Friday, September 7, 2007

Seminar on Democracy, Constitution and National Reconciliation

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1. Preface ........................................................................................................................................................ 2
2. Opening Remarks By H.E Ambassador Ulrik Helweg-Larsen, Royal Danish Embassy............................. 3
3. Ethnic Conflict, Reconciliation and Panglong Revisited By Asso. Professor Mikael Gravers.................... 7
4. Group Work on Truth and Reconciliation ................................................................................................... 14
5. Democratization and Federalism By Professor Palle Svensson ............................................................... 20
6. Group Discussion on Federalism ............................................................................................................... 32
7. Role of Federal State, States and Local Government in Burmese Context By Dr. Lian H.Sarkhong ...... 38
8. Summary of Group Discussion – Roles of Government ........................................................................... 50
9. What does it take to write a Constitution? By Professor Mark Thamthai .................................................. 51
10. The National Convention in Burma -Lessons learnt from previous national convention........................ 63
 Khun Manko Ban, Federal Affairs Minister of National Coalition Government of Union of Burma
 U Thein Oo, Elected MP and Chairperson of Burma Lawyer’s Council
11. Progress and Experiences from the State Constitution Drafting Process............................................... 72
 The State Constitution Writing Process- An Overview By Hkun Okker, Chairperson of Supporting
Committee for State Constitution
 Major Outcomes and Obstacles in the process of drafting the state constitution
 Naw May Oo, Karen State Constitution Drafting Committee
 Khun Sa, Kachin State Constitution Drafting Committee
 Linda Lahtaw, Shan State Constitution Drafting Commission
 Myo Win, Burman State Constitution Study Group
 Victor Biak Lian, Chin State Constitution Drafting Committee
 Khu Rimond Htoo, Karenni State Constitution Drafting Committee
 Khaing Myo Min, Arakan State Constitution Drafting Committee
12. Incorporation of Human Rights and Gender Aspects in constitution and legislation By Dace Kavasa, The
Danish Institute of Human Rights .................................................................................................................. 87
13. What’s Next? Strategic Options for Democratic Changes in Burma..................................................... 101
 Dr. Thaung Htun, UN affairs representative of National Coalition Government of Union of Burma
 Dr. Lian H. Sakhong, Secretary General of Ethnic Nationalities Council
14. Group Work on Scenarios ...................................................................................................................... 114
15. Closing Session..................................................................................................................................... 124
16. Appendixes ........................................................................................................................................... 128
Table of Contents
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“The torch of liberty should not be reserved for certain parts of the world, and even though the striving for
freedom can have different expressions due to cultural and concrete experiences, ithas common roots and its
nourished by the same spring, namely the desire for all people to have the opportunities to develop and
contribute to the fellowship – a fellowship where everyone has a voice – regardless of gender, ethnicity, or
social background.”
These were the words of Ms. Anette Berentzen, Secretary General of the Danish Burma Committee at the
opening of a seminar on 23 – 28 May 2004.
At the seminar some of the most outstanding representatives from the Burmese democratic opposition gathered
with prominent resource persons from Thailand and Denmark to discuss the perspectives for democracy,
constitution and national reconciliation.
The seminar took place at a time of great importance – Burma is standing in front of yet another cross road –
and at this particular moment no one can tell which road leads to the destination of a democratic and federal
Burma. Or which one that will lead to a dead end of continued military regime. Furthermore the seminar took
place in the shadow of the shameful National Convention called by the military junta, SPDC.
The seminar was dominated by an atmosphere of open dialogue and mutual respect, where all the participants
contributed with lively discussions and exchange of points of views.
This seminar was not just yet another theoretical exercise. The seminar had a practical aim in preparing the
upcoming political negotiations in Burma, where a wide range of people will have a role to play, even though
the roles will be different.
Through the seminar the participants were equipped to be the bridge builders of tomorrow, with some useful
tools for the work waiting ahead.
This report contains possible approaches and elements to the establishing of a democratic, federal Burmese
state.
The seminar was organized by the Danish Burma Committee with the support of the Danish Ministry of Foreign
Affairs. This support is a continuation of a long tradition for cooperation between the Danish government and
NGO’s in order to carry out a practical piece of solidarity work to assist others in their struggle to obtain the
freedom, which the Danish people have enjoyed for so many years.
Daw Aung San Suu Kyi expresses this striving for freedom very beautifully in the poem “In the Quiet Land”:
“In the Quiet land, no one can hear
What is silenced by murder
and covered up with fear.
But, despite what is forced, freedom’s a sound
that liars can’t fake and no shouting can drown.”
Preface to the report on
“Democracy,Constitution and National Reconciliation”
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Opening remarks
by H.E. Ambassador Ulrik Helweg-Larsen
- Ladies and Gentlemen, distinguished participants, friends form near and far.
- It is a pleasure for me to be here today and welcome all of you for what I believe will be some fruitful
and enlightening days of presentations and discussion on Democracy, Constitution and National
Reconciliation.
- I would like to thank all of you for being here. And I would like to extend my gratitude to The Danish
Burma Committee for arranging this seminar and for inviting me to address all of you today.
- The timing of the seminar is very pertinent in view of the recent developments. Sadly so, however. A
few hundred kilometres from here, delegates have congregated for a Convention to supposedly discuss
issues similar to the ones on our agenda this week. It is called a national convention, but I ask myself
how a convention can be truly national if key political parties and legitimate representatives of ethnic
nationalities are not present or are not being allowed to express their concerns and views. And I ask
myself what the outcome of such an exercise will be in terms of the words in the title of this week’s
seminar: Democracy, Constitution and National Reconciliation.
- Permit me to dwell a little on the words in the title of this seminar.
[On Democracy]
- Winston Churchill has polemically - but correctly I believe - pointed out that “democracy is the worst
form of government except all the others that have been tried.”
- What distinguishes democracy and its many shapes and forms is that it is the only political system in
which supreme power lies with the citizens. Demos meaning people, kratia meaning rule. The rule of
the people. Apart from being a universal right, I believe that democracy is inherently a stabilising factor
in a society. It bestows legitimacy on our rulers; it provides mechanisms for voicing concerns, be heard
and for settling differences peacefully. And it permits us to remove our rulers if they do not perform.
- Democracy, however, does not mean that a majority of any given population can exert its will discretionally
on a minority. This is one of the fundamental reasons we have constitutions.
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[On constitutions]
- In fact, while a constitution is a cornerstone and a prerequisite for a democratic society, it also serves
to limit this very direct or indirect rule of the people. Written or unwritten, a constitution is a basic law
laying down fundamental rules and principles for the conduct of affairs in a certain territory. “Basic law”
because a constitution is a framework from which other laws and regulations are derived. A constitution
describes how a nation or its subdivisions is governed. How legislation is passed. How power and
authority are distributed. But also how the same power and authority is limited.
- Thus, while constitutions are guarantors for democracy, they also describe the very limits of the rule by
the people. With regard to the individual, constitutions lay down the fundamental freedoms and rights of
the individual that other citizens or a majority cannot violate. A democratic majority cannot take away
my right to freely express myself, to meet with whom I like to peacefully go about my daily business.
With regard to a geographical entity of a State, constitutions serve among other things to describe
division of authority and limits to power in and between territories – be they states or other forms of
geographical divisions of a country.
- I will not go further into an academic discourse on democracy and constitutions. I know that there are
people present here today who could give a much better lecture on these subjects. People who are
dedicate to studying these questions and people who are personally involved in drafting constitutions
for their respective States.
[On National Reconciliation]
- But, I have dwelled on the need for democracy and a constitutional framework in Burma because I
think they are fundamental elements in national reconciliation. They do not by themselves automatically
bring about reconciliation, but they constitute indispensable and very basic political and legal frameworks
that are a prerequisite for solving disputes. For correcting injustices and punishing violations; for settling
problems and disputes of the past to permit us to look forward in the common interest.
- Looking at a map of Burma, you see a “horseshoe” of ethnic nationalities surrounding an ethnic “Burman”
center. This is the geographical and ethnic realities we are facing today. Diversity can be both a blessing
and a challenge. The challenge is to create a framework for reconciling different interests in a peaceful
manner. Look at Spain where a peaceful and prosperous nation is being built around “autonomies”. And
look at the world’s largest democracy and a truly diverse country, India, where power was just been
handed over peacefully. First from one party to another, then from one leader to another.
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- So diversity does not necessarily lead to chaos and disorder if fair and generally accepted governance
mechanisms are in place to guide us.
- I believe national reconciliation in a stable and prosperous Burma must be built on a combination of a
principle of territorial integrity and a fundamental respect for diversity and the different peoples’ legitimate
wishes for being able to go about their own affairs. This will, I believe, be a key point in this week’s
discussions.
- At independence, Burma was among the most prosperous countries in the region. Given its abundant
human and natural resources, a bright future for Burma was widely envisaged. We all know that this
has unfortunately not materialised. Instead, the situation - politically, socially and economically - has
continuously deteriorated over the years. The reasons are many and well-known and I do not intent to
tire you with history.
- Instead, if you permit, I would like to comment briefly on a much more interesting subject that you will
be discussing at the end of this seminar: “What’s next?”
- It is not an easy question. Neither in the short or in the long term. One thing we know for sure: Status
quo is not an option. This must be our point of departure.
- So, what’s next in the short term? The truth is we do not know. The latest developments certainly do
not seem to give much reason for optimism. Despite our doubts, we had hoped that an open and
inclusive constitution writing process could be a first step towards democratisation and reconciliation.
That political leaders and activist might be freed, party offices opened, ceasefires agreed upon, internally
displaced persons and refugees returning to their homes. These hopes seem to be fading for now.
- But, as a diplomat following events in Burma, I know only too well the pitfalls of focusing on the
immediate events of the day. One day hopes are high and windows of opportunity seem to open. Next
day, these windows are suddenly firmly shut and you seem to be back to start or worse. When you only
apply a short-term vision, you lose track of the larger picture.
- So, what might be next in a longer perspective? Personally, I am confident that we will see progress
towards peace and prosperity in Burma. Sadly, Burma is in many ways becoming an anomaly in a word
of globalisation and spread of liberal democracy and free and fair market economy. The mere course of
history indicates that change will also come to Burma. Pressure and encouragement from within and
from outside will inevitable lead to transition.
- The eyes of the international community are on Burma. And social, economic and political forces
inside the country are pushing for change. The international community will continue to support the
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Burmese peoples’ demands for democratisation and rule of law. And the international community including
the Government of Denmark will continue to support the democratic forces in and outside Burma. And
we will – when conditions are right – actively lend our support to positive economic and social
developments in Burma to the benefit of the broad population.
- A week in Chiang Mai is not going to bring about a sudden change to Democracy, Rule of Law and
National Reconciliation in Burma. But it is one element in a larger, concerted effort to bring about
change and transition.
- I hope this week’s seminar can serve as an input for discussing and coordinating the ongoing efforts in
different parts of Burma to draft legal frameworks. And I believe the seminar is useful in the sense that
is helps us all prepare and be ready for contributing to a brighter future of Burma.
- On this positive note, let me again thank you all for being here. And thank you Anette and Peter for
inviting me and for arranging this event.
- And now, let’s get to work – there is a lot to do.
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Ethnic Conflict, Reconciliation and
Panglong Revisited
(Associate Professor Mikael Gravers, Department of
Ethnography and Social Anthropology, University of Aarhus )
Your Excellency, distinguished guests and participants:
It is good to see so many of you here. I know your minds are back in Rangoon, and when I heard about events
there I thought: how can I talk about reconciliation after what has happened in Rangoon? But there is a need to
go on – to formulate plans and strategies. You must think of the future, the course will change in time. My talk
may be a little abstract and theoretical. You have all been given a copy of my paper, but I’ve realized that we
need to allow time for translation into Burmese. So I will leave out a few points.
A few words on my background – I have been involved in the study of ethnicity and nationality in SE Asia for 20,
maybe 30 years. I am a rare specimen of a Dane who can speak and read some Po-Karen. I lived in Karen
villages in Thailand, Christian and Buddhist, for 3 years. However, I’m not an anthropologist who is only interested
in Karen or ethnic minorities. I also have an interest in the whole of Burma, and its history. I’ve worked with
other groups as well as Karen so I’ll try not to be biased. In Vietnam, I worked on a study in the central
highlands of the people there and their conflict with the state and the government.
My paper is in three parts. The first part relates to political violence, and I believe we need to take up this issue
before we can talk about reconciliation. I would like to make a few comments, and go beyond the idea of ‘ethnic
violence’. It’s very important when we talk about reconciliation to look into how historical memory and social
suffering connects and combines ethnic identity with the identity of victim and perpetrator. This relationship
between victim and perpetrator is crucial in understanding and talking about reconciliation.
After lunch, I’ll go through the second part of the paper, which is about reconciliation, and in particular the ideas
of truth, trust, witnessing, amnesty, retribution, reparation and rehabilitation.
The last part, if we have time, revisits the social memory of the spirit of Panglong Agreement. I’ve visited the
India office in London, which houses the colonial archives of India and Burma, and read many documents
relating to Panglong. This part is about transparency of agreements, representation and trust in political
negotiations and compromises.
Ethnicity and Identity
Firstly, I would like to talk about how to explain and understand political violence, sometimes called ‘ethnic
violence’. I would not define the situation in Burma as one of ethnic violence. I would describe it as an “extended
post-colonial conflict with an ethnic dimension”.
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Ethnicity is a very modern concept. It entered the vocabulary from the 1960s. In recent years, ‘ethnicity’ has
been put in the same place as nationality.
You are probably all familiar with Human Rights Declaration Article 15, which guarantees people the right to
national identity. However, we have seen that this concept of national identity has been replaced with ethnic
identity in many cases. But this right in Human Rights Declaration concerns citizenship as a precondition for
civil rights and protection more than specific cultural or ethnic rights. So this is perhaps a source of conflict
sometimes.
But still ethnicity is not the problem. The problem is when ethnicity is used politically to make inclusive and
exclusive differences and boundaries because these boundaries very often are being identified as origin of the
violence. In many ways in the modern world, ethnicity is easily hijacked by ‘the politics of difference’.
Let me take a few examples from Burma. For example, one member or some members of an ethnic minority
group may say: “We cannot live with the Burmans – they are aggressive and destroy our culture”. Then the
Burmans may claim that ethnic groups undermine national unity, culture and independence. So here we enter
what I like to call ‘boundary making’ and ‘the politics of difference’.
So when we discuss reconciliation, we must go beyond this kind of rhetoric. As Daw Aung San Suu Kyi said,
“We cannot have this attitude of “I’m a Kachin, I’m a Karen, I am a Burman” if we want to construct a democratic
community based on human rights.” The politics of difference thrives on our fear of losing our identity. It thrives
on the fear of resumed violence. I suggest we look into more general common identity and relation of identities
– the victims, perpetrators and witnesses. This relation is crucial to understand the concept of reconciliation
because violence is the ultimate use of freedom in order to deny the other, his or her freedom by violent means.
The victim of yesterday very easily becomes the perpetrator of tomorrow, and both of them can be witnesses.
You must ask yourselves – who are the victims in Burma? You must realize that all inhabitants of Burma are
potential victims – some directly, some indirectly. Even many perpetrators of violent acts are themselves victims.
Think of the child soldier or the prison guard forced to commit acts of violence.
Violence is embedded in specific social relation and acts between perpetrators and victims, and not in ethnicity.
The first step towards reconciliation is to go beyond the politics of difference, boundary making and the violence
of boundary making and identity protection, and to look into relation between victim and perpetrator.
I’ll stop here for questions and discussion. My apologies to the translator for jumping around.
Questions:
Q: In Burma we have fear of losing culture and identity, coupled with fear of violent acts. Ethnic differences in
Burma are especially not genetics but culture and languages. Fear of losing culture and identity depends
practically on being able use our culture and languages.
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If we cannot solve the problem of existence of culture and identity, how can we solve those problems? Do you
mean that we can mix up all things (ethnicities) and Burmanise, and all ethnicities will make peace? How can
we stay in peace with differences? In North America and Europe, how can they maintain identity and culture
and not be in conflict?
A: The answer is not to Burmanise – on the contrary. But you need to find a political solution that does not use
ethnicity in boundary-making. To preserve your diversity of cultures, languages and traditions should really be
embedded as part of the civil rights of each and every person living inside Burma. This is the only way really to
preserve it. If you have to continue to fight for speaking one of your languages, you never enter the phase of
reconciliation. The right to speak your own language should be a civil right, not something you have to fight for.
Q: The way you present ethnic identity – is it assimilation? I agree that ethnicity and ethnic identity are socially
constructed. But the problem in Burma is we should also recognise that there is primordial identity. Many
scholars try to combine primordial identity and socially constructed identity.
Civil war in Burma is based on fighting for identity. We must recognise ethnic, social and cultural boundaries.
We can’t just say we have to go beyond ethnic identity. How will we accept it and at the same time avoid our
identity being used or abused for political means? It is important first to have trust and acceptance and then we
can go beyond ethnic identity. Look at the words of Daw Aung San Suu Kyi. We need to get beyond combat.
Could you elaborate on this a little more?
A: Identity is very important. I also want to make sure everyone understands what primordial identity is. Primordial
means we have a sense of identity going back to the origin of time – something eternal, something given into
us, which we can lose. It is important but when hijacked by the politics of difference, instead of being used to
point out the sameness between us, then it becomes embedded with or included in our understanding of the
origin of violence. So it is not my point here to say that we should neglect or deny that we are different. We
should not deny our differences. On the contrary, my point is precisely that we should take this difference out of
politics and focus on where the violent relationship is. We need to examine where violence is in our social
relationships, and in that sense I think it’s important to use “victim and perpetrator”.
There is no ‘ethnic violence’ as such. But there is a violence which is conducted in order to displace an ethnic
population and to pollute its identity. I’ve read the reports on the rape of Karen and Shan women, and you can
say this is a kind of violence directed against ethnic groups, but beyond this, it is pure violence. It has nothing
to do with ethnicity but is a really appalling nasty policy.
To reconcile and have dialogue we must look beyond ethnicity and the ethnic patchwork of Burma. You are
fortunate that you can come here and communicate with each other in Burmese, you have a common language.
Other groups, for example in Africa, do not have a common language and must use English for their political
discussions. What I’m saying is that you should try to look at the sameness, your common history. But I’m not
saying ignore your ethnicity, I know it’s huge important.
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Q: I want to ask you some of your opinions. Ethnic conflict is based on fears of losing identity and that we
should think about the origin of conflict. In my opinion, we need to recognize the identity on three levels:
- First: Individual ethnic identity must be recognized. For example, in Shan State, there are different ethnic
identities and those smaller groups such as Palaung and Pa-O should also be recognized of their ethnic
identities.
- Second: State identity (all ethnic groups large and small belonging to each State)
- Third: National identity
The recognition of these identities is important for us to see our qualities of difference.
If these three levels of identities are recognized, we can go beyond ethnic conflict. Do you agree? I would like
to hear your comments.
A: I fully endorse this view. To give an example from my country, Denmark, we share a border with Germany
and have been in war with Germany at least two times. Across this boundary or border, we have Danes living
south of the border and Germans living north of the border. Both countries have mutual agreement on recognizing
these groups as national minorities across the border. Language is a civil right. The Danish minority in Germany
have their own schools and kindergartens. Germans will even enroll their children in these schools if the
schools have good reputations, even though they know they have to learn Danish language.
If you can recognise differences, down to the smallest groups, it is important because it’s not just big groups.
Local identity is part of identity. There are north and south Po-Karen. People say, “We come from this place and
that place”. And this is part of their identity, too. There are shared parts and differences. When it comes to
securing culture and language, it must be part of your civil rights. Remember to include even the smallest
group – don’t leave anyone out. Some new identities are still appearing in Burma. For example, this area called
Kokant has emerged as having own identity as Kokant, where I thought was Chinese. So there new identities
will come in the process and old ones will be taken up again. Identity is always in the process of being made,
but like Lian said, we still imagine our identity as something we got not only from our mothers and fathers, but
from a long time ago. It’s a paradox but there’s really no conflict in this.
Now it is time for the most important part – reconciliation. In the paper there are some examples of reconciliation
processes from other countries in brief. I don’t have time to go through them now but you can read them.
Firstly, I’d like you to discuss among yourself, “What do I understand by reconciliation?” “Departure from violence
and the beginning of coexistence”.
Reconciliation is the result at the end of a very, very long road. We have seen in other cases that it takes years.
A Truth Commission (or other body for reconciliation) is only the beginning of the long process which could end
in reconciliation.
What are the preconditions for reconciliation? I have outlined some points on the overhead. But there may be
other important points when you come to work with it.
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1. Open political dialogue and a transparent agreement: no hidden agenda.
2. Physical security, freedom of speech and assembly.
3. Cease-fires and decommissioning of weapons agreed upon. In Northern Ireland, there was
uncertainty over how many weapons were out there. There is also the question of what to do with the
army, how to get them back to barracks.
4. Amnesty, retribution (punishment) and reparation.
5. Building an environment of initial trust. I think this is very important. A clear and transparent
agreement and trust between the parties go together.
Take a brief look at the Truth and Reconciliation Commission (TRC) in South Africa. There are different views
on whether it was a success or not. Polls taken during and after the final report were quite discouraging
because the majority of the White population believed it was just an ANC’s call and it really didn’t prevent but
maybe increased the racial tension. (They showed that white South Africans viewed the process as disappointing
and a process dominated by the ANC.) Present President Thabo Mbeki withdrew his support to the commission,
and said that some human rights violations during the struggle were justified. The TRC heard 22,000 testimonies
and 7,000 applications for amnesty were treated, but not all of them were granted amnesty, off course. On the
positive side, the TRC helped to disclose hidden atrocities, giving relatives the chance to know the causes of
the death of their loved ones.
So recording the causes of violence, the fact-finding part of it is really very important, which is emphasized by
all experts. You may discuss and consider whether this should be the emphasis in Burma. Perhaps you want to
call it a “Historical Facts Finding Commission” if “Reconciliation” is a too difficult term to use.
Another important aspect is amnesty. I know you have discussed this problem already. Is it possible to accept
a general amnesty? Maybe this is acceptable for acts committed during the armed struggle. But perhaps a
partial and conditional amnesty for individual acts of rape and torture should be considered. In South Africa, it
was said “that amnesty was a hell for many victims” who told their story, but perhaps not feeling that they got
anything in return. So we have to consider a process of not just retribution but also a process of rehabilitation
of the victims and their dignity and identity.
Recall the idea from this morning about victims and offenders, and who are victims and offenders. For example
in former East Germany, many informers told military intelligence (MI) about their friends and colleagues, and
there was even a case of a husband who informed on his wife. What would you do then? Are these victims, all
of them, or are some also offenders?
Retribution, justice also depends on the legal system. Consider if the legal system is prepared for taking cases,
or does it have to wait and focus on restorative justice – not court cases but rehabilitation and reparation.
Now to the organization of a commission – how would you organize a TRC? The South African model had a
number of components:
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Standing Committee
Amnesty Commission: Took care of applications for amnesty from perpetrators.
Human Rights Commission
Reparation Commission: Giving compensations
Local Committees
It was kept together by the Standing Committee. Hearings were also held in local places that could be considered
to have local committees.
Should hearings be open, closed or partly closed? In Chile the hearings were closed, whereas in South Africa
they were widely broadcasted both on the TV and in print media. You may want to choose something in
between. Keep in mind that it may be very difficult for some victims to appear on the TV.
One function that is very important is to listen to the victims. This whole function or the act of listening to the
victims and also to hear offenders, even though they may still deny or even lie, is emphasized by all the experts
as extremely important.
One more thing I forgot before – it’s important to include all organizations and groups inside Burma. Get who
you think are the ‘bad guys’ involved in the process here.
There is also the topic of the subjects that the future commission should deal with. I am sure you have many
other issues and items, but mainly focus on those actions where violence is directly involved – torture, rape,
displacement, destruction of property, forced labor, etc. Some of the main events as August 1988 and last year
May event may have to be dealt with by special commissions. It’s up to you to decide which are important.
What Can Be Achieved from a TRC Process?
• Factual knowledge of events and sufferings in order to rehabilitate victims. This is the
most important aspect.
• Promote accountability – so that perpetrators really will confess and say they did
something wrong. But you cannot force any confession out of any one! This was
sometimes a problem in South Africa. Desmond Tutu was blamed for trying to pressure
people to confess. But most important would be the help to victims, and I would not
recommend or suggest any kind of reconciliation commission if you are not prepared
to compensate to the victims. Because this will be a huge problem if they don’t feel
they get anything back. For example, just a little help to restore their life, medical
treatment or whatever they can obtain, then they may feel they are giving a lot, but not
receiving anything. Terms like forgiveness and
• Healing has been very often used for these commissions. They are very big words,
and I think it’s very difficult to forgive totally, and it’s probably not possible to heal any
and every wound. So I would in stead emphasize coexistence and preventing revenge.
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• New relations of coexistence
• Social memory recorded (including disagreements) for future generations to reconcile
• Prevent revenge
Now it’s time for you to discuss this important subject. Questions for discussion will be handed out. You need
to consider:
Questions for discussion
1. How can such a commission like TRC be organized in Burma?
2. What is possible / not possible? Consider an amnesty, retribution, and reparations.
3. Who should/could be the members of the committee?
4. What problems and issues should be covered?
5. What should the name of it be? This is important, there is symbolic ritual involved.
6. When should it be held and for how long? Experience suggests that it should be
1-2 years (duration) at the utmost, not longer.
We are fortunate that discussion groups are already formed by the Chair of the Seminar. But there are no strict
rules for the discussion – any comment or proposal can be made. When you’ve had your discussion, write a
few key points on an overhead and briefly present them – two or three minutes for each group. Then we can
have a discussion.
Q: The TRC came from South Africa. How much of it is relevant or reflected to the culture, social conditions and
norms in South Africa? How useful would it be in Burma?
A: The TRC mainly followed atrocities and violent acts. But you can include culture if you want, such as burning
down churches, mosques, defaming. But South Africa dealt mostly with extrajudicial killings, torture,
imprisonment, violent acts, etc.
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Results of Group Work
Group 1
1. How can a commission be organized?
- The structure should be issue-based (a commission for rape / forced labour / extra-judicial killing /
disappearances ….)
- Commission at National Level is a MUST
- 2 or more sub-commissions
- Regional commissions in each state.
2. What is possible/not possible? Consider an amnesty, retribution and reparations.
- Amnesty possible except for some serious crimes – rape, mass killings, etc.
- Retribution partially possible
- Reparation possible depending on co-operation and resources. Must be done fairly.
3. Who should be members of the committee?
- Neutral: Religious leaders
- Non-partisan: Respected academics / scholars
- Ethnic leaders
- Women leaders
4. What problems and issues should be covered?
- Rape, extrajudicial killings or genocide / religious persecution
- Forced relocation / land confiscation
- Disappearance, extra-judicial killings, arrests, sentences
- Sexual abuses
5. What should be the name of it?
- TRC is appropriate
6. When should it be held and for how long?
- Just after the first democratically elected government appears.
- For a period of 3 years.
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Group 2
1. How can a commission be organized?
- Good Governance à to start National Reconciliation Process
- To get good governance you need: Tripartite Dialogue, Political and Social Power Sharing is part of
good governance, Economic and Justice
- For the organizational structure:
(a) Standing Committee (overall)
(b) Amnesty Commission
(c) Awareness Raising Commission – (thought it is very important to give practical, correct information
to the people)
(d) Human Rights Commission
(e) Fact finding and Documentation Commission – (could be under or part of HR)
(f) Retribution and Reparation Commission
(g) Local Committees
There should be an enforcement mechanism to support the work of the commission. They should have
the power to do what they are supposed to do.
2. What is possible/not possible? Consider an amnesty, retribution and reparations.
- Retribution and reparation are possible.
- A general amnesty is not possible.
- Criminal cases should be dealt with as criminal cases.
3. Who should be members of the committee?
- Couldn’t name anyone who should be in the committee so we left it for now.
4. What problems and issues should be covered?
- No comment made
5. What should be the name of it?
- Not sure
6. When should it be held and for how long?
- At first we thought during the good governance power-sharing period, but then we thought that wouldn’t
work. So then we thought after the transitional period.
- Unknown length – we could not say how long it would take.
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Group 3
1. How can a commission be organized?
- Various commission / local committees
- Land resettlement
- 88 uprising
- Depayin should be dealt with
- Convince the SPDC to be involved, because if they will not confess they may be threatened (including
local committees)
2. What is possible/not possible? Consider an amnesty, retribution and reparations.
- Amnesty – not possible in criminal cases (rape, massacre …)
- Retribution – partly possible, but according to SA experiences top leaders did not appear.
- Reparation – possible and the government is responsible to look after this and rehabilitation
3. Who should be members of the committee?
- Religious leaders – from different ethnic groups
- Historians
- Legal professionals
- Technical officer – foreign experts
- Academics
4. What problems and issues should be covered?
- Human rights violations, rape, criminal cases, religious persecution
- Cases from 1948 onwards should be considered
5. What should be the name of it?
- Justice and Reconciliation Commission
6. When should it be held and for how long?
- Within 6 months after transitional government for 5 years duration.
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Group 4
1. How can a commission be organized?
- Education in transitional justice (before transition)
- Inclusive – all stakeholders
- Depend on circumstances of political dialogue
- Political / Social / Conflict Background – quite different from South Africa and East Timor
- Should it be a top-down policy? The consent of the people is needed, hence the need for education.
2. What is possible/not possible? Consider an amnesty, retribution and reparations.
- Conditional amnesty – possible
- Blanket amnesty – possible, if the army voluntarily go back to barracks and surrender their power.
- Retribution – depends on amnesty policy
- Reparation – possible
3. Who should be members of the committee?
- Impartial
- Respected
- Social leaders
- Religious leaders
4. What problems and issues should be covered?
- Time limitations – did not discuss
- Should deal with serious crimes – extrajudicial killings, torture
5. What should be the name of it?
- Truth Reconciliation and A??? Commission
6. When should it be held and for how long?
- During transitional period
- 3-5 year duration
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Group 5
1. How can a commission be organized?
- A commission should be formed by the Transitional Authority which will be comprised of SPDC, NLD
and ethnic leaders.
2. What is possible/not possible? Consider an amnesty, retribution and reparations.
- Amnesty, retribution and reparation are possible and necessary. Certain conditions for amnesty should
be applied.
3. Who should be members of the committee?
- Religious leaders, academics, respected persons from communities (there are people who are very
influential without any affiliation to organisations, religious groups etc.)
- Civil society groups
- International monitoring group and some experts
4. What problems and issues should be covered?
- Victims of human rights violations (especially criminal offences)
5. What should be the name of it?
- National Reconciliation Commission (NRC)
6. When should it be held and for how long?
- When transition takes place
- For 3 year duration.
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Summary of Discussions
1. How can a commission be organized?
• most/all of you endorse the idea of some kind of commission. Of course the problem
is what happens before it can be established.
• most of the groups endorsed an idea of having various levels of commissions.
• one of the ideas is to have an awareness raising commission
• there should be an education of transitional justice before this can tale place and
maybe that’s really necessary. It’s obvious that this idea needs to be communicated
to all parts of the country and discussed before it’s taken on.
2. What is possible/not possible? Consider an amnesty, retribution and reparations.
• possible to have some kind of amnesty, but with conditions attached.
• Retribution and reparation should take place and of course reparation/compensation
depends on economic resources and here you may need some international
assistance.
3. Who should be members of the committee?
• religious leaders, academics and respected leaders.
• Two groups also mentioned foreign advisers. You could have advisers but I think the
members of the commission should be from Burma, but not from another country.
You could have a supporting team when it’s organized, but I’m not sure whether it’s
a good idea to have one during the commission itself, but that’s up for you to find out.
4. What problems and issues should be covered?
• criminal cases should be taken off
• rape, torture, killings, disappearances and larger events should be dealt with in
another way.
5. What should be the name of it?
• don’t think we can agree here on one but maybe that’s not so important at this stage
anyway.
6. When should it be held and for how long?
• depends on the political process.
• have it in the transitional period.
• One group mentioned 3-5 years
• it will be up to the commission, or to the mandate, to find out how long it can or
should spend on this.
Thank you. Well the clock is almost at 5 and I’ve discussed with the Chair and we’ve agreed I should spare you
for the last part of the paper but of course you can read it and it will be translated into Burmese.
If there is anything that was not clear from this morning because I had to skip some parts then please read the
paper in English or Burmese. Tomorrow is about the constitution so you can read the part of the paper about
Panglong. Thank you very much.
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Thank you for inviting me here which is a beautiful place to discuss these important matters. I have been here
once as tourist as many other Danes. I hope that I will be able to contribute to the process. I’m a professor in
political science at Aarhus University. I’ve made my doctoral thesis on “Crisis of Democracy”. My interest in this
field is on democracy, political institutions and democratization. I’ve worked as advisor to the Danish Foreign
Ministry on the processes of democracy and election, in particular in English speaking East African countries.
Most recent published book was on “Democracy and Referendum”.
My topic today is democratization and federalism. There is a widespread belief that we are living in a time of
democratization and that democracy is the only legitimate form of government today. But of course you are
well aware that that’s not democracy everywhere and that Burma is surely one of the cases, which is surely
without democracy.
I want to make the argument today that the form of government which we call democracy throughout the world
is by no means ideal form of democracy. I shall argue that what we call democracy represents an ideal form of
democracy, but that it is only an approximation to what we have in the world. I will introduce the concept of
“polyarchy” which means a rule by the many, and not by the people - that “democratization” must be seen as a
process towards “polyarchy”. And furthermore that democracy or polyarchy can take different forms and of
course one of these forms is the distinction between unitary state and federal state.
So first I will tell you something about democracy and democratization. Then I will introduce the concepts of
unitary and federal states and discuss various forms of federal governments and look into the reasons for
federalism and consequences of federalism. And I hope this could form the basis for discussions among you in
groups after my discussion.
No Ideal Democracy
The American President Abraham Lincoln in his famous Gaithersburg address in 1863 talked about the American
government as the government for the people, of the people and by the people. Government for the people, we
find that everywhere. All rumors claim that they are ruling for the people, and not for themselves, or social
class, or tribe, or their own organization. And this notion of democracy is meaningless if a form of democratic
government is found everywhere, it cannot be compared to non-democratic forms of government, and that
means we learn nothing about nature of democracy.
So if we find a government for the people everywhere even if we are reluctant to accept as democratic at large
number of states, even if the rulers claim that they are democratic, government by the people we find nowhere,
or at least only in a few places for a short period that the people, the citizens or the voters take political
Democratisation and Federalism
Professor Palle Svensson, Dept. of Political
Science, University of Aarhus, Denmark
21
decisions themselves in form of initiative or referendum is the exception rather than the rule. And only a few
countries such as Switzerland, Italy and some American states, notably California, practice forms of governments
by the people.
That’s what we find in countries which we call democracy which we accept as democratic is the government of
the people – not the government by the people. And when I talk about a government of the people, I think of a
government in which political leaders are not recruited from a single social class, a single ethnic group, and
from a narrow set of ruling families, or aristocracy, or the military, but rather the leaders are recruited from the
people at large. So when we talk about democracy, collective self government, sovereignty of the people, what
we mean is that the people are ruled by a set of political leaders who have been appointed by the people
usually through free and fair elections, and who are responsible to the people.
So democracy in the sense of sovereignty of the people in fact involves a representative democracy, where
political leaders act on behalf of the people. It was not what classical theory such as Jean-Jacques Rousseau
envisaged. But Jean-Jacques and other classical theorists of democracy, they had in their mind small
homogenous countries when they talked about democracy. But today democratic governments are adapted to
large countries with million of citizens, perhaps even hundreds of millions of citizens, and expansion of capitalism
has produced countries with deep inequalities among the citizens. This means that all the fine notions about
government of the people, collective self-government, sovereignty of the people is associated with political
equality in a rather formal sense. Democracy is first and foremost associated with a representative system of
government based on universal and equal suffrage, and that all citizens have the right to vote and that their
votes are counted equally.
Such a representative system of government based on elections with universal and equal suffrage is, however,
a rather incomplete or limited democracy, if the voters cannot associate themselves in order to take care of
their interests, if they cannot obtain information about public problems and political solutions, if candidates
cannot present to the people their points of view in the media, and if voters and candidates cannot meet and
exchange opinions. In consequence, it is common to make a distinction between electoral democracies where
political leaders are appointed in elections in a competition between two or more political partiers, and this
electoral democracy is contrasted to liberal democracies where the competition takes place within a framework
of well-established political liberties, such as freedom of expression, association, assembly, and so on.
Polyarchy
It is this form of liberal democracy that is called a polyarchy, as suggested by the renowned American political
scientist, Robert A. Dahl, in order to distinguish between democracy as an ideal and democracy as we find it in
the real world. Polyarchy is characterized by 7 points that I’ll go through.
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Polyarchy
Robert A Dahl, 1989: 221
• Elected officials or political leaders: Control over government decisions about policy is
constitutionally vested in elected officials
• Free and fair elections: Elected officials are chosen in freely and fairly conducted elections in
which coercion is comparatively uncommon
• Inclusive or universal suffrage: Practically all adults resident in the country have the right to
vote in elections of officials
• Right to run for office, or universal eligibility: Practically all adults have to right to run for elective
offices in government even though age limits may be higher for holding office than for the suffrage
These first 4 points represent electoral democracy, but in order to have polyarchy, or liberal democracy,
you also need the political liberties which form the last three points.
• Freedom of expression – very important! Citizens have the right to express themselves without
fear of punishment on political matters. That includes the right to criticize officials, government,
regime, existing social and economic order and the prevailing ideology in the country. In order
to be a little provocative, perhaps I would add here that this also includes the possibility to
discuss the cultural or ethnic identity of the community. It’s not enough to have freedom of
expression. You also need to have possibility of alternative information.
• Alternative information – citizens have a right to seek out alternative sources of
information and that such sources exist and are protected by the laws of the country.
• Associational autonomy – in order to achieve these various rights citizens have the right to
form related independent associations or organisations which includes political parties and interest
groups.
• I should like to add to this list - Freedom of assembly, which is also very important,
particularly in countries without or less developed modern mass media. This right must be secured.
So my point is that democratisation is a process that involves political changes moving in a democratic direction
or more specifically as changes towards establishing and securing these institutions of polyarchy.
Democratisation as a Process
Participation
Liberalisation
Competitive
oligarchies
Polyarchies
Closed
hegemonies
Inclusive
Hegemonies
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These 7-8 institutions (above mentioned) can be simplified and put into two dimensions – the two dimensions
of the right to participate in the elections which is associated with electoral democracy and the right to oppose
and contest the government which is associated with liberal democracy or polyarchy. If we combine these two
dimensions of liberalisation and participation we get 4 main forms of government which are the closed
hegemonies, such as absolute monarchies or military regimes; competitive oligarchies, such as South Africa
prior to 1994; inclusive hegemonies where people have the right to vote, but there is no competition for the
leadership, such as Soviet Union or China. There are polyarchies which combine participation and liberalization.
This means that democratization or the path or the sequence to polyarchy may take 3 main forms.
1. Liberalization precedes inclusiveness: A closed hegemony increases opportunities for public
contestation and thus is transformed into a competitive oligarchy. This competitive oligarchy is then
transformed into a polyarchy by increasing the inclusiveness of the regime.
