Introduction: The Contemporary Impasse
With the Union Peace Conference, known as the “21st Century Panglong”, rescheduled to start on 24 May, we are about to revisit some highly sensitive issues in Myanmar’s recent past that were very wrongly handled at the time. If the forthcoming conference is to right the historical wrongs that have since haunted us, it is essential that all sides in our country’s impasse look back to history and re-assess the reasons for the legacies of conflict and state failure that have long held back national progress. Seventy years after the Panglong agreement in February 1947, nation-building is still an unfinished process, ethnic conflict and human rights violations are continuing, and many of the political and economic challenges have deepened after more than half a century of military rule.
Karen Dancers / Photo credit Martin Smith
Since the advent to government of the National League for Democracy last year, there have been hopes that the country is on the brink of national peace and long-needed reforms. In reality, the experiences of the past 12 months have shown that the administrative structures of the new government represent a “hybrid” system between the NLD and the national armed forces, known as the Tatmadaw, which continues to wield effective decision-making power over many aspects of national life. There can be no doubt that the political climate has changed considerably since the quasi-civilian government of President Thein Sein came to power in 2011, but warning signs are now increasing that, despite the NLD’s landslide election victory, the party is unable to usher in the democratic reforms that it promised in its campaign manifesto. The continuity in Tatmadaw domination, which began with a military coup in 1962, is not ended.
There are two main obstacles to political breakthroughs at present: the constitution and the failure to achieve nationwide peace. The two issues are closely related. The inability of the NLD to rewrite the constitution, make political amendments or bring about national reconciliation through peace negotiations are anchored in the Tatmadaw-drafted constitution of 2008. This is not by chance. The constitution was deliberately drawn up in ways that preserve the Tatmadaw’s supremacy in national politics by being reserved 25% of all seats in the legislatures as well control of three key ministries: home, defence and border affairs. Furthermore, constitutional amendments are only possible with the endorsement of more than 75% of parliamentary votes, meaning that the constitution can never be amended without military consent.
Similar impediments face the national peace process, which has lost momentum during the past year. In an important change in policy, the previous government of the Union Solidarity and Development Party-Tatmadaw called for a nationwide peace process in 2011 after recognising that development and national prosperity cannot be achieved without ending the country’s long-running civil wars. However, the haste to produce a concrete sign of progress before President Thein Sein left office resulted in a partial Nationwide Ceasefire Agreement in October 2015, which only eight armed organisations signed. The remaining thirteen refused, including several of the most influential forces in the country. In January 2016, the outgoing government attempted to jump-start talks with a “Union Peace Conference”, but it was clear that progress was already slowing.
Optimism then revived when the new NLD government, headed by Daw Aung San Suu Kyi, took over the reins of office and sought to breathe new life into President Thein Sein’s peace initiative by holding a new national conference between 31 August – 3 September last year. Ambitiously titled the “Union Peace Conference – 21st Century Panglong” (UPC-21CP), expectations were high as over 700 representatives from different organisations assembled in Nay Pyi Taw from across the country. Conflict, however, swiftly resumed, and nationwide peace has still not materialized at the time of writing. Rather, one year after the NLD government assumed national responsibility for the peace process, war has been continuing with heightened intensity in the Kachin and northern Shan States, while serious violence and community displacement have occurred again in the Rakhine State.
It should be stressed that not all the difficulties can be laid at the NLD’s door. Many indications were already pointing towards the peace process hitting a roadblock before the UPC-21CP took place. There is a long history of peace failures within the country. At present, three main obstacles especially stand out. First, the two-tier or hybrid nature of government administration between the NLD and Tatmadaw is causing problems in peace communications and negotiations. The military continues to function as a “state within a state”, employs different strategies in different parts of the country, and rejects the inclusion of all ethnic armed organisations in the Nationwide Ceasefire Agreement. Second, military officers are still maintaining their leadership role in the country’s political transition through the 2008 constitution, preventing the NLD from moving forward independently on national reforms in parliament. And third, there remain very different conceptual views or positions on the key issue of federalism between the two prime movers among the ethnic Bamar (Burman) majority population: the NLD and Tatmadaw. This last issue – the federal question – has been at the heart of the country’s political crisis since independence.
