said that his government, being born out of people's desire, has to act according to the desire of the people," said the official, who declined to be named because he was not authorised to speak to the media.

The suspension will satisfy the people of Kachin state and downstream populace and not to mention the environmentalists and opposition parties. But Thein Sein still needs to work out the details with China on how to terminate the contract with state-run Chinese companies that are funding and building the dam.

Meanwhile, the Chinese foreign ministry spokesman Hong Lei, in reply to question of shelving Myitsone Dam by Thein Sein spelled out China’s position, on Saturday, as follows:-
“The Chinese Government always supports Chinese enterprises cooperating with enterprises of other countries based on the principle of mutual respect, mutual benefit and equality, requires them to perform duties and fulfill obligations in strict accordance with laws and regulations of the host country and urges relevant government to protect the legal and legitimate rights and interests of Chinese enterprises. The Myitsone Dam is a jointly invested project between China and Myanmar that has gone through scientific verification and strict examination of both sides. Relevant matters arising from the implementation of the project should be handled appropriately through bilateral friendly consultation.”(Source: Ministry of Foreign Affairs, the People's Republic of China)Prior to this, on 27 September, Burma’s foreign minister, Wunna Maung Lwin, told the UN General Assembly (UNGA) that an amnesty for prisoners is being considered, but gave no date for a possible release. He said that the President Thein Sein would grant the amnesty “at an appropriate time in the near future”.

Again, on Friday, Aung San Suu Kyi and Minister U Aung Kyi met for the third time, since Thein Sein came to power, and spelled out three issue areas – presidential amnesty for political prisoners, preservation and protection of Irrawaddy River, and restoration of eternal peace with the armed ethnic groups - that were discussed.

Indeed, Thein Sein has moved with relative swiftness in trying to deflate the political tension, built over years by confrontation between the ethnic-democratic opposition and the successive military governments. His poverty reduction workshop, a close-door, four eyes meeting with Aung San Suu Kyi, invitation of exiles to return home, peace overtures directed at armed ethnic groups, and easing off the restrictions on the media were conducive to some improvement in political atmosphere.

Thein Sein’s moves, while quite effective in thawing the rigid and polarized political stance of the military and democratic opposition headed by Aung San Suu Kyi, in contrast, his peace initiative directed at the ethnic armed forces is producing more negative than positive results.
True, the regime could book in some success, when signing initial ceasefire agreement with the Untied Wa State Army (UWSA) and National Democratic Alliance Army (NDAA) on the 6th and 7th September respectively, which includes, no hostilities, reopening of liaison offices, advanced notification when entering each side’s territory carrying arms, and a joint coordination team for regional development. But it should be noted that the regime, although on the war footing with both groups, have not entered into open armed conflict like the Shan State Army (SSA) or the Kachin Independence Army (KIA). The SSA likened the regime moves of applying remedy to the wrong location and accused it of driving a wedge between the UNFC members and non-members like UWSA and NDAA.

The UNFC formed in February 2011, is composed of six armed groups as permanent members: the Karen National Union (KNU), the New Mon State Party (NMSP), the Chin National Front (CNF), the Kachin Independence Organization, the Karenni National Progressive Party (KNPP), and the Shan State Progress Party/Shan State Army (SSPP/SSA).
A few weeks after the ceasefire agreement with the UWSA and NDAA, SHAN reported on Friday, that a thousand bags of rice which have been blocked by the Burmese military for 2 years were reportedly returned to the UWSA, in addition to releasing its imprisoned members serving sentences on opium trafficking charges in Buthidaung Prison on the western Burmese border, and allowing domestic airline Yangon Airways, to fly again on 16 October, which is owned by Aik Hauk, son of prominent UWSA leader Bao Youxiang. The airline was refused a new license in November and ceased operations in December last year.
Similarly, on 13 September, SHAN filed a report that pickups and vans have been allowed to ply between Mongla and Kengtung, 80 km, since Sunday (11 September), 4 days after a new ceasefire agreement was signed between Naypyitaw and Mongla-based NDAA.
The immediate economic incentive given back to the two ethnic armed groups is a stark reminder that the regime is ready to apply its old strategy of “divide and rule”, which have worked so well in the past.