2. Inclusiveness precedes liberalization: Closed hegemony becomes inclusive and is then transformed
to polyarchy by increasing opportunities for public contestation.
3. Short cuts: Closed hegemony is abruptly transformed to polyarchy by a sudden grant of universal
suffrage and rights of public contestation.
It is Dahl’s theory that the most stable polyarchies have been established by following the first path – that is
where competitive politics precedes expansion in participation. This was what happened in most western
European countries, and the Great Britain is usually pointed out as the classical case. If the 3rd path – the short
cut – has been taken – as for instance in France – the result has usually been less stable. If you start with the
history of France, you will realize how they have shifted between monarchy and dictatorship and the 3rd and the
4th and the 5th Republic throughout time.
Almost the same seems to be the case with the second path, where participation was introduced in a regime
without possibilities for public opposition. The experience of Russia and other former Soviet republics shows
that democracy is very difficult to establish in this way.
But because the first form of democratization is no longer open to most countries with hegemonic regimes,
because we live in an age of Universal Suffrage and mass politics it is difficult for many countries to follow the
first path. In consequence, Dahl recommends that “steps towards liberalization are accompanied by a dedicated
and enlightened search for a viable system of mutual guarantees.” Such viable system of mutual guarantees
could be a federal form of government.
Are we agreed on this understanding of democracy as polyarchy? Do you disagree or have some comments
on this notion of democracy?
Questions:
Q: Thank you for your comprehensive talk. I agree with almost all parts, but in your diagram you showed a
short cut and gave an example from France. If (in Burma) the people changed by free will - because many
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people have countries where regime change is achieved by people power – can it be the same (category) as
that French style?
A: I consider this as a comment and not as a question. If I should draw one conclusion at this point about these
mutual guarantees, I would put it to your consideration that if Burma is right now a closed hegemony, you
should consider hot Burma can follow the green path (first) and how civil liberties can be guaranteed in the
country. And then elections could come at a later point.
Q: The term ‘polyarchies’, I’m not so clear, but does it mean the rule of the majority or what about the minority’s
inclusiveness in that polyarchy?
A: Polyarchy is not associated with the majority rule. You can have a system in which you will decide that
certain decisions should be taken by a qualified majority (two-thirds or four fifths or whatever), but of course a
majority is common in polyarchies. On the other hand certain minority rights are protected, which are indicated
with these political rights – right to freedom of expression, organization, assembly and so on. If these rights are
taken away from the minority, you don’t have a polyarchy. Polyarchies can be organized in many forms. You
can have different kinds of electoral systems. You can have presidential system or parliamentary system or
things like that. But before you come to the question of how to organize polyarchy, it is important to consider
what kinds of units or associations should be governed by a polyarchy. That’s why we’ll turn to the question
about unitary and federal states.
Unitary and Federal States
• States are usually defined as organizations with a monopoly of legitimate use of violence among a
collection of people within a territory. It may be argues that territoriality may not be needed for
establishing a state that a people may not live within well-defined boundaries. But the difficulties with
establishing, for example a state of Palestine, a state without a specific and exclusive territory clearly
indicate the problems involved in organizing a state without a specific territory. I take my point of
departure tat a state involves a specific territory. Such states can be organized in two different ways,
according to the degree of centralization of the state authority. I suggest the following distinction:
• In unitary states the authority over the whole territory is centralized
• In federal states a substantial part of the authority is placed at the regional level.
It means that I suggest the definition of federalism which involves 3 main points:
Definition of Federalism
1. The main part of the territory is subdivided into self-ruling regions.
2. The power or authority of the state is divided between central and regional level. It means there are
2 kinds of government: One at the central level and another at the regional level. I call this horizontal
division of labor. Later in the day, you will hear that it can also be called vertical division of labor. The
same idea, but labors may be different.
3. The institutions at each level have substantial independence and clearly defined competences.
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So the 1st part or 1st element is the subdivision of the territory in smaller units and some kind of self-rule in these
smaller units which we can call regions. They have also other names, but the main thing is that they are
geographically defined and may have names such as ‘states’ in the United States, India and Australia, ‘provinces’
as in Canada, ‘Lander’ as in Germany and Austria, ‘cantons’ as in Switzerland. They can be called in different
ways, but they are regions.
Note that the qualification, the main part that is it may not be the whole territory, which is divided into self-ruling
regions. If the demand of subdivision was to be taken rigorously, a typical federal state such as the USA could
not be included because some regions are under direct centralized control, first of all the capital, Washington,
which is called the District of Columbia, which is not a part of the federal sub-division. So that means that it has
to be “the main part” of the territory. Of course it raises the question what is the main part, but has to be more
than half, I would say.
This geographical subdivision is a political decision and it may or may not correspond to divisions between
various religions, ethnic, social, and economic boundaries. It is common to distinguish between symmetrical
and asymmetrical models of federalism. In symmetrical federations they are composed of territorial units with
a social and cultural character that is similar in each of the units and in the federation as a whole. The USA is
an example of that. The states in the USA are not subdivided according to religion or ethnicity or social boundaries.
So in symmetrical federations, each unit or region is, so to speak, a miniature of the whole federal system.
Conversely in asymmetrical federations have unites with social and cultural compositions that differ from one
to the other and from the country as a whole. To make it short, Burma would be an extreme example of
asymmetrical federation.
The second point is that there has to be a division of the state power or the state authority, the right to take
binding decisions that might – in the end – be enforced by legitimate violence. This is the central definition of
federalism that there is a division of state authority.
Of course, the scope of this regional self-rule may be more or less broadly defined. It may cover, in principle,
only one area or it may cover almost the whole range of public decisions except one area. Of course not all
binding decisions can be taken in the regions, because in this case we would neither have a federation nor
even a state, but rather an alliance or commonwealth of fully sovereign states.
Then it comes to the 3rd element which involves a “substantial” independence. It may concern a few or many
things, but there has to be a substantial independence and clearly defined competences. Of course it raises
once again the question what that “substantial” means and how do you want to define that. So what I think you
should concentrate on is the element of clearly defined competences. Even though a very large number of
areas are actually dealt with at the regional or local level, the state is not federal if the rulers of the central
government at any time may rather easily transfer authority to the central level.
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Such guarantees of regional self-government is usually protected legally in a written constitution and supported
by independent court. My point of view is that however you define the federalism in relation to unitary states, it
is very difficult, if not impossible, to make very sharp distinction. In fact it’s the matter of degree of centralization.
You can start out with a number of states, either unitary states or federal states, and if such independent states
cooperate together, they may form a union. Such a union is sometimes called a confederation, and the main
point is that it is two or more states which cooperate together and have to be in complete agreement on their
cooperation.
A federation is formed when these independent states go together and organize one state with central and
regional level. At the bottom here where the very minimal federation could only involve a single thing let’s say
foreign policy and everything else is decided in the region. But the more areas you include at the federal level,
the more you approach is a unitary state. At certain point you will talk about a mixed state because there are not
really all definitions of federations are fulfilled. Perhaps the guarantees are not very solid. Perhaps it is not the
whole part of the country which is subdivided. So there is a mixed situation before you come to a new unitary
state.
Of course you can also do it the other way around, start out with a unitary state, subdivide it in some regions,
give these regions some autonomy or self-rule and proceed until you reach the level where these regions are
becoming independent state. Even if scholars are not completely in agreement how to define a federal state,
they are more or less in agreement of what states are federal, and it is comparatively few out of up against 200
states in the world, only about 20-25 are federal states.
I’ve now presented democracy, defined unitary and federal states and indicated various forms of federal
governments. If it’s okay with the Chair I suggest we take coffee break now for half an hour and then I will
proceed with reasons and consequences for federation and making the basis for some questions to be discussed
in the working groups.
Diagram of Continuum of Centralization
Maximum Centralism Maximum Centralism
Peripheral Centralism Centralised Federalism
Unitary States Federal Elements Federalism Unitary State
Forms of Federal Government
Federal States Federal Elements Unitary States
Subdivision of territory + (+) -
Divisions of Powers + + -
Guarantees for Independence + (+) -
27
Reasons for Federalism:
Before the break, we have dealt with democracy, democratization, unitary and federal states, and the forms of
federal government. Now before we go into group discussions, I want to present some reasons for federalism,
some possible consequences of federalism. And then we will have the group work at 12.
After the discussion of how to define federalism, the next question is why should a state adopt a federal form
of government, why not centralized all state authority, delegate what is seen as appropriate to regional and
local units and retain the possibility to take back the delegated powers to the center whenever it seems suitable?
This is clearly a political question and I shall return to that in a moment, but before doing that I want to indicate
that there are several reasons for federalism and they may be caused by various factors.
Just to make an overview you could say that there are 4 kinds of reasons or causes for federalism.
Reasons for Federalism
• Historical: In organizing a state and its form of government the inheritage of former
regimes is often taken into consideration, for instance a colonial past of a country.
• Diffusion: In organizing a state and its form of government is taken into consideration
how other states have organized themselves, in particular if you have an ideal or
some successful neighbors.
• Rational reasons or causes
• Political reasons
Among the rational reasons the two main ones are the size and the heterogeneity of the country or state. Let’s
start with size. You can either by geographically or the number of inhabitants. Large geographical area or large
number of inhabitants is usually given as a reason for a federal government. Large size means large distances
from the center to the periphery and this may very well develop the perception in the periphery that the authorities
of the state are the instruments of the center – very often the well-to-do in the capital – against the periphery,
the poor people in small towns and the countryside. Long distances also means long lines of transport and
communications, which may slow down both the speed of decision-making and understanding of local problems.
Some kind of party or autonomous regional government may be seen as more natural than the government of
a distant center.
If you have a very large population in the country, it is also made difficult for all citizens to have a reasonable
representation. If the legislative assembly shall not become a very large and unmanageable one, the result is
that the larger the electorate, the larger the constituencies and the larger of number of people represented.
This argument about size is clearly supported by the facts. A comparative research has indicated that the two
indicators of size, geography and population are highly correlated and the average population of federation is
higher than in the mixed form and in the unitary states.
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This association between the size and federation does not prove, however, that size is the cause of federalism,
because it could be the other way around: that a federation is chosen as the form of government – not because
of the existence of a large country – but because of the intention to create a large state out of smaller units and
the reason for that might be that you want to increase the military strength and power, for instance, of a larger
unit and this leads to the second argument.
Cultural or ethnic heterogeneity of the country is often given as the reason for federalism. Geographically
concentrated cultural differences in the form of language or religion and geographically concentrated ethnical
differences between various tribes or nationalities may form the basis of asymmetrical federalism. Regional
self-rule is admitted in order to contribute to keeping the state together in spite of many differences among its
inhabitants. Those who might want to leave the community are motivated to stay by allowing them substantial
independence on a number of matters of importance to them. They are given legal and constitutional guarantees
that the other regions and the central government will respect their independence.
It is difficult to verify this argument because it is difficult to measure cultural and ethnic differences. It may,
however, be surprising that attempts to correlate linguistic and religious indexes with federalism have not really
been very convincing. Switzerland is often referred to as a successful example of keeping people with different
languages within the same state. But close examination of various cases reveals that federalism is neither a
necessary nor a sufficient condition for resolving language problems. On the one hand, China, which is
multilingual, has survived as a unitary state, whereas there have been various severe problems in federal
states because of language differences, and Quebec in Canada is best known example.
Rational Reasons for Federalism
 The Size of the country
• Geographically
• Population
 The heterogenecity of the country
• Culturally
• Ethnically
 Economic development
 Democratic development
Other reasons for federalism are economic development and democratic forms of government, or polyarchy as
we discussed.
The argument for an association between economic development and federalism is that if a country is poor and
lacks resources, a strong central government is more needed, whereas a wealthy country better can afford to let
regional governments have self-rule and independence with the risk of less efficient administration of resources.
Even though it is easy to find examples of both rich (Switzerland) and poor federal states (Ethiopia), it has been
shown that the average BNP/capita is higher in federal states than in mixed states and unitary states.
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The argument for an association between democracy and federalism is that democratic states are more
responsive than authoritarian states and that regional and local demands for some kind of self-rule is more
readily accepted in democratic states. If you use the quite famous Freedom House Index of free, partly free
and not free states, you find that half of the federal states are free, whereas it is only about 40% of the unitary
states are free, but the mixed states have even higher percentage. But, once again, one may question, “What
is cause and what is effect?” Does democracy favor federalism, or does federalism favor democracy?
It could be argued that what is seen here as reasons or motivations to adopt federalism and what is seen as
causes and factors that determines federalism may as well be seen as circumstances that favor federalism
that is wanted for other reasons. Furthermore, they may also be seen as a result of a federal form of government.
Thus, large size may be a circumstance that makes federalism appropriate or even necessary in order to keep
a country together, to keep peace among ethnic groups or increase military strength. But it may also be federalism
that makes is possible to create and maintain large states, because a centralized government would be
impossible. So it may not be size as such which determines federalism. It may be that a large size is wanted for
other reasons. And this line of argument has led some others to claim that in reality governments combined to
form federalism into larger states because in this way they can gain some advantages that only big governments
can bring about. I want to give you a quote by one of the political scientists William Riker who has started
federalism. He finds that “in every successfully formed federation it must be the case that a significant external
or internal threat or a significant opportunity for aggression is present, where the threat can be forestalled and
the aggression carried out only with a bigger government. And at the same time there must be some provincial
loyalty so that the bargain is necessary, that is, it must be necessary to appease provincial rulers.” In short, this
political argument is that the bargain is that the rulers find that the gains of forming the larger unit that you get
more resources are larger than the costs of bringing smaller units together – the cost is local or regional selfrule.
Federations break up into constituents units, when external or internal threats are not significant and
unitary governments are formed when regional loyalties are relatively weak.
The Result of a Rational Bargain among Politicians
• Bigger government necessary because of
 A significant external or internal threat
 A significant opportunity for aggression
• Some Provincial/regional loyalty
In sum, size and heterogeneity as well as economic development and democracy may only appear to be the
rational reasons and causes of federalism, but they are rather facilitating circumstances and results of federalism,
because the fundamental political reason and motivating factor is the desire to expand on one hand and a
willingness of provincial and regional politicians to comply despite provincial and regional loyalties. So whereas
such thing as size and heterogeneity, a little complicated may both be causes, circumstances and results,
there are also some definite consequences of adopting a federal government.
30
Consequences of Federalism:
It is usually argued that federalism has some – almost logical – consequences for the constitutional institutions.
In order to obtain representation for both individual citizens and the regional governments a two-chamber
legislature is formed. And in order to guarantee the independent self-rule of regional governments some kind
of legal protection has to be established, usually in the form of a constitutional court that may decide on
conflicts between the central government and regional governments. Finally these conflicts are to be resolved
on the basis of a written constitution. There are some of the immediate consequences and some authors will
even include these are defining elements in federalism.
Consequences of Federalism
• Political Institutions
 Two chamber parliament
 Constitutional court
• Party System
 More Political parties
 Regional Parties
• Public expenditures
In fact, a two-chamber parliament is found in almost all federal states (in nine out of ten) whereas they are only
found in one third of unitary states and in half of the mixed states. It has also been shown that the legal control
is stronger in federal states and unitary states, but some federal countries have no legal control at all. For
example, Switzerland has a form of direct democracy as a kind of control mechanism, and there is no
constitutional court for instance in the US where the Supreme Court has taken over this function. I am not
taking up the point of written constitution in here because almost all countries have a written constitution and
Britain is one of the few examples that have no written constitution. So this is not really distinguishing between
federal states and unitary states.
Another aspect of the institutional consequences of federalism is the party system. It is usually argued that
federalism results in the formation of more political parties and among them regional parties, and in more
decentralized parties.
It has, in deed, been shown that federal states tend to have more parties than unitary states and the large
parties tend to be smaller in federal states than in unitary states. Thus, the party system is more fragmented in
federal states than in unitary states. However, if the size of the countries is taken into consideration, the effect
of federalism is less evident. Large states have more fragmented party systems than smaller states and the
federal states are usually large states, as we have seen. So the fragmentation of the party system may as well
be an effect of the size of the country as a federal form of government.
Finally we may take a look at the policy consequences of federalism. To what extent does a federal form of
government make a difference with regard to public policy output? It could be expected that larger parts of the
economic power when it is located in the regional level, that the federal states have larger variation than
unitary states when it comes to public expenditure. If the regional governments decide the size and use of
public expenditure, it is expected that the variations from one region to the other are larger than in a unitary
31
states where public expenditures are decided by the central government. Even though it seems almost evident,
it has been very difficult to show that federalism have any economic consequences. Despite a higher level of fiscal
federalism – that a larger part of public expenditures are decided and distributed at the regional level – it does not
have a marked impact on the size of the public sector, level of wealth, growth rate, income distribution, etc.
William F. Riker draws the even more radical conclusion that federalism makes no particular difference for
public policy because public policy is more dependent on the economic development of countries than their
form of government. He argues that constitutional and administrative arrangements of federalism deeply affect
the style of public policymaking, “but do not deeply affect the outcome.”
So this brings me to the final point about the relationship between federalism and democracy.
Federalism and Democracy:
It is not my intention to draw any general conclusion about the desirability of federalism. I think that the feasibility
of federalism is dependent on the specific historical, cultural and political circumstances of each and every
country at a particular moment of time. And this is also the reason why I am not going to recommend any
specific form of government for a democratic Burma. I am simply too uninformed about Burma to be able to
give any kind of well-founded recommendation. In stead, I recommend a number of questions for your
consideration and discussion. I think that if you are able to come to some kind of agreement on how to answer
these questions which I have indicated here which will be circulated to you in a moment. I think that own this
basis you should be able to draw your own conclusion about whether federalism will support the introduction of
democracy in Burma. Or to be more precise, referring back: to have polyarchy in the longer run and to have the
possibilities for opposition and contestation in the short run.
The questions that you should consider and discuss are the following:
Group work Tasks
1) What is your own personal opinion on federalism?
- What advantages do you see?
- What problems or costs do you see?
2) Do you think that federalism is needed for Burma?
- Has Burma the size and population?
- Does Burma face internal or external threats?
- Does the ethnic diversity of Burma involve (strong) loyalties?
3) What do you think is possible?
- Politically: Can you agree among yourselves and with other main actors?
- Economically: Does Burma at present have the resources for it?
32
I II III IV V
1a) Advantages Build up union solidarity
Co-existence
Establish trust, economic
opportunities
Ethnic groups will have
equal rights
No political conflict
No political distrust
Regional interes ts
More peaceful countr y
End civil war
Peace and prosper ity
Political self-determination
Tradition, culture
preservation
Accommodate ethnic
diversity, interests
Stability
Better security / defen se
Economic competitiveness
Decentralisation
Ethnic diversity
Agreeable for mos t
Multiparty pluralism
Strengthen democra cy
Unite internal forces
Different developmen t
1b) Problems / cos ts Financial burde n Allocation of resource s
Tendency to sovereign ty
Cost of manageme nt
Border disputes
Higher costs
Slow decision-making
process
Internal problems - territory
and natural resourc es
Increased public spending
Border disputes
Wealth distribution
Lack of constitutional
culture
Higher expense s
Complexity of governmen t
Delays in decision s
Different developmen t
Current regime’s opposition
2a) Size / population
Comment on necess ity
Yes / Yes
Needed
Yes / Yes
Need to have it
Yes / Yes
Needed– a must !
Not necessary / Ye s No / No
b) Threats– internal?
– external?
Yes
Yes
Political / civil war without
From India and China
Civil war / dictatorship
Internal armed conflic t
Economic threats -N/W
No
Political / economic from
neighbours
c) Ethnic diversity
- Strong regional loyalties ?
Yes Yes Yes – but not strong Yes Yes
3a) Political possibilities Yes Yes Possible if enough
commitment
Yes, except the arm y Yes, among each other and
external but SPDC doubtfu l
b) Economic possibilitie s Yes, if the military does
not use up all resources
before then
Yes Yes – human resources
adequate but not natural.
May need international help .
Absolutely, have both
natural and human
resources
Yes, but arguable .
Natural resource s
May need outside help .
Summary of Group Discussion on Federalism in Burma
33
Group 1
1. Federalism is the only and best solution to solve all problems in Burma.
a) Advantages:
- make it easier to build up ‘union solidarity’
- coexistence of all diverse groups in peace and harmony
- establish trust based on equality among all ethnic nationalities
- create better economic opportunities and fairly share prosperity
- sustainable national development whilst preserving environment, ecology and natural resources
b) Problems and Costs:
- Many institutions will be built up and will face with financial burden for various local/state/federal
institutions and infrastructure.
2. a) Yes, definitely. There are more than enough populations to build a federal system in Burma
b) Yes
c) Yes
3. a) Politically: – Yes, that’s why we are here
b) Economically: – Yes, even though SPDC has exploited many natural resources we should still
have enough to build federal system in Burma.
34
Group 2
1. Agree that federalism is essential for Burma regardless of difficulties.
a) Advantages:
- All ethnic groups will attain equal political, economic, social, cultural and religious rights to create
peace and stability.
- There will be an end to ethno-political conflicts and a reduction of ethno-political distrust between
groups.
- Political, economic, social, and cultural wellbeing of all ethnic nationalities will be uplifted.
- Globalization pushes us to federalism to protect common interests.
- Achieving social, political and economic equality will stop civil war and allow us to have peaceful civil
society.
- We can work more on security and development issues and Burma will become a more peaceful
country.
b) Problems:
- Cost of management will rise.
- Possible problem on allocation of recourses
- Tendency for sovereignty as well as chauvinism.
- Determining boundaries between states could also be a problem due to difficulties in accurately claiming
territory.
- Federal army and state army issue could be a problem in exercising separation of power.
- Some politicians might become corrupt or cause problems for their people.
- Defining boundaries based on ethnicity could be a big problem for the future Burma.
2a) Yes, because there is no standard rule to participate in federalism. Burma’s situation is very
complicated so even though size and population are not huge, federalism is the best system and it will
solve ethnic diversity problems.
b) Internal threats – civil war (without federalism)
External threats – from China and India, there are economic, population and military threats. We need a
system that can prevent all kinds of threats (also cultural, religious, etc.)
c) There are regional loyalties but we do not consider this a big issue at the moment.
3a) Politically: Yes, we can all agree.
b) Economically: Yes, we have resources to establish a federal country.
In addition to these questions we also discussed a few things related to the lecture this morning.
We always pay our respect to General Aung San and his principle is that “all ethnic nationalities love and
care for each other, and treat equally and practice self-determination.” If we practiced this, there will not
be a problem in Burma.
35
We also discussed that secession rights should be added to the constitution – not to secede from the
union at any time but to balance power between ethnic groups to promote unity and trust, not to use as
a threat.
Internal migration: We respect the uniqueness of each nationality. We would like to promote and protect
their cultures but at the same time recognize freedom of movement. We need to balance these two.
Group 3
1a) Advantages:
- the civil wars which have been going on for 50 years in Burma will end, leading to national peace and
ultimately prosperity
- will bring equality
- self-determination for each nationality
- will promote tradition, literature and culture of respective nationalities
b) Problems:
- the cost of the governing body will be higher
- decision-making process will be slow
- internal problems relating to distribution of territory and natural resources.
2) We think federalism is absolutely needed for Burma – it is a must.
a) Size is big enough; population is also big enough (in terms of different ethnic groups).
b) Internal threat – yes, if there is not a federal system there will be civil war and the dictatorship will
remain in power. No immediate external military threats from other countries perceived. Migration from
Bangladesh, China and India is a problem already.
c) Yes, there are regional loyalties but they are not strong. Federalism required due to unequal opportunity
rather than regional loyalties.
3. a) Politically: Federalism is possible if we have enough commitment.
b) Economically: Enough human resources but not natural. But with help of international community we
can build up our nation.
36
Group 4
1a) Advantages – would accommodate ethnic diversity and interests of diverse communities, ethnic
harmony and hence stability, economic competitiveness (from human resources), better security for
stronger defense.
b) Problems – increased public expenditures (could be solved by raising taxes), resources and boundary
disputes, wealth distribution (including human resources), lack of constitutional culture is thought the
most important. Since independence Burma has had 3 constitutions. People do not think highly of these
documents because they have been misled in the past. Having faith in the constitution may be an issue
in Burma.
Example of South Africa: the high cost of trying to implement 13 official languages.
Whilst Burma is rich in natural and human resources they are in a variety of different places, so if
federalism is implemented then there could be disagreements over ownership.
2a) Size of the country and the population would not probably require federalism in Burma. However
diverse ethnicity and cultures would.
b) We thought of this as: if Burma was not a federal union
Internal armed conflicts are a result of current one-party system but could also threaten to fragment the
state.
Federalism could increase the state’s strength, to combat external influences economically and otherwise
(between the regional power rivalries to the western and northern borders – India and China).
c) Yes to strong regional loyalties.
3a) Politically – yes, except the current military regime (with the misinterpretation of federalism as
separatism.)
b) Economically – yes, absolutely, we have both the natural and human resources necessary.
Group 5
1a) Advantages – decentralization, ethnic diversity, agreeable by most key political leaders / actors,
effective multi-party system, pluralism, balance different development status of the regions, enforce and
strengthen the democratic system, unite internal forces to prevent / counter external threats.
b) Problems or costs – higher expenses, complexity of governing system with both regional and central
governments, decision-making delays, different developments according to natural resources, current
regime’s opposition to the idea.
2a) No
b) No internal threats but external threats are present because of the interest of neighboring countries.
May be of a political or economic nature.
c) Yes
3a) Yes, we can agree among ourselves and with other main actors. But SPDC???
b) Yes, but arguable. We have many natural and human resources but may still need outside assistance.
37
I will conclude the advantages and costs in three points each:
1. You seem to agree federal government will accommodate ethnic diversity (national and state selfdetermination),
allow for peace and an end to civil conflict. (more peaceful country)
2. There seems an agreement on positive consequences on increasing the resources for your country
and the prospects for economic opportunities and your ability to defend yourself and maintain national
interest.
3. Most of you agree there are improved possibilities with federalism for promoting regional or state
interests.
So the advantages are: accommodating ethnic diversity, increasing resources, and promoting possibilities
for regional interests. But I appreciate you are aware of the costs. Federalism will not solve all problems
but involves some problems and costs. Three main points from your presentations, I hear you are in
agreement on 3 main costs:
1. More expenditure on government which can be a financial burden, which in the end might mean
higher taxes.
2. Subdividing country into local states might involve border disputes
3. Prospect of unequal distribution of wealth – resources (including human resources) are not spread
equally throughout Burma. It might be an obligation of central government to redistribute wealth amongst
regional units.
The necessity of federalism has been answered with a clear ‘yes’. The preconditions are present and
you are motivated. You have found that Burma has the size and population, and a federal state is
necessary because there are strong ethnic loyalties. The potential for civil war exists without federalism
and there are also external threats (economic, political, military and social) from your large neighbors
that require mobilization of resources to defend yourselves and take care of your interests.
Finally on the point of possibilities, you seem to agree it is possible for both political and economic
reasons (although the present military government may be a problem and external assistance may be
necessary). I congratulate you having agreement on that, but before being too enthusiastic I want to
make the final point that even if you agree on the need and possibility (to form federal government), you
still face the real and crucial problem of where you want to locate the federal state on the ‘continuum of
centralization’. What kind of federation/federal government do you want to form? In talking about selfdetermination,
you need to be aware and recognize that a federal form of government means limits on
the self-determination of each state. What areas of decision-making will you transfer to/put at the central
government? So if we start out with everything that is not centralized at the regional level, you have to be
clear about competencies and legal rights to take binding decisions at the central level. It may not be
enough to put only foreign policy or things like that, but the issue of redistribution of the wealth among
the regions or the single states. It’s good that you find more advantages than the costs in making a
federation. But now you have to think what kind. You can be close to a minimum federation or at the
other end of the scale close to a unitary state.
I wish you good luck with these discussions and I hope that our discussions here today have enabled
you to move forward in the process.
38
Role of Federal State, States and Local
Governments in a Burmese Context
Salai Lian H. Sarkhong, Secretary General of Ethnic
Nationalities Council (ENC)
Thanks for this opportunity to present my paper. My paper today is about the role of the federal state.
My terminology is different – federal means central government, state means ethnic state. The way I will
present will be three levels: Federal, local and state level. My focus will be on the nation’s building and state
building, how it would relate in our context and how it is a problem and how we are intending to solve.
I would like to stress a little on this theory on federalism from my point of view – political theological federal
system which is still quite influential today. Political theoretical aspect of federal development is that theological
political thinkers stressed federalism as more or less a covenant. I stress this because Union of Burma was
formed on a covenant (Pang Long Agreement) and we should respect and protect the covenant like the way
we trust in God or in human beings each other and believe in each other. The basic principle of federalism is a
combination of shared-rule and self-rule. It is a combination of power-sharing not only vertically but also
horizontally.
To go back to our history, Union of Burma was formed by four former British colonies – which already had their
own constitutions, their own administration, their own territory, their own historical background, and everything.
So those 4 colonies come together in Panglong and signed which called the Panglong Agreement. Based on
the Panglong Agreement, the 1947 union constitution was framed. I would like to stress that when General
Aung San and the ethnic leaders from former colonies aimed at the Panglong was to create a modern nation
state which will combine a shared-rule and at the same time self-rule. They wanted to keep their territory and
their homeland ruled by themselves and for themselves. That was very clear when those who attended the
Panglong agreement and those who signed the Agreement, the idea was clearly expressed. Aung San also
agreed and stressed a lot on those issues. When the former colonies signed the Burma Agreement, they very
much wanted to maintain their independence but also wanted to combine their strength in a union. This is the
basic idea of federalism – the principle of self-rule and shared-rule.
Aung San unfortunately was assassinated in 1947. He had a very clear vision of how to establish a new nation
state. Today I would like to stress on the concept of nation building and state building because this is a challenge
we are facing today because of this concept and misinterpretation of nation building.
Concept of nation building is very problematic because nation building as we all know is adopted from 1819
European concept – that is a nation should be built on three things: one language, one people, one religion.
That was the basic concept and this is a problem because when you accept these 3, it is impossible and
unsuitable to build modern union Burma where we have multi-religion, multi-ethnic and multi-culture. As we all
39
know in the Burmese history, the nationalist movement was based on this 19th century European concept of
nationalism or nation building (Doe-Bama-Asi-Ayone’s doctrine and policy).
But Aung San directly challenged this idea in 1938. His main doctrine was a multi-nation, a union based on
pluralism and ‘unity in diversity’. He tried to use this as a political value and this was his basic principle. That
was why he invited other ethnic groups and people who have different backgrounds to join the union. So if we
apply Hannah Arendt’s theory of nation building, what she calls is a secret conflict between nation and state
(union/nation). According to Hannah Arendt, whenever we apply nation building process in plural society, there
is always a problem, so what we need is state building process because state building means – the “state or
nation state or union is a legal institution and the state knows only citizens no matter what nationality he or she
is, and it is a legal order open to all who happen to live in its territory.” So the way she expresses the state is
objective value – the value everybody can share no matter what language we speak, what religion we believe
in, what culture and tradition we practice, no matter what we can share the value, because the State knows
only the citizens. So nation is a legal construct, and the state is the citizens. State can be shared regardless of
differences. But on the other hand nation is subjective value which is related with culture, language, religion,
ethnicity, homeland, shared memories and history, and specific sentiment of solidarity in the face of other
groups and people.
What Gen. Aung San and ethnic leaders wanted to achieve at Panglong was to build a union through statebuilding
process, not to create a nation through a nation-building process. I like to make this point very clearly
and strongly so I will repeat.
Nation-building always excludes other ethnic groups by only accepting one religion, one language, one people.
After Aung San was assassinated this is what happened in Burma: Majority Burman ethnicity became the
dominant group and the basis for nation-building.
So the way we approached our nation-building was based on allegiances, which was very problematic.
1) U Nu wanted cultural and religious assimilation and promulgated Buddhism as state religion.
2) After U Nu, Ne Win opted for national language policy of Burmese language as the main factor of nationbuilding.
He did not allow ethnic groups to study their own languages. This policy by Ne Win complemented the
earlier policy of U Nu to create a homogeneous unitary state.
3) Current military government also complements earlier policies on nation-building. They have chosen the
one-people policy of nation-building (based on ethnicity). They have chosen the name Myanmar, which is an
ethnic name. It was a completely different culture and language for other ethnic groups.
This is the problem we are facing in Burma. We have to find an alternative where we can all live peacefully
together rather than a policy of cultural assimilation and rights deprivations and violations. So that’s what we
are doing right now. Instead of nation building we say state- or union-building process. We say ‘unity in diversity’.
This should be our political value.
We need to find equilibrium between the two processes, which requires compromise between the majority and
minority groups. The purpose of making a federal constitution is for shared rule between federal and state
levels.
40
The two processes can go hand in hand – federal constitution drafting and state building.
In a union where there is a minority and majority we must try to equalize these two.
The concept of equality is also based on compromise. Protection of human rights of individuals prevents the
state’s discrimination on the basis of ethnicity or race.
Here I’d like to stress the concept of tolerance – also a religious concept. People think this is not a problem, we
can live peacefully together. But in political structure and culture, this is not always enough. Tolerance also
allows everyone to live within the community as respected individuals, free from discrimination. Those who are
tolerated as a minority might think this is their state or union, not ours. We must respect minorities.
Need to go back to Aung San’s policy who proposed that unity in diversity should be the political value of the
union. But the problem arose when culture and religion was used as political value. The subjective value like
culture, religion and language: if we are going to choose such thing, this always will be the problem. So we
have to overcome such subjective values. And eliminate from our political practice. Aung San said when he
wanted to separate religions and politics and when he wanted to eliminate culture as political value, “Religion
is a matter of individual conscience while politics is social science. We must see that individual enjoys his
rights including the right to freedom of religious belief and worship. We must draw clear line between politics
and religion because the two are not the same thing. If we mix the religion with politics, then we often dispirit
the religion itself. We need in future is secular state, free from cultural and religious values as political values,
but unit in diversity as our political value which respect equality and self-determination. We hope by establishing
a federal union which will guarantee individual rights and also political equality for all nationalities and the right
of self-determination for all member state of union which will lead us to peaceful co-existence.
Thank you.
41
Role of Federal State, States and Local
Governments in a Burmese Context –
continued.
Dr. Lian H. Sarkhong, Secretary General of Ethnic
Nationalities Council (ENC) and of UNLD-LA
Good morning. I’d like to catch a little brief on my yesterday presentation. I felt that people did not follow me
very well yesterday because the paper was not distributed in time but now you have all had a chance to read,
I hope it will be a little bit clearer. Yesterday I mentioned a bit about theory on federalism and the way the origin
of the union of Burma we founded based on the Panglong Agreement and in 1947 the union constitution was
framed. Then I went on saying that although it was based on the principles of equality, voluntary association
and self-determination, there was a flaw or serious weakness in the 1947 constitution.
Not only the constitution, but our misunderstanding of concept of ‘nation-state’ or nation-building led to 50
years of civil war. This concept or notion (based on one language, race & religion) was how nation-building
took place in Burma after 1947.
After Burma gained independence the successive governments implemented nation building process in terms
of one religion, one language, and one race/ethnicity. It is a problem. I pointed out on U Nu’s promulgation of
Buddhism as State religion. And I also touched upon Ne Win’s national language policy of “Myanmar” language,
and the way it complemented U Nu’s policies even though their approach was different. Current junta emphasizes
one race, one ethnicity so it is also complementary.
So we have to try to find an alternative to the European notion of nation building and work towards it and try to
avoid misunderstanding, civil war, killing each other, etc. I pointed out that in the name of nation building the
right of self-determination of ethnic nationalities has been abused. In the name of national integration the right
of ethnic minorities’ cultures and religions were abused. In the name of maintaining the national sovereignty all
kinds of civil rights and human rights are violated. This is what I touched on yesterday.
I would like to go a bit more on this and then talk about how we can find an alternative. But I’m aware I was not
heard yesterday so I would like to go back to the basic principles.
When we say nation building or state building, we are saying two things: One is state structure and the second
is government structure. State structure always is usually about a constitution. Government structure is about
good governance and so on, in which we are talking about administration, judiciary, legislative, free press, civil
society, and ombudsman, etc.
42
 State Structure
 Constitution
i) Unitary
ii) Federalism
iii) Confederation
Who should govern whom?
What majority or majorities should rule over what minorities?
Who should control political power of state, and with regards to whom?
Who should decide the procedure by which it is settled who should govern whom?
 Government Structure
 Good governance
i) Administration
ii) Judiciary
iii) Legislative
iv) Ombudsman
v) Free press
vi) Civil Society
Basic Principles of Federalism
1. Two or more orders of government each acting directly on their citizens, rather than indirectly
through the other order;
- We are now drafting federal and state constitutions in which we think that we need (at least) three
levels of government – federal, state and local. So in our view, the federal principle that we are going to
adopt is at least there will be three levels of government.
2. Formal constitutional distribution of legislative and executive authority and allocation of revenue
resources between the orders of government ensuring some areas of genuine autonomy for each
other;
3. Provision for the designated representation of distinct regional or ethnic views within the federal
policy-making institutions, provided not only by a federal second chamber (i.e., what used to be
known in Burma as Chamber of Nationalities, or Upper House) composed of representatives of the
state and regional electorates, but also by state legislatures or governments;
4. A supreme written federal constitution, not unilaterally amendable by one order of government,
and therefore requiring the consent not only of the federal legislature but also of a significant
portion of the constituent units or states, through assent by their legislatures or by referendum
majorities;
- Touching on the 3rd point, the flaw of 1947 Constitution was that although there was an upper house,
it was unequal. The intention was that each state would send an equal number of representatives regardless
43
of their size. But ultimately the Burmans were given numerical domination of the Chamber of Nationalities.
The original idea was that each state would have own constitution and organs of state.
5. Written constitutions for all member states of the union, or constituent units, which can be
promulgated, exercised and amended independently and unilaterally by each constituent state for
its own state, so long as such procedures are conducted in accordance with the federal constitution;
6. A supreme court to rule on interpretation or valid application of the federal constitution;
7. Process and institutions to facilitate inter-governmental collaboration in those areas where
governmental responsibilities are shared or inevitably overlap.
Federalism is a constitutionally established balance between ‘shared rule’ and ‘self-rule’; ‘shared rule’
through common institutions and regional ‘self-rule’ through the governments of the constituent units
or states. The federal principles of ‘self-rule’ and ‘shared rule’.
The Basic Principles of the Federal Union of Burma
(Adopted by the UNLD conference held in Rangoon, on June 29 - July 2. 1990)
but these are not absolute principles – only our proposal.
(1) The constitution of the Federal Union of Burma shall be formed in accordance with the principles of federalism
and democratic decentralization.
(2) The Union Constitution shall guarantee the democratic rights of citizens of Burma including the principles
contain in the United Nation’s declaration of universal human rights.
(3) The Union Constitution shall guarantee political equality among all ethnic national states of the Federal
Union of Burma.
(4) The Federal Union of Burma shall be composed of National States; and all National States of the Union
shall be constituted in terms of ethnicity, rather than geographical areas. There must be at least eight National
States, namely, Chin State, Kachin State, Kaya State, Mon State, Myanmar or Burma State, Rakhine (Arakan
State), and Shan State.