Clearly, new thinking and initiatives are needed if the cycle of political failures in the country is to be broken. At this juncture, the holding of another conference without common aims and ambitions among the different participants is unlikely to achieve positive results at any time soon. The current peace process has already continued for over five years without successful conclusion, and this, it should be stressed, follows over two decades of peace initiatives under the previous military government led by Snr-Gen. Than Shwe. There is little point, then, in convening conference after conference just for the sake of holding them. The Panglong name will soon be diminished, and the next UPC-21CP meeting has already been rescheduled several times. The latest announcement is that 24 May will be the new date. This follows a Joint Implementation Coordination Meeting between government officials and ethnic armed organisations that have signed the Nationwide Ceasefire Agreement.
Thus, as the latest countdown to another peace conference continues, the question must be asked as to how to break the prevailing atmosphere of logjam, make the next meeting viable and usher in positive change. The need is to make the peace process meaningful by focusing attention on the key ethnic issues that have always underpinned the political impasse in the country.
The revival of the historic name of Panglong, where the principles of equal union were agreed, has been an important start for its symbolism. But, in this writer’s opinion, the best place to resume again will be the federal amendment debate of 1961-62. The demands of the ethnic nationalities today are closely identical to what they were in 1962, and the “Federal Amendment Proposal” was very much a response to the failures of Panglong and the 1947 constitution. It would therefore be a major mistake to overlook the lessons of Panglong for a second time. The Federal Amendment Proposal marked a vital moment in our post-colonial history when the Tatmadaw seized the reins of government, quashing the possibility of reform discussion and setting the stage for half a century of military rule.
The conclusion is clear. If meaningful political change is to come now, it needs to be asked why can’t we think of picking up the Federal Amendment Proposal from where our predecessors were abruptly stopped in 1962. Far from saving the country from disintegration, the 1962 coup halted vital discussion and made a constitutional crisis very much worse.
Background to Constitutional Crisis and Military Rule
The Union of Burma was barely 14 years in existence when the Tatmadaw seized power from the parliamentary government of Prime Minister U Nu in March 1962. The country that gained its independence from Great Britain in 1948 was democratically governed under a multi-party parliamentary system until 1962, with an eighteen-month break for a “Military Caretaker” government under Gen. Ne Win during 1958-60. Officially, the justification for military rule was that the country was becoming ungovernable due to an irrevocable split between the ruling Anti-Fascist People’s Freedom League “Clean” faction, led by U Nu, and an AFPFL “Stable” faction, led by the socialists Ba Swe and Kyaw Nyein. Unofficially, the real reason was a fear by both Ne Win and U Nu that the Shan and Kayah (Karenni) States would exercise their rights of secession in the 1947 Union Constitution after a 10-year period. This time was now up.
In April 1960, U Nu’s renamed Pyidaungsu (Union) Party won the general election with 52% of the vote and 157 seats in the Lower House, while the military-backed “Stable” AFPFL led by Ba Swe and Kyaw Nyein captured 30% and 40 seats. It was to be the country’s last general election for thirty years. On 2 March 1962, Gen. Ne Win staged his military coup, suspending the constitution, dissolving parliament and arresting U Nu and leaders from different political and ethnic nationality backgrounds. From then on, Myanmar was ruled by successive military governments – the Revolutionary Council, Burma Socialist Programme Party, State Law and Order Restoration Council and State Peace and Development Council – until 2011 when the quasi-civilian government under President Thein Sein was installed. The political landscape was severely changed.
In defence of their takeover this time, the reason given by military officers was the Federal Amendment Proposal, popularly known as Shan Federal Proposal, which they claimed was about to break up the Union, causing the Tatmadaw to intervene to save the country from “disintegration”. This notion is still accepted by many among the rank-and-file in the Tatmadaw, including the present Commander-in-Chief Snr-Gen. Min Aung Hlaing, but it is widely regarded as false or misconceived by many neutral observers and those who lived through the events at the time. The Federal Amendment Proposal was in fact a legal effort by democratically-constituted leaders to defuse conflict and brewing grievances among the Bamar and non-Bamar populations by political solutions through the introduction of amendments to the 1947 constitution that was failing to live up to the promises of equal union at Panglong.