Meanwhile, the offensives against the KIA and SSA by the Burma Army are in full swing, making it hard to believe if Thein Sein’s peace initiative is for real or just a public relation stunt to curry international sympathy, in its charm offensive to win legitimacy.
According to BBC, the recent Burma Army’s offensive with 10 battalions on KIA 4 brigade, in northern Shan state, starting last Friday, have suffered at least 60 Burmese soldiers killed, while KIA casualties were said to be 8 killed and 8 wounded.

The Burma Army casualties, in its offensive in central Shan state, which have begun a few months ago, were equally devastating for the Burma Army, estimated to be in hundreds, due to the guerrilla warfare conducted by the SSA.

Likewise, the same situation exists, where Burma Army’s human cost numbered in hundreds, in its war against the Democratic Karen Buddhist Army (DKBA), led by Brig-Gen Saw Lah Pwe, who refused to become Border Guard Force (BGF) under the Burma Army, and Karen National Union (KNU).

On 26 September, VOA reported that Lanyaw Zawng Hra, the chairman of the Kachin Independence Organization, spelled out his terms Monday in a letter to U.N. Secretary-General Ban Ki-moon. Mr. Ban has been seeking negotiations to end fighting between the Burmese government and ethnic rebels, including the KIO's armed wing, the Kachin Independence Army.

He pointed out that the military-backed regime is still using the usual “divide and conquer” tactics, even though it could take another path to reconcile with the ethnic groups, and instead choose to ignore the basic rights of the non-Burman ethnic nationalities.
He also stressed that all recommendations from ethnic groups in drafting Burma's new constitution were not taken into account, and banned the country's 2 million ethnic minority members from voting.

According to the report of The Irrawaddy, on 27 September, the most crucial point spelled out in the letter is that “Despite the fact that Burma achieved independence in 1948 as the Union of Burma, it has been operating as a Unitary System, rather than practicing a true federal system as agreed to by independence leader Gen. Aung San and ethnic leaders.”
The leaders of Shan, Kachin and Chin decided at Panglong, on the 12th of February 1947, to join with U Aung San and the AFPFL (Anti-Fascist People's Freedom League) and leaders of other nationalities, to live together under one flag as co-independent and equal nations. This marks the birth of a nation-state now known as "Union of Burma".
In this way the desire of the leaders of the Frontier Areas to co-operate with Burma to more speedily achieve freedom was initially put into effect. However, it was as yet, merely a temporary union for the transition period.

The establishment of a future Federation, consisting of Burma proper and the Frontier Areas, although prescribed in the decision of 6th February 1947, was not mentioned in the Panglong Agreement as it was understood that the matter should be considered in detail at the Constituent Assembly which was yet to be convened.
The Sub-Committee of the Supreme Executive Council of the United Hill Peoples, headed by the Saohpalong of Mong Pawn and U Kya Bu, negotiated with the Burmese Delegation headed by General Aung San, on the 10th February 1947, at Panglong and the demands tabled by the representatives of the Frontier Areas: - for full internal autonomy, for the establishment of a separate Kachin State, and for the federal organ to deal with only common subjects such as Defence, Foreign Affairs, Railways and Customs etc. – was accepted in principle by General Aung San.
General Aung San, however, requested that the demand for the Right of Secession from Burma at any time after attaining freedom, should be decided at the Constituent Assembly. ( Source: Document containing proposals For the REVISION of the CONSTITUTION OF THE UNION OF BURMA - submitted by THE SHAN STATE - Translated by Sao Singha. This document was ratified by the Convention, attended by delegates from the entire Shan State, which was held in Taunggyi, on Saturday, 25th of February1961.)

It is not an exaggeration to state that without Panglong Agreement or Accord, signifying the intent and willingness of the free peoples and nations of what could be termed British Indochina, there would have not been born the Union of Burma in 1948.