(5) The Union Assembly shall be consisting of two legislative chambers: the Chamber of Nationalities (Upper
House) and the Chamber of Deputies (Lower House).
(i) The Chamber of Nationalities (Upper House) shall be composed of equal numbers
of elected representatives from the respective National States; and
(ii) The Chamber of Deputies (Lower House) shall be composed of elected
representatives from the respective constituencies of the peoples.
The creation of Chamber of Nationalities based on equal representation of the member states of the Union is
intended to safeguard the rights of National States and minorities in the Union government. It is also intended
as a symbol and instrument of the principles of equality among all nationalities of the Union.
(6) In addition to the Union Assembly, all member states of the Union shall form their own separate Legislative
Assemblies for their respective National States. In Federalism there must be a clear separation of Union
Assembly, or Federal Parliament, from the Legislative Assemblies of the member state of the Union. Moreover,
the residual powers, that is, all powers, except those given by member states to the federal center, or the
Union, must be vested in the Legislative Assembly of the National State. In this way, the Union Constitution
44
automatically allocates political authority of legislative, judiciary, and administrative powers to the Legislative
Assembly of the National States. Thus, all member states of the Union can freely exercise the right of selfdetermination
through the right of self-government within their respective National States.
(7) The Sovereignty of the Union shall be vested in the people of the Union of Burma, and shall be exercised
by the Union Assembly. Moreover, the central government of the Federal Union shall have authority to decide
on action for:
(i) Monetary system,
(ii) defense,
(iii) foreign relation, and
(iv) other authorities which temporarily vested in the central government of Federal
Union by the member states of the Union.
Finding Equilibrium between Nation-building and State-making
In addition to balancing between ‘self-rule’ and ‘shared-rule’ through constitutionally established
mechanism, recognition and participation of cultural and ethnic minorities can also be achieved through:
• Emphasis on the political rather than the cultural base of the nation-state or union;
• Separation of state and religious or other socio-cultural powers;
• Emphasis on human rights as protection of minority rights;
• Emphasis on separation of powers, formally and informally;
• Executive power sharing
• Multiparty system and proportional rule in elections of the parliament;
• Decentralization and local autonomy, including bi-cameralism, as a means of vertical
power sharing.
How to Protect Minority Rights in a Federal System?
Local self-governments
(Please see local self-government in
1. Federalism, State Constitutions and Self-Determination in Burma,
Edited by Yawnghwe and Sakhong: especial Prof. Harald Hofman’s paper in pp. 271-233
2. The Fourth Initial Draft of Future Chinland Constitution
Q: I have a comment and three small questions. Thank you for a very interesting paper. Your paper and all the
publications from the new Panglong Initiative are very important step for reconciliation and I think they signal a
change in direction, in particular the right to secession.
It is very important to learn from history and events of 46-47, but I think we also have to make a critical
assessment of what happened at that time. I have two brief points which really need much more research:
45
1. The term ‘federal’ originated in 1946 from the federation of Shan states and this process was forwarded by
the Director of the Frontier Area Administration, Mr. Stevenson who planned to unite the whole frontier area in
order to democratize this area in preparation for a future union with ministerial Burma. This was conceived as
a long-term development. Here we have first confusion of the two concepts ‘federal’ and ‘union’.
2. The second problem was of representation. Many ethnic groups were not involved in the Panglong Agreement
– Arakanese, Mon, Karen and many smaller groups. Those who were involved had very little time to prepare,
to select their representatives, to discuss with their local people, and to all participants the terms ‘federal’,
‘union’ and so on were quite new terms.
This is not to blame Stevenson or any of the participants, but to learn a lesson, we must have a transparent
agreement with well-defined terms and we must be careful in representation.
Q: 1. Is a federation a demand which you would have from the beginning of a new Constitution or is it a long
term evolution?
2. You said a federation would be made up of states in terms of ethnic rather than geographical areas. How
could such a state function, for example in the case of the Karens?
3. You mentioned the time when U Nu tried to make Buddhism a state religion. Do you consider that religion
and religious conflict could arise in the future if we don’t take care of when the constitution is written?
Lian: Thank you for your comments. We are doing our best to serve our people. Before I answer your questions
I would like to make a comment on Stevenson and 1946-47. He intended to create a united frontier union for
the border which today we call ethnic nationalities areas. We should review our history and also the role of
Stevenson. In history books in Burma he is portrayed as an imperialist who divided ethnic groups and tried to
split them from the Union of Burma – a really bad guy. I would like to challenge this view. We should give him
a credit for what he did. I think we should look at the archives, especially at the Indian Office in London, and
decide why at the final stage they used the word Union instead of Federation. This was mostly influenced by
the Leftist ideas of the time e.g. the Soviet Union. Of course General Aung Sang was a leftist. He adopted
many ideas from the 1933 Soviet Union Constitution.
1. Your first question I understand to mean: do we want to implement a federal system as soon as possible? I
think we are already late for 50 years. The thing that should have been done in 1947 is still not implemented,
so why should we wait another 50 years? But of course there will be a lot of challenges and problems and I’ve
also mentioned in my article (in the yellow book) there will be challenges because we face problems such as
federalism being quite unacceptable for the military government so this might require a lot of compromises and
discussions. If you look back at our history, the way we formed the union was a concept of coming together.
When we started it was not even a federation, it was like a confederation, or I would say like a commonwealth
of independent nations. But what we wanted was different. After 1947, after 1961 Taunggyi Conference, and
46
even now we try to compromise as much as possible – I think federalism without the right of secession is the
already utmost compromise that we’ve made. So how far we can compromise?
2. This is a big problem. But the reason that it was adopted in 1990 was after a lot of discussion. There is still
a process of debate and also problematic. But we chose that way because we would like to maintain our
identity. We know that the military government wants to form a new union based on geographical states. In this
way they want to eliminate our identity and we need to prevent this one way or another. When the union was
originally formed these (ethnic) names were already used and we would like to keep this way as it is. But of
course this too will require compromise between and within states, for example there are different ethnicities in
Shan State. But this is one proposal, not a final decision, but it was what we adopted in 1990.
3. The issue of religion and politics concerns me a lot. Mixing them always causes conflict. But there is a global
trend now for religious conflict, mostly involving fundamentalists – Muslims, Christian, Hindu, and it can be
even Buddhist. I discussed this issue with South Indian colleagues last week. Look at India with a foundation
as a secular state. But look at what happened – when Nehru was the PM in 50s-60s, no-one would imagine
that one day India would have religious fundamentalists and such a party would become the government of
secular India. Luckily last week this government was overthrown by the people in an electoral process.
In 1989 in Mandalay, the CNLD had a conference, inviting all politicians and leaders including Daw Aung San
Suu Kyi and U Tin OO, student leaders, and former PM U Nu. It was a special gathering and many people
came. The question was asked to U Nu by Chin elderly leader if you become a PM of Union of Burma today,
would you promulgate Buddhism state religion again and the answer was, “Yes, if the people want it, I would do
it”. So that kind of mentality was still there in 1989 and it’s not a good sign for our future and that concerns me.
We need to separate religion and politics, and adopt Aung San’s idea.
By the way, I apologize if it seems disrespectful that I do not use ‘General’, I have adopted the Western style of
referral so my apologies to you all if it offends you.
Q: Thank you for your paper and answers. I think that we agree on the basic definition of a federation so we
don’t need to discuss that. I have a question, a comment and a suggestion. First, the question is about your
understanding of ‘union’. You have already given some answer to this, but I think it is not enough to refer to the
historical use of this word because you do still use the word ‘union’. I think it is too vague to talk about a
balance between shared rule and self rule. The point is, “what balance are we talking about?” As I see it, you
need to clarify what you mean by ‘union’. There are at least 3 main understandings:
1. A union can be co-operation between fully independent and autonomous states;
2. A confederation where a few areas of decision-making are transferred to some central organizations but
thestates are to be fully in agreement – they have the veto power and can have right to leave the union;
3. A federation and a state with two levels of government.
47
So my question is what do you mean by ‘union’?
Let me comment on your notion of state-building and nation-building. I think you take too unsophisticated a
position on nation-building. All states, when they are created, will start a process of nation-building. They will
try to develop and strengthen ideas about patriotic feelings and about national identification. You say it cannot
be implemented in a pluralistic society but I simply don’t think that is true.
Finally is my suggestion. I think it is very well to start a discussion of how you will outline state constitutions. But
in the end it is a matter for the individual states to decide how they will organize their own constitutions. I think
what you should do now which is much more important is to start to think about the role of the central government
– what rights do they have and what sort of competencies should be at the federal level – that should be
defined very clearly.
A: Thank you, Palle for your comment, suggestions and for the tough question. But this tough question is very
easy for me, because the way we use ‘union’ is here in the title: Toward Federal Union of Burma. The reason
we still use ‘union’ and ‘federal’ is another problem. Since General Ne Win came into power in 1962, a lot of
government’s focus was on the rumor that federalism is a separatist movement. So if we use only federal,
people think we are secessionists, separatists. We aim to avoid using only federal for this reason, so we
combine and say ‘federal union’. What we are aiming to achieve right now is simply a federation.
I would like to answer the way you comment on my paper. We all know that modern nation-states go through a
process of nation-building based on national identity and patriotism, etc. No country as far as I know can avoid
it. But we must also look critically to our history. This process is a big problem in our time. Boutros Boutros
Ghali stated that the day of absolute sovereignty is over. So we have to find a new way of approaching to nation
building. I fully agree with Hanna Arendt (who I quoted in the part of my paper you refer to), I think she is one of
the best political thinkers of the 20th Century and I think Boutros Boutros Ghali is right. We have to challenge
the notions of nation-building, nation-state, and everything. This is our challenge.
Additional comment by Khun Marko Ban: This is just a comment. Especially the Panglong Agreement is commonly
misunderstood, at the same time people frequently question it. It was not based on the ethnic nationalities but
based on the area of governance. So General Aung San signed as a representative of Burma Proper. Others
who signed did so as representatives of the frontier unions. So it is not true that there was no proper preparation
or that Karen, Mon and Arakan were left out. This area was under Burma Proper at the time.
A: The Panglong Agreement was signed by four former British colonies, which had already had
their own constitutions. So some people or ethnic groups were not excluded because Aung San represented
as the head of the government of Burma Proper, which included ethnic groups. We should see Panglong
48
Agreement as not an agreement between ethnic groups but between four separate colonies who would like to
come together and join the union.
Q: Since the beginning of the state constitution drafting process, when the delegates come together, some
people raise the question that it seems to be going towards a trend of confederation rather than a federated
state? What exactly is the difference?
A: I will briefly answer, and then I may get PS’s help. Please look at my paper, page 3. It talks about the
differences between unitary, confederation and federation. What basically distinguishes federations from
decentralized unitary system and from confederations, according to Blindenbacher and Watts, is that “in unitary
systems the governments of the constituent units ultimately derive their authority from the central government,
and in confederations the central institutions ultimately derive their authority from the constituent units and
consist of delegates of constituent units.” In a federation, however, “each order of government derives its
authority, not from each order of government, but from the constitution.” So this is my answer to this question.
But Professor, please kindly help me more.
Comment: I think this formulation is alright, but I will try to illustrate it in another way. If you want to make a clear
distinction, then you will have either one or more states. Is the authority divided or not divided? If you have a
confederation, you have two or more states with their own authority but they agree to negotiate on some
matters. They have to be in full agreement and they have the right to leave the cooperation. And so a union is
sometimes just a cooperation between more states, sometimes it is closer cooperation when they agree to
make up some central organizations to deal with certain issues. The difference between a confederation and
federation is that from several states you form one new state – one state. And in this state there are at least two
levels of government – central level and regional/state level – with divided authority. If you take away this
division of authority and centralize all the authority at the center, then you have created a unitary state. I tried
to illustrate this yesterday with the continuum. I hope that answers your question.
Q: 1) Question regarding reflection of history, Lian mentioned since 11th Century Pagan Dynasty of Myanmar or
Burman state was constituted. So according to my understanding there was no union until 1948 and the PA,
but I am not sure and would like to make this clear, as I thought there was no use of “Burman/Myanmar Nation”
existed before 1948. I may be wrong so please correct me if my understanding was incorrect on this part of the
history.
2) In your paper introduction, you mention that British occupied these four colonies (Kachin, Chin, Federated
Shan State, and Burma Proper) separately as independent countries. Are you saying that these are four
countries?
3) In your paper you mentioned (1st pg. par 3) that after General Aung San was assassinated the 1947 Constitution
was rushed through to completion without reflecting the Panglong spirit, which eventually led the country into
fifty years of civil war. I don’t think this is true. The other day Mikael also said the civil war in Burma was
extended post colonial conflict with the ethnic dimension. These two seem similar. The constitutional issue
was one cause of the civil war and could be part of the reason for civil war but is not the only reason. If you look
49
at the history, since before the union was formed in 1947, the red flag communist party already went into
insurrection. Three months after independence there was Communist insurrection against the central
government. In 1949, there was already KNDO and MNDO movements. But in my opinion most of those
(Kachin, Chin and Shan) who signed the Panglong Agreement defended the 1947 constitution until the time of
1962 of military coup. I totally agree there were problems with 1947 constitution and it was not perfect. But I
think the root cause of civil war was not only because of the 1947 constitution. I think this is very important
because if we are to work on the reconciliation, we need to really find the root cause. I think we need to make
assessments like this very carefully and accurately as these assessments will be supporting factors in analyzing
the root causes of the conflict to have reconciliation.
A: When we speak about history there are always different interpretations and understandings. I think that
historical texts show no such as “Myanmar state,” there were a dynasty (Kong Boung, Pagan, etc.) and a king
and all such things, but it is not talked about even as a country. Of course those historical states were not
portrayed, and cannot be considered modern nation-states. The way we use terminology is very different. I
don’t think we can apply to pre-colonial kingdom of Myanmar, as it is a completely different era.
The criteria for a modern nation-state are very different from a tribal culture or society. The Union of Burma can
only be applied a modern nation-state after 1947. The way we built the nation was in the wrong direction
towards one people, one religion, etc.
I think I’ve already answered the second question – whether the Chin, Kachin nations are a modern nationstate
is open to be debated. There are two categories in emergence of nation state – European nation states,
which were never colonized and then those who became independent nation-states after independence from
colonial masters. But the idea is always Euro-centric nation-state pattern. If we look back at newly independent
states, in Africa, Asia or wherever, they mostly follow the colonial administrative pattern of government and
constitution. Before colonial period, there was not a clear boundary between one country and another.
Example of India and Burma Act 1935 – did not include federated Chin state, Kachin Hills, Chin Hills, because
they already had their own administrative system. From 1927 on, it was the colonial scheme. The British
wanted to create a new country for the area that covered by Chin Hill regulation that today includes Naga Land,
Makalara, Assam, Mizoram, and Chin State. I was already approved by Churchill government in an act in 1942
but was delayed because of WWII. Professor Copeland was asked after the war if it was possible to create a
new state. He surveyed and said it should be a separate country from Burma and India due to religious and
ethnic differences. But Churchill lost the election and the new leader vetoed the colonial scheme. So these are
the accidents of history that we also have to deal with.
50
I II III IV V
Federal Affirmative action
(gender, ethnic etc)
Public Health and
Environment
Foreign Affairs
Defense
Postal
6. Social Security
7. Aviation
Currency printing /
banking
Defense
International relations
Taxation
Atomic energy
Foreign affairs
Defense
Finance (currency
printing)
Import / export treaties
Post and telegraph
External Affairs
Defense
Currency
Transportation and
Communication
Commerce (Trade / Taxation)
Defense
Foreign Affairs
Finance / currency
Customs
Taxation
State Lottery / gambling
National Guard
Cultural and Media
Policing
Natural resources
Development and
Business (Economy)
Health and Education
Taxation
Police and Security force
Media
Taxation
Administration
State security
Transport and
communication
Health, education, culture
Education and Health
Development
Land property ownership
State policing
Environment and natural
resources control
Legislation
Administration
Judiciary
Taxation
Health / education
Local Primary education
Water and sanitation
Municipality
Land ownership
Community Health
Municipality
Primary and Secondary
Education
Health
Taxation
Security
Culture, sport, education
Local resources
development and
management
Taxation
Sanitation and hygiene
Local road construction
Development
Cultural promotion
Municipality
Recreation and sanitation
Municipal
Taxation
Police (law enforcement)
Judiciary
Social welfare
Group discussion
List the five main tasks/areas that you feel should be the responsibility of local, state and federal governments.
Summary of Group Discussion – Roles of Government
51
What does it take to write a Constitution?
Dr. Mark Tamthai, Professor (retired) Chulalongkorn
University, Bangkok
Good afternoon. I’ve been asked here to talk about writing a constitution from the Thai experience. Everyone
will receive a copy of my paper at the end of the session so there is no need to take notes.
This topic is very large because the present Thailand’s constitution has around 330 articles. It’s been
7 years since the original was promulgated and the official translation has only just been completed this month.
Because it’s so large, I’ve had to make some selections of about what topics to discuss. If you have any
questions about what I have or have not included we can discuss that later.
The present constitution is 16th constitution since 1932 when Thailand became constitutional monarchy.
In between there were lots of military coup and every time there was a military take-over, the constitution
operating then was thrown out. After a few years, the military would then form some committee to write up a
new one. From 1932 to 1995, there were 15 constitutions already. This one didn’t come about in the same way,
but there was a constitution in place when it was written.
1. In 1995 there began a call for political reform, to begin with the drafting of a new constitution. This brought
up the question of the primary purpose of such a constitution. Two possibilities were discussed:
- to play a unifying role among the people in a pluralistic society / part of a re-imagining of what it
means to ‘be Thai’
- to solve some specific problems faced by the political situation and constitution at that time (1995)
There are two important words here – ‘call’ and ‘political reform’.
Call – came from the ‘elite’ in urban areas (together with media), but was not a call by the population. Intellectuals
and media knew they could not succeed without the support of general public, so a key, easy phrase had to be
picked out for the campaign. That phrase was ‘political reform’. So you use it repeatedly but don’t go into the
detail or explain. E.g. “we want to do away with vote-buying (which everyone can understand) and call this
political reform. That was the way to reach to general public and to get their support.
So the first question of the organizers was: what would be the purpose of this new constitution? Two
possibilities came up for discussion.
First is a very general purpose: political reform to re-imagine society. New constitution will play a
unified role among the people – here in pluralistic society, part of re-imagining what it means to be a Thai. The
constitution plays a role of somehow finding a middle space between being a citizen and being part of a group
share the same values and system. It is a multicultural society although there is still a very big homogenous
section. If you use the idea of being a nation in a sense of sharing a set of value will be too narrow. But if you
use the idea of just being a citizen of the same country, it was too broad. So one idea was maybe the constitution
52
could somehow play this middle role as in some country such as “preserving the Thai way of life” or something
like that. Then it will be re-imagining.
I don’t know you have the similar problem with the word, ‘Burmese’, because the word ‘Thai’ can be
used to describe a citizen of the country or a part of a particular group – ethnic or others. Some people refer to
the people in Southern Thailand as Thai Muslims. But when I go down and talk to the people, they said they
don’t want to be called Thai Muslims. They want to be called Malay Muslims who are Thai citizens. If I say,
some people in Thailand use the word ‘Thai’, meaning Thai citizens. There is this problem with vocabulary
here whether being ‘Thai’ means being a citizen of Thailand or being ‘Thai’ means something more than that.
If this process had taken place today, this unifying purpose would probably have been the reason. For
example in the South, people don’t identify with the image of what it is to be Thai’ – they did not feel part of the
country. Even in every morning when the Thai national anthem plays on radio or TV at 8 am, they can’t see
themselves as a part in those pictures or feel the music. This was a problem even at that time and a big concern.
The second purpose/possibility is to solve some specific problems faced by the political situation and
the constitution at the time in 1995. This becomes a much more specific purpose. If you chose the first option,
people would think it too strange to be building a Thai way of life around the constitution.
2. The second possibility was the path taken in stead of the first one, because there was already the Monarchy
to play the unifying role. The first possibility would have been too difficult to bring about due to the general
population still being unsure of the demands of democracy, and certainly not ready to ‘die’ for a constitution.
People would die for the King, but not for constitution. Constitutions have always been seen as just another
law, though the highest of the land, and always subject to rewriting.
The problem of the second choice was – can the King continue playing this role? Can he hold a diverse
group of people with different value systems together? The role of the King in creating a sense of fraternity in
Thai society was through a ‘transitive point’. E.g. If my son falls in love with and marries someone, even though
I don’t know her, I have feelings for her because my son loves her and I love him. The King used to play this
role – he connects Thai citizens by their love for him. This is the general usually should work.
But there are two problems:
a) It’s not clear when the King can go and show concern for everyone – he goes out and visits the villages, etc.
This general type of fraternal building was falling apart, due to pressures of globalization etc. People more
interested in their own affairs.
b) With the choice to write the new constitution just to solve specific problems was chosen as direction. And
that fit in with the general public relation strategy of political reform also. So the general procedure started how
to go about this. Remember that all this was taking place with a parliament and an appointed Senate by the
King already sitting.
53
3. The general procedure:
- The constitution Drafting Assembly was formed with 99 members. One representative from each
of the 76 provinces (elected by the people of the provinces and the standing parliament + senate:
10 elected by the provinces and then parliament + senate choose one from each province but not
based on the highest vote-receiver from the province). Twenty-three representing political scientists
(8), legal scholars (8) and people with political experience (7), all elected by the standing parliament
+ senate.
- During the drafting the various articles would be brought to the provinces by the representatives
for discussion and bring the feedback to the assembly.
- The final draft was then taken to parliament to be voted on and sent to the King for promulgation on
October 11, 1997.
When each province chose people it was purely based on number of votes. But the parliamentary
selection was not based on this. For example, Thaksin did not get in from CM even though he had the most
votes. Influence of progressive senators split the vote and #2 candidate (a police general) got in.
The Constitution has been called the ‘People’s Constitution’ for various reasons. But it was dominated
by the 23 non-elected representatives in terms of articles suggested and the drafting and type of constitution.
But then each article was taken back to the province by its representative for discussions at a tambon and
village level. It then returned to the assembly. The final draft was taken to Parliament to be voted on. The
original timeframe was 8 months, so the last month involved very fast negotiation with not much time to think.
When it was voted on, many MPs did not like it. But the general atmosphere, particularly in urban
areas, was so strong in support for the Constitution was that even vocal opponents had to vote for it. The final
article allowed for amendment in 5 years so it was thought that in 5 years time it could be ‘dealt with’.
4. The second approach to writing the constitution was chosen with the following six main problems (among
others) to be addressed:
4.1) No stability of government / constant change of governments and disbanding of parliament
There were about 7 key parties – 2 large ones and 5 medium ones. No party alone got more
than 25% of the vote. So every government was a coalition of 4-5 parties, and it kept changing. During
the term parties would pull out and a new government would have to be elected and take its place.
4.2) Prime Ministers at the mercy of coalition partners, thus weakening their position.
Coalition parties could demand anything and threaten the stability of government. Two names
frequently mentioned were those of Lee Kuan Yew and Mahathir. Somehow many people thought a
strong PM was associated with economic strength (Singapore and Malaysia) and wanted to have a
strong PM.
54
4.3) Vote buying during elections
Extent of vote-buying was so rampant and meant there was no connection between being
elected and having a mandate or agreement with the candidate’s policies. This was a big problem. It
did not mean anything to be voted in except that candidate was good at buying votes.
4.4) Too little participation by the people in political matters
The reason this was a problem is because this was the time it was thought that the people
should and could be the counterweight to the military in politics. Before were many military takeovers.
But it began to slow down a bit. But no one really thought it could stop because it depended on
generals, but not on any institutions. If you happened to have a commending general who thought that
it was best that the military did not play this role. Then the military would not. But as soon as this
general retied, and then the new general came and if he felt the military still should play a role, then you
go back to the military coup. So the problem was how to get rid of this military takeover of government!
So a large number of people thought that counterbalance is general public itself. That’s why
people said we need more participation by people in political matters. Historically, the Thai military
always sees themselves as protectors of the nation through the King. Not protectors of the nation
directly, but protectors of the nation through being the protectors of the King. So one way the military
can be kept away from politics is if the monarchy or the King himself states in someway, usually at
some annual talks he gives to military or New Year address. If he sends a signal that the military should
not involve in political matters, then the military won’t because they see themselves as whatever the
King sees as the best.
The article of the new Constitution that had the most debate was article 3, which stated that
sovereign power belongs to the people. This was the first articulation of such an idea in Thailand’s
history. It came out as a compromise in the language used so no-one was offended.
4.5) Not enough institutionalized check and balance systems
Sometimes the military would take over governments because they were too corrupt. Other
coups were just power struggles. But for the ones related to government accountability, there was no
system to check and balance and prevent the corruption. Greater transparency in government
transactions was a problem.
4.6) Not enough protection of rights
Around 1996 there were lots of popular movements by people affected by large projects such
as dams (e.g. Forum of the Poor, Pak Mun Dam started), citizenship of hill tribe people, etc. It had
happened previously but that time there was greater local and international media coverage. So
protection of rights was also seen as something that had to be addressed.
55
Not all of these six problems were perceived as such by the general public. The first 3 issues
were generally agreed upon. Most Thai people don’t like weak leaders and concern about international
perception on changing leaders every year. Vote-buying was too obvious.
However, the last 3 were not issues of wide concern by the Thai people and not seen important even
today. E.g. most Thai people don’t see the importance of participation. They would rather be looked after by
leaders. So when some articles were taken to the villages, people did not understand the point. They wanted
a fair government who would make the country prosperous and look after them. But they don’t see their
participation was important or a major concern.
Most Thai people are concerned too much about corruption in the government, but they don’t mind a
little bit of corruption! Because the general idea is that is the whole point of the government – to take a little bit.
In the old days of absolute monarchy the only salary the government official get would be to take a little and
that was how you got your salary as you go get food or something from the people to send up to the King for
working for him and taking 5-10% of the food or taxes gathered for him. So the general idea is not really there
of being completely honest. It has nothing to do with honesty. However, if you go overboard and start taking
everything from the treasury, then the people are not happy. So on this “check and balance”, they could see the
point of it as long as it was not pushed too far. It was not a sense of supporting a rule of law, but just a sense
of being fair – taking not too much, but a little – that type of ‘check and balance’. It was more about fairness
than about rule of law.
The last point is very strange to most people, but I’ll talk more about this in detail later. The whole conception
of rights is very strange to most of the people. To have a constitution that protects rights was a very strange thing
even though word for rights such as human rights – no one understood when you went out to the village.
So the Constitution turned out to be a combination of:
- solving problems
- educating the people
- creating aspirations
It is not to address the aspirations already there in the society, but through the constitutions new
aspirations were created. So it was many things all at the same time.
5. How were these problems dealt with?
Articles in Constitution had to address these problems.
For problems 4.1 and 4.2 (the problem of stability of the government and of strong PM)
5.1) Make-up of parliament: A total of 500 MPs (400 from direct election, 100 from party list disallowing
small parties)
Directly elected MPs represented a constituency. Then in addition, each party sent in a list of
100 candidates, and the proportion of the 400 directly elected representatives then got the same
proportion from the list of 100. If they got less than 5% they didn’t get any representative from their list.
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So it cuts out most of the small parties or force them join the larger parties. The idea is trying to come
up with some system that somehow will eventually lead to two-party system. Somehow, people in the
drafting assembly thought that 2-party system is stable. I don’t know whether it is the reason for the
situation today where there seems to be 2-party system, or could be other reasons.
5.2) Upper House (Senate) with 200 elected senators without political affiliation – (not connected with
political stability or strong government.)
No political affiliation is hard to enforce on an informal level. They can’t campaign in elections
because this is seen to lower your status. So all you can do is nominate your name and write out
policies, but you can’t try to get votes. This is because of the perception that Senators in the history
were appointed by the King before and therefore shouldn’t have to ask for votes. People who are
elected to Senate are generally well known, such as former TV commentators. The highest vote-getter
was the King’s adviser on water matters as he was often seen in the news.
5.3) 2 out of 5 MPs (40%) needed for no-confidence debate against PM / 1 out of 5 needed in the case
of ministers
The present government wanted most was to break the threshold for no-confidence votes (i.e.
300 Members of Parliament). It was written in because no-confidence motions against Prime Ministers
had been extremely frequent in the past, and allegations were often believed. Those making allegations
were protected by parliamentary privilege (as long as they did not libel).
5.4) Cabinet ministers cannot be MPs at the same time
This did have a big impact and is a very interesting case of how a Constitution is written
according to the cultural factors of the society. In the past, the PM forms a cabinet. He comes from the
parliament and picks members of parliament like the senior people of the coalition party to become
ministers. They run the country for a while and then there would be a change – some Cabinet Ministers
go back to become members of parliament and he picks some more people to become ministers. You
keep changing the ministers and the policies of the ministries change. Now this cannot be done anymore.
As soon as you become a Cabinet Minister you are no longer an MP. If you lose your ministry you’re no
longer involved in Parliament. So this way, there are not so many changes. The idea here is to stop
what happened before that being a Cabinet Minister is somehow good for your family in the terms of
prestige of family name, not good for your family in the sense of being able to do more business. But
somehow you created some name for your family. Sometimes, people want to be a cabinet minister
even for one month. It’s very important here in Thailand. What it does is that the whole family somehow
shares in some kind of glory. This understanding here caused a lot of problems in the past because
everyone wanted to be a minister for a little time so that they can put down in their resume or history,
etc. But this all has changed now. No one would have thought of this if did not know exactly what it is
that Thai people like, and you have to somehow close that door.
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For problem 4.3 (Vote-buying)
This was another big problem the constitution had to address. The way it was addressed was in a number of
ways, but here I would mention three articles.
5.5) Compulsory voting duty: There was a lot of debate over this but other countries with this system
were frequently mentioned. It made the voters too many, so it’s too expensive to buy. It’s a way of
broadening the base of voters, so it’s harder to buy. Previously 40-50% of people had voted and then
it was easier to buy. Here everyone is forced to go. The idea was somehow this would make it difficult.
5.6) College degree for candidates is a must: Everyone had to have a minimum Bachelor’s Degree.
Education level is generally associated with morality/decency in Thailand, for whatever reason. This
requirement was controversial, partially because there are not many (if any) other countries with a
similar requirement. It was expected to be one of the first articles amended to give people more
opportunity, but it turned out that the general public wants to keep this requirement. People said they
are proud to have representatives with a high degree of education. This is why you see many candidates
have their picture posters on billboard by roadsides with graduate gowns when the election time gets
closer.
5.7) Independent election commission: It was established for the first time. This Commission investigates
cases of vote-buying that can be brought by anyone. This Commission has been most effective and
successful. Many highly influential people were disqualified for vote-buying. A red card means you are
disqualified forever. A yellow card means you are disqualified just for this election, but can run again for
next election.
For problem 4.4 (How to encourage more participation by the people in political process? Two important articles
were passed.)
5.8) 50,000 signatures can propose legislation: This many signatures can also make a motion to
impeach someone. However this is still a lot of names to get, so it’s difficult and it does not mean the
legislation will pass, but it means people have direct access to the political process. 50,000 is the
same number of votes an average MP will get in the election.
5.9) Law on public hearings for state projects. Any state projects that affect people have to go through
a public hearing process.
For problem 4.5 (check and balances)
5.10) 11 new independent organizations: These organizations range from Election Commission, HR
Commission, Administrative Court, Counter Corruption Commission, and Ombudsman, etc. Previously
all these functions had been part of the government before (such as counter corruption department
within the government), so were open to corruption. This was the first time formed independently, and
theoretically this should have worked.
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For problem 4.6 (Better protection of rights of citizens and people in Thailand)
These are the 4 most important. The first 2 are quite clear.
5.11) National Human Rights Commission
5.12) Ombudsman
5.13) Administrative Court brings cases against government officials who abuse power at any level.
This is used a lot by the people – the most used out of all of these. There are central, provincial and
district courts.
5.14) Information Commission: This is a combination of access to both information and privacy. Rather
than like other countries where they have separate information commissions – access to information
and protection of privacy, Thailand information law is a combination. So this Commission looks after
both. It’s very important because you often can’t make progress in a dispute due to lack of information,
particularly against the state. This has also worked quite well.
6. Evaluation (How successful has the Constitution been at addressing the problems mentioned through the
means mentioned?)
Just to give you some more information – the present parliament is the first elected under the new
Constitution. It’s already 7 years although its term is 4 years. When the Constitution was passed there was
already a sitting parliament needed to go for 3 more years, and new elections were not held straight away. So
the sitting Parliament stayed in for another three years, even though they weren’t elected under the Constitution
and used the new constitution although it was not elected according to the new constitution.
The Commission positions are usually for 7 years and you can only hold a position once, but the first
Commissions were only for three years because a government not elected by the new Constitution appointed
them.
Did the constitution create stable government and strong prime minister?
Now some people say that government too stable / PM too strong. This is an interesting development
because in a way it shows up parts of this constitution. But in a way you can’t really get around this. Nothing
guarantees in any type of constitution that a party won’t get 100% of the seats. If a party is so popular they get
every single seat honestly then you just don’t have an opposition. But the problem here is that some people
think it has become too strong dishonestly. There are a ways of manipulating different parts of the Constitution
so you can control everything. E.g. if you do 218 first you can control 187 etc. It looks like the current government
has done that, by having 335 seats out of 500. Thaksin has claimed he’ll be in for 20 years, but of course that
could change. That was before the problems in the South. If he cannot solve this, he can go down. Anything
can bring him down such as bird flu outbreak if he cannot solve, because public will see him as weak PM. But
at the moment he is very strong that is because of the Constitution. When the constitution was passed many
MPs did not like it. Mostly they did not like the 11 independent organizations – the professional politicians –
because these Commissions take many decisions out of their hands. So they said in 5 years they will change
it. But it turned out that constitution can be manipulated. So now they are not so unhappy with it. But it’s still too
new to know what the strengths and weaknesses are.
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Compulsory voting:
It was for the purpose of increasing participation in political matters by general public. But the problem
was to do anything compulsory you need some kind of measures if someone does not do it. It was initially a
criminal offence not to vote, but this didn’t pass. You have to vote where you’re registered even though you
may live and work far away. It became a 3-day commitment to go home to vote, and the government would
have to try to force companies to pay for it. So the companies were opposed to it. But the system wasn’t set up
to make it simpler, so the punishment inflicted was reduced to being unable to participate in the political
process i.e. you can’t sign any petition, you can’t run for office at any level during that period if you don’t go out
and vote. It seems that this is not a very strong measure. But voting rates now have improved from 55-60% to
75-80%, which isn’t bad, because people are not going to participate anyway. It has become a social obligation
– “if you didn’t vote, you don’t have the right to complain – no political rights”.
Shortcut to college degree:
This has turned out to be almost useless as immediately many university programs opened just for
politicians. It still takes time but there are allegations of poor educational quality and assistance in passing
have been leveled. However, some classes are regular classes, such as ex-Ministers taking classes on public
policy. This has led to some interesting discussions since they have already had 10-20 years of practical
experiences. Discussions between them and their professors are very interesting as lots of the professors
don’t know what it means to pass to run a policy.
Some important legislation not passed yet.
There are two types of legislation mentioned in the Constitution. For example, when it says, “there
shall be a national human rights commission,” it says, “according to the laws to be drawn up” – the organic laws
so most of them refer to other organic laws. So if you look through the constitution, there is a whole set of
legislation in the constitution that needs to be passed in order for the Constitution to function completely. And
7 years later a lot of it still hasn’t been passed e.g. the law on public hearings has been redrafted many times
but not yet passed. Some legislation had to be passed in two years and those have bee passed. But where
there was no time limit many pieces of legislation haven’t been drawn up. Community right is also in this
category such as community forestry rights. However there are other types of legislation such as bureaucratic
reform, have been passed in around 2 weeks, so obviously the potential is there, it just has to be matched by
the commitment of the government.
Independent organization nomination process gives government too much power; - Influencing the
make-up of election commission
This also applies to the election commission that I left earlier. If the 11 independent organisations
actually function as intended then many other functions will sort themselves out. The way it works is that the
nominating body nominates twice as many candidates as required and the decision is then made by the
Senate as to who gets on. However, the nominating body becomes very important. In the constitution for some
reasons the body consists of many different groups, including MPs. If you have a government with a lot of MPs,
then the government is actually nominating people to sit on the independent commission. If you have a large
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block of government MPs, as now, you have a lot of influence and the nominating process becomes a big
problem and this is what we are seeing now. You may not have a majority, but you do have influence and you
may only need to get a couple more people on side to nominate who you want. Many people think that this area
of nominations to independent commissions is the area most in need of reform/amend. But it would be difficult
to do whilst a government is in place. The result of the influence of the government is that the situation right
now is that checks and balances are very low.
All independent organizations limited by bureaucratic status of secretariat.
No-one really anticipated this problem and it seems like it should be easy to solve but it hasn’t proved
to be so. It results from the budget structure. The members of the secretariat are civil servants, but they answer
to the independent Commission. So to get approval for things the secretariat/civil servants need to go through
the bureaucracy, it can’t just be approved by the Commission. Plus to get into the bureaucracy, you already
have to be part of the public service because you have to have the requisite rank. It becomes a big problem.
As I mentioned earlier, some Commissions were set up to ensure something in society is not natural
need/call to the general public such as the information commission. It’s not a natural thing in Thai society that
everyone has the right to have access to government information. The whole idea of “people have the right to
know the information” is something not natural. It has to be built in or discussed.
- One of the best examples of the problem is HRC: Adversarial role with government without creating ownership
among the people, leading to little public support. With not much legal power becomes less effective than it
could.)
The HR Commission was not intended to be a super-NGO or adversary to the government. It has a
mandate to do a lot more – to create ownership of human rights, education etc. The idea that everyone has a
certain right to basic levels of protection has not been created in Thai society. But the HR Commission, according
to the law, can only call people to the Commission. But there are no penalties outlined if people don’t come.
The Commission can make a report to the Parliament if they don’t come, but this doesn’t work. You would need
large, broad-based public support to put pressure on people. This was the most difficult article to pass in the
whole Constitution, it says because it is not the way Thai society works. The only reason it did pass was due to
a vote exchange deal. Having a new idea in the Constitution that doesn’t come naturally raises the question of
how you get it done when it’s not built yet, because you are doing two things at the same time. So this is one of
the types of problems need to be worked on. And I will stop here.
Questions and Answers:
Q: 1. Before the adoption of the Constitution, Senators were appointed by the King. What I understand is that
the King is very well-respected. If you have Senators selected by the King there is a big possibility that there
would be less corruption. But once you are elected, you don’t have to care about the King, and there is the
possibility of corruption and I think this is what is happening today. So what is the reason for changing the
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selection process for Senators? I would also like to see a comparison of the Senate appointed by the King and
that elected by the people. Which is better in the way they function? Although they are not supposed to be
affiliated, they often are.
2. When you discuss the Constitution drafting assembly, you mention each province sent ten persons and one
was chosen who then had to report back to the people. How did this person do it? There is a large population,
average constituency was about 50,000, so he’d have to go back to explain to a lot of people. There were time
pressures as well.