As all now know, the angst that the conflict would bloom into nationwide violence has proven to become true. The 1962 coup not only suppressed democratic governance but it also witnessed the spread of full-blown armed conflicts across the country. Until the present day, over 20 ethnic armed organisations, numbering some 100,000 troops, have resisted successive Bamar and Tatmadaw-dominated governments without any hint of imminent ending. From this debilitating sequence of events, it is very evident that the termination of the 1962 Federal Amendment Proposal by military coup, with the pretext of saving the Union and maintaining national unity, has resulted in just the opposite outcomes. Myanmar has been pushed into more than 50 years of ethnic conflict that is still in progress, contributing to a staggering economic cost and human toll that has been draining the country’s resources all these years.
The Federal Amendment Proposal: 1961-62
Before delving deeper, it is important to note that the Federal Amendment Proposal of 1961-62 has to be read together with the Panglong Agreement and Union of Burma Constitution of 1947 to understand the subsequent history of events. The 1947 Panglong Agreement, which was signed by Aung San and Chin, Kachin and Shan representatives, was understood to prepare the way for the formation of a federal Union of Burma, leading to the formulation of the 1947 constitution and independence from Great Britain in January 1948 on the basis that equality and inclusion had been agreed between the different peoples and territories of British Burma. In line with the Panglong principles, in May 1947 Aung San, who headed the Interim Burmese Government, submitted his “Seven Basic Principles” or “Directives”, based upon federal precepts, that would form the main components and guidelines in drawing up the new constitution at the future Constituent Assembly. These principles included:
An independent, sovereign republic
Autonomy with fully-fledged rights of self-administrative power (self-determination) for all constituent states
Sovereign power derives from the people
Equality in political, economy and social spheres for all people as is practised in a democratic society
Adequate safeguards for the rights of minorities
Peace and friendly cooperation with the international community
From his words and actions, it is clear that Aung San’s constitutional formulation in the drive for independence was “voluntary association”, “equality” and the “right of self-determination” that should be anchored in a system of federalism. According to Dr Maung Maung’s book on “Burma’s Constitution”, published in 1961, Aung San was quite explicit regarding the political system the country should adopt:
“When we build our new Burma, shall we build it as a Union or as a Unitary State? In my opinion it will not be feasible to set up a Unitary State. We must set up a Union with properly regulated provisions to safeguard the rights of the national minorities.”
Maung Maung also confirmed the union rather than unitary agreement between Aung San and the nationality founding fathers of the Union at Panglong: “The original idea was that the Union States [meaning: all ethnic States] should have their own constitutions, their own organs of state, viz. Parliament, Government and Judiciary.” In support of these goals, Aung San added some cautionary words that continue to have historical resonance: “But we must take care that ‘United we stand’ and not ‘United we fall’.”
To our country’s great cost, neither the Panglong agreements nor Aung San’s principles were incorporated into the 1947 Union of Burma Constitution. The eventual text was inappropriately drafted and implemented after the assassination of Aung San and most of his cabinet by the gang of a political rival in July that year. Although Aung San was sincere in his commitment to the formation of a union or federal system of governance, his successor U Nu was not to be the same. U Nu asked Chan Htun, a constitutional adviser, to redraft the text into a semi-unitary Union Constitution that was promulgated by the Constituent Assembly of the Interim Burmese Government in September 1947. Chan Htun and U Nu were assisted by the appointment of Tin Tut, Sir Ba U, E Maung and Kyaw Myint, all of whom were ethnic Bamar and educated in the law school of Cambridge University. The result was that the new Union of Burma, despite the prior promises and agreements with ethnic nationality leaders, did not become a genuine federal union, an ambiguity that Chan Htun himself later admitted: “Our country, though in theory federal, is in practice unitary.”i
The new union has since paid a heavy price for these constitutional failings. As political and inter-ethnic violence continued across the country, in 1961 the Shan State government produced a resolution widely known as “The Shan Federal Proposal” that was a legally-based initiative to try and right the obvious weaknesses in the 1947 constitution. This proposal was unanimously adopted by the Shan State government on 24 January 1961 and subsequently endorsed by delegates, all of whom were non-Bamar, at the All States Conference on 16 June 1961 in Taunggyi. Following the resolution, the All States Unity Organization was formed by the conference, with Kachin, Karenni, Karen, Chin, Arakan, Shan and Mon as members.