Accordingly, the right of secession was included in 1947 Union of Burma Constitution, where the Shan and Karenni states were accorded with the right to exercise it after ten years.
A careful reading of the Constitution and the documents relating to the formation of the Union, suggests that the framers intended the - secession - right to be a measure of protection for those hill peoples who were dubious about allying themselves with the dominant and politically more advanced state of Burma proper. (Source: Politics in the Shan State: The Question of Secession from the Union of Burma - Josef Silverstein)
As we would witness later, this measure of protection was not even in a position to protect the human rights of the non-Burman ethnic peoples, much less their rights to internal autonomy and rights of self-determination. They were helplessly delivered to the racial supremacy ambition and military occupation onslaught of the Burmese military and its political class, which sought to monopolised the political decision-making power.
Following General Aung San’s assassination in July 1947, the Union Constitution was rushed through to completion without reflecting the spirit of Panglong. The ethnic homelands were recognized as constituent states but all power was concentrated in the central government. In other words, it was federal in name only but unitary in practice.
According to Mr. Tinker, a former Professor of History at the University of Rangoon, the Constitutional Advisor, Chan Htoon, observed much later that “our Constitution, though in theory federal, is in practice unitary.”

In 1958, the right of the Shan and Karenni people to disassociate from the Union after 10 years, guaranteed in the 1947 Union Constitution, was denied them. As a precaution, U Nu invited the Commander-in-Chief, General Ne Win, to form a ‘Caretaker’ government to restore law and order for a period of 2 years as young people took to the jungles to claim their rights.

In 1961, the ethnic nationalities leaders tried to return to the spirit of Panglong by proposing to amend the 1947 Constitution as a means of preventing the nation from disintegrating. This was probably the last legal attempt to ward off the growing political tension, which was about to blow out of proportion, leading to armed conflict between the Burman-dominated government and the non-Burman ethnic peoples.

But General Ne Win launched a coup d’etat in 1962 ‘to save the nation from disintegration’ and suspended the 1947 Constitution. From the ethnic nationalities’ point of view, this act abolished the legal instrument that bound their homelands to the Union. As such, they consider themselves to be independent entities held by force in subjugation by an invading army.

This breaching of contract, from the part of the successive Burman-dominated governments – starting from U Nu, General Ne Win, General Than Shwe to the present ex-general, President Thein Sein - is the main reason for the ongoing armed conflict continuing to these days.

The 1974 Constitution, adopted by General Ne Win’s Burmese Socialist Programme Party and the 2008 Constitution drawn and adopted by the State Peace and Development Council (SPDC), headed by General Than Shwe were both unitary in nature, which do not in anyway address the self-determination and autonomy aspirations of the non-Burman ethnic peoples.
From the perspective of the non-Burman ethnic peoples, the breaching of the Panglong Agreement, which explicitly spelled out the voluntarily participation in forming a new union, with complete autonomy and rights of self-determination in tact, is a non-negotiable position. And the altering of the federal structure to a unitary one amount to blatant dishonouring of the agreement or pure cheating, from the part of the successive Burman-dominated regimes.

The situation is like making a contract on a co-owned acquired piece of land to build a condominium, where involved parties would be allotted one unit each, while sharing the lobby, swimming pool and other facilities among the inhabitants. But a dominant party hijacked the agreed plan, declared its sole ownership and instead, built a house to its liking to suit its own purpose and desire, effectively sidelining all the other originally involved parties, who were also the rightful owners of the land and as well, the previously agreed building plan. This kind of scenario is certainly programmed to produce a heated, open conflict, if the previously agreed plan is not utilised or taken into account.

And as such, the military-backed Thein Sein regime’s unitary presidential system, based on its 2008 Constitution would not be able to accommodate the rights and aspirations of the non-Burman ethnic peoples. Only if the regime is ready to go back to the original federal set up agreement, as promised by the late General Aung San, would the ethnic armed resistance subside and eventual conflict resolution be worked out. But if the regime refuses to undo its breaching of original, federalism agreement contract and in contrary, insists to hold on to its unitary system at all cost, the ethnic armed conflict will continue to rage on unabated.

The contributor is General Secretary of Shan Democratic Union - Editor