A: The first point you mentioned was debated a lot. Whenever you mention the King, arguments are not
transparent and above board. Sometimes the King lets his wishes be known through someone else e.g. a Privy
Councillor. But you never know which the King’s opinion is. In this case, there was the opinion that the King
wanted the People’s Council to do everything their way. Whether this was true or not is not known. The King
can only send legislation back once, so maybe he shouldn’t be there at all. In the past, the PM proposed the list
of Senators and the King can accept or reject it (the whole list). So the PM sends up another list. This can go
on as many times as possible. In this way the PM just chooses people who aren’t offensive e.g. past directorgenerals,
senior military officers. It was more based on position than personality. Does this make it better?
Perhaps it makes it more honest, but it doesn’t mean they had a better understanding of what it had to do. So
often the Senate wasn’t capable of discussing legislation. Now you have in senate is a mixture: some very
good capable people but also some who like you said, can be bought.
The second question about how the province representative brings proposed legislation back. There was a lot
of budget set up for each province for this process. So a committee is set up in each province, and it usually
consisted of the other nine nominees. These people often worked very hard and had sub-committees, so there
were a lot of people to do the work and they had budget to do the work.
Q: You mentioned that the Constitution could be amended after 5 years? Are there clear definitions how this
can be done? To what extent when the winning party such as the TRT party, is really strong in Parliament, can
be influential over constitutional amendments?
A: Amendment to the constitution is the last article of the Constitution. An amendment is a normal legislative
process in Parliament – three readings and a majority is enough. You don’t have to go to states or anything. 2)
So strong parties in parliament can control amendments with votes, as with any piece of legislation. But there
is a sense of public ownership because of the way it came about and constant calling it “people’s constitution”.
If anything could bring a big outcry it would be someone tampering too much with the Constitution. If you did
something very bad you could easily have 500,000 people on the streets of Bangkok.
Q: Was there a referendum to pass the Constitution?
A – no. This was not necessary. People participated in the drafting so there was no referendum. It was a regular
vote in the Parliament. The requirement for legislation for referendums (referendum law) hasn’t been drafted
yet.
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Q: Military affairs – in the 1997 constitution is there any mention of measures to prevent another coup?
A: There is nothing written against military coups except for the usual stuff about how you get into power. But
this hasn’t stopped a coup in the past. You can’t write it in the Constitution. So is there anything about this
Constitution that might prevent a military coup? And there is in a way something similar to the same response
I gave about amendments. How much will people take now? There was a time when people thought there
would never be another coup after this Constitution. But this was based on the fact that you had to have a very
good reason for a coup. The reasons given in the past had to do with a breakdown in government. So if the
Constitution takes care of such reasons then there should be no such excuses/reasons. You would have to
come up with a unique reason for a coup, which wasn’t thought possible until very recently with the problems
with the South. So there is a possibility, but I think it’s still very remote. The present King would not allow or
support any coup anymore.
Just to add to this - one of the reasons military coups were so easy to carry out in the past is because they
happened so often. When it happens often people expect another coup. When you expect it, you don’t resent
it because psychologically you expect it. Right now when you don’t expect it and if you have one, you can’t
predict what the reaction will be by the public – it could be anything. And the longer it goes like this it will make
it even more difficult (for a coup).
The one thing that is most frightening to people in power in Thailand is for a large group of people to stand and
say “get out”. It’s a big loss of face. Your whole meaning of life is gone. It can happen at every level, even at a
district level. So for a coup if 500,000 people came out and say, “Get out of here. We don’t want you.” It will be
the end. If there was a large protest, the King would step in and that would be the end.
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The National Convention in Burma:
Lessons Learnt from the Previous
National Convention
Khun Marko Ban, Federal Affairs Minister of the Government
in Exile, NCGUB and a participant in First National
Convention (NC)
I’ve distributed papers in Burmese about how previous NC was organised and how it was run. The military
government failed to keep their promise to honour the results of the 1990 elections and claimed that the
elected representatives were responsible for drafting a constitution. In 1993 first NC was organized.
There was little trust of SPDC as they had previously failed to keep their promise. But I attended to find out
what they were going to do. Previously I had received no information about the attendants or the objectives.
We were given booklets about the procedures. Then I realized how undemocratic it was, with no hope of
equality for ethnic nationalities.
There were 702 delegates from different sectors. Only 147 were elected representatives (99) and delegates
from the political parties (48), and 555 were handpicked by the regime. We were not allowed to talk freely and
the procedures were strictly enforced. Finally, there was a feeling that our participation was supporting to let
the military rule Burma for a long time and we could even be held responsible in history for this. Therefore I
eventually left the National Convention and went to the Thai-Burma border.
Here I would like to stress on the objectives of the NC:
Objectives of National Convention
• non-disintegration of the Union
• non-disarray of the unity of ethnic people
• Burma to be a sovereign nation
• Multi-party democracy
• Social justice, freedom and equality
• A role for the military in future leading national politics
This sixth objective was the issue that was a problem.
The delegates were categorised into eight groups:
• delegates of political parties
• elected representatives from the 1990 elections
• ethnic nationalities representatives
• worker delegates
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• farmer delegates
• intellectual delegates
• civil servant delegates
• special invitees
Most delegates were handpicked; there were neither independent elections nor a commission to choose
delegates. Ten political parties attended, the largest being the NLD, SNLD, NUP and then smaller ethnic
parties such as Pa-O and Lahu. Some of these smaller groups were affiliated to ceasefire groups e.g. Wa.
Even though they had not won seats in the 1990 elections, they survived because of their affiliation with armed
groups. Some major ethnic parties were disbanded prior to the NC e.g. Shan, Mon, Karen.
I will now outline some of the procedural details of the NC. Delegates had to follow existing laws, decrees and
regulations. A Procedural Committee and Management Committee ensured that NC procedures were followed.
Discussions had to take place within the 6 guiding principles, so this means they had to acknowledge the role
of the military. Delegates were obliged to keep information secret.
The Committee of the Chair chaired all NC discussions. Each of the 8 delegate categories had 5 representatives
on the Committee, plus 5 from the NC Procedural Committee for a total of 45 people. But the first 40 were
largely symbolic and the last 5 were by far the most powerful.
Topics had to be submitted for discussion to satisfy the procedures. The discussion papers would then be
printed and distributed. Delegates could not discuss anything other than what was submitted, and one
representative was forced to leave the NC because he went beyond the topic set for discussion. The Committee
effectively decided the results of the discussion. The decision-making mechanism was very untrustworthy. The
regulations were written in a very detailed manner so the working committees had people to tell the delegates
how to present. The procedures stated there had to be a ‘systematic discussion between delegates’, which in
reality meant that the committees controlled the discussion and nature of the meeting.
There were rules and regulations for discussion:
• Could not say anything that betrays the nation (anti-government)
• Could not say anything against State sovereignty, unity of the ethnic
nationalities or the integration of the union
• Could not talk about those unlawful organizations or persons
• Could not say anything that can affect the unity of ethnic nationalities
and mutual respect
• Could not discuss anything that had not been submitted or included in
the submission.
• Could not protest and walk out of the commission as group or
individually
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If a delegate was absent for 2 consecutive days, their position as a delegate would be cancelled.
After the NLD walked out in 1996, they issued Declaration 5/96 which was a restriction that allowed nobody to
run NC other than the state-sponsored one. People who devalued the NC or delivered a speech that was
critical or released incorrect information about it could be punished to 5-20 years imprisonment. Also, if a
political party made a Constitution, they could be temporarily or permanently disbanded or declared illegal. But
the NLD had tried to write its own constitution. Up until today 5/96 is still active. It is undemocratic and prevents
freedom of speech and genuine input. So now the NC has been reconvened it is still not possible to have free
discussions.
After the NC:
Before 1996 the military government announced the “104 Principles” that had emerged from the NC. These
principles were not transparent and undemocratic. They aimed to extend military rule.
Some of the 104 Principles explained:
• Defined how power would be shared between the central government and the states (7 regions
and 7 ethnic states). Most power was centralised in the hands of the federal government
• Don’t recognize rights of ethnic people to equality and self-determination
• Prescribed self-administrative areas within states for some ethnic groups
• Presidential system of government with the President as the head of state. The Army, Senate and
Lower House would each nominate one delegate for President then the Electoral College would
elect one.
• Delegates selected by the commanding chief of the armed forces had to be 25% of representatives
at every level of government (federal, state and local)
• President must have at least 10 years military experience
• President could appoint the Minister and Deputy Ministers for ethnic states and self-administered
areas
• Army has right to declare state of emergency, could legally make a coup
• Army can mobilise people for national defense/security
• 440 representatives in the Lower House, 110 would be appointed by the Army
• 224 delegates in Upper House from the 7 States and Divisions, 56 would be appointed by the Army
• Commander in Chief of Armed Forces will nominate the Ministers for Defense, Interior, Security
and Border Affairs
So to conclude, the previous NC was a sham designed to legitimise military control. The NLD had called for the
reform, threatening to walk out if it did not change. When nothing changed they did walk out. After the NLD
walked out, the military had the confidence to declare the 104 Principles as the National Agenda
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After Daw Aung San Suu Kyi was released the NC had been stalled since 1996. Talks and discussion were
being held with her and the NLD leadership. There was concern amongst the SPDC about her popularity whilst
traveling, and of course the result was the Depayin Massacre in 2003.
However after that there was great international pressure on the regime, and they came up with the roadmap
to democracy and the resumption of the NC in 2004. The resumption of NC is meaningless, as it will follow the
same principles. Political parties are not free and there is no freedom of speech or expression. So the NC is not
a solution, and it must be stopped. Tripartite dialogue (between ethnic leaders, the democratic opposition and
the SPDC) represents the best way forward.
Lessons Learnt from the Previous National Convention
U Thein Oo, Member of Parliament Elect, 1990 Elections, Chairperson of Burma Lawyer’s Council
The previous speaker has covered most of what I wanted to talk about so maybe we should have a coffee
break!
As you know, the NC ended in 1996. Now it has resumed after 8 years but nothing is new. The six objectives
emphasised the role of the military in future government. The agenda did not come from discussion but was
enforced by the military.
The first NC began on 9th January 1993. On 16th September 1996 the 104 Principles were announced. They
covered everything from the State Constitution to very detailed matters including legislative and judiciary powers.
The previous claim by the government had been that the NC would only discuss basic principles.
After the 1988 popular uprising had been crushed by the military, they claimed that they had had to take power
due to unavoidable circumstances but that they intended to transfer power back to the people as soon as
possible. The law passed by the government after the coup in 1989 covered election law for the people’s
representatives. It stated that they would assemble in the National Assembly (NA) but did not say what power
the NA would have.
After the election the military government stated that the elected representatives were not to govern but just to
write the Constitution (1/90). NLD representatives were trying to get together to discuss how to proceed, but
one day earlier the government had announced this 1/90. Political parties were forced by the military to agree
with the statement. For example the chair of the NLD had to sign or else be arrested. This was a critical point,
at which Daw Aung San Suu Kyi and U Tin Oo were still in detention. The NLD was in confusion – did they form
a government or write the Constitution? They were surrounded by people (in the place where they were holding
discussions) and pressured to form a government.
The military government had promised that a Constituent Assembly would be organised with the elected
representatives from the 1990 elections. The NLD representatives thought that the military would not transfer
power but that they would be able to take part in the Constituent Assembly and write a Constitution. But it was
a lie! This is a trap set up by the military.
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In 1992 the military government announced that in two months they would talk with political parties and convene
the NC. There was some consultation, but the decision about the 6 guiding principles was made unilaterally. It
was a way to deny the will of the people, delay the transfer of power and to sustain military control of the
government.
At the NC, the proportion of elected representatives was just 15.24%. Political parties and representatives
were forced to attend and threatened with arrest if they did not. Prior to walking out, the NLD sent a letter
requesting reform of the Convening Committee. They asked for:
• Freedom of speech
• An end to censorship of papers
• The Convening Committee to stop making decisions on matters that had not been thoroughly discussed
There was no response from the authorities. The NLD had not attended for 2 days so they were ousted from
the NC.
The military government claimed that ‘guided’ democracy was necessary. There was no freedom of information
– discussions were confidential. Papers could not be distributed amongst delegates. One delegate who talked
about other matters was arrested and received a 20-year prison sentence.
So that’s how the NC was run. After the Convention was stopped several meetings of the Convening Committee
went on. I don’t know why.
The 6th objective of military rule is the biggest trap – guarantees a “leading role” for the military in the future
politics of the country.
The National Assembly (NA) is the highest State authority. The duty of the people’s representatives to the
National Assembly is essential, but the guidance of the NC means that the Supreme Commander (SC) can
select representatives for the NA.
In a future NA, there will be 440 representatives: 330 chosen by popular election and 110 elected from the
military by the SC, so military representatives would be in the State Assembly as well as in the NA. There were
basic principles but also the detailed principles that I’ll talk about in this presentation. One third of the
representatives in States and Regions will be selected by SC. So whatever the parliamentary makeup, the
military was guaranteed at least 1/3 of the votes.
The Constitution states that the head of state is the President not the Prime Minister. Ministers for Defence,
Security and Border Affairs will all be chosen by the SC. Even for Deputy Ministers in these portfolios the
President needs suggestions from the SCD. There is inequality in Border Affairs position. Why does it have to
be a military rather than an ethnic person? If any of these Ministers resigned the President again had to consult
with SC.
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Even local governments in the border areas were dominated by the military – they could not be allowed selfrule.
Military have financial control of their own matters and government approval is not needed. The SC has to
protect the Constitution but there is no requirement he must respect it. The SC could not be controlled, even by
the President. In some ways it is worse to have a civilian President as they would have no control.
SC also can declare state emergency at any time and does not need to consult with NA or President. He can
also decide length of emergency. So if any group threatens or insults the military they can just declare a state
emergency.
Election of President / Electoral College: Because of the way the system is set up there is a good chance the
President will come from the military.
In my opinion the purpose of the NC should be:
• reconciliation
• to form multi-party democracy
• a constitution that people could accept
No human rights or rights of ethnic people are the real picture. The SPDC NC will generate more
hatred.
1. Basic objectives must be changed, especially #6. The basic principles must derive from the people,
reflect their wishes and guarantee basic human rights.
2. Procedures must change for national reconciliation to become a reality.
3. Constitution from NC has to be trusted by the people. Must be based on people’s needs.
Questions
Q: What do you know about the 28 women representatives such as how they were selected to attend the NC?
A: We didn’t know anything about them or how many groups or how many delegates in prior. We only discovered
they were there when we found out there was a women hostel where 28 women delegates were staying. They
could be from any of those eight original groups.
Q: I want to ask the opinion of Marko Ban about Article 13 which states that the 7 states and regions are equal
and also about Article 14 that the existing names will continue.
A: Some representatives accepted these ideas. The ethnic nationalities, UNLD and NLD did not accept this
because in the People’s Assembly the numbers would be different. To compare the People Assembly and the
National Assembly – in the PA the proportion of the population decides the number of representatives you
have. In the NA the size of the state does not matter; there is equal representation. For example there could be
a Burman majority in the PA and the NA if you used this system – no checks and balances, so we did not agree.
Q: In light of the current NC, what should we consider for the next one (that people want)? Many people outside
consider that the genuine NC does not have the task to write the Constitution, but just to lay down the principles
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for it because the nature of it is constitutional convention. Now the current NC is attempting to write the
constitution. What kind of NC should be in future?
A: Declaration 1/90 stated that the People’s representatives are to write the constitution. Instead of calling the
people parliament to write the constitution, the military government (SLORC) called the national convention.
This national convention had tried to lay down the basic principles for constitution. These principles could be
called as a National Accord, and the Constitution would be based on this. But the problem is that it is not clear
yet whether this is what the military regime is trying for or not. The SLORC laid down the six main basic
principles by themselves with which the constitution has to be based. I doubt that they themselves are not clear
on what they should do throughout the process. Inviting ninety-nine people representatives to this national
convention could be assumed that the military government is trying to make the national accord. May be they
thought at one point that the National Convention will lay out the basic principles for the constitution and let the
people representatives to draft the constitution according to the principles (National Accord) directed by the
National Convention. It is also not clear who will adopt this constitution. But I guess People Assembly can
adopt after constitution is drafted by the people representatives. It seems that with the growing mistrust to
people representatives, this national convention is also trying to lay down the detailed clauses which are
usually done at constitution drafting stage. It means that they are writing the constitution with this national
convention. If those clauses are changed to acts, it will become constitution. So the problem at this point is
who will make (draft and adopt) the constitution based on these basic and detailed clauses. No one raises this
concern yet. The elected people representatives on other side believe that making the basic principles for
drafting of the constitution is their responsibility and then it will be sent to constitutional and legal experts to
draft the constitution. With this growing suspect on the opposition, SPDC is now attempting to make every
details required for constitution with this more than 1,000 attendees of national convention. Then it won’t be
really matter for SPDC on who will draft or how will it be adopted as all their wishes are already met as basic
principles including details adopted by the national convention. So it is dilemma for Burma, and genuine national
convention shouldn’t perform in this way. Burma has unique situation at this point.
I would like to add more as I want to elaborate the position of UNLD. UNLD believes that the people have
clearly given their mandate in 1990 by electing 386 representatives from NLD and 67 representatives from
ethnic parties. So there isn’t much to do by the government, but just to transfer the power to NLD. NLD should
form the government freely and we will support whether ethnic leaders are included in the government or not.
NLD and UNLD have already reached an agreement to hold the national convention jointly to lay down the
principles for future constitution.
Q: What was the level of participation of the ethnic delegates in last national convention? With so many rules
and regulations could they actually discuss anything or kept silent due to the fear?
A: Officially, the national convention allowed the discussions and presentations which were usually done in
each category group discussion. So participants did. What really happened was tricky. All the discussion and
presentations were reviewed by the presidium of group discussion and forwarded to main presidium board
controlled by national convention convening committee. As you know that there would be always different
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opinions in group discussion but the main presidium board insisted that after compromising on those different
opinions they made their own conclusion and putting out the decision which must be read out by this category
group. Those were usually not the one what the group wanted and only the SPDC’s version, invitees and some
groups. Different opinions were presented, especially by the groups.
Q: I want to ask about the role of women. A woman cannot be President due to the requirement for military
service. That means no women can be president with this constitution. There is conflict between ethnic groups
and Burmans, but the conflict between men and women is particularly bad. There is ignorance of the role of
women even in our movement. Where can women raise their voice and where women can get our forum for
them? There is a need to think the role and respect for the women who comprise 50 percent of Burma population.
A: It is true. Not only requiring for military service, the President must also have 20 consecutive years of
residence in Burma, so no exile could become president either.
The SPDC Constitution has no provision for the role of women or women’s rights. The Constitution must
provide access for women to decision-making processes but the SPDC has failed to provide this. There is no
such a word for democracy either, except a clause for multi-party democratic system. Role of women should be
considered when we build the democratic institutions. Quota system for women could be one option.
Look at the experience in Sweden – there are lots of women parliamentarians. How does the Constitution
provide this? It doesn’t. It (women’s equality) comes through education and awareness of the issues. Both
quota system as affirmative action and promotion of women participation in decision processes should be
done simultaneously.
Q: My question relates to the formation of the two houses – the People’s Parliament (Lower House) and
Chamber of Nationalities (Upper House). The Lower House does not depend on proportion of the population
but on election of representatives. It is a concept to create the check and balance system. If the upper house
is rejecting whatever forwarded from lower house, it would be difficult for government to function. If the people
think that it is fair for control of the power by an ethnic group who has the majority population, it would be
difficult. What is your perspective?
A: That’s why, the constitution is important. The means by which power will be shared between the two houses
must be clearly outlined in the Constitution. This needs more discussion and greater political maturity. We must
get the balance right.
I’m a member of the NCUB Constitution Drafting process and in our process we gave power to both houses to
draft legislation except monetary act. Both houses need to discuss outside the parliament before they submit
the draft legislature. They need 2/3 approval in both houses to pass legislation, so it may not be a problem as
both majority and minority are equally balanced. That’s why we chose 2/3 rather than 4/5 or something else.
The two houses are essentially equal.
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Q: It is more like a comment rather than question. In relation to the self-administrative regions (SARs) – even
in the first NC they wrote very detailed principles for these regions. It could be assumed good. There are
smaller ethnic groups living outside of their home state due to historical situation such as Shan in Sagaing
division, Kachin in Shan State and Karen in Delta region. Once the possibility of getting SARs for those ethnics
at the last national convention, there was outright rejection citing that once one ethnic group have particular
state for them, there shouldn’t be such this kind of demand. If that is so, how the army leaders, most of them
are Burman, think that where are the state belongs for Burman ethnic? In future constitution, those concerned
should be considered.
Q: How much do you accept the principles proposed by SPDC?
A: The thing is that not only to look at 104 principles but there are more detailed clauses which are controversial
and could not be accepted. There are a lot of things I can accept in those principles such as human right, youth
and disabled persons etc,. What I think is more to add to make clear and complete. The matters that I absolutely
could not agree are administrative and legislature related ones. There are a lot of details mentioned down to
local level. If changes can be made in these three areas, it will become quite acceptable. However, clauses on
religion still need to be debated.
In the 104 Principles, Buddhism is not a state religion but it is very prominent and respected by majority. This
statement was controversial. Some clauses like to respect and develop each religion and culture of ethnic is
good but the question is how. What I think is that they would give other thing for others to appease except
administrative, defense and legislature control.
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Progress and Experiences from the
State Constitution Drafting Process
The State Constitution Writing Process - Overview
Col. Hkun Okker, Current Chairman of Supporting Committee
for State Constitution.
Thanks to DBC for giving me this opportunity in such a pleasant environment.
I would like to introduce some initial facts about the Supporting Committee for State Constitution. It was formed
on August 17, 2002 by two main ethnic organizations – United Nationalities League for Democracy (Liberated
Area) (UNLD-LA) and National Democratic Front (NDF).
The SCSC is formed- to assist state constitutions drafting process effectively;
to provide academic advise on request;
to liaison between different drafting committee; and
to convene seminars on the progress of the process.
The current members for the term of December 2003 to November 2004 are:
1. Col. Hkun Okker Chairperson
2. Dr. Chao Tzang Yawnghwe member
3. Col. Htoo Htoo Lay member
4. Khun Manko Ban member
5. Dr. Lian H. Sakhong member
6. Mai Aik Phone member
Before I continue I would like to explain more about formation. Three members are from the UNLD and three
from the NDF. Chairperson’s term is one year and rotates between organisations. There are two academics
and two colonels. I would like to explain why the colonels are involved. In looking at Japan’s Constitution,
which is considered one of the best, Japan is strong and wealthy because of this. An American colonel who
was legal expert drafted their Constitution after WWII. So involvement of military personnel and lawmakers are
also important in this process.
Special concerns will be described first.
1. The federal level constitution drafting process started in 1990-1991 which halted in 2000-2002 due to different
reasons. At that time, an opinion came up that the states needed to draft their own Constitutions.
2. The idea of the Constitution writing process was not to “hold together” the member states but rather to come
together, to work together.
3. In 1996, NCUB adopted the first draft after DAB transferred the constitution drafting task. But the concern
was that it was a “top-down” approach rather than bottom-up. The States drafting their own Constitutions would
better represent a bottom-up process.
4. In 1999-2000, a new idea about a national reconciliation process was started. State constitution drafting was
linked to this.
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5. After the formation of the UNLD (LA), one of the party’s political programs was set to work on state constitution
drafting process and the NDF also agreed to open for groundwork with its members to continue this process.
Outcome of current state constitution drafting process
1. One outcome witnessed is Unification /unity approach for divided /different political organizations within one
single ethnic nationality.
Examples are Arakan National Council and formation of Arakan State Constitution Drafting Committee among
the divided Arakan opposition movement and Kachin process. Now the ANC has re-formed and restarted State
Constitution drafting process. In Kachin process as well even though there is a tough political situation they
have been able to come up with a Kachin State constitution drafting process.
2. As a result, you can see the close and collective cooperation within ethnic nationality communities of the
opposition movement: For example, between NDF, other non-NDF member ethnic political parties.
3. We have also witnessed the supporting factors like capacity building and policy advocacy for all the drafters,
by convening seminars, workshops, training and consultation, etc. There have been several seminars regarding
the constitution drafting.
4. We have also witnessed a major policy shift amongst state ethnic organisations: Independent policy has
been shifted to federal union policy in some organizations. Before some wanted to separate; but now they
have come to the conclusion that they want to be part of the federal union. E.g. Karenni National Progressive
Party/ National United Party of Arakan.
5. The fifth result is to make this process as an open-ended, broad-based process that welcomes all for
inclusiveness.
When I continue with this part on obstacles in the drafting process, I would like to start with the encountering
problems first. They may not be obstacles but we can consider them problems so I would like to start with this part.
Problems
1. Drafters
1.1 Mandate – who gives them permission to draft a Constitution? There are different opinions. In
some states, civic organisations are involved (youth, women, etc.) but in others it is only political
parties. These people are not elected – are they eligible to draft the Constitution?
1.2 Inclusiveness – how much inclusive the drafting committees are? How the representatives will be
elected in the State to draft the Constitution?
1.3 Competence/capability – there may be different levels of competence of drafters in this process
2. Drafting Committees
2.1 Different levels of SCDC status – There are eight committees that have been advancing in various
states. Some have worked well, some are only at study level, some are in between, and others have
only just started being formed. So there are different statuses of the process in different states, which
may be a problem.
2.2 Asymmetrical progresses in the process – some committees have made first or second draft, while
others haven’t reached that step yet while others are collecting opinions. This may also be a problem.
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2.3 Inequality of technical know-how – there are different levels of expertise in the committees. Some
committees even don’t have any expert. How many people have expertise in these areas? This is
another problem.
3. The will of the people
3.1 In reflecting public opinion – how to collect and apply in the process? In the current situation it may be difficult.
3.2 Local wisdom – inclusion of traditional practices and values so they can be applied in the process.
How to recognize and apply in the drafting process?
Practical Obstacles
Finance – this is essential to the process
1.1 Only NRP has given allocation so far for SCDC program – when we accelerate the work we might not
have adequate funding from this one source.
1.2 Need more secured budget to make progress
Unstable Political Situation –
This process is initiated and carried out by opposition groups, and the unstable political situation
makes some restraints and limitation.
2.1 Inside the country – ceasefire groups situated mainly inside Burma and hard to communicate with the
outside groups. National Convention (and forced participation of ethnic groups) and the Roadmap
makes it difficult for people to be involved in the process.
2.2 Outside the country – Thailand in its policies regarding the opposition movement and increasingly
engaged with the military government. China and India have the same problem.
Theoretical Obstacles
1. Tendencies – in the draft we have seen the development of some tendencies. I’m not here to blame the
people involved in the drafting committees, I think those happened with the sincere wish to overcome the
insecurity arisen because of the historical situation and what has happened in the past. All the tendencies
below could be negotiated but it may prolong the debate and make it difficult to reach consensus.
1.1 Tendency towards confederation arrangement
1.2 Tendency towards independence (sovereignty)
1.3 Tendency towards federal arrangement
2. Concepts on Major Issues
2.1 Self-determination – How to define in the draft? If you do not use terminology clearly, this can
be interpreted as some of the tendencies mentioned above. How to interpret in constitutional terms? How
far this term applies? If there is no common concept or different level of understanding on self-determination
there will be a lot of discussions and difficulty in this drafting process and it will become a major issue.
2.2 State Defense Force – There are different names mentioned for this in different state constitution
drafts such as state regular army, state security force, and state defense army. There are different
responsibilities of those defense forces too. Unless there is common concept with regards to this matter,
this will make things difficult.
2.3 Natural Resources – There are different approaches on how to control the natural resources in the
drafts. This should be clarified and set the common approach.
3. Fit-in Difficulty. This may be the most difficult part, how to incorporate or integrate all the different drafting
processes.
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3.1 NCUB – first draft of Federal Constitution on which 4 main actors have already agreed (NDF / DAB
/ NLD-LA and MPU), but on one hand still has to be done.
3.2 To narrow down the differences/adjust between the 8 member state drafts
3.3 To harmonise and pull into the mainstream of Federal (NCUB) arrangement
4. Reality or ground conditions needed to apply and be reflected in the drafts. The needs of the people must be
considered.
4.1 ‘Dream clauses’—drafters who are experiencing the international practices try to put the wishful
thinking in the constitution and high expectations which are not quite realistic.
4.2 Foreign experience influence - I have seen that in some drafts they have put things in from foreign
constitutions.
Dr. Lian Sakhong for Additional Explanation:
Thank you very much for this opportunity. As the coordinator of SCSC I think I should say a few words to
congratulate all DCs and study group as well as our chairman for their presentations. When we scheduled
this program we wanted this session to be chaired by Dr. Chao Tzang Yawnghwe. All the SCD processes
were led by his initiative and it is his brainchild even though all constitution drafting programs have been
carried out under National Reconciliation Program. So we should give him all the credit for what we have
done and the results. Unfortunately he could not be here so I ask you all to pray for him as he is very sick.
When Hkun Okker gave his presentation he presented very well with only a few hours to prepare. But I need
to clear up a few points to prevent misunderstanding between ourselves. E.g. the SCDC process began in
2000. It was totally separate and different to the NCUB’s federal constitution drafting process, not a result of
its halt. Since we all choose federalism as our goal, the two processes (federal and state constitution
drafting) should go hand in hand and parallel but they are separate. We should not mix these two processes
and both are required.
These two processes have to work closely. Whenever we had the seminars and study trips for constitutional
matters, we hade invited the federal constitution drafting committee to join.
These SCD processes started with NRP program. Intra- and inter-ethnic dialogue guidelines aimed to
discuss the type of political system people wanted to create for their future. So SCDCs are the kinds of intraand
inter-ethnic dialogues. We have some financial problems that you all mentioned, but I don’t see any
project that has been delayed or stopped because of this problem. I would like to request to all of you to
remember that SCSC is not a policy making body, nor is it to tell you what sort of Constitution to draft. We
are here to support you, not to intervene. But we have the agreement among all seven state constitution
drafting committees. We all agreed in 2002 for four basic principles.
Four basic principles of State Constitution drafting process
• It should be a federal system
• All state’s constitutions should guarantee basic human rights
• All state’s constitutions should guarantee minority rights within the state
• All state’s constitutions should guarantee multi-party democratic system
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Presentation on major positive outcomes
and obstacles in the process of drafting
the state constitution
(1) Naw May Oo:
Member of Karen State Constitution Drafting Committee
As for the Karen SCDC which is headed by Col. Htoo Htoo Lay, I think this morning presentation has covered
everything. As for the Karen SCDC, I would like to comment on experiences comparing with Thai experiences
presented yesterday and presentation made by the supporting committee’s chairman this morning. I think
there is same problem we have in our committee and also in others on selecting who is participating is this
committee. When I was invited to join the committee, I was a law student. So I was probably considered
appropriate to be in the committee. But that is not the case for many other committees. This is the difficulty and
in my opinion, this is not only the difficulty of the respected committee and it should be a concern for all of us
including for those who are involved in the federal constitution drafting committee. It is almost impossible to
expect the committee members would come with, when we are trying to be inclusive on gender or otherwise it
is almost impossible to accommodate the capability of the participants. Those are two points that we have
difficult time to bring together. Regards to Karen SCDC, our experiences that the difficulties were presented
this morning are pretty much the same for our committee and other committees. But the significant benefits I
see out of my experience is that when we finished this first draft, we took this to the Karen communities in the
refugee camps to the extent we could go, the general response from the people is no interest. Partly, they are
never aware of existence of such a document and they have never experienced and don’t know the benefit of
having such a document. They expressed and showed us no interest. Another thing is that when we had small
workshops, seminars and community meetings, we explained this and the response was that they were not
able to articulate. Because we explained that the constitution is important for them in order for the Karen
people as the people to fulfill their goals and their dreams in life. They have desires but they are not even able
to articulate their desires. It is like fragmented desires. They are not even able to put it in a sentence or
articulate it very well. My view is that the benefit for having done this or doing this is , even thought there is the
difficulty of people not being able to write the constitution or not being able to participate the constitution
drafting process on one hand, on the other hand we learned that the people don’t even know that they can
express their desire in this constitution and they can have a hand in this constitution, in this document, so we
explained it to them, they learned and the they become somewhat encouraged, hopefully they will also become
active in this process. But in any case, to get to know what are people’s desires and what are the people
thinking at this point, it is the benefit of having done this. I think if we continue doing this in future, we will be
able to convey the message clearer to them. When they get better understanding perhaps they can also
contribute more effectively than they have done now. Thank you.
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(2) Khun Sa, Kachin State Constitution Drafting Committee
Thanks to respected leaders and organizers of this seminar. The drafting committee was formed on Feb 17,
2002. The principles on how the drafting committee would work were also discussed. This committee was
formed with the initiative of Kachin National Organization (KNO). The KNO set a principle that the constitution
drafting should be based on will of people rather than individual exercise; then it would become democratic
and reflective of public opinion.
Given the situation in Kachin State, with a lot of hardships with living, the people have no interest in such thing.
For those who are interested they are not allowed to study or learn about such things. Even for myself, I only
found out when I got here that we need to draft a State Constitution in order to form the federal union.
We think that if we started asking the people how to write the constitution, there would be no responses and only
time and money would have been consumed. So we started with community consultation plan which is to
disseminate the constitutional knowledge amongst the people. In order to do that, we have to closely collaborate
with the local armed groups. After then, we will have to have a survey collecting opinions. From there we will have
a consultative assembly to lay down the basic principles for the Kachin State Constitution based on public opinions.
This is the plan of our committee. With the assistance of the National Reconciliation Program, we had an initial
consultative meeting in Chiang Mai and have then been able to travel to China on an organising trip.
Originally there were 7 committee members after first meeting in Chiang Mai but we have now been able to get
experts from other sectors (economics, etc), so now we have 18 members.
In China we met with the respected armed organizations of Kachin State and also students and teachers. After
that we formed a committee comprised of 27 members to organize inside Kachin State. As the SCSC chairperson
presented this morning, we are facing obstacles due to current political restraints and we don’t know what we’ll
face in the future, but we’ll carry on with our task.
After these activities, the outcome of the process was an understanding amongst the people and commitment
from the people to involve in the process. Because of the knowledge of the constitutions gained from seminars
and study trips from some countries I’d be able to contribute this knowledge as well. One obstacle to mention
is the security threat to the people involved (inside or outside Burma). Another is the language barrier when
trying to spread knowledge while there is also difficulty in getting the books on law and constitution in our own
language. Another is the financial limitation which is always a problem. Financial assistance has been promised
but has been delayed so the KSCDC has been in process for a year, so we wish the responsible body to take
the appropriate action to correct it. So there are not many visible outcomes.
Thank you for your patient in listening.
(3) Linda Lahtaw, Shan State Constitution Drafting Commission (SSCDC)
Good afternoon and welcome everyone. The chairman covered a lot in the morning but as a representative of
SSCDC I would like to add a little bit more. I would like to thank the DBC for allowing me to share the experiences,
outcomes and obstacles of the SSCDC. SSCDC started in September 2000 after having the Shan State
consultation meeting for three days. The ethnic groups involved are Shan, Kachin, Lahu, Lishaw, Pa-O and
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Palaung and have been working collectively. The main basic principle of our Commission is that the law/
constitution should be adopted and accepted by the respected communities and for the respected communities.
The basic aim of the law is justice which is to set on the acceptability and applicability of the various communities
living in a state/region. Our aim is to build a federal structure and a democratic decentralized administrative
structure. By doing this draft, the people from Shan State involved would be able to exercise and benefit. The
policy and the legislature should come from the input of the grassroots. In order to have this happen, we must
gather people’s opinions by a method accepted by the majority of people. We practiced bottom-up approach
through the respected ethnic groups and associations. The aim to get people’s participation in this process are
made by getting the answers from the media, youth, women , environmental and civil society groups, armed
organizations, and political parties on the questionnaires prepared by the commission. The commission made
the survey to gather the opinions in different ethnic groups by giving out the questionnaires. So this opinion
collection (survey) is a method aims to guarantee the justice for different level of the union.
The preamble of the Constitution, Chapter 1 on the Basic Principles or Characters, Chapter 2 on Human
Rights, Chapter 3 on Legislation, and Chapter 4 on National Congress were drawn by the commission based
on people’s opinions. We have monthly meetings and we go through this four chapters and the preamble
paragraph by paragraph. Those drafts are sent back to the people so they can reexamine and suggest changes.
It is obvious that in every step of the process participation of women has been weak. For women’s participation
to improve, we need to improve capacity and provide opportunities and space for active participation. In order
to do this, the men have to have a positive attitude towards women. They must believe that women’s participation
and provision of their opinions in the political process is not a negative sign. When you have balanced cooperation
we’ll be able to build a strong society. Equal participation of women in every political process will strengthen
democracy, peace, and development and will also provide a positive force and we’ll be able to gather the
resources. It would be meaningless for a democracy if the political process does not involve women. That’s
why we will use CEDAW as a standard in the draft Constitution and it will reflect in every article.
The obstacles: Security, especially for those inside Burma. We cannot hold public gatherings or official organising
trips so we have to be very careful about their movement inside the country. Those members from the Commission
try to get feedback from the people by communicating with inside to the extent that they can. Some committee
members are based on the border and others in small towns. Whenever we have regular monthly meetings
they face arrest and detention and even jail. But after they get out of jail they continue to work on the commission.
But we will make every effort in spite of difficulties to make a draft Constitution for the people of Shan State.
Thank you all and especially the leaders of SSCDC.
(4) Myo Win: Burman State Constitution Study Group (BSCSG)
Thank you for allowing me to share what we have been doing. We have started this in the year 2002. We
gathered and formed on the belief that there should be the genuine federal union in future and Burman ethnic
group should belong to one state on the basic of having equality among the different ethnic groups within the
frame of federal union. The people in the study group involve as individuals and not representing any political
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organizations; they are independent. We are neither representing nor being influenced by any political
organization. We are just to gather to express our opinion to the people. After 2 years, we would like to share
the outcomes that we gained.
1. Able to study and exchange the knowledge of federal affairs and constitutional matters.
2. Had an opportunity to exchange drafting experience with the other drafting committees. We believe this will
be beneficial both for the present and future of Burma.
3. Able to gather materials for the support of our study as it is our objective. We have also drafted some papers
for study purpose. But I would like to point out that we are not in the stage of drafting the future constitution of
Burman State. What we are trying to do right now is making the papers to explain need of Burman state based
on historical and political context within the federal framework to the public.
4. At the moment we have 25 members who believe in equality and non-discriminatory. We also welcome
everyone who wants to involve in this process. Even though we want to be inclusive, in order to effectively
continue the study group, we have formed a 5 member working committee based on the experiences we had
in last two years.
5. We have laid down directives and a one-year work plan for this working committee.
These are the results on what we have been working. And I would like to continue on the obstacles.
1. We have realized that the knowledge we’ve gained about the drafting process still has limited opportunity to
share with the people, even those within the study group.
2. Another weakness is that our members have other duties and are busy when we were trying to carry out this
activity. So it is hard to gather all members and that is why we have formed five-member working committee as
I mentioned above.
3. There are also different opinions regarding a Burman State in the future union. As the chairman raised this
morning, we face the issue of ‘mandate’ in this process as well. I think we need more time to get the common
understanding on the need for the establishment of Burman state in the future.