To amend the 1947 constitution, a key part of the federal proposal reads:
The provisions for equal rights and opportunities between the various states and nationalities are not adequately prescribed in the present Constitution of the Union of Burma.
The Steering Committee has therefore unanimously decided that to ensure equal rights and opportunities for all, the Constitution should be revised in accordance with the principles of a truly federal constitution.
The Steering Committee hereby resolves that in redrafting the Constitution, in accordance with genuine federal principles, the following basic requirements for ensuring equality shall be included:
Establishment of a Burmese State;
Assignment of equal powers to both Chambers of the Union Parliament;
Each State to be represented by an equal number of representatives in the Chamber of Nationalities;
The following Departments shall be vested in the Central Union, while all other powers, rights and entitlements shall be transferred to the states.
(a) Foreign Affairs;
(b) Union Defense;
(c) Union Finance;
(d) Coinage and Currency;
(e) Posts and Telegraphs;
(f) Railways, Airways and Waterways;
(g) Union Judiciary;
(h) Collection of Custom duties at Seaports.
Union revenue to be distributed equitably.ii
Of the five basic requirements, the first needs a little more clarification: the creation of a Burmese or Bamar State. The All States Unity Organisation’s document on the Federal Amendment Proposal, which was presented to U Nu in January 1962 by ethnic leaders prior to a forthcoming national conference, noted that the 1947 constitution had a fundamental problem. Prior to independence, “Burma Proper” was one element in a diarchic system of government under colonial government whereby parliamentary home rule was introduced among the Bamar majority in what became known as “Ministerial Burma”, while the non-Bamar peoples of the Frontier Areas were largely left under their traditional leaders and rulers. It was only at independence in 1948 that the two territories were constitutionally combined. However, instead of the administration of Burma Proper having a separate state government for itself, under the 1947 constitution it had come to serve as the central government as well. This meant not only a usurpation of the central powers of the government by Bamar-majority politicians in the former Burma Proper but also that the political rights of the non-Bamar territories and peoples were mostly denied.
The Federal Amendment proponents therefore put up a solution in their document to U Nu. On the type of federation to be established, the All States Unity Organisation stated in chapter two:
To ensure that the Union of Burma becomes a true federal union, it must be based on the national stand that all states coming together to form the union are equal. Therefore a true federal union cannot be a combination of Burma Proper and the states. Burma Proper must be established as a state, after which a true federal union of states should be formed.
As the usurpation of the central powers of government by Burma Proper means a lack of equality, thereby creating dissatisfaction, we strongly desire the removal of the dissatisfaction by establishing a Union of Burma with Burma Proper as one of the constituent states.iii
Quite what might have been agreed between U Nu and ethnic nationality leaders can never be known. The U Nu government knew that constitutional reform was essential. But as the national conference continued to debate the federal issue in March 1962, U Nu, his colleagues and the federal leaders were all arrested and many were to spend long years in jail.
Comparing the 1962 Federal Amendment Debate and the 21st Century Panglong
Over half a century later, the main political issues of the 1962 federal amendment debate and the Union Peace Conference-21st Century Panglong are, more or less, the same. The central demand in 1962 was for the ethnic rights of self-determination, democracy and equality based on a federal form of government, and this is what most ethnic parties are now demanding and will do so again at the next UPC-21CP meeting. The main difference is that in 1962 the ethnic stakeholders were parliamentarians using legislative processes but, in the present UPC-21CP, the ethnic armed organisations play a larger role as stakeholders and negotiators while the ethnic political parties are participating in a minor role. This situation has been enabled by the mechanisms of the October 2015 Nationwide Ceasefire Agreement under the President Thein Sein government. In 1962, in contrast, Gen. Ne Win’s Revolutionary Council arrested parliamentary leaders but then, in 1963-64, held unsuccessful negotiations with ethnic armed organisations during a national Peace Parley.