4. There are different opinions about the State Constitution drafting process.
5. Another issue is what will come first. Is it federal level constitution drafting or state constitution drafting?
Some said that we need to practice the bottom-up approach. The most important thing that I assume is to have
an agreement on the division of power between the Federal and State governments and what are the concurrent
powers that we practice together in these regards. Before the Constitution can be drawn there needs to be
National Accords. Unless we could not reach the agreement on this regard, we will loose our sights and visions
as blind people are trying to say the things by feeling them. Regarding the Burman state, all ethnic nationalities
have to be involved in decision on what is the territory of Burman State, not just the Burman if we think of
equality among all ethnics, for example with regards the future of Irrawaddy Division and Taneesariam Division
where the people are mixed. We hope we’ll be able to discuss this with other states in frank and open discussion
in sound environment.
6. I would like to make one observation. When we consider on the Federal-State government relationship we
would like to practice the bottom-up approach. But between the local and State government, there is no
consideration for bottom-up approach rather than the top-down approach.
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(5) Victor Biak Lian: Chin State Constitution Drafting Committee (CSCDC)
I would like to make a very brief presentation. The book that you have in your hand is fourth draft of Chin Land
Constitution which has been distributed now. It has been done by working group one of Chin Forum. This
process has been taken five years since 1998. During this last five years, we have conducted the seminars
and workshops to realize the process. Sometimes, we invited international experts in order to seek their advice.
This constitution is written only by Chin not by the others. There is no foreign influence. This is just a proposal
to Chin people with our own understanding and reflecting their situation. Those drafts have been sent out to
overseas chin that live in Canada, Malaysia, US and other parts of the world and discussed. This process has
been taken as serious business and we are quite committed on it. We have so many obstacles which are
mentioned in previous presentations by SCSC chair and other committees. We’ve mentioned in here in this
fourth draft on the achievements and obstacles. All the activities are detailed here so I will leave it with you; I’ll
not repeat in English what I’ve said in Burmese.
One thing that I would like to point out is that this process actually started since 1965 by Chin student’s study
group and it is a continuation of 1998 process. There was a proposal sent by this Chin Youth group also in 1974
constitution process and those members eventually got arrested for making it. It was inspirational for younger
generation of Chin to become involved in successive movement since then. This is the process of 30 years.
We think that it is important to do despite of time and money consuming. We have guiding principles which are
mentioned in the cover page of this fourth draft. We have to be aware that we have to study a lot if we are trying
to do something we have never practiced before. We need to do a lot on education. Since we have been
brainwashed with the misconception on federalism, we will face a lot of problems in the initial stage. Even if we
can ignore the practical difficulties concerning this reform, there will be a need for time and effort to change our
mindset.
Some people said constitution can be written in two weeks and made with cut and paste. I don’t think it is not
true and want you to make a try. We have discussed every articles and provisions of those drafts. After five
years of this, we were able to make first printing draft. As we write in first article, the constitution shouldn’t be
rigid one but the flexible one. Because those drafters are not having enough knowledge and it is serious
political business. It needs strong commitment to reach the goal of establishment of federal union.
(6) Rimond Htoo, General Secretary of Karenni National Progressive Party (KNPP) on behalf of Karenni
State Constitution drafting process
Thanks to DBC for inviting me. I’m not a member of the Karenni State Drafting Committee but I’ve come to
present information about the situation. It may not fully reflect what the committee had in mind because we
were invited late to this seminar and they could not come.
The present situation in Burma made the KNPP to hold a strategic conference on 17th February 2003. When
the other ethnic nationalities ask for the formation of a Federal Union, a few groups want sovereignty. From the
conference we made a strategy to convince SPDC that we all have the common vision of united Burma instead
of independence demand but whether it worked or not the SPDC is holding the National Convention itself. The
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KNPP has laid down a policy regarding the Federal Union. KNPP formed the Karenni Federal Affairs Committee
to work on anything related to a Federal Union, not to draft the constitution. It is headed by Mahn Aung Than
Lay the vice-chair of KNPP and there are 7 other committee members. We have also formed an 8-member
state drafting committee headed by Khin Maung Lwin. We also formed another 10-member subcommittee
whose duty is to explain to the people why we need to accept a Federal Union. It is headed by Pyar Rae Paw
Lu. There is also a financial committee.
In the past we wanted to be a sovereign state but given the political situation we needed to come up with this
kind of committee to work on. We need to make organizing trips amongst the people and have held 5 meetings
to make those organizing trips among the people. In Karenni State there are 5 ethnic groups – Kayan, Shan,
Kayaw, Karaw and Kayah who have different culture and traditional practices. KNPP has had a policy of
sovereignty for a long time, so when it came up with a new policy of federalism there were a lot of difficulties
dealing with the people and its own members. It is also very important to have the opinion of the grassroots.
We also have to be careful and give respect to the traditional practices of those groups. It is important to gather
the opinion of the people to make a change in the process. So we work very carefully. For example, in our
state, property is owned by the whole village. The rules and regulations about selling or producing alcohol also
need to be considered carefully because it is a custom of our people. So we have to be very careful about
changing from a sovereign state policy to a federal union. It is also important to continue with this process by
considering the people’s will or opinion. I want to give an example of one sub-ethnic group in our state. In
Kayaw sub-ethnic group there were cases of stealing the neighbour’s buffaloes in their village. When I asked
about this practice they claimed it was their custom and we could not do anything about it. So these kinds of
things have to be considered very carefully.
Another example was in Shan areas where he saw that many Shan have divorces. This is also a tradition. We
have to be very careful because we have many ethnic groups with different traditional practices. We need
some times for the transition in order to change those traditional practices. Some groups consider their wives
as slaves, and those kinds of practices will also be difficult to change.
(7) Khaing Myo Min from Arakan Constitution Drafting Committee (ACDC)
I would like to thank the DBC for organising this seminar, and I’m very glad to see all the respected leaders and
ethnic representatives here.
The three Arakan political parties involved earlier in last constitution seminar held in November 2002 has
initiated for the formation of Arakan CDC by realizing that the other groups have formed Drafting Committees
(DC) but we haven’t been able to do anything. So there was a consultation meeting to start the process for a
constitution drafting for Arakan State. We reached in agreement it should include the political leaders, women’s
groups, civic groups and exiled MPS. Although we have come up with an idea, we have not been able to form.
The convention in Arakan State had been going on but we needed approval so the process was delayed. The
four mainstream political parties of the Arakan state agreed on guidelines for the drafting constitution in late
2002. The second step was by having a consultation meeting with Arakan community in New Delhi, we got the
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agreement on the guideline principles laid down by four Arakan political parties in mid-1993. In early 2004 the
Arakan Convention took place, starting the formation of the ACDC. Since then, the Committee has been
working on the first draft of the State Constitution based on the guidelines set by four political parties and it will
be published soon. We plan a constitutional seminar to gain approval for this first draft.
In late 2003, the SCSC allocated US$ 3000 for the formation of a Committee so I prepared a proposal but until
now we haven’t got a response. We haven’t had any funding yet for the purpose of drafting the constitution for
Arakan State. Since we haven’t got any funding, we had to rely on other meeting opportunities in order to have
committee meetings. This is also a difficulty.
In conclusion, I heard there had been an allocation in this year’s budget. We have already submitted a proposal
so if that funding does come we will be able to complete our work in time. Thank you.
Notes: Mon State Constitution Drafting Committee could not make the presentation due to the sudden illness
of its representative.
Questions and Answers
Q: To the SCSC Chairman – about what you presented this morning. In the presentation, it said there is
different level of skills in various drafting committees. I could agree on that but when we went to ask people
who have the skills in order to form our Shan SCDC, they said that they had been involved in many other such
processes so they could not be involved again. So we have to form it with the people who are not having
enough knowledge. As time goes by, they learned and can do now.
Also I want to comment about foreign experience and influence. When we have the opportunity to learn from
international experiences, we should do in stead of waiting to get the knowledge from our own people. If we
can learn from others, we will do if we don’t have our own. We don’t have the good reading on those matters.
What we are preparing now will be presented to the people as guidelines when we are free to do so. If they like
it, they can take it.
Women’s participation in drafting process at every level happened as affirmative action– will they also be
included in SCSC?
Hkun Okker: The SCSC was set up by two parties, UNLD-LA and NDF. If there had been women in the
leadership of those parties then they would have been represented in the SCSC. That’s why there is no women
participation in SCSC.
Lian Sakhong: Chin constitution is criticised for containing references to other constitutions. Before the NRP
started we saw tendencies in many areas. When NRP started we looked at who had started drafting constitutions
but we did not see any big tendencies in those. This is a process. It may not go at the pace we want it to, but
it will have to continue.
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Q: Can Hkun Okker clarify the challenge faced by the Committees? There are different kinds of tendencies as
some states focus on a confederation, others on independence. When we start NRP the main thing was to
have a common vision. The SPDC claim they have to hold on to power because of the potential for instability
and disintegration of union. So NRP was established to politically counter that claim, and the Constitutional
process in my understanding aimed to get a common vision for future Burma and to find out how we can
accommodate diverse peoples and interests so that when we have the transition to democracy it will be smooth.
That is what we discussed at last NRP workshop. I would like to know how we are going to sort out all the diverse
tendencies and visions. We also need to evaluate the exercise and its political impact on our struggle, both
internally and internationally – internally to increase knowledge and understanding amongst ethnic nationalities.
How much understanding can we build amongst organisations at the border? How can we show the international
community we can build common vision? How much impact this constitutional exercise can make?
Hkun Okker: We have laid down the 4 basic principles, and this is very good. And the difference in momentum
between States has been narrowed down. But we were not able to get rid of all tendencies. Some criticised the
first draft of the NCUB as it was not the full federal-state process but it may even go to the central system. For
the time being they have left out those tendencies to deal with. But there are at least 2-3 armed groups in every
state. For example, a state, that borders another country. If there were a security threat the Federal army would
be stationed there. But some in those states may not agree with this. There must be a balance between
Federal and State.
Lian Sakhong: We are studying and working at the same time and from this we would like to go to civil-military
relationship. It is part of our process to study. It will take time because the term ‘federal’ has been misused as
separation for 4 or 5 decades. What we are trying to communicate now is that federal is not separation but
cooperation. We have to work based on the real situation on the ground, the ’47 Constitution, etc. We started
the SCSC because we believed we should start this process. We did not do it because of the problems in the
federal system. We have lived together for 40-50 years. We should know what kind of system to use at each
level. It is not only a learning process, but part of our struggle.
I think the state process is having a big impact, even inside Burma. Look at the example of Chin State, where
it has been used to overcome political differences. We could find common interest and common ground in the
state Constitution. Same applies to Arakan group. There is awareness of the struggle and people can see what
their future might look like. The International Crisis Group report also recognised the importance of this process.
It makes a huge political impact on the SPDC and on the international community.
Q: Can you clarify what you mean by ‘dream clauses’? In my opinion the people anywhere could be involved if
they are Karen. And if SCSC is neither a funding body nor implementing body, what exactly are they doing?
Hkun Okker: I mean while you’re collecting opinion from the people you’re also doing capacity building and
other matters. But it needs to reflect reality on the ground. You can’t write about utopia. SCSC is trying to work
in harmony with the federal process. They came to help when they are asked or invited.
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Lian Sakhong: In early 2004, after that Hkun Okker became Chairman but he could not attend any meetings.
So I don’t think Hkun Okker’s speech reflected what SCSC is doing.
Khun Manko Ban: There is no such a tendency towards Independence in the state constitution drafting processes.
There is a plan that Federal Drafting Commission (NCUB) and SCSC will have a meeting. But the SCSC
cannot form a committee at the moment, so when they can there will be a process. They have formed a study
group to look at other countries’ constitutions. SCSC invited the resource persons to come and talk about their
knowledge of drafting constitutions. The SCSC also provides the facilitation for the state constitution drafting
processes. The SCSC was formed because of political needs so that the Federal process would not be left out,
but given the political situation SCSC has more work to do at the moment. Also the federal constitution drafting
committee has a plan to call another seminar to make the first draft into second draft.
Q: For Chin, Shan and Burman drafting committees – It is said that State Constitution is a bottom-up process
so we need the opinion of people. If we share those experiences, we can get the points to make the national
accord. The most difficult thing in the constitution making process is Demarcation issue! What I have seen is
that in the Chin process they use ‘Chinland’, not Chin State. Why is it? What is the opinion of Shan SCDC on
the position of Wa and Ko Kang to name the territory as Eastern Salween State as their own state, not part of
Shan state? Does the Burman SCSG consider based on the opinion of grassroots people to name their state
as ‘Burmaland’?
Andrew: Many people like the name ‘Chinland’. There is a Chin expert social scientist who could explain for the
whole week or month why we like this name. 99.99 % supported it. The original name in Chin language itself is
Chin Land. So there is no other reason.
Myo Win: Not been able to work much so returned the assistance from the SCSC. We will have a seminar by
gathering people, expert around the world and discuss on it. We have one year plan. We will continue to work
in this year. The first step of it will be the gathering of the opinions of Burman who will constitute in Burman
state not only from outside but also from inside. Combining with the information received from our own research,
we will call the seminar to present those opinions and findings and decide how to continue. Probably one
outcome will be forming the state constitution drafting committee for Burman state.
We formed this Burman State Constitution Study Group with the people who share the same vision. Not like
others, there is no political party’s backing for Burman SC Study Group at the moment as most of our political
organizations are not ethically based. Our situation is very unique and in very difficult position.
Believing that there should be a Burma State, we have been working. Every one who would like to represent on
behalf of Burman can participate. I am not a Burman but a Tavoyan. However, I work with it because I believe
there should be Burman state.
Q: For Hkun Okker – Firstly, on the Federal Constitution Process. One of resource person suggested that the
first step to do is federal level constitution making. Has this come to a halt? Why it was stopped? Even Col
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Hkun Okker was involved in federal process. Why had you stopped working with first one and moving to
another? What are the reasons that made federal level process stopped? And people are saying about topdown
approach and bottom-up approach. Both process should approach the people and make them aware.
Then get the opinions. Both the federal and state Process should work parallel.
Secondly is to the Burma SC Study Group. Are many Burmans aware about it? How did you start it? How do
you form? How do you continue? Will there be seminar or meeting on western side?
Hkun Okker: The Federal Constitution has stopped and started at many times. I was involved in 1990, 1996.
There are many reasons why it came to a halt in 2002, but I’m not involved anymore. My concern is that the
state process should come first. We should not be competing for attention. I’m not abandoning the federal
process but we need more attention on the state now.
Khun Manko Ban: Process for writing second draft of Federal Constitution has been prepared, but we are
looking for funding now. It is a huge process. The type of approach will be decided after a co-operation committee
has been formed between the State and Federal processes.
Additional Remarks
Mahn Aung Than Lay: On establishment of the Federal Union
KNPP on August 9, 2003 made an official announcement to join future Federal Union of Burma because it
would guarantee equality of all the people of Burma. No need to be afraid of or worry about disadvantage for
forming a federal union. With the given political situation of Burma and international trends, we made this
decision even though there is concrete evidence that Karenni state had been Independent State before. Making
federal union also means we are protecting our rights. I don’t want to repeat on what had been happened
between one ethnic with another. We analyzed that Israel and Palestine are in war because they don’t recognize
one another’s existence. Tibet failed even though they are sovereign state because they fought alone. So with
those experiences, we think that best solution to maintain our land and our right is to form the federal union.
The federal union which we are aiming to form is not only based on the ethnicity but on geographical that have
more than 3 or 4 ethnic groups e.g. Tenessariam and Irrawaddy Divisions. Those can be territorial states.
Some can be called Nationalities State.
It will be difficult when we have to make demarcation. It may not come out as under the British rules or the
BSPP rules or the SPDC rules. There shouldn’t be suspicion or fear for forming the federal state since it aims
to protect the rights of all ethnics and provide the equality amongst all ethnics. All ethnic groups need to work
out together.
Sao Seng Suk: On response to Wa’s claim to have their state in the name of Eastern Salween State. What you
heard and what actually happened is different. When SSCDC started, Wa was also involved. Maha Hsan,
Chairman of the Wa National Organization said they need to build up capacity first in order to join the process.
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He said we have been living together for long time and there was no oppression from Shan on the Wa. There
has been an agreement between Wa and Shan inside Burma on that.
The method that we are applying is to be inclusive, participatory and bottom-up approach. The process goes
through all the groups mentioned which is seven institutions – women, youth, etc. There have been open and
free opinions amongst the levels of different ethnic areas in the Shan State – Lahu, Palaung, Kachin, etc., were
carried out. They have to come with their own plan and own team to carry out. If someone is weak, we help
them by educating. We build up their capacity and make the evaluation. We tried to reach to all places as much
as we can go. We also make the questionnaires for different category such as politicians, academics, group
affiliated to political party, local community, etc. We also attempt to simplify the questionnaires for ordinary
people. For example, we are asking the question like, ‘do you want to choose your village headman yourself or
want to be ruled by someone who is appointed?’ They replied we want to elect ourselves. So question continued
as why you want to do yourself. The reason they said, ‘we know him and we can talk to him,’ and ‘he knows us
and he can listen to us.’ So we can interpret this wish in constitutional term as people’s wish for election and
self rule. It also means the leadership needs accountability. So why does those so called academics look down
too much on the level of understanding of those local people? How best you write, there will be always criticism.
If all the people involve, there can be less criticism and this is what we are hoping for.
U Thein Oo: In 1996, 1st draft of the NCUB was completed and sent to Daw Aung San Suu Kyi for two times.
When it was sent for first time, she said not to use the word “democratic” in the name of constitution if we
believe the use of democracy in our country. She commented that people might like to misuse and exploit the
democracy in the name of “democratic”. So we changed it. When we sent it for second time, she said it is a
workable constitution. But she asked to change the name. The acronym of our constitution is FUCB which
stands for Federal Union of Constitution of Burma and suggested as inappropriate use. At the time of Manapalaw’s
fall, we could not do much. After that, state constitution drafting process was developed. We discussed that the
federal level drafting had reached some level and already as a model. So we wanted to wait for the other
process to know what will come up. We are trying to cut down the budget in our proposal and will start again
and will cooperate with SCSC.
Summary of presentation and discussion on state constitution drafting process
1. Both federal level and state level constitution processes are equally important and should proceed as
parallel. Both processes themselves are not creating the problems but the people involved have been
busy to carry out these two tasks. But these need to be coordinated to have a common framework.
2. Public awareness on federalism and constitution is much important in order to involve the people
participation.
3. Women participation in different levels of constitution should be encouraged and promoted.
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Incorporation of Human Rights and
Gender Aspects in Constitution and
Legislation
Ms. Dace Kavasa, Danish Institute for Human Rights
What I will try to give you is some basic ideas about international law on HR and where HRs comes from in
international law. I won’t give you a history but I’ll stick to some basic important points for your Constitution
writing and legislation building process.
For lawyers, this is not an extensive legal lecture. I’ll try to keep it simple and being a lawyer it’s not that easy.
As said, to start with human rights principles and international laws, I will use what I’ve heard in the last two or
three days about your concerns and what the other resource persons have said. I’ll also go into gender aspects
– women’s rights, but I’ll try to bring a different proportion to it.
I’d be happy if you ask questions as we go. You’ve got the printout of the slides so feel free to ask any
questions.
International Law Principles and human rights
One of the basic principles in international law is the performance of international treaties in good faith, which
is obviously a task for the government. By signing, you agree to try to implement it to get the best results. There
is a Latin term, ‘pacta sunt servanda’ that describes this.
If you think international law and HR is a Western construct, you might ask, “What do we have to do with it?”
But you do have to anyway. All international law and HRs are influenced by customary international law. Custom
is something that is commonly done but not written in law. It has to be reasonable and happening continuously.
It’s a practice and may be territorial. Often it’s influenced by opinions of local lawyers, tribe leaders, it depends.
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Here you can find some common ground. What do we do that we consider good practice that we can’t find in
international law?
The third category, ‘Ius Cogens’, is a stronger customary law. It means a fundamental right, superior to a
national law. In principle the international community as a whole – not just Europe, or Africa – should accept it.
This is not easy but there are some specific norms which may be interesting to you. Some things that fall into
this category include prohibition of torture (regardless of who you are and where you are) – the example of Iraq,
Guantanamo Bay. Prohibition of torture is fundamental human rights norm. Another is genocide, crimes against
humanity. This has been breached so it’s been put in the statutes of the International Criminal Court (ICC). This
includes rape, sexual slavery, forced pregnancy, forced sterilization, and other forms of sexual violence, which
apply to the case of Burma. And not just to women, sexual assault can happen to men too as we have seen in
Iraq. This law came from Canadian asylum law in the 1980s as Canada of the first leading country giving
asylum to women who had suffered these crimes. So this law has gone from being a customary law to a main
principle of international law. Genocide and crimes against humanity including specific reference to women
have become one of the main principles of international laws. Obviously international treaties also set the
norm for implementation of HRs.
Human Rights Standards
You have talked a lot about ethnic minorities and the rights of these groups. The starting point of HRs is State
Vs Individual or vice versa. The State has an obligation to ensure everyone has the possibility to exercise
these rights. That’s what I mean by negative or positive obligations. The State can ensure your rights by
abstaining from doing something e.g. letting you hold a demonstration or print a newspaper. They have an
obligation not to intervene, and this is a negative obligation. In 1988-89 in Latvia, which was still part of the
Soviet Union, the Constitution guaranteed great rights but in reality you couldn’t do it or you ended up in the
KGB basement. So the State was overstepping their obligation not to intervene. But at this time there were
issues which brought people out on the streets. The first was building a Metro in Riga. There is floating sand
under the city, which is on both sides of a river, so building a Metro would be quite difficult. This bought people
out in demonstration against it. This was a rare occasion where the police did not intervene. So people got
some courage and started demonstrating against other things. Thanks to at that time of very soft Soviet
Government this could happen.
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Positive obligation means that the State has to do something so you can exercise your rights. This could be
about education – building a school, allowing a public or private school choice. The State has to invest to allow
you to exercise your social, economic and cultural rights.
International law sets minimum standards for these obligations, but the State can choose to do more. If a State
chooses to obey international treaties then you can’t go below what is set in those treaties. With social and
cultural rights, States can do what is ‘in their power in the future’. These are very weighed terms.
Some minimum standards are like a catalogue for e.g. Universal Declaration of HRs, which is more political
and civil rights than cultural. Things like freedom of movement, free speech, freedom of assembly. For example
Turkmenistan has introduced ‘exit visas’, so anyone who wants to leave for any reason needs a visa. This is a
breach of freedom of movement.
So you can use the Declaration and other international documents as a source for you. This is where you can
find minimum standards. You can also find interpretations and practices in courts, such as the European Court
for Human Rights trying to establish what torture is. Use these catalogues when you think about your HRs law.
This triangle is empty at the moment, and I deliberately didn’t fill it in. I need your help to know where you would
place the Constitution itself, where would international law, national law and other laws come.
So I’ve drawn five levels, but it could be ten. Let’s start with the Constitution and international law. Where would
you try to put these two? Do you need international law at all?
Different model of hierarchical setting of legal instruments
The monist model means that you ratify the treaty and it becomes a part of the law. Then international law
would come just after the Constitution because usually it would stand higher above other national laws. So the
court could take the treaty, and if it contradicted national law, it would be implemented. So in this case national
law is lower in the hierarchy.
The second option is the dualist model. This means that international law has to be put into national law. So
international law does not figure in the hierarchy. So if you sign a treaty and the Parliament ratifies it, they have
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to prepare laws to actually implement the treaty. The treaty as such will not be used as law. It can be used for
reference or inspiration but it is not a law.
To wrap up, everything else goes below. Whether it’s a decision by a public official or a law relating to a certain
topic, it must conform to the laws above it. That’s why you have to get the basic principles in the Constitution.
Otherwise you can’t even make the right law.
A short example – my teacher of administrative law in Latvia was testing, in the middle of the 90s, how the
change from a Communist system would affect the legal system. You could have a fantastic law, but an official
who was still thinking with the Communist mindset could derail it. What their boss thought was the most
important thing to them. This is really hard to break – for us it’s been 14 years since declaration of independence
in 1990 and it still doesn’t work. It’s really hard to break the culture or the way of thinking.
So this teacher and her family were travelling to Estonia. Now, we don’t need passports but then there was very
strict border control. She needed a passport for her two-year-old baby. The regulation stated she would need a
birth certificate and five different documents. So she got all the papers and went to the passport desk. She
presented them but was told she needed another five documents. She asked where this was stated. It was
said there was an instruction (below a regulation), which stated you needed 10 documents for any passport. I
would call this ‘small people’s power’. Anyway, my teacher refused to go and get the extra documents. She had
a copy of the regulation stating she needed 5 documents and demanded a passport. She spent all day there
and ended up in the office of the boss of the department. So at the end of the day the boss was so fed up she
said “I’ll make an exception for you”. But my teacher wanted the law to function, and she got it through. With a
procedure that no-one knows about, you cannot impose more obligations on me as a citizen. You have to have
a law to impose more obligations on me.
Human Rights in the Constitution
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When you make the Constitution, you have to agree on the values that you want to put in there. Take your time
to do this. You know what rights you need that you don’t have now. Many Constitutions state that a country is
democratic, a republic or whatever. You have to decide what these words such as democratic, sovereign,
democratic, self-determination, etc. mean and agree what you mean by it, or otherwise you’ll end up fighting
over them. If this end of the table does not agree with the other end of the table what the word ‘democracy’
means, you can’t put it in the constitution.
From the last few days, the issue for you may be whether it’s a federation or a union or whatever. You also have
to agree on human rights and anything else in the Constitution. Hopefully you reach the consensus. If you
don’t agree, you won’t have it. The Latvian Constitution was adopted in 1922 and in principle it was again
adopted in 1991. From 1918, when we declared independence, until 1922, they worked hard for about 2 years
on the document, but all the agreements on what we mean and what we want there took a lot of time. Personally
I think that because there was an agreement between different people, even 70 years later these values were
still important and it was easy to adopt it and we did not have to write a new constitution. When you work hard
and get down to the basics and principles, maybe in 100 years you won’t have to rewrite it. The Danish
Constitution hasn’t been touched for 50 years. You don’t have to rewrite it again and again. Get down to the
basic principles, agree and involve people.
The Constitution
On Human Rights you know why you need them – for security and protection of certain groups and individuals.
When you decide which rights, then you can decide where to put it. They can be throughout the document, but
most Constitutions have a section on fundamental rights and freedoms. I can only give you ideas and you are
the ones to decide. I think I will quickly go through some of the examples of rights that in a democratic society
you most probably would have in the constitution and then we will break for coffee and continue with gender.
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Human Rights and Democratic forms of government
• Principle of equality – in general formulations, but also specifically between men and women. Nondiscrimination
in all fields on various grounds (religion, wealth, etc), including equality between men
and women. Many countries have made this last point a specific principle. Since Beijing conference in
1995, there are many countries that have adjusted their constitutions, including specific provisions
which emphasized the equality between men and women.
• Right to vote and be elected – everyone, conditions of citizenship, equality. We usually think everyone
would have the right to vote. Restrictions may be based on citizenship and age but usually nothing
else. Age is an example of when your customs come in – when you do consider someone an adult?
There are restrictions on women in some countries such as Saudi Arabia or Algeria. The right to be
elected may also be based on citizenship and age. I was surprised by the Thai solution on bachelor
degree, and being a feminist, I was concerned about the impact of this on women. It depends upon the
country and the education system, but if a woman is expected to get married after secondary school
then there may not be a perceived need for them to go to university and they may be excluded from
running for office. So when you think of some restrictions or limitations, you must consider how it
affects certain groups of the population (women, poor, etc).
• Freedom of expression – there are two elements: access to information and right to free speech.
This first aspect is crucial as a precondition for democratisation and in your case for writing a Constitution
that is inclusive.
• Freedom of assembly – political and non-political: You can meet, demonstrate and discuss things
but you are not punished for that.
• Freedom of association – political parties, NGOs
• Freedom of religion – practice own religion, form churches, worship. Linked to the secularization of
the state. This sounds important in Burma, whether it will be a Buddhist state or not.
• Fair trial – justice system, checks and balances in state system.
• Social and economic rights – positive obligations of the state
• Property right – has become a very important issue, especially with people returning to the country
and not being able to access their property, e.g. Croatia.
Limitations of rights have to be expressed clearly if you want to limit and only in special circumstances.
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You will find HRs in all sections and different elements. Even the word ‘democratic’ refers to human rights, so
if you have democratic state then there is a reference in everything. Specific rights – you can have a wish list
in your discussion group. Equality and non-discrimination must be everywhere. So put on your “human rights
glasses” – look at each article and look at what rights, who are influenced by it, who can enjoy it, who cannot
enjoy, and whether it is okay.
Gender and human rights
Gender issues do not just mean women’s issues. As Hilary Clinton stated in her speech at Beijing, women’s
rights are human rights. So why do we need to talk about women specifically?
During the last hour…
228 girls have been genitally mutilated
40 women have had an unsafe abortion
These are very specific health issues but they do show how important it is.
Women constitute just a bit more than half the population. When you talk about ‘everyone’, you can’t exclude
half the population.
Number of women per 100 men – depend on the country. The highest one is Latvia. Women tend to marry quite
early and especially women in less developed world tend to have more babies. If a woman in Uganda has 7
babies in her lifetime, then healthcare is important and her rights are important because if she is providing the
future of the nation then who else would be if she is not. In Romania, any contraception was essentially banned
and women have to give more and more birth. But families could not always look after their children so many
ended up in orphanages. So women could not have control over their own bodies and reproduction. On the
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other hand, in China, because of the one-child policy many women are forcibly sterilized. How is this any of the
government’s business?
Right to healthcare or the right to make certain choices are also important for men. For example, mortality
amongst babies is higher for boys.
The rights women can enjoy influence children and the family. And in Latvia and Ukraine women tend to live 10
years longer than men. Partly because in Latvia during transition period when things are really hard women
have had to take care of children, and unfortunately there were many men who could not coup with the problems,
and the alcoholism among men was much higher because they suddenly lost their sense of belonging, but
there were many different causes.
Women have enormous potential in the workforce which is often not utilized for the national economy in many
countries. This is one thing for themselves to decide on what they wan to work with, whether they want to work
outside or inside home. Human resources are men and women – not only men. One alarming factor, which
relates to many of the human rights and many other things that I will bring up later, is that two-thirds of the
world’s 876 millions illiterates are women. You have to look at in your specific situation and context and ask if
this is true and why it is so – is it the education system, society, family, or culture that women are not supposed
to go to school.
But there is hope:
This image fits everywhere in the world, even in Denmark. I sent it to my colleagues and said, “Let’s talk about
gender equality”. One of my colleagues sent back an email about how alarming it was because men were
losing their identity because women were doing all the work so they were turning to alcohol and smoking. I
hope he was joking! I think it really depends how you look at the picture.
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Losing masculine and feminine identity often has nothing to do with your sex – being born a man or a woman,
but has more to do with what society thinks men are supposed to do and women are supposed to do.
Gender Vs Sex
This is easy to describe in English because there are two different words – sex and gender.
Sex is a biological issue – x and y chromosomes, breasts etc, and being born with physical difference between
men and women. I won’t go into transsexuals, as to try to keep it simple.
Gender: You hear more of gender equality rather than equality between men and women, because gender
involves not only the aspects of your physical sex and genetic composition, but it involves the roles that society
expects men or women to do – it involves how the society defines what is feminine and what is masculine.
Gender aspects are socially constructed and constantly changing. It depends on economics, environment, the
workforce, culture, and class. You can have more equality in upper classes but in much lower/poorer classes
there may still be big differences because there you tend to care more on what your neighbors/society think of
you whereas the upper classes do not have to care what others/neighbors think.
During WWII, women went to work in the factories to provide arms for the men fighting. This was traditionally
considered men’s work, but everyone at that time accepted women working in factories to produce arms
because it was necessary, and the women were praised for doing this work. But when men returned from the
war, it was not good enough for women to work in the factories anymore. They had to go back home to look
after children and men got their jobs back.
This is an example of how men’s and women’s roles can change depending on the context (in just a few years).
About a hundred and twenty years ago people considered the sex to be determined physically whereas the
development of science has found out that to be not true. In 1890s it was medically believed that women
should not go to university, because while they were menstruating the blood was drained from the brain and
they could not think and they were not able to study physically. It was a medical belief in 1890s. We now know
this is not true.
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With this basic understanding, I would like you to participate in one small exercise. Please move your chairs
back so you can stand up and sit down easily. I will read a statement. You don’t have to agree or disagree with,
as it is a statement, but which for many people is true. If you think this statement reflects or is about gender,
being masculine and feminine, and having the social construction, please stand up. If you think it is about sex,
the biological differences, you may sit down. I will not participate because you’ll copy me.
Statements:
1. Women can breastfeed children and men have to use a bottle. (This is biological.)
2. Women shall not participate in boxing. It’s men’s sport. When the first professional boxing licenses were
issued in England, women could not get them as a doctor in the committee said it is physically wrong for
women to box. (gender discrimination)
3. Men are better cooks than women. (gender discrimination)
4. Women have a womb, men don’t. (biological)
5. Women shall work as teachers and nurses while men can be directors and doctors. (gender discrimination)
Maybe you all agree, maybe some don’t! This is one example of how the gender professions are
divided. Teaching, nursing, healthcare – these are seen as women’s professions, whilst the ‘hard’
fields are seen as men’s professions such as doctors, factory workers, president, and so on. This
division is culturally inflicted. It influences how the state budget is spent, how the policies are taken,
and what is considered important or what is not considered important in the state.
6. Boys don’t cry; girls are hysterical. (gender discrimination)
If a boy runs and falls over he is told that boys don’t cry. I think women might have more tear glands but
this doesn’t automatically make them hysterical.
It’s difficult to change discrimination that is based on stereotypes.
Convention on the Elimination of all Discrimination against Women (CEDAW) that I’ve mentioned is one
document where you can find standards for equality.
There are also some political documents such as the Beijing Platform for Action and the Millennium Development
Goals.
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Discrimination definition
CEDAW
For the purpose of the present Convention, the term “discrimination against women” shall mean any
distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing
or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a
basis of equality of men and women, of human rights and fundamental freedoms in the political, economic,
social, cultural, civil or any other field.
The right to be elected is seemingly a neutral decision. It does not discriminate on purpose, and it applies to
both men and women. But if the effect does restrict the political participation of women because fewer women
have degrees or whatever, then it is considered discriminatory. Discrimination can apply to both purpose and
effect.
Another example – if the leader of the state can only be from the military, this does not have the stated purpose
of excluding women. But if women cannot be in the military, then its effect is discriminatory. So if you let women
into the military, is that the solution? Or should we not have that requirement at all? What is the purpose of that
requirement?
Non-discrimination
These would be some of the elements of non-discrimination, for gender, ethnic background, social background,
beliefs, thoughts etc.
As I see it, most of these rights belong to you and me because we’re human beings. Not because someone
has given them to us.
What I found interesting in the proposal for the Convention was that the ethnic groups are “permitted” to
participate in legislature in states and regions concerned, not even at a federal level. This to me is automatic
discrimination, not on gender but on ethnic background.
Substance of the Convention
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CEDAW can be of great help. It focuses not just on the legal part, which is important because you can have
great legislation that in practice still does not work.
For example, on divorce: In Europe, both parents have equal rights to access the child but custody rights often
go to women. But the Lithuanian Gender Equality Ombudsman received complaints about judicial practices
with custody always going to women. So the law is good but the practice is different. In Arab countries it’s
different, women often don’t have the right to claim custody (if they can even divorce). So that’s specific gender
discrimination.
CEDAW is the only convention that references gender stereotypes. Article 5 says that states need to take
appropriate measures to change cultural practices that are discriminatory. For example in Africa, female genital
mutilation is a customary practice.
It also allows for temporary special measures.
Temporary special measures
Must have a specific purpose e.g. participation of women in politics
Must be a strategy e.g. quotas on parliamentary elections
Time-limited
Have to set goals and once they are achieved, remove the measures
The good things about TSM’s are that they can be applied for any discriminatory practice – whether it’s for an
ethnic group, gender or whatever.
I’ll go back to some of the HRs we talked about.
Rights
Importance of participation in political life
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Right to vote – may need special encouragement. If you think about access to information, people must be
informed to go to the polls. But if 2/3 of women can’t read then you can’t just give them a leaflet. You have to
think about what is involved.
The right to be elected applies on all levels, even on the participation in this group if you look at the proportions
of men and women.
NATO Summit Picture (from Prague)
The woman in red is the President of Latvia. She is an expatriate who moved back in 1990, living in a onebedroom
apartment. She really started from the ground. In the last government we also had a female minister
for Foreign Affairs and a female speaker of Parliament.
This picture represents the international community. Only occasionally you will see women. If half the population
decide about what will happen to the other half, it’s not good. But we can’t just say that women stand for peace
and men stand for war either, it’s not that simple.
Gendering Constitution
I hope I’ve given you a good enough reason to
think that there is a need for special attention –
where are the women? When you define the
values, you have to have women with you. You
can’t just have half of the picture. Women and men
do think and see things differently.
State powers do involve political representation,
freedom of expression and so on.
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Culture or discrimination?
For those who think that this is women’s talk or Western values and culture, that it’s a different culture in Burma
or Thailand or Vietnam or Laos:
Do you think it is fine to forbid your daughter from going to university?
Who is imposing these values?
What is the origin of cultural practices?
What are we missing out on by not involving women?
For those working with violence, you’ll find these questions helpful. For women or men staying in a violent
family, you can identify the reasons why they do that. Once you find the reasons you can find out how to work
with it.
There was a military tournament in the UK where teams from different regiments trained for four years to
compete. The competition was about moving very heavy weights, up to 1 tone. There were ten people in the
team and they had to have really strong teamwork. Nine people had very specific roles, and the tenth was a
reserve or something. They looked into history to find out why there was a tenth when they needed only nine.
They found that 60 years ago they used horses, so the tenth person was a horse keeper.
So if you don’t ask why, then you’ll never find out.
You can read the Conventions, you can find out what you want, what you need and what you don’t need. Once
you agree on the values – don’t copy someone else’s, but don’t invent a new bicycle either. Ask why we need
these things, what they give us and what they restrict us on. Then no-one will be able to criticize you. Think and
put on your human rights and gender glasses. You can use this for anything else – ethnic groups, sexual
minorities.
In Latvia there were so many people who returned when they could, and it accelerated the democratisation
process. I started university in the first year of this new system, and because I had professors and friends who
returned, they brought with them new ideas that accelerated the process. I envy you because you are in the
position our president was when she was outside. Your country needs you. Even if people in Burma see you as
expatriates going to conferences and living comfortable lives, you have a lot to contribute. I genuinely envy
you. Thank you.
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What’s Next?
Strategic Options for the Success of
National Reconciliation in Burma
Dr. Thaung Htun, NCGUB Representative to the UN
Good afternoon everybody. Thank you very much Anette for giving me this very challenging task. In the last 4
days we’ve been able to discuss about democracy, federalism, how we’re going to look at the history of conflict
in Burma, perpetrators and victims, how we will solve the conflict. Yesterday, we discussed about the constitution
for future Burma and how we will accommodate diverse interests in the Federal and State Constitutions. Today
we heard about gender equality and women’s rights and how they can be reflected in the Constitution.