Five decades later, after the issue of federalism was forcefully put on ice by successive military governments, the call for a genuine federal union is louder today than ever by ethnic nationality parties, whether armed organisations or those in parliament. This does not mean that a political solution is imminently in sight. It needs to be recognised that the 1947 Panglong Agreement, 1947 Union of Burma Constitution and 1961 Federal Amendment Proposal did not achieve federalism nor a nationally agreed language on federal reform. Still today, ambiguities continue in the NCA-based negotiation process that vaguely says: “Establish a union based on the principles of democracy and federalism in accordance with the outcomes of political dialogue.” This lack of clarity is a key reason why a majority of ethnic armed organisations did not sign the NCA at its 2015 inception, and it continues to underpin wariness by both signatory and non-signatory groups as to whether the NCA is a ploy by the government and military authorities to outdo the political aspirations of ethnic nationalities once again.
Outlook: The Need for Creative Thinking and a Federal Solution
On the eve of the next UPC-21CP, we are confronted with two schools of thought. One way is to ponder how the country’s constitution could be formulated, based on the NCA guidelines, through extensive discussions. In other words, a completely new set of solutions will need to be worked out and dubbed a new “Union Accord” that will have little to do with the 1947 Panglong Agreement, 1947 Union of Burma Constitution and 1961 Federal Amendment Proposal. The other way is to revisit the 1961 Federal Amendment Proposal and pick up from where a previous generation of politicians left off when all discussion was ended by military rule.
When considering the two schools of thought, the consequences have to be factored in of the ending of the Federal Amendment Proposal by military coup. This has resulted in more than 50 years of ethnic armed conflict that is still in progress, causing immeasurable humanitarian suffering, community displacement and economic loss. And with this long postponement the problematic issues of forging a common “national identity” and “national unity” have become only deeper, fuelled by a rising tide in ethno-nationalisms, including Wa, Pa-O, Ta’ang (Palaung) and Tai-Leng, who are demanding the upgrade of their administrative status to “states” within the union. Clearly, military rule and the suppression of federalism have not brought peace and national unity to the country.
Seen against this backdrop, the school of thought that is banking on achieving a “Union Accord”, based upon the NCA alone, is becoming more and more problematic. Many difficulties are emerging. The situation has not been helped by the NLD adopting a “wait-and-see” posture, refusing to be pinned down on what the party is really aiming for in a future system of federalism. It is indeed unusual that a political party, which considers itself a national party cutting across ethnic lines, either does not have a position paper on federal reform or will not spell it out publicly. To give just one example: top leaders like U Win Htein have said that the present configuration of seven ethnic States and seven Regions (formerly known as Divisions) is appealing to the party, but this can be construed in two ways. It could mean NLD acceptance of a territory-based form of federalism but, equally, it could also mean continuance of a unitary form of government with only some devolution of powers to the States and Regions. Such uncertainties mean that the NLD position’s on federalism is still open for speculation, and this is causing disquiet in many ethnic nationality communities.
In contrast to the NLD’s hesitation, the leaders of the Tatmadaw have openly reiterated time and again that they will protect the 2008 military-drafted constitution which, they claim, has all the necessary structures to be moulded into a federal form of government. This, however, is regarded as impossible, indicating that the present Tatmadaw leaders are not at all keen to achieve a genuine federal union. Rather, while giving lip-service in agreeing to the country’s transformation into federalism, they are more interested in clinging on to the present constitutional setup that ensures their continued political advantage in the national landscape.
As for the ethnic nationality parties, whether armed or electoral, their aspirations on federalism continue to be an ethnic-based federalism that is based upon the principles of the Panglong Agreement and Federal Amendment Proposal. The only modifications needed are those that are in tune with the political configurations and realities of the present day.
Such a diversity of views means that the current NCA-based negotiation process is unlikely to bring us close to a political solution, because the three prime players – the NLD, Tatmadaw and ethnic nationality parties – are far apart in conceptual-thinking about federalism and the Union of Burma’s emergence as a nation-state entity. Most obviously, the military-dominated governments after 1962, and now even some NLD supporters, regard the present day country as a continuation of a unified nation or empire, largely under ethnic Bamar governance, since the reign of the first Bamar kings, starting with Anawrahta of Pagan, from time immemorial. In contrast, the non-Bamar nationalities maintain that the Union of Burma of 1948 is a newly-created territory and political entity, based upon the principles of the Panglong Agreement, whereby independent territories that had been annexed into the British India Empire merged together on an equal basis at the departure of colonial power in 1948. It needs to be added, too, that the difficulty in discussion of these differences is further exacerbated by the inability to create a level playing field in the present peace process, which is not only harming the negotiation atmosphere but fuelling animosity as conflicts and loss of life still continue in several parts of the country.