Of these are the visions of the ethnic groups for the last 50 years and the pro-democracy movement for the last
15 years. In the last few days we’ve looked forward to the very bright future, but now we have to come back to
reality. A few kilometers away the SPDC is holding an NC which is a very challenging political offensive against
democratic forces and ethnic nationalities. So how will we transform this political development into right direction?
What are the challenges and strategic options we have?
Before we go into political realities, I would like to go back to some facts which led to this political development
we are facing today and how we can try to make this process comprehensive, inclusive, transparent and real
national convention. First, I want to go back to the Depayin Massacre. After the Depayin Massacre, there was
an international outcry and condemnation followed by actions such as US sanctions, also strengthening of EU
common position and Japan’s withholding of ODA. Not only pressure, but we witnessed that international
community tried to engage with the military regime. The Bangkok Process (BP) happened only after
announcement of roadmap starting with NC. The IC saw this as a positive opportunity to begin national
reconciliation in Burma, even though most ethnic and pro-democracy groups were skeptical about the NC. So
BP was a small group meeting hosted by Thailand, with 4 EU countries – Germany, Austria, France, and Italy.
It tried to clarify the roadmap and timing, the role of the NLD, the NC, and the six objectives. Not only EU
countries but also from regional raised questions about the 104 Principles and participation of DASSK. They
encouraged the SPDC to look at the process as an opportunity for national reconciliation. There was a lot of
hope the SPDC would abide by the promises they made at that forum.
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Similar initiative was taken by the UN. The UN produced a “non-paper”, which was confidential and cannot be
circulated. It suggested engagement of the regime, proposed modification of the 7-point roadmap and attached
incentives at every phase.
UK also presented a “non-paper” to the BP participants and SPDC. It’s about reform of NC process, similar
recommendations to what we have been talking about – lift 5/96, remove restrictions on participants, review 6
objectives and 104 principles, etc.
Asian Dialogue Society (ADS) also made a proposal – which is track-two diplomacy – effort of civil society
organisation in our region to engage with the regime and to contribute for the political change, because when
we talk about international advice and recommendations, if these recommendations just come from Europe
and West, the regime always look at them as interfering the internal affairs and trying to indoctrinate the
western concept and so on. Therefore this proposal from the region was very encouraging signal, incorporating
Asian values and pointing out Burma as a member of ASEAN and how it can be a responsible partner and
participate in regional development and progress.
So both Western and regional communities tried to engage the regime before 17th May. There is debate now
about engagement Vs sanctions. But with engagement alone – what will we do if they don’t respond? Lots of
proposals, engagements and efforts were there to make NC, which is the beginning point of Roadmap, positive.
There were also lots of efforts made by Burmese organizations: NCGUB and NCUB also formulated transitional
proposal, as did ENSCC. We made a lot of considerations, options and proposals about how to start the
national reconciliation process.
At the beginning stage there were positive signs and expectations about release of Daw Aung San Suu Kyi and
also possibility for review of 104 principles and 6 objectives. SPDC Foreign Minister also stated they would
consider for the review of these objectives and principles.
Then we heard about dialogue between SPDC team led by Col. Kyaw Win and Daw Aung San Suu Kyi, and
consultation between NLD leaders while still in under house arrest. We also heard about U Lwin’s comment.
There was already some level of understanding between SPDC and NLD. Then U Lwin even said there is a
possibility for the NLD to join the NC if there were reforms.
So even in the last week before May 17th there was still optimism especially among the diplomatic circle and
UN officials. But unfortunately the proposal was turned down at the last stage by Gen. Than Shwe at the last
stage. We heard that Gen. Khin Nyunt was willing to accommodate the NLD proposal but Gen. Than Shwe was
not.
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National Convention Process:
We review the NC process and find that –
- It reaffirmed that discussion will be continued within the framework of 6 objectives and 104 principles.
- Out of 1088 delegates, there are only 15 MP Elects and 29 representatives of political parties
which is 4%
- Ethnic delegates are 633 and delegates from ceasefire groups are 105, which is 67%. But I am not
sure whether ethnic delegates are ‘real’ or just handpicked by the SPDC. So there is significant
participation (in name at least) by ethnic representatives, likely to be used to claim the legitimacy of
the process. There are more restrictive rules and procedures than at previous NC.
- There is no public announcement of the timeframe of the NC. We don’t know when they will stop or
continue up to the end or stop in half way. It seems that SPDC will accelerate to conclude the NC in
2004.
- NLD, UNA/UNLD refused to join the NC since SPDC refused to fulfill minimum conditions.
- 6 ceasefire groups sent a letter to Gen. Thein Sein, Chairman of the NCCC demanding for the
reform of NC. So far there is no response.
- The interesting question is what would be the position of ceasefire groups if the NC proceeds in
such way. Response of 6 cease-fire groups is important for the legitimacy of the process and to
make a conclusion to the SPDC’s Constitution.
International Response:
IC didn’t keep quiet; they immediately responded to the SPDC’s decision on the non-participation of NLD, UNA
/ UNLD.
UN: United National Secretary General Kofi Anan expressed disappointment, which is very strong term for the
UN to use. They had many expectations and received many promises, none of which were met, so it used this
term, ‘disappointment’. Then it urged the release of Daw Aung San Suu Kyi and U Tin Oo and reopening of the
NLD offices.
It picked up two of five NLD’s demands. It also differentiated between government and SPDC. If you look at the
statement carefully you would see that, “the UN got assurances from the government of Burma, but SPDC did
not take these steps.” So the UN made differentiation between government and SPDC and the meaning behind
that is that the assurances came from PM Gen Khin Nyunt, but all these were rejected by Gen. Than Shwe,
head of the SPDC. It also appealed to the countries in the region to counsel SPDC and proposed the visit of
Razali to revive the dialogue between NLD and SPDC. So the UN’s focus now is mobilization of the countries
in the region as it thinks that the countries in the region have more diplomatic influence to bring about change
in Burma. Its planned move is to mobilize the regional diplomatic pressure. It is also considering organizing a
strategy meeting to come up with new international strategy. There are other responses from US, Canada, EU,
and Japan, but due to time constraint, I will not stress on this.
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Possible scenarios:
I. Very negative scenario if we can’t have any influence on the process to transform it into positive direction:
SPDC pursues the NC without NLD and UNA/UNLD, increase repression against political parties and even
outlaw the parties which refuse to participate in the NC. Referendum on the constitution which legitimizes the
dominant role of military in the political life without international observation and it might approved by manipulation.
II. Second scenario is current NC can be stopped either because of the international pressure, probably from
the region although I’m not sure how much pressure neighboring groups will put on, or ceasefire groups walk
out from the NC. This is also a big question mark. And then SPDC revive the dialogue with NLD, and UNA/
UNLD. Then minimum conditions proposed by NLD are accommodated and NLD and UNA/UNLD finally join
the NC. This is a more positive scenario.
III. More positive scenario is that NLD, UNA/UNLD join the NC and parallel dialogue can happen between NLD
and SPDC. And then SPDC will call for a nationwide ceasefire and then National Reconciliation Council is
formed with the top line leaders from SPDC, NLD, UNA, and ethnic armed groups. I’ve spelt out this positive
scenario because that idea of forming a National Reconciliation Council (NRC) is one of the proposals has
been spread out because most of us think that NC process alone is not enough. What we can expect from NC
attended by 1,000 people? If there is dispute in the discussion even though it is free, who will resettle these
disputes? Another argument is that NC or whatever constitution making process cannot take place in a vacuum.
Surrounding factors such as poverty and humanitarian affairs will influence the process. If we cannot sort out
these surrounding problems and factors, we cannot hope that this NC process will be a successful one. That’s
why there is a proposal to set up the National Reconciliation Council with top line leaders so that this Council
while holding of the NC can serve as a consultative body to give recommendations to the Constitution process
or dealing with economic and social affairs including the humanitarian situation.
IV. Fourth scenario is that SPDC rejects everything and no dialogue at all, and then NLD and CRPP take
initiative declaring its vision on the national reconciliation publicly, which include the forming of interim
government, followed by drafting constitution and new election. If CRPP or NLD make such a public
announcement, we hope that it will be strongly supported by all political forces of Burma and also by the
international community. There may be harsh response at the beginning by the radical faction within the army
which will lead to the political intervention because nowadays there is a lot of talk about greater UN intervention.
But this won’t take place if there is no serious political movement inside the country. If there is, there is more
possibility for political (not military) intervention – which is the UN efforts to discuss about roadmap for transition
agreed by the international community.
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The Political Economy of Authoritarian Reforms:
If you look at the transition where military or authoritarian’s withdrawal from politics, it used to take place first
when there is economic crisis. Economic crisis is a very important factor. Second, when there is international
division within the military establishment, and third is that when there is internal division and there is economic
crisis, military alliances such as their cronies, parties which back the military used to withdraw their support to
the military. Then military became isolated and then in connection with the economic crisis there were mass
movements. So if such kind of crisis happened and if there was a division within the military would be difficult
for military/authoritarian regimes to manage. They cannot cope with the crisis and cannot manage to revive
from the crisis. Because of the division within, some factions refused to crack down on the mass movements.
So in such a crisis situation, authoritarian regime will have to consider their withdrawal and at that time the
terms and timing of the withdrawal can be more influenced by the opposition because the regime is in crisis
situation. Examples are in Philippines, Argentina, and Bolivia. But military or authoritarian withdrawal in noncrisis
situation if there is cohesiveness of the military establishment and support, the transition used to take
place by the own initiative of the military/authoritarian rulers. So in such situation it is the military that used to
dictate the timing and transformation process. The message I want to give is that today we’ve talked about
getting help from the UN or wanting to implement 1990 election results or whatever. But looking at that situation,
if we cannot create such kind of political space by ourselves, UN cannot come and force our transition. So if we
want to influence the transition process, timing and terms, we have to put our own efforts, but no one can help
with this.
State of Economy:
Do we have an economic crisis in Burma? There is continued budget deficit, decreased export of textiles and
other goods, decreased import of certain items, deficit in balance of payments, constrained growth, shortage of
electricity, banking crisis. Also the outlook for year 2004-2005 is very blur.
Outlook for 2004-2005 (Source: Asian Development Outlook for 2004)
In view of the very limited reform agenda apparent at this time, growth prospects in the medium term are
limited. International sanctions look likely to continue curbing exports and FDI. Insufficient investment in social
areas and the slowdown in fixed investment suggest less than satisfactory reductions in poverty.
There is no expectation for the revival of Burmese economy. Actually this crisis situation is not the new
phenomena. Between 1993 ad 1996 there was a small economic boom, because the economy was opened
up. But from 1996 the economy has been going badly due to poor economic management and policy failure.
This economic crisis is one factor that could trigger the change in the country.
SPDC/Burmese Military:
Strength: Cohesiveness of Military
Cohesion of the military is still largely intact. The reason is custom to obey military command, Burmese culture
of respecting elders, patron-client relationship within the army, and fusion of political and military at the top
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level. Power is consolidating in the hands of Gen. Than Shwe. He can turn down every proposal even though
there are some who are willing to accommodate NLD. There is also an ideological indoctrination as Burmese
Army perceives itself as patriotic army born out of the independence struggle and savoir of the country, and
also common interest in power, wealth and privileges and fear of retribution. Whenever we think about strategy,
we must remember the fear of retribution.
Weakness:
There is no obvious split in the Burmese army, but there does seem to be a difference of opinion in making risk
assessments and taking policy initiatives over the last 2 years. Gen. Than Shwe and his group which include
Soe Win (Secretary 1) and Thein Sein (Secretary 2) and Generals from Bureau of Special Military Operation:
Their character is conservative, inward looking in policy thinking, reluctant to take risk by taking new policy
initiatives, and they prefer to live in status quo and prefer overt coercive measures to eliminate the opposition.
On the other hand, we saw the signal that Gen. Khin Nyunt and his colleagues from MI are willing to integrate
with international community and incline to accommodate the opposition and willing to begin a transformation
process, timing and terms dictated by the military. I don’t mean KN is a reformist or a democrat, but he is
sensitive to international concerns and he is willing to begin a transformation process but timing and terms
under the control of the military.
Policy Initiatives which reflected theses divisions with the army in policy thinking:
Political:
First point is that there has been inconsistent engagement with UN Special Envoy, UN Special Rapporteur,
ILO, and ICRC: Sometimes they allow Special Rapporteur to get in to the country and sometimes they stop
him. Sometimes they allow Razali to come in to the country and sometimes they don’t respond. So there was
policy inconsistency.
Another is Depayin incident. According to our sources, it was organized by hardliner groups without knowledge
of MI.
Another is Ceasefire initiative with KNU. There was some sort of draft brought by a senior General, but when
it reached to the level of General Than Shwe it was turned down.
Last thing I want to make a point is the Dialogue with Daw Aung San Suu Kyi on NC. There were lots of
expectations and optimisms. But at the final stage it was also turned down.
Economic:
One is about Structural Adjustment Program proposed by Japan. About 3-4 years ago, Gen. Khin Nyunt and
OSS organized an economic forum, inviting scholars for recommendations for economic reforms. After that
Gen. Khin Nyunt took initiative to do joint research with Japan on SAP, but when finished, there has been no
implementation at all, because it was not accepted by General Than Shwe.
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Another thing is rice policy. Last year they changed the policy of rice purchasing by the state and then restrictions
on transport and selling of rice but then within this year top line leaders turned down that policy and imposed
restrictions again. Another example is purging of Gen. Zaw Htun, Minister of Finance, for criticizing on the
slowness in economic reform. This indicated that there are those within the military who are thinking about
economic reform but cannot do anything because of the lack of willingness to take new initiatives at the top line
leaders. These are sort of positive signs even though there are no splits we’ve already seen the difference in
opinion within the military establishment.
Opposition Movement:
Strengths:
We have legitimacy based on results of 1990 election, charismatic leader, and international sympathy and
support. There is peoples’ aspiration for democracy remains alive.
Weaknesses:
We are not much sophisticated in political maneuvering in response to the emergence of cleavages within the
army. We have been unable to exploit destabilizing effects of economic and humanitarian crisis and unable to
transform discontents of the people into mass political action. Society is still atomized and there is no
civil society development. We have no unified strategy. Different groups are playing with their own different
interests.
So in such situation, what are we going to do?
Measures to promote dialogue and democratic transition
Push factors
Internal —
- There should be a public call for the national reconciliation and formation of an interim government
- There is a trend of economic deterioration
- Need to use humanitarian crisis to generate action
- More pressure within army can come to find a compromised solution if there is a mass action
- Ceasefire groups walk-out from the NC and the process completely lost its legitimacy
- No votes for the constitutional referendum. We have to think now how are we going to mobilize 1) to
stop the NC, 2) to transform it into the right direction, and 3) to mobilize the people to vote ‘no’ for the
referendum. We must think ahead to 1-2 year’s time.
- Political instability because of small but frequent mass activities that include rights-based actions.
External —
We must try to work for the continuation of US sanctions and maintaining Burma in the US Drug Decertification
List. From EU, we must try to get targeted sanctions and to exclude Burma in ASEM, and Japan to continue to
withhold ODA. ASEAN and neighboring countries are also important players and we should try to get more
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diplomatic pressure and then public call for national reconciliation through Asia Regional Forum/AMM/PMM.
ASEAN Troika visit should also be on our list. Last year they tried to pay the visit after the Depayin, and SPDC
turned it down and ASEAN never tried again. Another is to use Burma membership in ASEM as leverage for
diplomatic efforts and also Burma’s turn for ASEAN Presidency in 2006 as other leverage. These are big
leverage if the ASEAN countries are willing to apply it.
Bangkok Process – I’m not sure if this is still relevant or not since SPDC rejected to participate in the second
forum. But I looked forward to it as a relevant regional forum that brings opportunities for regional players to
engage with SPDC. But participation should (at some point) be widened by inviting international players as well
as other stakeholders in Burma. It should also invite representatives from the Burmese democracy movement
as well as from the ethnic forces. The role of UN should be increased and it would be better if there was UNThailand
joint sponsorship. Timing and participants should not be dictated by the SPDC.
We should explore more access to China to raise Burma issue through EU-China Dialogue and also should try
to get support from the new government of India.
UN Security Council – a lot of pressure to bring this issue to UNSC, but it’s not an easy job. We can try to get
SC to put pressure based on the agenda of children in armed conflict. But to get SC endorsement on UN
sponsored democratic transition plan is the most difficult.
International Grassroots Campaigns
- cooperate withdrawal campaigns
- shareholders campaigns
- consumer boycott campaigns
Pull Factors
We also need to think about pull factors, UN facilitation and mediation. In this aspect, there is a recommendation
to upgrade the level of Special Envoy to the Special Representative. There is also a recommendation for the
visit of Kofi Annan himself, and in the situation the military is not willing to respond for the visit of Kofi Anan.
Then we need to think about the transitional option and we must raise the question by ourselves how we are
going to respond to military’s prerogatives. Yesterday when we talked about NC, we discussed a lot about
military’s demands. So we have to ask ourselves how much we can give to the military, especially in transition.
We have to think about civil military relation and then an Interim Constitution, too. Yesterday, we were thinking
of very perfect and ideal federal constitution, but it is unlikely to happen overnight and we should think about
this Interim Constitution.
These are the incentives, but in the movement we used to think about pressure. But if you want to pursue the
other side to accommodate with us, we also have to think about incentive – what kind of incentives we can give
them!
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Some other ideas of push-pull factors are having the US and EU Special Envoys to work together with the UN
and expansion of ICRC and ILO presence and presence of UN Human Rights Monitoring Mechanism inside.
Proposal / Programmes:
This is my proposal what should be the programs of the movement:
- People’s empowerment program– some organizations have been doing but we need to
do more.
- International policy lobbying
- Documentation and advocacy on human rights, humanitarian, economic and environmental
situation
- Capacity building for the movement
- Coalition/unity building – strategic consultation, federal/state constitutional dialogues, youth/women
exchange programs
- Women empowerment program
- Transitional policy research
Most of the organizations are contributing partially at the forefront in these respective programs, but we need
to put more efforts hoping that we are going to bring some sort of change in year 2006.
My final conclusion is that – let’s try to mobilize for the emergence of national reconciliation movement inside
Burma and then lobby to obtain international support for the UN initiated political intervention in Burma. We are
a lot of challenges, but we still have a lot of opportunities. Let’s try very hard to bring about change in 2006.
Thank you very much.
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What’s Next?
Strategic Options for the Success of
National Reconciliation in Burma
Dr. Lian H. Sarkhong, Secretary General, Ethnic Nationalities
Council (ENC)
Thank you once again for this opportunity. I will not speak for too long because Dr. Thaung Htun has covered
a lot of the areas I’d like to cover. This is a very important topic. We are in the midst of a revolution and we face
a big new challenge. It should be considered from various perspectives – theoretical, historical, political,
economic, activist, and so on.
In the yellow book there is a paper I wrote about dialogue and non-violent strategy for democratic transition in
Burma, also another paper on current political situation, and another paper prepared for this conference in
Burmese. I will hand these out on request. I won’t cover the material in these papers or what DTH has already
covered. His view is from a multi-perspective. I’ll be very blunt and will not put myself in the sides of the SPDC,
EU or UN perspective. Today I will just be an activist.
Possible scenarios and Options:
The following are options open to questions.
1. NC is an offensive to us – how can we turn into tripartite dialogue? This is a challenge.
2. Can we completely stop the NC and start a new one? They have ignored everything and go their own way.
3. Ignore the SPDC’s NC and convene a parallel NC with combined democratic and ethnic nationalities.
4. Ignore the whole process of NC and declare an interim government – we won elections, we have support of
international community, we have support of people.
Option (1) Can we turn NC into dialogue process? Yes.
Strengths
1. We won the 1990 elections.
2. UNGA resolution since 1994
3. Our historical revolution is led by the most understanding leader in world history – Aung San Suu Kyi.
We shall not forget that we have a charismatic leader and must trust her.
4. Unity among ethnic nationalities forces inside and outside. Many people say ethnic nationalities are
too many and too many organizations and are not united. But we are fighting for the same goal and our
strategy is almost the same although maybe our tactics are different.
5. Understanding between democratic forces and ethnic nationalities. This I would like to stress very
strongly. When ethnic struggles started since 1948, ethnic people never received support from Burmans,
but after 1988, we are united. History will tell one day that all the people in Burma no matter where they
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are no matter what ethnic nationality they belong to they are united and fighting for the same goal.
Military may be holding the power in Rangoon, but we are united. This we shall not forget.
6. International community: Until 1988-1989, ethnic movement regarded as a militant terrorist movement
– not as legitimate revolution. Now we received legitimacy and support and are regarded as one of the
main actors and must participate in any transition process.
7. International community support – we were forgotten or ignored during the Cold War, but now we are
back in the focus. So can we do it? If we can do it, we shall do it. But of course we also must think what
our weaknesses are.
Weaknesses
1. SPDC: Regardless of what international community thinks and what our demands and what people
want, they started the NC and are going on their own way.
2. SPDC rejected the concept of dialogue and peaceful transition.
3. SPDC even ignored the boycott of NLD who are elected by the people and won the 1990 election.
4. SPDC ignored the Bangkok Process. In my view the process is dead.
5. SPDC postponed the talk with KNU. If they have a certain sympathy or willingness to do good things for
the people in the country they should talk to those who are fighting. We all were happy and expected a
good result from the KNU talk, but now they say they would resume the talk only after the convention –
that means after they have a Constitution and strengthen their power.
6. Inside opposition groups, both NLD and ethnic nationalities are very weak because of all kinds of
repression. NLD cannot reopen the offices and function properly.
7. When we demand tripartite dialogue and to implement 1994 UN resolution, a number of so called
democratic forces rejected our demand for tripartite dialogue. They don’t like tripartite dialogue and the
involvement of ethnic groups in dialogue process
8. A number of ethnic groups signed ceasefire agreements and under these agreements they are forced
to attend the NC.
Option (2) Can we stop the SPDC’s NC and start a new one, organized jointly by SPDC, NLD and ethnic
nationalities?
Strengths: This is I’ve mentioned already in the Option (1).
Weaknesses
1. SPDC has already started the first step of its seven points Roadmap.
2. It will go ahead with their Roadmap and draft a new constitution.
3. It will also conduct a referendum.
4. It will promulgate a new constitution.
5. It will hold a new election.
6. It will declare itself as a “de jure government”.
7. It will occupy the presidency of Asean in 2006.
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What can we do?
1. Denounce the SPDC’s sham NC.
2. Empower the people to say ‘no’ at the referendum – the 4th step of their Roadmap.
3. Encourage the ceasefire groups not to give up their arms before the referendum.
4. Use the method of ‘non-cooperation’ and ‘people’s power’.
5. Upgrade the role of UN and bring the case of Burma to UN Security Council.
6. Use neighboring countries as major players, and use US, EU and Japan as the back-up of Asean,
China, India, and Bangladesh. Here I’d like to mention that this is major shift in our movement’s foreign
policy because for past 10 years we relied on Western countries. We have to review our reliance on
Western countries and consider the influence that regional powers can have. Don’t use Western countries
to condemn but to put pressure on India, China, and ASEAN. This is how we can combine Western
and regional forces.
Option (3): Ignore the SPDC Convention and hold a parallel Convention
Strengths: I have mentioned already in Option (1) and Option (2). So I’ve outlined the methods here: It may
work or may not work.
Methods: Outside Democratic Forces and Ethnic Nationalities Forces
1. To convene strategy consultation meeting for ethnic nationalities forces and organizations by the Ethnic
Nationalities Council
2. To convene strategy consultation meeting for democratic forces in exile by NCGUB/NCUB
3. To convene joint strategy consultation meeting for both democratic forces and ethnic nationalities by
ENC and NCGUB/NCUB.
4. To convene a parallel National Convention in Liberated Area by ENC and NCGUB/NCUB
5. The Parallel Convention shall be supported by State Constitution Drafting Process led by SCSC and
Federal Constitution Drafting Process led by NCUB
6. In order to support the Parallel Convention, the SCSC and Federal Constitution Drafting Committee
should lay down common working plan as soon as possible.
7. To lobby international support – we have been doing for past 10 years, but let us focus more on
regional powers.
8. To create a channel between inside and outside – we’ve been doing this as well, but need to strengthen
more and spend our money and energy to strengthen the links with inside.
Methods: Inside Groups (NLD, UNLD/UNA and Ceasefire Groups)
Inside groups should also do something and the method more or less will be the same, but the way they
approach will be of course different. But these also have own negative points and weaknesses
Weaknesses:
1. SPDC will not tolerate and will definitely crush such a move, especially inside groups
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2. Therefore, mass arrests and even mass killing can be expected
3. How much international community support we will receive by doing such a parallel convention and
parallel movement is unknown
4. Of course we have to raise a question among ourselves and answer how united we are if we are going
to do such a move.
Final option: Ignore the Whole Process of Convention and Declare an Interim Government
Strengths and weaknesses: I’ve already mentioned above.
Methods:
1. Declare an Interim Government by NLD alone– NLD won the election and thus it can form an interim
government alone. People support them and they can do that if they choose to, if they dare to, if they
are willing to sacrifice, and if they have commitment.
2. Declare an Interim Government by NLD and 1990 election winning parties such as UNA and UNLD.
3. Declare an Interim Government by all democratic forces and ethnic nationalities forces, including
ceasefire groups, both inside and outside simultaneously.
Possibilities:
1. Possibility of success: Very slim – it requires a lot of challenges, efforts and sacrifice.
2. International community support: Unlikely
Should we do it?
- In my view, this depends entirely on NLD leadership, especially Daw Aung San Suu Kyi.
Questions and Answers:
Q: It’d be better for the participants if Lian’s presentation was circulated. My question is to Lian. I am aware that
both UNA and UNLD inside still maintain their position on tripartite dialogue and UNLD even has their own
transitional plan. And yet when you, as UNLD GS, presented the different scenarios, tripartite dialogue is no
longer mentioned and all your discussion points were around the issue of NC. So are you presenting these
scenarios after consultation with UNLD inside, or is this of ENC?
Lian Sakhong: The policy of all our ethnic groups UNLD, UNA, ENC – both inside and outside – has always
been tripartite dialogue.
Q: What about the possibility of using the Depayin Massacre? None of the speakers talked about this. This
massacre happened during the time of Gen. Than Shwe who is in power at present, so can we do something
with this case? Can the 23 MPs in exile, the Federal Constitution Drafting Committee and the SCSC do anything
together? NCGUB is one and only government of the opposition. We should also know the NCGUB’s work plan
so that we know what to support, and therefore I would like to know whether Dr. Thaung Htun’s presentation
was the opinion of NCGUB, or an academic’s opinion.
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Dr. Thaung Htun: I did not touch on Depayin not because it is not important. It’s important and we should
continue to let the international community know about this. But there is limitation. We tried to bring this issue
to UNSC and its permanent members US, UK and France supported us. But China and Russia were not ready,
so we were unsuccessful. We tried again at the UNGA and UNCHR. The most we can get would be the
independent inquiry mission – the UN investigation mechanism. So far, we could only get to the point of
national investigation with the help of international assistance. To bring it to the International Criminal Court is
not possible, but we can create ‘People’s Tribunal’ mechanism, in order to keep the issue alive and this is the
strategy of the NCGUB for 2004. We will form an independent court with international judges and investigate
the case and publicize the finding and recommendations. In this way, we will maintain the international attention
on this issue. We know that Daw Aung San Suu Kyi wants the investigation into this case and we will continue
to ask for it, too. But she said this is not for the revenge and also said it should not be an obstacle to national
reconciliation. So we have to think other options how to deal with this case if we are to do the national
reconciliation. Some from my presentation were already discussed within the NCGUB, but NCGUB alone
cannot do, so we will consult and discuss with other organizations and see who can do what. So this is our
thinking.
Lian: I did not touch on Depayin as I was focusing on what to do and how to stop this NC. However, I have
included this case in other of my papers. I also prepared a paper on the level of danger in our movement when
the NC result comes out. In fact this NC poses a great danger to our ethnic nationalities because if the constitution
is written under the control of SPDC, there would be an obstacle to our 50-year struggle and we will have a long
way to go then. We have to stop the NC process any way we can and ENC has therefore laid down a work plan
in last meeting which we will begin working on in this coming July.
Scenarios for Group Discussion:
Scenarios
I. SPDC goes ahead with its roadmap plan including national convention and referendum
II. Current NC stops due to different reasons
SPDC revives dialogue with NLD and ethnic groups regardless of which dialogue with whom.
Reform the NC, all participate. (it can be assumed as dialogue process)
(+) Formation of transitional authority with 3 stakeholders (can be assumed as new NC because of
new regulations and reform) because dialogue becomes substantive. 104 principles of SPDC are
not really agreed yet.
III. SPDC rejects everything including dialogue.
CRPP + NLD + other ethnic groups à alternative plan (parallel convention and / or interim govt.)
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Group Discussion Presentations:
Group I (WLB):
Mainly we discussed what we can do as women organizations. When we discussed scenarios, we think the
SPDC will move on with their own way and even though the process stops due to various reasons, they will still
try to do their own way to finish up – constitution, referendum, etc. WLB has already issued statements on NC
that it is not a meaningful process and not acceptable. WLB will keep its eyes on the NC and will do advocacy
as necessary, including campaigns and using radio for both inside and outside. Using radio is one tool, but the
journalists are not paying attention on the opinions of women regarding political situation including NC. WLB
has also published the UN Security Council Resolution 1325 in various ethnic languages, but we are not sure
how many men leaders are reading this. Thus, WLB urges the men leaders to pay attention to the opinions and
perspectives of women in the movement. Recently WLB produced several books on gender issues that weren’t
read by men – in stead they asked their wives to read them! Gender awareness is not just for women, it is
important for men as well.
The political activities inside Burma are important for the movement and we thought about how to mobilize the
non-violent action and non-cooperation movement inside, including those women organizations under the
control of SPDC as well as other individuals and informal organizations. We also divided the target groups. For
example, mothers of political prisoners, and mothers, wives, daughters and sisters of soldiers as one target
group. In the 7 step RM the SPDC claims there will be a Constitution referendum. We should educate people
about what this is and their right to vote in the election.
We also agree on the need to mobilize support from the neighboring countries. With China, we should be
persistent and try to convince them to act for the interests of Burma. It seems like talking to a wall, as some
people say, but we should make more efforts to approach the Chinese Government.
ASEAN countries’ interest is based on economic interests, which contradict interests of Burmese people. But
we still have to engage them and we should try to find a way to do this. In India, people from the movement are
advocating to the Indian Government with different messages, and there is a need to coordinate. We think we
should also coordinate the international advocacy actions among the groups. More inclusive consultation
among us will also be better, since there is a need in particular to include women and youth in the process.
We don’t want to divide into democratic and ethnic camps as it can mean that ethnic groups are not democratic,
or democratic groups are not ethnics. In stead we discussed what political parties in exile can do to mobilize
people inside. We should try as much as possible to raise people’s awareness. We should find space in Burma
to move forward to some extent. Both inside and outside pressures are important and necessary.
Regarding the strength of our movement – I want to add that because of economic distress and the people in
Burma who don’t like the government, people want a change. This is good for our movement. We want o
emphasize and highlight the role and participation of women in the political process and this point should be
realized. We emphasized the need for more cooperation and consultation, more inclusiveness and the importance
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of advocacy in the movement as one of the main issue in our discussion. Our presumption was based on the
scenario that the military would continue to proceed unilaterally.
Summary of WLB work group’s discussion
Scenario: The military will move with their own way and proceed unilaterally
 Monitor on current national convention and its outcomes
 advocacy and campaign inside and outside
 campaign for increasing role and participation of women by using UN security council
resolution 1325
 mobilize non-violent and non-cooperation movement inside
 educate people on constitution referendum and their right to vote in the election
 mobilize support from neighbouring countries especially China
 more consultation and cooperation, and more inclusiveness is needed within the movement
Group 2: NCGUB and MPU
We discussed more on the work necessary to proceed than the scenarios. When we are waging war, we may
have a number of defensive lines. So for use we have to set up our preferences like this. And then we have to
strive for our first preference, but have second and third preferences ready.
In addition to yesterday’s discussion, one additional option is that since the 7 point roadmap seems mainstreamed
among people inside the country, we would like to add an option of Constitutional debate outside the country
which is inclusive as possible. We will send the message about this process to inside Burma using radio by
giving knowledge to the people about constitution and compare and contrast between the SPDC (Roadmap
and constitution drafting) process and our constitutional debate process are going on. I will show that we are
inclusive, open and broad-minded. Talking points among people living in Burma can lead to a Constitutional
movement. The military always claims that drafting a Constitution is the primary objective of all citizens. So this
is OUR responsibility and we have the right to organise for this – all parties and other groups should be able to
discuss. It will be a possible activity we can proceed with.
Another thing is Depayin Massacre. Regarding this, we should seek the truth. But our tone should be for
reconciliation not revenge. Our approach should be different if we still want to achieve dialogue and national
reconciliation. Especially for international, we have limited opportunity to put this to a tribunal. But we could
have a mock tribunal or people’s tribunal so we could have a symbolic hearing. It may have recommendations
or findings then we could have a press conference to let other people know. This is all and we don’t have much
different from yesterday.
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Summary of NCGUB/MPU work group’s discussion
discussion made more on works than the scenarios.
 In addition to Dr. Thaung Htun’s presentation, one additional option is to make the
Constitutional debate outside the country in inclusive manner
 This open, inclusive and broad-minded debate will encourage the people inside Burma to
lead the constitutional movement
 Mobilise for mock tribunal or people’s tribunal outside Burma as symbolic hearing as a truth
seeking process
Group 3: FDB
Most of our members are from Forum for Democracy in Burma. We have had a discussion since last month
about the present political situation. This is the result of our group discussion and may also reflect discussion
in Forum for Democracy in Burma. But our presentation is different from the scenarios proposed yesterday.
Whatever scenario we face, we need leadership and focal point for policies.
Yesterday, Lian Sarkhong said we are united and agreed on most things. In general sense, it is true. But we still
feel that we need more unity and strategic cooperation focal point. We may be receiving different information
amongst different groups and interpret differently. We asked ourselves – would the NCGUB be our leadership
or NCUB or ENC or who else? This is serious and critical for our movement, regardless of the scenario we
face. We should answer immediately. Especially since the leadership inside Burma is in distress, the leadership
in exile needs to be strong.
We think people power inside Burma is the most important factor. This was discussed yesterday. We think this
is quite late. When we look back the past 5-10 years, those important political forces had very less interest in
the importance of the people power inside and investment in the people power movement including policy,
resource and funding.
The main organisations in exile don’t have a consistent policy. We also need to invest in empowerment for
people inside formally and informally. When Depayin happened we were in a passive situation and not prepared
to respond. The organizations are inconsistent with their policies to promote the people’s movement in Burma
and it is not a priority. I encourage the promotion of consistent policies.
Organizational trap may be involved with the leadership problem. We are in a trap with our own affairs and in
our own organizations. We are limited within our boundaries and our functions. We (democratic groups) are
getting weak in contact with the grassroots. We are busy with attending seminars, meetings, etc. Only a few
leaders are busy. The US resettlement program is a threat to our survival. When the news about the KNU
ceasefire spread the question for us was – not politically – but how we can maintain our forces and function
after this ceasefire. This problem links directly to the leadership question.
Answers: How can we resolve these kinds of problems?
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We think we need more intensive consultation between inside and outside and among us and more contacts
with the ceasefire groups. We need to emphasize at least on functional unity. Amongst ourselves we should try
to get at least functional unity.
According to last few days, we have a common vision for the future. But there are differences in reality. We
need to find a common vision for today. We should find a way to promote people’s participation both inside and
at the border. There is an immediate and urgent task to fill the leadership vacuum. We need to emphasise
people’s empowerment program as priority. We should promote grassroots participation and consultation with
leaders, between leaders, between leaders and grassroots – at a horizontal and vertical level. We should try to
have more consultation so then we can reflect on the people’s opinions and their vision.
Summary of FDB group’s discussion
 Need leadership and focal points for policies within the movement; leadership vacuum
should be filled
 intensive consultation and strategic coordination are essential for development of the unity
 empowerment for the people inside Burma should be priority
 grassroots participation should be promoted
Group 4: SDU
Some people left notes to be presented today but they are not here. So our analysis is reflected with gold – we
are optimistic! We divided the strength – for inside and outside: Strength of the forces inside Burma is a
strength that is the people’s aspiration for democracy. Now people dare to speak out against the military
regime based on their distress and personal feeling. Some small activities under local NLD leadership are
taking place. The leaders of NLD and some other political parties are still active despite the risks they take. The
strength of the movement in exile comes from the support of people inside. They are willing to cooperate with
people in exile. We maintain a certain amount of diplomatic contacts in the UN and some good relations.
The weaknesses of the movement inside are that they are based on a personality cult and only rely on one
leader. The middle level leaders of the NLD have been arrested and detained so the higher leaders seem
incapable and ineffective. We can have consultation with NLD leaders and ethnic leaders inside. Even Daw
Aung San Suu Kyi can’t consult with other leaders.
We are not pro-active, just reactive to the situation. We can’t make any offensive. The main problem is lack of
coordination and cooperation amongst us. As the earlier groups stated, we face a situation of shrinking forces
– getting smaller and smaller. We should have a greater space for some people who we can work with. I want
to tell you my opinion based on one of the ethnic leaders but I don’t have a mandate even from the group so I
cannot say. Now I think we are in the process of consolidating. We are closing more and more but we are just
in the beginning of the process.
We are going to speculate …. Some people discussed yesterday that the SPDC is unilaterally proceeding. It
seems like it may not be reformed anymore. But the ceasefire groups participating have asked for reform and
we can rely on them. So we are not out of options. But how can we support the ceasefire groups and give
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inputs? There may be different scenarios from the NC – it may be suspended again or it may proceed. So we should
not take risks by convincing the ceasefire groups to leave the NC. We should seriously consider balancing the pros
and cons, how we can react to the NC. We have no alternative strategy at the moment rather than the NC.
So we should understand the limitation of international support and pressure. We can convince them to sustain
but we must know our limitation.
Group 5: Five Nations
Group 5 was mainly composed from military alliance of 5 non-ceasefire groups. So the military option is one of
the options, but it’s top-secret! There were some disagreements within the group so this presentation is as
much as we can agree upon.
It is clear that the desire of the military is to have a role in the future governance of Burma. The NC is just to
legitimise the military through some handpicked delegates and ceasefire groups. They have imposed very
strict rules on the NC because they are afraid of the 1996 scenario recurring. So now the SPDC has started
disengagement with the international community and it seems that they are digging in their position.
My analysis is that we are in a defensive position (the NC is the SDPC’s offensive), and we need to prepare
here and then find a way to make a new offensive.
So we chose option 2 and option 3. The 2nd option is to stop the NC and strike for tripartite dialogue. The 3rd
option is to convene a parallel NC.
So the following are the strengths of our movement:
Several UN GA Reolusitons
1990 election results
International support
Leadership of Daw Aung San Suu Kyi
Common desire for tripartite dialogue
People’s support
The NC is sponsored by the SPDC and does not have the NLD, UNLD or ethnic groups, or KNU attending.
Weaknesses:
SPDC is very committed to proceed with NC.
Ability to resume the NC is one of their strong points.
One of our weak points is the ethnic ceasefire groups participating in the NC.
The SPDC still have power to contain the people’s movement.
The thinking of people is to rely more on international pressure rather than self-striking. People think that this
will make a change. But there are limitations to international pressure and what it can achieve.
More pressure and more coordination of the exiled movement are necessary.
Difficulties in consultation and contact with groups inside Burma (for security reasons)
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Suggestions for ‘what’s next?’ based on strengths and weaknesses:
There were some disagreements with the group. Some think an alternative NC is too strong – we still have
room to reform the NC. Others think an alternative NC is the way to go. We should convince the ethnic ceasefire
groups and ethnic representatives to walk out from the NC because they are lending legitimacy to the SPDC.
We have to educate people not to cooperate with SDPC in their seven step roadmap.
Another suggestion is a consultation process among the NLD, UNLD and UNA leaders. We should educate
people to rely on themselves rather than international pressure and will continue our call to release all political
prisoners including Daw Aung San Suu Kyi and U Tin Oo. We will use media more effectively to convince the
people.
We would like to suggest to the exiled groups, be they ethnic or democratic, they should advocate to international
and neighbouring countries to work for tripartite dialogue in Burma. We also suggest calling a parallel NC
outside of the country. One possibility is that India and Thailand could host the parallel NC but it depends on
their willingness. We should advocate to these governments to allow parallel NC and advocate international
governments to support this. We should also call on the UN for more effective sanctions on Burma.
We would like to ask international communities to support the parallel NC, not the military government – to
abstain from economic relationships with the military government. Take the Burma issue to be discussed in the
UN Security Council. Convince ASEAN countries to reconsider their policies on Burma.
Summary of Five Nations Group’s discussion
Scenario: To stop the NC, strike for tripartite dialogue and call for a parallel NC
 convince ethnic cease-fire groups to walk out of from current NC
 educate people not to cooperate with SPDC in their seven steps roadmap
 encourage for a consultation process between NLD, UNLD and UNL leaders
 continue call for release of all political prisoners of Burma
 increase media advocacy
 advocate international and regional country for tripartite dialogue and support for parallel
national convention
 call on the UN for effective sanction on Burma
 call to discuss Burma issue in UN security council
 convince Asean to review their policy on Burma
 Educate people to make their own struggle and empower them
Group 6: ENC
Most in our group agreed with the scenarios presented yesterday.
Strengths: One of the strong points is the political aspirations of Burma’s people as shown in the 1990 elections.
Another is the leadership of Daw Aung San Suu Kyi – we are lucky to have a charismatic leader.
There are UN General Assembly resolutions adopted since ten years ago.
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We have too many groups inside and outside of Burma but now we are trying to coordinate and become closer
and cooperate more. International position is still strong for the democracy movement and more importantly,
the people support the movement.
Weaknesses:
NLD reliance on one person’s leadership – when she is arrested the party cannot do anything. They should
have a generation of leaders and some alternatives. Some of the ceasefire groups have a lack of political
vision. They are focused on business and personal interests. Because of harsh pressure and punishment from
the SPDC the democracy movement seems a bit weak. The ethnic and democratic organisations can’t organise
the people – we have a lack of grassroots leaders.
Our strategy is based on dialogue but we still need more understanding on what kind of dialogue it should be.
We need to make this clearer in our strategic position.
We discussed what we should do next for the ethnic people of Burma living inside. I think the military can
control the people by fear. Fear is still working. We should find a way to remove this fear. An example is
religious persecution – we have distributed books on this issue in Chin State, but when I personally spoke to
the leaders of the churches they were too afraid and reluctant to defy the SPDC on this issue.
We should try for more cooperation between groups inside and in exile. What we should do: The groups in
exile and at the border. We have several alliance organisations but just forming these organisations isn’t
enough. We need trust, mutual respect and recognition amongst each other. Now we are living in a free society
but people in Burma are not. We have to closely watch and highlight the situation of the people e.g. Licence to
Rape from SWAN.
The revolution has been so long for several decades. We should update it with new ideas and we should
encourage a new generation of leadership. Now we have some civil society groups along the border and in
exile. We should promote their role.
We suggest that the democratic forces inside Burma should have more cooperation and not just rely on one
person’s decision. They should rely on themselves. I think it is hopeful that non-violence and non-cooperation
can be used in Burma if we are united. We have seen some smaller actions and we should encourage more.
Democratic forces in exile: Encourage closer cooperation with ethnic groups. Finally, I encourage everyone to
find a common strategy. No country has a friend, but they are acting on their own interests. We need to find a
way to make them interested in Burma. We should not be disappointed – we are strong enough to overcome so
we shall overcome.
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Summary of ENC work group’s discussion
Scenario: To strive for dialogue
 empower the people to be self-reliance and free from fear
 non-violence and non-cooperation movement inside Burma
 more cooperation between groups inside and exile; trust, mutual respect and recognition
amongst each other is needed
 watch and highlight the situation of Burma internationally
 encourage a new generation of leadership
 promote civil society and their role should be promoted
 encourage closer cooperation between democratic forces and ethnic groups
 to have a common strategy
General Discussion:
Hseng Noung: An addition to the women’s group points: In 2006 Burma will take over ASEAN Chair. This is an
excellent opportunity – should we make a call to suspend Burma’s chairmanship? We should try to maneuver
to take advantage of this opportunity. We have contacts with people’s groups in ASEAN – can we use peopleto-
people advocacy to make our call to suspend Burma’s chairmanship?
Another thing is that we have little knowledge about the relationship between Burma and North Korea with
respect to nuclear weapons. We have limited intelligence capability to monitor. We should raise this with
international community and also try to improvise out intelligence gathering capacity.
David Htaw: It was interesting to do the scenario discussion, but it failed to discuss the issue of Asean in 2006.
Is SPDC rushing with this process to complete before 2006 in order to get this chairmanship of Asean? Will
other Asean members give this chairmanship to Burma if SPDC is not successful to complete with their process?
I think this is a critical time and the factors should be considered in our discussion.
Dr. Naing Aung: That should be considered as one of our scenarios. This is important. What impact will we see
if Burma takes chairmanship in 2006? Is Asean keen to see the change in Burma if it is to give this chairmanship
to Burma in 2006?
Dr. Thaung Htun: It is better not to suggest that ASEAN should not have Burma in 2006. In stead we should
encourage the Asean to use it as a pressure point to put pressure on SPDC to reform itself. There are two
issues in Asean with regards to Burma – ASEM and 2006 chairmanship. Based on these two issues, we should
encourage pressure on SPDC from within Asean that there must be reforms to get into ASEM and chair the
Asean. We should make a call at various levels for Asean mediation and cooperation with UN – MPs and civil
society levels. I suggest that the mediation mechanism, ASEAN troika, should again be encouraged to go on
in coordination with the UN bodies.
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Still to date there is no clear-cut policy of Asean on the SPDC’s NC and many Asean Ambassadors actually
attended the opening of the NC – this is a kind of giving tacit recognition to the SPDC on this process. We
should ask them for a clear position through Asean civil society groups. We should start to lobby and campaign
now for the Asean policy and position on NC and their plan of action to be included in the coming Asia Regional
Forum and Asean Ministerial meeting in July.
Dr. Naing Aung: There will be a regional strategy consultation meeting on Burma in Chiang Mai organized by
Altsean and Forum Asia very soon, maybe on June 5th. And they have already invited some leaders from our
movement, so anyone from this group who want to attend should contact me or Ko Soe Aung.
Thein Oo: Federal constitutional drafting process of NCUB started earlier. In 1996 finished first draft and sent
it to Daw Aung San Suu Kyi and to the leaders of NLD through a representative from Germany. DASSK said it
was ‘workable’. I’m happy to see that the state constitution drafting process has been going on for 3 years, but
feel it is time to coordinate the State and Federal processes. How can this be done?
A broad seminar of the two processes will be parallel to the NC which will be a good point for a political
offensive to the SPDC. We would like to request SCSC or DBC to support this sort of program.
Lian Sakhong: We’ve already discussed yesterday how we could do this in harmony. If we can convene a
parallel NC then a parallel Constitution would be strength for us. So we should sort out the technicalities so it
will not be a problem anymore. SCSC is just a supporting committee with very limited budget, which mainly
comes from National Reconciliation Program. Just for coordination. The Federal Commission has more funding
and experience looking for funding so we should ask them for help.
Thar Nyunt Oo: Regarding the People’s Tribunal proposed – does it mean the NCGUB has already given
approval to this or is it just an idea?
Dr. Thaung Htun: Just an idea. The NCGUB is already in opposition position so people will not be accepting if
this is our initiative. So we approached International Commission of Jurists, Asian Human Rights Commission
and Forum Asia. They will proceed to work on this and Ad Hoc Depayin Commission and witnesses are to
testify. So this is how we have arranged so far and it’s possible to take place in 2004.
I’d like to discuss on the points from Forum for Democracy in Burma regarding on the issue of lack of leadership
and no coordinated strategy. It seems to be disappointing but no one is perfect. Different groups have their own
constituents e.g. student unions – students, trade unions – workers. We should define the roles of our
organisations and our mandate. We should not extend beyond our mandate. NCGUB works with and has
access to international governments and UN for policy lobbying, as it has mandate from the 1990 election
result. But we have no ability to empower the people. If you think NCGUB should do people’s empowerment it
is impossible. It is not correct that we don’t have interest in the people’s empowerment movement. We have
interest and suggested several years ago to the Norwegian Government to provide funding for the movement
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inside Burma. There are some committees working for inside political movement, and we can organize to
provide some assistance to these committees such as PDC. Those committees are focusing on popular uprising
or mass uprising rather than long-term investment in civil society and building networks in Burma. The strategic
thinking of the groups here is the strategic thinking problem rather than resources or manpower or interest. We
should correct our strategic thinking and think where we would like to be.
Dr. Naing Aung: Who will define the role of the organisations? Do we agree on our roles and respect each
other’s roles? These questions remain.
Khin Ohmar: I want to share information about North Korea ties with Burma. I heard that the IAEA has been
watching closely. Another is that Asia Pacific Coalition for East Timor held its conference on 17-19 May in East
Timor and since East Timor has restored independence, the coalition has transformed into the coalition for
regional and identified Burma as their next priority. Representatives from the Coalition Secretariat will also
attend this coming regional strategy consultation meeting on 5th June. We should come up with concrete plan
of action for them to take on and convince them about what we want them to do.
Dr. Naing Aung: June 5th meeting for regional strategies will be in Chiang Mai. If you can contribute to this
meeting it would be good. The organizers are expecting to get inputs from this meeting as well.
Thin Thin Aung: My question is to Dr. Thaung Htun from NCGUB. We have been talking for a long time about
approaching China and India because these countries are important. So how will we invest our resources and
what can we do to definitely approach these countries?
Dr. Thaung Htun: These countries are difficult to approach. We cannot discuss with them on democracy and
human rights. Their interest is trade, investment and regional stability. When we are talking about different
values it is difficult to engage. The China position is that Burma is a sovereign country and its problems are
internal affairs. I think now the China position has been changing a bit. We still don’t have direct contact but we
convinced the EU countries to put pressure on China. Since 2 years ago there have been some changes. In a
meeting of EU-China relations they raised Burma issues. In Greece the question was raised again with the
Chinese Foreign Minister. When Italy led the EU and the minister went to Beijing he also raised Burma issue
there. In ASEM meeting in Ireland it was also part of the agenda. Now there are some changes in the governments
of India and the Congress Party leaders are more sympathetic to DASSK but we are not sure yet.
Closing Session
Closing Remarks by Dr. Sann Aung, NCGUB:
Ladies and gentlemen and dear colleagues:
I am much honored to have the chance to give closing remarks. This seminar provided us a very rare chance
to meet each other in one place and exchange our views and opinions freely on democracy, constitution and
national reconciliation and also on the current political situation in Burma. We have also discussed and outlined
ideas and plans for further steps.
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Our struggle for democracy, national reconciliation and federal union is long and difficult, all of us facing many
challenges. This seminar helped us to be well prepared for these challenges. Helping us to have this seminar
is very concrete answer to Daw Aung San Suu Kyi’s call to the international community to use their freedom to
help the people of Burma in achieving their freedom as well.
We all are much grateful to the Danish people and government, DBC and also to Annette and Peter for their
firm support to the struggle of Burma. We will never forget them. We are grateful to the resource persons for
their excellent presentations and expertise; Dr Naing Aung, NDD members and colleagues and the secretariat
staff for the ground work; and all the participants – ethnic and democratic leaders for joining even though they
are fully occupied with their work.
Closing Remarks by Daw Molly (WLB):
Thank you all for giving me the chance to speak at this closing of the seminar on behalf of WLB, especially to
DBC for inviting us and contributing this opportunity for women’s participation in this conference. We are also
very proud to have this chance to meet with the leaders and representatives from various groups – being able
to talk, and exchange and share work we all do. This has made clear for the women what we should do next.
We have seen now some gaps and differences in the work we do and in our thinking due to geographical
distance but not intentional, and in this seminar we have been able to discuss these issues and brought us
closer. At the same time, we’ve also realized that some leaders did not think the gender issue yesterday was
interesting and we feel sorry for them. Inclusiveness is important. We will reach to our goal only if everyone is
included. Our goal will still be delayed if we really want democracy and federal union but want to leave out the
women in the process. If you neglect or don’t consider the women, violence will increase in the world. We
should not be like fundamentalist who neglect the rights of women. For culture and development, education of
women is really important. Leaders should protect and educate about women’s rights for a better Burma. In
closing, I would like to thank to everyone and wish to see more women’s participation in the future seminars.
Closing Remarks by Anette Berentzen (DBC):
Dear Participants, friends and resources persons,
In last 6 days, we went through various issues and a very heavy program but all related to theme of seminar.
First day we started out with greeting from the Danish Ambassador, and then we went to Mikael Gravers
looking at violence, reconciliation and distinguishing between perpetrators and victims in reconciliation process.
It might be a good idea to think of a truth and reconciliation commission. We started to brainstorm as Palle
tried to give us some good definitions and also stressed it is a process and a symmetrical federation as one
possibility. There seemed to be almost consensus in the group work what should be the future workable model
for Burma and I hope that you will continue to work on that.
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From there, we went on to Lian who gave us some definitions of state and nation building. He correctly pointed
out that you can’t just take experiences from Europe that is over one hundred and fifty year ago and just adopt
it to a modern Burma. I think the challenge is to try to develop at the same time both nation building and state
building on different levels. After that we heard Mark who gave us very practical experience from the Thais
when they had to draw the last information. At least for me I got new information, especially that people cannot
exercise their rights if they have no idea what rights they have, so there is also a lot of awareness raising to do,
and I think you probably have to do the same in Burma and you might as well start today.
And then Marko Ban and Thein Oo laid out lessons learnt from previous NC and described the trap that SPDC
(at that time was SLORC) tried to lure the democratic forces into. I think it’s very important that you don’t repeat
it so that you don’t fall into the trap twice.
Then we had eight people introducing current State Constitution Drafting Committees and study group on their
experiences until now. The discussion showed the importance of parallel processes at Federal and State
levels. This should not be a learning exercise but should have a very clear aim of reconciliation while drafting
and discussing and raising awareness. There should also be inclusiveness, and there of course to include the
majority of the population, namely women. It is also important to raise capacity at Federal level.
Then we went to Dace who showed very clearly why women’s rights as human rights and the importance of
this. Affirmative action needed for women and perhaps also for some of the ethnic groups. She also stressed
that human rights is something that every person is born to have and it’s state’s responsibility to protect and
promote these rights.
Then yesterday Dr. Thaung Htun and Lian outlined different scenarios. We have today very good group feedback
which showed again more or less consensus – to stop the current NC and come up with an alternative either
by reforming it or make it a complete alternative, that this current one will not solve the problems and will not
lead to what aim at.
There are some conclusions. We will publish a report in English and Burmese. There are more concrete
recommendations and we will bring to our Minister of FA that is the state constitution drafting process and
study groups together with the federal constitution drafting should be jointly cooperating more. We will try to
see whether we can help and we will recommend that this could be a very concrete follow-up from this seminar.
But also in my mind it is very necessary to look at the NRP because we think of NRP as a frame for all of you
to use in order to process with these discussions. We will take these recommendations home because our
MOF is very interested in following it up and this could be one way of doing it. In that way we are some sort of
creating a parallel NC until there can be a proper one inside.
It says on the banner that this is organized by DBC and this is only telling half of the truth, because we could
not of course organize this seminar without substantial help from very good friends. So I would like to call on
first the secretariat (Ne Min, Melanie, Han Min Soe, Soe Aung, and Aung Thu Nyein) to come up to the stage.
We should thank them for the tremendous work they’ve been doing. One behalf of DBC, I’d like to thank you
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all, and you, in deed, are true organizers. I also would like to thank the main organizer and co-chair of the
seminar Dr. Naing Aung.
I’d like to close the seminar. Its not goodbye- we will continue to work with you and support you. We will
continue to support you because we think that human rights and democracy is something everyone deserves
to live under because it’s the only way to actually develop yourselves and your society at the same time.
Therefore we will continue to support you and I look forward to one day in Rangoon holding workshops with the
Burmese people.
Thank you and have a safe trip home.
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1. Seminar Program
2. List of Participants,
3. Ethnic Conflict, Reconciliation and Panglong Revisited by Mikael
Gravers
4. Democratization and Federalism by Palle Svensson
5. Federalism, Decentralization and local autonomy
by Lian H. Sakhong
6. Incorporation of human rights and gender aspects in constitution
and legislation by Dace Kavasa
7. What’s Next: Strategic options for Democratic Changes in Burma
(a) By Dr. Thaung Htun
(b) By Lian H. Sakhong
8. Abbreviations
Appendixes
List of
129
The Danish Burma Committee
“Seminar on Democracy, Constitution and National Reconciliation”
23 – 28 May 2004
Saturday 22 May
Arrival and registration of participants
Sunday 23 May
09.30 – 10.30 Arrival and registration of participants
10.30 – 11.00 Seminar Opening.
Welcome address by Anette Berentzen, Secretary General, The Danish Burma
Committee.Opening of the seminar by H. E. Ambassador Ulrik Helweg-Larsen, Royal
Danish Embassy, Bangkok.
11.00 – 11.30 Coffee break
11.30 – 12.30 Ethnic Conflict, Reconciliation and Panglong Revisited
Concept of national reconciliation, its implication and what it takes to reconcile and
enter into a dialogue.
By Mikael Gravers, Associate professor, dept. of Ethnography and Social Anthropology,
University of Aarhus, Denmark.
Moderators: Dr. Naing Aung and Anette Berentzen
12.30 – 14.00 Lunch break
14.00 – 15.30 Ethnic Conflict, Reconciliation and Panglong Revisited - Continued.
15.30 – 16.00 Coffee break
16.00 – 17.00 Ethnic Conflict, Reconciliation and Panglong Revisited - Continued.
Monday 24 May
09.00 – 10.30 Democratisation and Federalism
Democratisation as a Process – Unitary and Federal Forms of Government –
Reasons for and Consequences of Federalism. Federalism and Democratisation.
By Palle Svensson, Professor, dept. of Political Science, University of Aarhus,
Denmark.
10.30 – 11.00 Coffee break
11.00 – 12.30 Democratisation and Federalism - Continued.
12.30 – 14.00 Lunch break
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14.00 – 15.30 Role of Federal State, States and Local government in a Burmese Context
The role of the federal state, states and local government in a Burma context with
emphasis on how each of the institutions could or should relate to each other.
By Lian H. Sakhong, Secretary General of ENC – Ethnic Nationalities Council.
15.30 – 16.00 Coffee break
16.00 – 17.30 Role of Federal State, States and Local government in a Burmese Context –
Continued
Tuesday 25 May
09.00 – 10.30 Role of Federal State, States and Local government in a Burmese Context –
Continued
10.30 – 11.00 Coffee break
11.00 – 12.30 Winding up on Role of Federal State, States and Local government in a
Burmese Context
12.30 – 14.00 Lunch break
14.00 – 15.30 What does it take to write a constitution?
Using the constitution writing process in Thailand as an example, Dr. Mark Tamthai
will highlight the core issues and problems the Thai constitution writing process
faced and had to overcome. Checks and balances. The role of democratic
institutions. Human Rights and Civil Society.
By Dr. Mark Tamthai, Professor (retired) Chulalongkorn University, Bangkok
15.30 – 16.00 Coffee break
16.00 – 17.00 What does it take to write a constitution? – Continued.
Wednesday 26 May
09.00 – 10.30 The National Convention in Burma – Lessons learnt from the previous
National Convention
The political and the legal conditions and lessons learnt. Who were the delegates
and what were the procedures? What inspired SLOC/SPDC in setting up the
previous national convention and what have changed in both the Burmese and
regional context since then? What needs to be changed in order for a future
national convention to be an instrument in the national reconciliation?
By NCGUB Minister, Marko Ban and Chairman of Burma Lawyer’s Council,
U Thein Oo.
10.30 – 11.00 Coffee break
11.30 – 12.30 The National Convention in Burma – Lessons learnt from the previous
National Convention – Continued.
12.30 – 14.00 Lunch break
14.00 – 15.30 Progress and Experiences from the State Constitution Drafting Process
Representatives from the state constitution-drafting committees will outline the
experiences and progress of the work with emphasis on inclusiveness, special
concerns, outcomes and obstacles.
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The State Constitution Writing Process - An Overview
Hkun Okker, Chairman of the SCSC Supporting Committee for State Constitutions.
Major positive outcomes and obstacles in the process of drafting the state
constitution
Naw May Oo, Karen State Constitution Drafting CommitteeKhun Sa: Kachin State
Constitution Drafting CommitteeLinda Lahtaw: Shan State Constitution Drafting
CommissionMyo Win: Burman State Constitution Study GroupVictor Biak Lian:
Chin State Constitution Drafting CommitteeNai Hong Sa: Mon State Constitution
Drafting CommitteeKhaing Myo Min: Arakan State Constitution Drafting Committee
15.30 – 16.00 Coffee break
16.00 – 17.00 Progress and Experiences from the State Constitution Drafting Process –
Continued
Thursday 27 May
09.00 – 10.30 Incorporation of human rights and gender aspects in constitution and
legislation
Securing human rights including women’s rights in the constitutional process and
how to include women in the process as equal partners
By Project Manager Dace Kavasa, The Danish Institute for Human Rights
10.30 – 11.00 Coffee break
11.00 – 12.30 Incorporation of human rights and gender aspects in constitution and
legislation – Continued.
12.30 – 14.00 Lunch break
14.00 – 15.30 What’s next?
Presentations of ideas and plans for further steps in the possible reconciliation
process. Expectations to the role of the international community in general and the
Bangkok-process in particular.
By NCGUB representative to UN Thaung Htun and Lian H. Sarkhong, Secretary
General of ENC – Ethnic Nationalities Council.
15.30 – 16.00 Coffee break
16.00 – 17.00 What’s next? – Continued.
Friday 28 May
09.00 – 10.30 What’s next? – Continued.
10.30 – 11.00 Coffee break
11.00 – 12.30 What’s next? – Continued.
12.30 – 13.00 Closing of Seminar
13.00 Lunch
14.00 Departure from seminar venue
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Name Organization
1. Dr. Sann Aung National Coalition Government of Union of Burma
2. Khun Teddy Buri Member of Parliamentary Union
3. U Kyaw Kyaw Network for Democracy and Development
4. Dr. Naing Aung Network for Democracy and Development
5. U Aung Moe Zaw Democratic Party for New Society
6. U Than Khe All Burma Students’ Democratic Front
7. U Thar Nyunt Oo All Burma Federation of Student Union
(Foreign Affairs Committee)
8. Sai Win Pay Member of Parliamentary Union
9. Mi Sue Pwint Burmese Women Union
10. Nang Hseng Noun Women League of Burma
11. Daw Thin Thin Aung Women League of Burma
12. Daw Molly Women League of Burma
13. Lway Aye Nang Women League of Burma
14. Ma Nang Aein Women League of Burma
15. Mr. Zing Cung National Democratic Front
16. Mr. Khun Sa Kachin Sate Constitution Drafting Committee
17. Mahn Aung Than Lay Karenni National Progressive Party
18. Khu Rimond Htoo Karenni National Progressive Party
19. Sai Htoon Restoration Council of Shan State
20. Sai Yee Tip Restoration Council of Shan State
21. Saw David Taw Karen National Union
22. Hkun Okker Supporting Committee for State Constitution
23. Mr. Victor Biak Lian Chin Constitution Drafting Committee
24. Nai Hong Sa Mon State Constitution Drafting Committee
25. Naw May Oo Karen State Constitution Drafting Committee
26. Ms. Linda Lahtaw Shan State Constitution Drafting Commission
27. U Myo Win Burman State Constitution Study Group
28. Khaing Myo Min Arakan State Constitution Drafting Committee
29. Ms. Karin Dean Researcher
30. Dr. Khin Maung National United Party of Arakan
31. Dr. Lian H. Sakhong United Nationalities League for Democracy (LA)
32. Khun Manko Ban National Coalition Government of Union of Burma
33. U Thein Oo Burma Lawyer’s Council
34. Dr. Thaung Htun National Coalition Government of Union of Burma
35. Dr. Mark Tamthai Retired Professor from Chulalongkorn University
36. Ms. Annette Berentzen Danish Burma Committee
37. Mr. Peter Mortensen Danish Burma Committee
38. Mr. Mikael Gravers Aarhus University, Denmark
39. Mr. Palle Svensson Aarhus University, Denmark
40. Ms. Dace Kavasa The Danish Institute of Human Rights
41. Mr. Jan Hoddan International Olof Palme Center
42. Mr. Jack Sterken Canadian Lutheran World’s Relief
43. Mr. Andrew Ngun C. Lian Chin Constitution Drafting Committee
44. Mr. Ne Min Secretariat Office, Democratic Party of New Society
45. U Han Min Soe Secretariat Office, Network for Democracy and Development
46. U Soe Aung Translator, Network for Democracy and Development
47. U Aung Thu Nyein Translator, Democratic Party for New Society
48. Ms. Melanie Werner Secretariat Office (Documentation)
Participants
List of
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“Seminar on Democracy, Constitution and National Reconciliation (23-28 may 2004,
Chiang Mai.)
Mikael Gravers 1,
University of Aarhus, Denmark
“If we want the nation to prosper, we must pool our resources, manpower, wealth, skills, and work
together. If we are divided, the Karen, the Shan, the Kachin, the Chin, the Burmese, the Mon and the
Arakanese, each pulling in a different direction, the Union will be torn, and we will come to grief. – Let
us unite and work together…”
Bogyoke Aung San, 11, 1947 February in Panglong.
Reconciliation: To render no more opposed - Departure from violence.
(Borneman 2002)
This paper is a substantially revised version of my talk at the seminar and contains a brief discussion of the
complex relationship between ethnicity, violence and reconciliation. The aim is to identify some core concepts,
which might be applied in a situation of political change. However, it is beyond the scope and space here to go
into details on the complicated ethnic relations and the history of Burma.
The first part of this paper is about violence in relation to ethnic conflict. It is a critical attempt to identify the
basic mechanisms of political violence, often termed ‘ethnic’, or ‘religious’, violence in the literature. We have
to investigate how historical memory and social suffering connects and combine ethnic identity with the identity
of victims and perpetrators. The most appropriate term for the conflict in Burma is perhaps “an extended postcolonial
political conflict with an ethnic dimension”. The conflict in Burma began as a mixture of Communist
and ethnic rebellions in 1948; from 1962 it was basically a civil war between the army and various ethnic
armies. Since 1988 the conflict has changed into a struggle between the Tatmadaw (army) and the democratic
opposition. In order to understand the mechanisms of violence I believe we have to look beyond the ethnic
dimension. We have to understand the fundamental mechanisms of violence in order to give meaning to the
idea and the process of reconciliation.
RECONCILIATION,
ETHNIC CONFLICT,
AND
PANGLONG REVISITED
1 The author is a Danish anthropologist who has done research among the Karen since 1970. He speaks Pwo Karen. He
began his research in Sangkhlaburi among refugees from Burma in 1970. Among his teachers was Saw Tha Din, the late president of
KCO/KNU. Since 1988, the author has done research in the Oriental and India Office Collections, British Library and published on
ethnicity and nationalism in Burma; see bibliography.
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The second part of my paper is about reconciliation - about truth and trust - witnessing and amnesty; retribution,
rehabilitation and reparation. Can we heal social sufferings of collective violence? Are we able to end silence,
amnesia and denials? How can we rehabilitate victims?
The third part focuses on the lessons from history. Collective, historical memory is an important instrument in
our perception of the present. How can it be used in a future dialogue and compromise? I intend to revisit the
spirit of the Panglong agreement as the ENSCC has done. This part is about transparency, representation and
trust in political negotiations and compromises.
The mechanisms of political violence
Modern ethno-nationalist conflicts are more or less a product of post-colonial and post world war constructions
of nation-states, which include the perceptions of self-determination and democracy as fundamental national
rights. The Human Right Declaration article 15 states: “Everyone has the right to a national identity”. However,
‘ethnic’ has often replaced ‘national’ in popular interpretation of this human right. But this right defined in article
15 concerns citizenship as a precondition for equal civil rights and protection more than specific cultural/ethnic
rights. And here we have a source of conflicts if we confuse basic human rights and political claims based on
ethnicity or nationality.
Conflicts often arise when rights are defined as absolute imperatives. Such claims often imply that what we
obtain as our rights will be taken from or denied others. And here we have the fulcrum for violence: the creation
of inclusive/exclusive boundaries between US/THEM based on violence2. The result is often the displacement
of people in ethnic cleansing or segregation as we saw when Pakistan was carved out of British Indian: One
million perished and 100,000 women were abducted and raped. Or we can look to Northern Ireland, to Sri
Lanka, to Rwanda, or to the Balkans and former Yugoslavia. And we may ask why have we not learned from
the past. In all cases religion and ethnicity have been used as the explanation whilst the general mechanisms
have largely been overlooked.
Ethnicity, I suggest, is not the problem in itself - although many of these conflicts are described in the media or
academic analysis in terms of ethnicity and ethnic violence. It is not ethnicity - or for that matter religion which
is the foundation of violence - but the politics of difference and boundary making, which thrives on the social
memory of previous sufferings experienced in historical struggles. This is the real foundation of violence. The
politics of difference, which includes state violence against minorities, thrives on our fear of losing our identity
instead of focussing on previous coexistence and sameness. I have termed this process ethnicism, that is,
when the ethnic dimensions become the essentials of political differences and boundaries (Gravers 1999). It is
thus important to look at the way we perceive and understand ethnicity.
2 Barth 1969; 2000; Tilley 2003
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Ethnic boundaries, identities and differences are mostly perceived as being primordial, that is, a cultural identity
from the origins of the world, eternal and natural. However, they are also socially and symbolically constructed,
reconstructed and changed. This paradox is often difficult to understand. Furthermore, ethnicity is part of a
modern global process and influenced by its media images, for example the so-called “CNN–effect” of an
instant and apocalyptic fear when we look at pictures of terror on TV from our native place. Anxiety and fear
derives from the way we imagine ethnicity as if they are our very origin and our existential (ontological)
emplacement. If we did not have this sense of continuity there would be no ethnic or national identity - thus, we
easily fear we may lose this basis of our life-world and become potential victims.
However, whereas it is universal to perceive ethnic identity as described above, ethnic violence is not a
natural, primordial force above history - it occurs when political claims are made ethnic, when fear of losing
culture and identity are coupled with fear of losing territory and resources as well as with the fear of violent
actions. Such fear is often generated by a rhetoric, which combines ethnicity and violence as if it is a natural
relation:
A fictive example of rhetoric from Burma may briefly illustrate how boundary and fear are maintained as when
members of ethnic groups’ states: “We cannot live with the Burmans, they are aggressive and destroy our
culture”. And some Burmans would reply that “the ethnic groups have undermined our national unity, our
culture and independence”. This rhetoric continues to fuel anxiety and fear and to create a situation where
actions may refer to this fear. And as Daw Aung San Suu Kyi wrote in Freedom from Fear (1991:231): “We
cannot have the attitude I’m a Kachin, I’m a Burman” if we want to construct a democratic community based on
universal Human Rights.
However, this does not mean that ethnic or national identifications are wrong or violent or that they should be
erased - on the contrary – but ethnicity is easily hijacked by the politics of difference. Ethnicity is reduced to its
most simple substance for the whole group as opposed to others when we use the simple rhetoric above to
explain why we fight. That is why it is crucial to take the analysis beyond the ethnic and nationalist rhetoric and
investigate the specific violent events and acts before we term them ethnic. The terms ethnic and national
easily take on our feelings (the ‘CNN-effect’) before we get a clear picture of the mechanisms of violence.
Recently, we have seen many large-scale cases of systematic and organized violence in
terms of rape, torture, displacement, destruction and cultural humiliation. These almost ritualized mass killings
and destructions of groups defined by the perpetrators as having other and totally opposed identities. This is
often executed as a defence of ‘our’ identity. We have seen photos of bodies of victims being cut up and
exhibited, of material destructions and of sacrilege.
Two recent reports from Burma (Licence to Rape and Shattering Silence)3 have demonstrated that rape is
systematically used as a weapon of mass destruction. Anthropologist continue to use terms such as ethnic
cleansing, ethnic pollution in order to explain this appalling phenomenon (see Appadurai 1998). But I think we
have to take the analysis one step deeper and look for the explanation of how violence enters ethnic identity.
Thus we have to focus on the relation between perpetrator and victim.
3 Licence to Rape. The Burmese Military -Regime=s use of sexual violence in the ongoing War in the Shan State. The Shan
Human Right Foundation & The Shan Women’s Action Network. May 2002; Shattering Silences. Karen Women Speak out about the
Burmese Military Regime=s use of Rape as a Strategy of War in Karen State. The Karen Women=s Organisation. April 2004
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The gruesome fact is that there is only a short distance between being a victim and a perpetrator - and ethnic
cleansing is not merely about destroying the body and the identity of others. It is about driving them out of the
territory and closing the boundary. It is the total elimination of differences. Stanley Tambiah, well-known Sri
Lankan anthropologist, coined the term “levelling crowds” for the physical and symbolic process of ethnic
annihilation:
First we demonize the others. We claim they will destroy us; - then we create fear and anxiety by spreading
rumours, disturbing their religious ceremonies, or throwing bombs; - then we level their houses, their people,
and their culture: we annihilate them or expel them. We defile their bodies and pollute their primordial ethnic
identity by rape. This can be called an empowerment of the destructive self in our identity. (see Tambiah 1996).
In this process, new boundaries (territorial as well as symbolic) are becoming the main zones or frontiers of
conflict and the basis of violence. This is the mechanism by which violence enters ethnic identity as if it is
natural, eternal and instrumental to collective survival. And this is how it is experienced subjectively and described
objectively in media and by academics. We may think of ‘ethnic violence’ as natural and as spontaneous, but
history shows that political violence is mostly well organized, involves the state and is not meaningless, as
often stated (Tambiah 1996).
That is why it is time we go beyond the ethnic imagining of violence and investigates violence in terms of a
more general identity mechanism, namely: VICTIM and PERPETRATOR. Violence is the ultimate use of freedom
in order to deny the other his/hers freedom by violent means (as the philosopher Sartre said) - and this very
basic insight is important in order to understand the relation between victims and perpetrators as well as to
understand the universality of human rights.
The victim suffers and is traumatized - but the perpetrator often claims that he was the original victim. Perpetrators
often do not repent but maintain a sense of pride and power. Victim and perpetrator may both claim they were
victims and denied their rights, their identity and their symbols. They cling to their social and historical memory
as the truth. They continue to demonize the opponents and they continue to define the individual by the most
general collective terms of ethnicity or nationality. Thus violence enters definitions of identity and determines
relations:
US / THEM (POTENTIAL VIOLENCE)
VICTIM / PERPETRATOR (ACTUAL VIOLENCE)
PERPETRATOR / VICTIM (FUTURE VIOLENCE)
In this process, we easily put ethnic names before perpetrator and victim as part of the politics of difference
and boundary making. ‘Ethnic’ thus becomes synonymous with violence and struggle for identity. We generalize
the identity as the real victim (my-self) and offender (the other) in collective terms of ethnicity and we identity
every victim or perpetrator by such general categories.
There are examples from Northern Ireland of reconciliation organizations - Protestant and Catholic - who
contest the right to be the organization representing the real victims of the conflict! This is a problem because
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it maintains violence as a substance of all relations by not recognizing the other part as a potential victim.
Who are the ‘real’ victims in Burma?
I think, We have to realize that all inhabitant are potential victims, some more than others, some more indirectly
- even many of the perpetrators of violent acts have themselves suffered or have been forced to act violent,
and thus suffer form anger and guilt. The child soldier, for example, who was abducted or forced into the army
- the prison guard forced to use torture, and so on; the porter who survived by letter other porters goes in front.
Even brainwashing is a violent act, denying the right to think individually and to abstain from violence.
In long term conflicts, we see other mechanisms of denials, silence, and forced amnesia and of not telling the
truth. But there is a third dimension of identity in relation to violence: being a witness, those who suffered by
witnessing or acted in compliance by not stopping the perpetrator. The witness is often an identity in between
offender and victim. Both victim and witness easily become perpetrator by acts of revenge, seen as the legitimate
re-enacting of violence - but the failure of reconciliation. Witness is an identity in between victim and perpetrator.
Now, please, ask if it is easy to make clear-cut identifications of the bad guys and the good guys in Burma.
There may be many blurred identities relating to the conflict and hidden under notions ethnic identity. However,
we cannot collectively blame all who have worked for the state in Burma sine 1962.
In other words, if ethnic differences have been part of the political divide and of the violence in Burma since
colonial times, then the process of reconciliation must be based on other criteria than the ethnicism of the past
that is democracy and equal rights – as implicated in Daw Aung San Suu Kyi’s words cited above. It is impossible
to erase the social memory of violence - but realizing that violence is embedded in specific social relations and
acts of perpetrators against victims, and not in ethnicity as an eternal substance, is the first step towards
reconciliation!
Moreover, to focus on the relation between perpetrators and victims is crucial for the application of the philosophy
of reconciliation as a means of conflict solutions.
Reconciliation and truth commission
How, can we reconcile more than fifty years of political violence? Is it possible to heal the traumatic experiences
and to create an environment of trust, which is crucial to democracy, institution building and as a space for a
civil society? First we have to look at some important preconditions for reconciliation. It is necessary to have an
internal unity in the opposition on the fundamental issues of democracy, constitution and representation in a
dialogue. Others issues could be the following:
1. An open political dialogue, transparent agreements & no hidden agenda
2. Physical security must be enhanced; freedom of speech & assembly
3. Cease-fires and a decommissioning of weapons agreed upon
4. A process of amnesty; retribution and reparation must be initiated
5. Building an environment of initial trust
6. A National Reconciliation Convention (parallel with tripartite dialogue)
Transparency and trust, in my opinion, are crucial in order to achieve an agreement. At present, paramilitary
groups and local armies actually control the situation in Northern Ireland and impede reconciliation and democracy
by violent ethnic cleansing. The agreement of decommissioning in N. Ireland was not transparent. Here is a
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lesson to be learned: All armed groups must under control and the army must return to the barracks.