On a more positive note, it is common knowledge in Myanmar today that the ongoing ethnic conflicts have long hindered the country’s development in all social and economic arenas, which was the main reason why former President Thein Sein, himself an ex-general, started the present peace process after he came into office in 2011. However it should be no surprise that there has been little political progress to date, if the intention is to rely on a “top-down” approach by those in government who disregard our country’s history. Such an approach, which has come from Bamar-dominated governments and the military establishment after independence, wants to whitewash a whole line of historical conferences and agreements, starting with Panglong in 1947, that are the only legal bonds between the different territories of the former Burma Proper and Frontier Areas.
The ethnic nationalities, however, have not been passive in seeking to correct these political failings. It is an important step, therefore, that the language of Panglong and federalism has officially been revived in the present peace process. But for real progress to be achieved, the next step should be returning attention to the 1961 Federal Amendment Proposal, which was the last time national leaders sought to resolve the country’s challenges by political dialogue together. In the 21st century, for most ethnic nationalities the political demands of 1961-62 are still the only way to defuse the country’s conflicts, foster national reconciliation and achieve political settlements that will be sustainable into future generations. These demands are just, legal and entirely feasible.
It is true that, after more than five decades, the setting of the conflict has changed in different parts of the country, but not the underlying nature of conflict or the need for equality and an inclusive federal solution. For example, the configuration of Burma Proper has been re-demarcated over the years into seven Divisions, now known as Regions, while the ethnic nationality lands now consist of seven States (Chin, Kachin, Karen, Kayah, Mon, Rakhine and Shan), with six further “self-administered” territories delineated under the 2008 constitution (Danu, Kokang, Naga, Pa-O, Ta’ang and Wa). But ethnic nationality leaders remain convinced that they can bank on the 1961 Federal Amendment Proposal, with necessary innovations, to be the key ingredient to jump-start the stalled peace process and begin political dialogue in line with the goals of the 21st Century Panglong.
To break the deadlock, creative thinking is now essential, and ethnic consensus has been growing around these goals. Agreement on a “Panglong Handbook” was discussed at a plenary meeting of ethnic armed organisations at Mai Ja Yang, a town controlled by the Kachin Independence Organisation near the Chinese border in July last year. These principles have since been widely supported among ethnic nationality parties. Most recently in early April this year, fourteen ethnic armed organisations,iv including seven NCA signatories and seven non-signatories, resolved that the 1947 “Panglong Agreement, Promises and Spirit”, according to the Panglong Handbook, would be the cornerstone of guidelines among ethnic nationalities to resolve conflict, political settlements and national reconciliation. At the same time, the influential United Wa State Army has also confirmed in a position paper delivered during last year’s UPC-21CP, and recently again in February of this year, that the Panglong Agreement is being treated as the inalienable political legacy of the ethnic nationalities. In short, commitment is strong among ethnic nationality parties that the Panglong Agreement, which encompassed the rights of self-determination, democracy and equality, has to be anchored in a genuine federal form of government, as envisioned by our founding forefathers back in 1947.
Finally, we should heed the words of the late Bogyoke Aung San who cautioned us in 1947 that we should not do anything that would lead the country in the direction of “united we fall”. Sadly, this is exactly what has happened under successive governments since independence which have tried to hold the union together by sheer military might. Instead, it is time to return to Aung San’s notion of “united we stand” through dialogue, compromise and political solutions that include all peoples and territories. And the current peace process today, after the bitter abyss of armed conflict, is the timely opportunity to revitalize the Federal Amendment Proposal to realise Aung San’s aspiration for unity and national harmony. Many challenges remain and detailed negotiations will be needed. But like the Panglong Agreement, the Federal Amendment Proposal is a vital part of our country’s history that provides a critical platform from which debate can be started to take the Union Peace Conference and21st Century Panglong to the long-needed deliverance of peace and justice for all peoples in our country.
Sai Wansai is a Shan political analyst and the ex-General Secretary of the former Shan Democratic Union.
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