Don’t expect that all problems can be solved, so take a long view. Reconciliation is not the same as justice in
the absolute sense of the word. Don’t expect to recuperate all loses and crimes cannot be annulled. However,
reconciliation is not the end of differences in opinion - on the contrary: it implies the tolerance of other opinions.
Reconciliation will not cure all sufferings or stop people from grieving - even hate may continue. Thus, there is
no complete healing available.
What do I understand by reconciliation? Not a complete forgiveness but the departure from violence and the
beginning of coexistence!
Can a Truth & Reconciliation Commission (TRC) promote reconciliation in Burma? Perhaps - but it depends
very much on the willingness of all parties to engage fully - and of course it depends upon a clear mandate and
agenda. Who will chair the commission, who will appear to testify? Here a compromise is necessary. The TRC
must be well organized with a staff, which can be trusted as neutral as well as with adequate facilities including
a database. A commission is, in my opinion, merely the first step on the road to Reconciliation.
If we take a look at the experience from South Africa’s Truth Commission, the lesson is not all together encouraging:
In polls after publication of the final report, a majority of white Afrikaners said they were disappointed and believed
that racial tensions had increased. The black population was also generally skeptical of the outcome and some
found the commission biased. Many leading apartheid figures did not appear or were not brought to court while
victims had to go through long ordeals in the hearings. Some relatives fiercely opposed the amnesty given to
perpetrators. ANC blocked the publication of the indictment of torture committed by their staff in ANC camps
against informers. Thabo Mbeki withdrew his support to the commission and said that some Human Right violations
were justified. There were also told many lies. It is not a magic instrument- and what would the generals in the
SPDC say? They will probably oppose any effort if they are not granted an amnesty.
However, most experts believe a truth commission in South Africa, Chile and other countries have promoted
reconciliation: they helped to disclose hidden atrocities and the causes of violence as well as giving relatives
the chance of a decent funeral of their loved ones. Moreover, the commissions have recorded an important
part of the history in details for the coming generations. In South Africa the TRC received 22,000 testimonies
and about 7,000 persons applied for amnesty.
Fact-finding and understanding of the causes of a conflict and its violent events and acts means that it is
difficult to distort and abuse the historical memory. Some also argue that it had an impact as a ritual because
it broke the silence of suffering and rehabilitated the victims when their suffering was acknowledged officially.
Other experts (Gutmann & Thomson in Rotberg) argue that to trade truth for justice is morally wrong. Victims
must have full justice. Some even worry that truth telling could re-start a conflict. If the name of a commission
becomes a problem, I would suggest that it is called The Historical Fact Finding Commission in order to avoid
the connotation of a moral court, but also in order to focus on fact finding and allow it to go back to 1962 when
relevant. However, fact-finding and truth do not mean that the whole truth will be revealed or that lies and
distorted facts are avoided. I know from my Danish colleague, who studied the South African Commission that
some in the staff of the TRC wrote their conclusion into testimonies (Buur2001). Thus, the preconditions, the
mandate and the organization have to be carefully discussed and outlined.
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For example, is a partial and conditional amnesty possible? I would suggest it is necessary in order to avoid
new conflict and to promote reconciliation - or at least an amnesty for regular military actions. But can we
imagine an unconditional amnesty for torture and rape or atrocities committed for personal gains? It was also
said in South Africa “that amnesty was a hell for many victims@- because they felt deprived of justice and in
some instances started a re-traumatization.
The process of retribution in the courts depends on a new legal system and independent courts. It could be
necessary to postpone the retribution, but the commission should have authority to subpoena, that is, to
submit cases to the courts.
If it is impossible to have retribution due to the present legal system, there can still be a restorative justice by
which the victims can feel their identity and dignity are restored and that a minimal moral decency is established
although the offenders are perhaps not punished.
Importantly, there must be an environment of trust although fear of revenge and renewed violence will probably
always exist.
Recall what I explained above about the identity of victims and perpetrators: those perpetrators can be victims
and victims turn into offenders. Motives and guilt differ a lot and the most difficult category to disclose is the
silent beneficiaries of violent acts, that is, those who gained from violent act but had other persons to execute
the dirty work and who now are silent.
In Burma, as in the former East Germany, you have a specific problem: informers and agents of the MI. These
are persons who survived by informing on their family, friends and neighbors. Recall that they can also be
victims - only if they informed to obtain advantages they may be offenders. And it is important to investigate the
inhumane system of surveillance and fear in order to restore trustful social relations and to promote reconciliation.
Fear generated by surveillance creates a climate of dissimulation and of double standards in order to protect
our own life and family.
Only relatively few person may face a court, - and maybe it is better to use a lustral procedure, which means
that perpetrators are dismissed from jobs, demoted, or retired. In other words, it is better to render them
powerless than to fill the jails, which after all may not be realistic.
Remember, there is a huge gab between victim’s and perpetrator’s perspectives and we rarely obtain
unconditional apologies from the offenders; on the contrary, they often defend their acts.
Consider actions counterproductive to reconciliation:
• Repeating nationalistic rhetoric (such as axe-handle of neo-colonialists@)
• Old claims of ethnic secession
• Segregation, for example prohibiting mixed marriages
• Reiterate negative descriptions of other ethnic or religious groups
• Excluding persons from other ethnic groups (as the British club or travel rules)
• Threatening with revenge
• Spreading rumors, distorted information and false accusation
Organization of a commission
• Standing committee
• Amnesty commission
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• Human right commission
• Reparation & rehabilitation commission
• Local commissions
I suggest that a central commission in Rangoon could be connected with a number of local hearings with focus
on the local communities. It is also crucial that you involve formal and informal organizations inside Burma,
who have not been involved in the conflict and worked for dialogue and mediation. It is important, that exile
organization are not seen as outmaneuvering those inside; that could lead to a struggle for who are the real
representatives of the victims! And membership should be inclusive rather than exclusive; for example the
DKBA and the United Wa State Army should be included otherwise they may consider themselves as victims in
the process. As in Chile, it could be an idea to close the witnessing to the media – or at least to direct transmissions
- but open it to an audience and allow relatives to listen.
To listen is a crucial function, but questioning is also important although not as in a court! A series of reports
should be released to the public. There must be a high degree of awareness about the work of a commission
as well as of available information about the findings. Further, an amnesty commission has to work fast in order
not to delay the witnessing, Perhaps help should be requested from the UN to organize the commission,
provide equipment and establish a database.
Subjects of a TRC:
• Torture
• Rape
• Forced resettlements
• Displacement &destruction of property
• Forced labour
• Forcing children to become soldiers
• Extra-judicial killings
• Imprisonment & abuse of political prisoners
• Discriminatory rules & decrees
• Surveillance & informing
What can be achieved from a TRC?
• Representation from all sides of the conflict
• Involve religious leaders, respected persons
• Factual knowledge of events, of sufferings in order to rehabilitate victims
• Promote accountability
• New relations of coexistence
• Social memory recorded (including disagreements) for future generations to reconcile.
• Prevent revenge & promote dialogue
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The ritual and symbolic aspect:
The proceedings of a truth commission are in itself rituals of reconciliation. Further, I suggest that a
commemorative day - a never again day - and ritual is arranged either on the 19 July or select a new day. On
that day all persons who lost their lives in the civil wars in Burma since 1948-49 would be commemorated.
Reparations:
The most important element, however, is reparation to the victims. Help to rebuild lost homes; medical care;
help to victims of rape and torture; establish self-help groups.
Here you need international humanitarian aid. All experience of truth telling has demonstrated that is it crucial
to get some reparations; otherwise the victims merely feel they have to give without reciprocity. Reparation, of
course, depends on telling the truth and not to buy the victims to tell.
To summarize:
Activating social memory by narratives of victims, perpetrators and witnesses, listening to testimonies, recording
facts and finding causes as well as amnesty, retribution and reparation are important post on the road to
coexistence and to reconciliation.
It is necessary to be realistic: we cannot expect total forgiveness, or full justice or reparation - and don’t expect
healing. Social sufferings cannot be healed (Kleinmann 1997) – but can be replaced by coexistence and
genuine reconciliation in the future.
PANGLONG REVISITED
In the last part of this paper, I would like to revisit the Panglong conference in order to take a critical look at the
historical lesson, in particular, the question of ethnicity, representation and transparence of agreements. I
believe the question of representation and transparency of a future is crucial in order to sustain efforts of
reconciliation.
First, I would like to emphasize that The New Panglong Initiative and the recent statements that ethnic minorities
will refrain from insisting of secession and independence from Burma is perhaps one of the most positive and
constructive changes since 1947. It is also an interesting re-activation of a historical memory shared by all
nationalities in Burma.
When that is said, however, I think we have to admit that Panglong unfortunately also resulted in many of the
problem Burma is struggling with today- and why is it so?
First of all, there were so many unclear elements and concepts in the agreement and the representation was
exclusive due to colonial definitions of ethnic categories, Frontier Areas and Excluded or Scheduled Areas part
I and II (the less developed districts) as defined in an act by the British colonial administration in 1935.4 The
colonial administration defined the hills as less developed and politically more or lees outside the royal domain.
The idea was to protect this frontier area from Burman immigration and secure a direct British control. In a
paper in the anthropological journal Man (vol. XLV, 2, 1945) The Director of the Frontier Area Administration,
Stevenson, wrote that he feared a Burman encroachment of people from the crowded plains to the empty hills
and that the economic differences were the root of “inter-racial” differences. Stevenson, according to some
4 The segregation of the Frontier Area began in 1886. The area covered about 47% of colonial Burma and about 165 of its
population in 1946. See map in Gravers (1999:26). Excluded areas were Arakan Hill Tracts, Chin Hills, Naga Hills, Kachin Hills, Shan
States and Salween District.
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sources, sought the independence of the Frontier Areas (FA) and was dismissed for that reason. However, he
may have been vilified. In his paper he actually said: “”There is also the question of knitting the democratic
administration of the ‘Scheduled Areas’ into that of ministerial Burma so that in the long run they will become a
cohesive whole.” (Stevenson 1945: 4)5
The problems related to the Panglong agreement, however, lies in the unclear ethnic criteria for inclusion/
exclusion. Several groups of the FA Areas were not represented in the 1947 Panglong Conference: The Naga,
Southern Chin Hills, Wa States, Kokang, Salween District (Karen), Arakan Hill Tracts. The Kayah states were
defined as ‘native states’ with a special sanad (treaty between the colonial power and a native prince) with
Britain and thus also not included, although some officials considered Kayah part of the Frontiers Area. Ethnicity,
I believe came to confuse the British, the Burmans as well as the other ethnic nationalities.
The Karen, the Mon and other groups were not really included in the Panglong agreement since they mostly
lived in Ministerial Burma. The peoples of Burma had be segregated in the colonial state and graded according
to development. The Frontier Area Commission Enquiries. (FACE) was established in order to solve the ethnic
puzzle, but suffered from the same confusion of ethnicity and political boundaries. The hearings and the
testimonies were confused and contradictory and clearly demonstrated how difficult ethnicity is as political and
democratic criteria. Very often the representatives were arbitrarily selected on mass meetings called with short
notice, and the representatives had little time to get information about the process and the concepts relating to
a new constitution, such as ‘federal’ and ‘union’.
But the most problematic outcome of Panglong was the right to secession within ten years for the Shan State
and the Kachin State which Aung San agreed upon. In my opinion the best would have been an immediate
independence or inclusion; the 10-years clause turned out to become a time bomb. There was no defined
process or time-table for solving a constitutional conflict or organize negotiations in the interval between 1947
and 1957/1962 when general Ne Win intervened. This is a lesson of enormous importance: Never postpone
such difficult issues without a very clear agreement of the process and it stages as well as a timetable.
Panglong 1947 did not define federal and the constitution of 1947 did not apply the term. Burma became a
union and not a federate state.6 I think federation as a term originated from the federation of the Shan states
and the Muang under the frontier administration and orchestrated by the director of FA, Stevenson an
anthropologist trained by the famous Malinowski. Before the first Panglong event in 1946, actually a cultural &
political festival in Panglong, Shan States, and Stevenson presented his idea of a democratization of the FA by
proposing a system of elected council from village, district to domain and state councils and finally a federated
council for the whole FA. The FA council would be represented in the Central Executive Council and later in the
independent government if the Frontier Area joined the so-called Ministerial Burma. However, the scope of the
internal autonomy was never delineated! And Stevenson idea is more a regional autonomy with advisory
councils than federal states as such. He was retired in 1947 - mistrusted by the AFPFL and the British government,
but revered by the Frontier peoples.
5 The documents concerning the Panglong agreement are found in the Oriental and India Office Collection, British Library in
file 4/M/2811.
6 On the difference between a Union and a federation see professor Palle Svensson’s paper.
143
Perhaps we should learn from Stevenson that anthropologists are not always capable of giving advice in
complicated ethno-political contexts. However, I take the risk to suggest that you may reconsider Stevenson’s
model of a string of councils provided their administrative authorities and competences are specified: that is,
the fiscal, the legal, culture, language, education, health, resources, environment, guarding the border, etcetera.
Consider, if regionalism, that is regional autonomy and regional self-government with the state for all states
and division is more feasible at the present time. Federalism is fiercely rejected by the SPCD and they may
have support in a majority amongst the Burmans, but federalism could still be a long-term evolution or after a
referendum. Nevertheless, elected councils can mobilize at grass-root level and provide a democratic experience
and awareness. But the lesson of Panglong is: it is important to define what we mean by autonomy and specify
the competences of the states and their administration.
I would reject SPCD=s idea of internal ethnic autonomous areas within the states - it could be a trap set up in
order to rule and divide. It will fragment the state territories and could generate new boundary conflicts. Here
we are back to the introduction of this paper and the problems of ethnicity. Ethnicism is also a weapon used by
the military against the whole opposition and all democratic forces. The SLORC introduced the idea of 135
national races - a construction not founded on realities – but a sly one – aimed at splitting by giving spoils to
those who comply. Moreover, there are more groups than the eight major groups giving names to states.
However, ethnic identity, cultural and religious freedom most be secured as part of general civil and human
rights for the whole country. And ethnic electorates are very difficult to establish and can create dissatisfaction
as the special seats in parliament provided to the Karen in 1947.
I also suggest that you use the present state- and division boundaries - they are a colonial construction, but the
peoples of Burma have been living with these since 1948 and new boundaries are not necessarily more
democratic or less arbitrary. Furthermore, as I said in the beginning, if boundaries are constantly contested
and revised old claims and conflicts are easily revived. In 1946-48 many of the ethnic claims very unrealistic
and not supported by a majority in Burma or within the particular ethnic groups. I find it crucial to replace the
ethnicism of 1947, which has strongly influenced the more than 50 years of conflict as well as the political
language (see Chao Tzang Yanghwe 2004), with a neutral political language and concepts founded in a
democratic tradition.
It is not up to this author to write a conclusion- merely to make some final remarks on the question of ethnicity:
all ethnic nationalities of Burma deserve reconciliation after half a century of conflicts and the beginning of a
dialogue must include all ethnic groups and organizations in a National Convention to outline a future constitution
and a process of reconciliation. A smaller task force may be necessary for the initial tripartite dialogue in order
to have an interim rule. A language of democracy and of universal rights should replace the rhetoric of ethnic
differences. A federation should be outlined on the general principles of democracy, human and civil rights, and
approved in a referendum in order to obtain a sustainable solution. It is the firm conviction of this anthropologist
that the ethnic diversity in Burma can thrive much better under such a rule than by a continuous struggle and
contest of boundaries under the rule ethnicism and autocratic and xenophobic nationalism.
Acknowledgement:
I am grateful for valuable comments, suggestions and discussion during the seminar, which confirmed and
extended the Spirit of Panglong.
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(By Professor Palle Svensson)
1. Democracy and Democratisation
It is widely claimed that we are living in a time of democratisation, that more and more states are changing their
system of government towards democracy, and that today democracy is the only legitimate form of government.
Nevertheless, many countries have forms of government that are not democratic and not even in a process
towards democracy. Thus, according to Freedom House in 2000 about two out of three states (and colonial
units) were democratic or had a restricted democratic practice (62,5% + 8,3% = 70,8%), whereas a fifth (20,3%)
were authoritarian.
It has to be noted, moreover, that the form of government, which we call “democracy” throughout the world, by
no means represents an ideal form of democracy. I shall argue that what we call “democracy” is better understood
as a “polyarchy” – a rule by the many, and not by the people – that “democratisation” must be seen as a
process of change towards polyarchy, and that democratic – or polyarchic – regimes can take several forms.
One important distinction to be made among democratic regimes is the distinction between unitary and federal
forms of government, which is the main focus of this paper.
1.1. No Ideal Democracy
The American President, Abraham Lincoln, in his famous Gettysburg Address in 1863 talked about the American
government as a government for the people, of the people, and by the people.
Government for the people we find everywhere. All rulers claim that they are ruling for the people and not for
themselves or their family, social class or tribe. This notion of democracy is meaningless. If a form of democratic
government is found everywhere, it cannot be compared to non-democratic forms of government, and it becomes
more interesting to look at various forms of democratic government. However, this it is far from the present
situation in the world. We are reluctant to accept as democratic a large number of states even if their rulers
claim that they are democratic.
Government by the people we find nowhere – or at least only in a few places for a short period. That the people
– the citizens or the voters – take the political decisions themselves in the form of initiatives and referendums
is the exception rather than the rule. In Switzerland and Italy and in some American states, such as California,
Democratisation
and
Federalism
147
ordinary citizens may takes the initiative to have a vote to decide the rules of the country, but even in these
places, most political decisions are taken not by the people, but by political leaders, which are more or less
responsible to the people.
Thus, what we find in countries that call themselves democratic and that we accept as democratic is a government
of the people, and not by the people. That is, political leaders are not recruited from a single social class or
ethnic group, from a narrow set of ruling families, the aristocracy or the military, but rather from the people at
large.
Democracy in the real world means some kind of collective self government - that the people is ruled by a set
of political leaders, which has been appointed by the people, usually trough free and fair elections, and which
are responsible to the people. Political responsibility in this respect means that political leaders have to inform
the public about their activities when asked to do so, that they can be criticised for not acting according to the
constitution of the country or to their promises, and – as the ultimate form of responsibility – that they can be
removed form office, usually at the next election.
Today, democracy as the sovereignty of the people in fact involves a representative democracy, where political
leaders act on behalf of the people. This was not what democratic theorists, such as Jean-Jacques Rousseau,
had envisaged. He claimed that the sovereignty of the people could not be represented, and that the people of
England at his time was only sovereign in the short moment when it elected its leaders, and that it immediately
gave its sovereignty away. However, Rousseau and other classical democrats had small and rather homogenous
countries in their mind when they talked about democracy. Today, democratic governments are adapted to
large countries with millions of citizens, in some countries hundred of millions of citizens, and the expansion of
capitalism has produced deep inequalities among the citizens. Most of the citizens do not own their means of
production, but live on the salary from their employers, and in the most well developed countries a large
number of citizens are either employed by or subsidised by public authorities.
This means that today the government of the people, the collective self-government of the people living within
a specific territory, and the sovereignty of the people is associated with the principle of political equality in a
rather formal sense. Democracy is first and foremost associated with a representative system of government
based on universal and equal suffrage, that all citizens have the right to vote and that their votes are counted
equally.
A representative system of government based on elections with universal and equal suffrage is, however, a
rather incomplete or limited democracy, if the voters cannot associate themselves in order to take care of their
interests, if they cannot obtain information about public problems and political solutions, if candidates cannot
present their points of view in the media, and if voters and candidates cannot meet and exchange opinions. In
consequence, it is common to make a distinction between electoral democracies where political leaders are
appointed in elections in a competition between two or more political partiers, and liberal democracies where
the competition takes place within a framework of well-established political liberties, such of freedom of
expression, association, assembly etc. (Diamond, 1999: 7-13).
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1.2. Polyarchy
In order to distinguish between an ideal form of democracy - where the collective self government and sovereignty
of the people find expression in a government by the people - and government of the people and the adaptation
of democracy to large scale and complex countries with elected political leaders and respect for political
freedom, the renown American political scientist, Robert A. Dahl, has suggested the term polyarchy to grasp
vital elements of actual democracy. According to Dahl, the actual political systems that we call democracy is
characterised by the following elements (Dahl, 1989: 221):
• Elected officials or political leaders: Control over government decisions about policy is constitutionally
vested in elected officials.
• Free and fair elections: Elected officials are chosen in freely and fairly conducted elections in which
coercion is comparatively uncommon.
• Inclusive or universal suffrage: Practically all adults have the right to vote in the election of officials.
• Right to run for office or universal eligibility: Practically all adults have the right to run for elective
offices in the government, though age limits may be higher for holding office than for the suffrage.
• Freedom of expression: Citizens have the right to express themselves without the danger of severe
punishment on political matters broadly defined, including criticism of officials, the government, the
regime, the socio-economic order, and the prevailing ideology.
• Alternative information: Citizens have a right to seek out alternative sources of information. Moreover,
alternative sources of information exist and are protected by laws.
• Associational autonomy: To achieve their various rights, inclusive those listed above, citizens also
have the right to form relative independent associations or organizations, including independent political
parties and interest groups.
And we may add freedom of assembly as an important element – in particular in countries where modern mass
media are less developed.
1.3. Democratisation as a Process
On this basis democratisation in general can be defined as political changes moving in a democratic direction
(Potter el al. 1997: 3), and more specifically as changes towards establishing and securing the institutions of
polyarchy.
To simply the process of democratisation the seven institutions of polyarchy may be reduced to two dimensions,
the right to participate in elections and office (the first four institutions) and the right to oppose or contest the
government. Combining the two dimensions specify four main forms of government:
• Closed hegemonies, such as absolute monarchies or military regimes
• Competitive oligarchies, such as South Africa priori to 1994
• Inclusive hegemonies, such as the Soviet Union or China
• Polyarchies
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- Figure 1 -
Liberalising - or developing a system of public contestation - is, according to Dahl, not necessarily equivalent
to full democratisation (Dahl, 1971: 6), but is may be the best way to start a democratisation process.
The path or sequence to polyarchy may, according to Dahl, take three forms (Dahl, 1971: 33ff):
• Liberalisation precedes inclusiveness. A closed hegemony increases opportunities for public
contestation and thus is transformed into a competitive oligarchy. The competitive oligarchy is then
transformed into a polyarchy by increasing the inclusiveness of the regime.
• Inclusiveness precedes liberalisation: A closed hegemony becomes inclusive. The inclusive hegemony
is then transformed into a polyarchy by increasing opportunities for public contestation.
• Shortcut. A closed hegemony is abruptly transformed into a polyarchy by a sudden grant of universal
suffrage and rights of public contestation.
It is Dahl’s theory that the most stable polyarchies have been established by following the first path - that is
where competitive politics precedes expansion in participation. This was what happened in most Western
countries, and Great Britain is usually pointed out as the classical case. If the third path - the shortcut - has
been taken - as for instance in France - the result has usually been less stable. The same seems to be the case
with the second path, where high participation was introduced in a regime without possibilities for public
opposition, which the actual development in countries such as Russia and other former Soviet republics indicates.
As the first path is no longer open to most countries with hegemonic regimes, the liberalisation will face serious
risks of failure, because of the difficulty, under conditions of universal suffrage and mass politics, of working out
a system of mutual security. In consequence, Dahl recommends that “steps toward liberalisation are accompanied
by a dedicated and enlightened search for a viable system of mutual guarantees” (Dahl, 1971: 39-40).
Such guaranties may, perhaps, be provided with a federal form of government. This is the topic to which we
now turn.
2. Unitary and Federal States
Before we consider the ways in which polyarchies can be organised, we need to agree where political regimes
as polyarchies are established. What kind of units or associations should be governed by a polyarchy? I shall,
in this respect, concentrate on states – and disregard more or less dependent or foreign controlled territories.
States are usually defined as organisations with a monopoly of legitimate use of violence among a collection of
people within a territory. It may be argued that territoriality is not needed for establishing a state that a people
exist even if it does not live within well-defined boundaries. But the difficulties with establishing a state of
Palestine without a specific and exclusive territory clearly indicate the problems involved in this argument.
Without going further into this question, I take as my point of departure that a state involves a specific territory.
Such states can be organised in two different ways, according to the degree of centralisation of the state
authority. I suggest the following distinction (Karvonen, 2003: 22):
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• In unitary states the authority over the whole territory is centralised
• In federal states a substantial part of the authority is placed at the regional level
A large number of definitions of federalism have been suggested and no overall agreement exists as to the
definition of federalism. I follow the definition suggested by a Finnish-Swedish colleague, Lauri Karvonen,
professor at Aabo Academy in Finland. He defines federalism by the following three points (2003: 25).
• The main part of the territory is subdivided in self-ruling regions
• The power of the state is divided between a central and a regional level: Two kinds of government (a
horizontal division of labour)
• The institutions at each level have substantial independence and clearly defined competences
The first element is a subdivision of the territory in smaller units and some kind of self-rule in these smaller
unions, which we may call regions. These smaller units are geographically defined and may have various
names such as “states” (as in USA, India and Australia), “provinces” (as in Canada), “Länder” (as in Germany
and Austria), “cantons” (as in Switzerland).
Note the qualification that it may not be the whole territory, which is subdivided into self-ruling regions. If the
demand of subdivision was to be taken rigorously, a typical federal state as the USA could not be included
because some regions are under direct centralised control, first of all the capital, Washington (which is called
the District of Columbia). Thus, the demand is modified as “the main part” of the territory.
The geographical subdivision is political and may - or may not - correspond to the division between various
religious, ethnic, social or economic boundaries. Thus, Charles D. Tarlton (1965) makes a distinction between
symmetrical and asymmetrical models of federalism. Symmetrical federations are composed of territorial units
with a social and cultural character that is similar in each of the units and in the federation as a whole. Each unit
or region is, so to speak, a miniature of the whole federal system. Conversely, asymmetrical federations have
units with social and cultural compositions that differ from one another and from the country as a whole (Tarlton,
1965: 868ff; Riker, 1975: 142; Lijphart, 1999: 195 who distinguish between “congruent” and “incongruent”
federations).
The second demand of a division of state power or authority, the right to take binding decisions that might – in
the end – be enforced by legitimate violence or coercion, is the central criterion for federalism. A state may be
subdivided in a number of subunits, but if the authority of the state is completely centralised so that regional or
local decisions can be changed by the central government, we have a unitary state.
Of course, the scope of regional self-rule may be more of less broadly defined. It may cover only one or a few
areas, or it may cover almost the whole range of public decisions. Clearly, not all binding decisions can be
taken in the regions, because in this case we would neither have a federation nor even a state, but rather an
alliance or commonwealth of fully sovereign states. Furthermore, the authority of regional governments may
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be more or less formally established in a constituti0onal text or it may just be a well-established and generally
accepted practice that is based on widespread expectations and habits. The less confidence citizens and
peoples have in each other the stronger the need for strong guarantees. This leads to the third point.
As indicated by the third demand a “substantial” independence and self-rule is required. This is, of course, a
difficult thing to identify and measure: What is “substantial”? Some authors, such as William H. Riker, is less
demanding on this point. He is talking about federalism as long as only one category of action is placed at the
regional level. His definition is as follows: “Federalism is a political organisation in which the activities of
government are divided between regional governments and a central government in such a way that each kind
of government has some activities on which it makes final decisions (Riker, 1975: 101).
Riker defines two extreme possibilities within the range of federalism after the degree of centralisation (1975:
102):
• In the minimum of centralisation, the rulers of the federation can make decisions in only one narrowly
restricted category of action without the approval of the rulers of constituent units. Some of the old
federations were federations in this minimal sense because their rulers were authorised to make
decisions independently only about military tactics and then only during the course of battle.
• In the maximum of centralisation the rulers of the federation can make decisions without consulting the
rulers of the member governments in all but one narrowly defined restricted category of action. All but
one, not simply all, because if the rulers of the federation rule everything, the rulers of regional
governments would have no political self-control.
Riker admits that there are very few examples of real federations at these extreme positions, most lies somewhere
in between the extremes. He calls those that are closer to the maximum than to the minimum for centralised
and those that are closer to the minimum than the maximum as peripheralised.
What is, perhaps, more important than the substantial independence is the demand about clearly defined
competences. Even though a large number of areas are actually dealt with at the regional or local level, the
states is not federal if the rulers of the central government at any time rather easily can transfer authority to the
central level. Once again, it is difficult to identify and measure the guarantees for regional government. Legal
protection in a written constitution is necessarily, but not sufficient if the distribution of political power – in
particular the strength of the governing political party in parliament - makes constitutional changes rather easy,
or if the constitution is not upheld by the courts. In reality we find the guarantees more or less well established
and only if the regional competences are well defined and well protected we find it reasonably to talk about
federalism. A disputed case was the Soviet Union. Riker treat it as a federation, I am less inclined to do so.
3. Forms of Federal Government
However federalism is defined, it seems impossible to distinguish sharply between federal and unitary states.
It seems reasonable to work with either a continuum - as Riker - or a third category of states, which are neither
clearly unitary or federal but have some federal elements, because of a division of state powers between a
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central and regional level, but which may lack a subdivision of the main part of the country or have only
marginal independence and self-rule and/or few guarantees for self-rule-
Figure 2
The definition of federalism presented here (from Karvonen) has substantial overlaps with the one suggested
by Riker. I agree with Karvonen that it makes little sense to talk about federalism if only very few areas – and
in principle just one - are covered by regional self-rule. With respect to the scope this understanding of federalism
- that requires “substantial independence” at both levels – on the one hand disregards Riker’s extreme cases
and those coming close to these. On the other hand this understanding of federalism is almost similar to
Riker’s centralised federalism, whereas his peripheral case could be called a union or a confederation among
two or more states or states with federal elements or mixed states.
Figure 3
Applying this definition, we find relative few federal states in the world, even though on all continents, 23
federal states (against 36 mixed and 132 unitary states):
• America: Argentina, Brazil, Canada, Mexico, USA and Venezuela)(seven)
• Europe: Belgium, Bosnia and Herzegovina, Yugoslavia, Russia, Switzerland, Germany and Austria
(seven)
• Africa: Ethiopia, Comoro Islands and Nigeria (three)
• Asia: India, Malaysia, Pakistan (three)
• Oceania: Australia and Micronesia (two)
• Middle East: United Arab Emirates (one)
4. Reasons for Federalism
After this discussion of how to define federalism, the next question is why should a state adopt a federal form
of government? Why not centralise all state authority, delegate what is seen as appropriate to regional and
local units, and retain the possibility to take the delegated powers back to the centre, whenever it seems
suitable? This question is clearly a political one, and I shall return to that in a moment. Before that I want to
make the point that the reasons for federalism may be quite different, that federalism is associated with and
perhaps even caused by various factors (Karvonen, 2003: 32ff; Riker, 1975: 116-28), such as
• Historical: In organising a state and its form of government the inheritage of former regimes is taken
into consideration, for instance a colonial past
• Diffusion: In organising a state and its form of government it is taken into consideration how other
states have organised themselves, in particular ideal or exemplary models or successful neighbours.
• Rational reasons or causes
• Political reasons
Among the rational reasons or causes the two main ones are the size and the heterogeneity of the country or
state.
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Large size, either geographically or the number of inhabitants, is usually given as a reason for and cause of a
federal form of government. Large size means large distances from the centre to the periphery and this may
very well develop the perception in the periphery that the authorities of the state are the instruments of the
centre – the well-to-do in the capital – against the periphery, the poor people in small towns and the country
side. Long distances means long lines of transport and communications, which may slow down both the speed
of decision-making and understanding of local problems. Some kind of autonomous regional government may
be seen as more natural than the government of a distant centre.
Moreover. a large population makes it difficult to give all citizens a reasonable representation. If the legislative
assembly shall not become very large and unmanageable, the result is that the larger the electorate, the larger
the constituencies or the larger the number of represented voters.
This argument is clearly supported by the facts. The two indicators of size, geography and population are
highly correlated, and the average population of federations is higher (98,3 mio. in 23 federations) that in the
mixed form (23,7 mio. in 36 countries) and the unitary states (21,0 mio. in 132 states, even if China is included,
and more clearly so if China is excluded 11,8 mio.)(Karvonen, 2003: 37).
This association between size and federation does not prove, however, that size is the cause of federalism, as
it could be the other way around: that a federation is chosen as the form of government - not because of the
existence of a large country – but in order to create a large state, with military strength and power, of a number
of smaller units. This leads to the second argument for federalism.
Cultural or ethnic heterogeneity of the country is often given as the reason for federalism. Geographically
concentrated cultural differences in the form of language or religion and geographically concentrated ethnical
differences between various tribes or nationalities may form the basis for asymmetrical federalism. Regional
self-rule is admitted in order to contribute to keeping the state together in spite of many differences among its
inhabitants. Those who might want to leave the community are motivated to stay by allowing them substantial
independence on maters of importance to them. They are given guarantees that the other regions and the
central government will respect their independence.
It is difficult to verify this argument because it is difficult to measure cultural and ethnic differences. It may,
however, be surprising that attempts to correlate linguistic and religious indexes with federalism have not been
very convincing (Karvonen, 2003: 39). Switzerland is often referred to as a successful example of keeping
people with different languages within the same state. But closer examination reveals that federalism is neither
a necessary nor a sufficient condition for resolving language problems. Thus, China, which is multilingual, has
survived as a unitary state, whereas there have been severe problems in federal states because of language
differences, for instance Quebec in Canada (Riker, 1975 151).
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Others reasons for or causes of federalism are economic development and democratic forms of government.
The argument for an association between economic development and federalism is that if a country is poor
and lacks resources, a strong central government is more needed, whereas a wealthy country better can afford
to let regional governments have self-rule and independence (with the risk of less efficient administration of
resources). Even though it is easy to find examples of both rich (Switzerland) and poor federal states (Ethiopia),
it has been shown that the average BNP/capita is higher federal states (9466 $ in 23 federal states) than in
mixes states (7494 $ in 36 states) and in unitary states (5103 $ in 131 states)(Karvonen, 2003: 40).
The argument for an association between democracy and federalism is that democratic states are more
responsive than authoritarian states and that regional and local demands for some kind of self-rule is more
readily accepted in democratic states. Using the Freedom House index for free, partly free and not free states
indicates that half of the federal states are free (11 of 23 in 1998/99), whereas it is only about 40 % of the
unitary states – however the mixed states seem to do even better (25 of 36 = 69%)(Karvonen, 2003: 41). But,
once again, one may question what is cause and what is effect! Does democracy favour federalism, or does
federalism favour democracy?
It could be argued that what is seen here as reasons - motivations - to adopt federalism – or causes – factors
that determines federalism may as well be seen as circumstances that favour federalism that is wanted for
others reasons. Furthermore, they may also be seen as a result of a federal form of government. Thus, large
size may be a circumstance that makes federalism appropriate or even necessary in other to keep a country
together, to keep peace among ethnic groups or increase military strength. But it may also be federalism that
makes is possible to create and maintain a large states, because a centralised government would be impossible.
Likewise, cultural and ethnic heterogeneity may be a circumstance that motivates or causes federalism because
it is a way in which different ethnic or religious groups may accept to form a state within a given territory and
this state building is desired for other reasons, such as gaining in strength against threatening neighbours.
Thus, it is not the heterogeneity or differences as such that motivates or causes federalism but rather the
increased strength and power made possible by uniting a large number of people and resources. Cultural and
ethnic heterogeneity is, in other words, as much the result as the cause of federalism.
This argument has lead William H. Riker to claim that in reality governments combine to form federalism in
larger states because with the combination governments and their citizens want to gain some advantages that
only big governments can bring (1975: 111). He finds that “in every successfully formed federation it must be
the case that a significant external or internal threat or a significant opportunity for aggression is present,
where the threat can be forestalled and the aggression carried out only with a bigger government … at the
same time there must be some provincial loyalty so that the bargain is necessary, that is, it must be necessary
to appease provincial rulers” (1975: 116). In short, the bargain is that the rulers find that the gains of forming
the larger unit (more resources) are larger than the costs of bringing smaller units together (local self-rule).
Federations break up into constituents units, when external or internal threats are not significant and unitary
governments are formed when regional loyalties are relatively weak.
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In sum, size and heterogeneity – as well as economic development and democracy - only appear to be the
rational reasons and causes of federalism, but they are rather facilitating circumstances and results of federalism,
because the fundamental reason and motivating factor is the desire to expand and a willingness of provincial/
regional politicians to comply despite provincial/regional loyalties. This desire and willingness is found to be
associated with federalism whenever it success and to be absent when it fails (Riker, 1975: 128).
5. Consequences of Federalism
If successful federal governments are formed in order to increase national strength where regional/provincial
leaders are willing to agree, what other consequences does a federal form of government have? In order to
answer this question it may be clarifying to distinguish between institutional and policy consequences.
It is usually argued that federalism has some – almost logical – consequences for the constitutional institutions.
In order to obtain representation for both individual citizens and the regional governments a two-chamber
legislature is formed. And in order to guarantee the independent self-rule of regional government some kind of
legal protection has to be established, usually in the form of a constitutional court that may decide on conflicts
between the central government and regional governments. These conflicts are to be resolved on the basis of
a written constitution. Some authors will even include these institutions in their definition of federalism.
In fact, a two-chamber parliament is found in almost all federal states (in nine out of ten free federal states in
1999)(Karvonen, 2003: 42), whereas they are only found in a third of unitary states (in 17 out of 50 free unitary
states in 1999) and in half of the mixed states (in 12 out of 25 free mixed states in 1999)(Karvonen, 2003: 42).
It has also been shown that the legal control is stronger in federal states than in unitary states, but some
federal countries have no legal control at all (Switzerland where a form of direct democracy serves as a control
mechanism) or have no constitutional court (in the USA the Supreme Court has taken over this function).
Another aspect of the institutional consequences of federalism is the party system. It is usually argued that
federalism results in the formation of more political parties, among them regional parties, and in more
decentralised parties (Riker, 1975: 133-141).
It has, indeed, been shown that federal states tend to have more parties than unitary states and the large
parties tend to be smaller in federal states than in unitary states. Thus, the party system is more fragmented in
federal states than in unitary states (Anckar, 1999). However, if the size of the countries is taken into consideration,
the effect of federalism is less evident. Large states have more fragmented party systems and the federal
states are usually large states, as we have seen.
Finally, we may take a look at the policy consequences of federalism. To what extent does a federal form of
government make a difference with regard to policy output? It could be expected that larger parts of the
economic power is located at the regional level in federal states than in unitary states, and that the variation in
public expenditures is larger in federal states. If the regional governments decide the size and use of public
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expenditure, it is to be expected that the variations from one region to the other are larger than in a unitary
states where public expenditures are decided by the central government. Even though this seems almost
evident, it has been very difficult to show that federalism have any economic consequences (Karvonen, 2003:
45 with reference to Lane and Ersson, 2000). Despite a higher level of fiscal federalism - that a larger part of
public expenditures are decided and distributed at the regional level - it does not have a marked impact on the
size of the public sector, level of wealth, growth rate, income distribution etc.
William F. Riker draws the even more radical conclusion that federalism makes no particular difference for
public policy (1975: 143), because public policy is more dependent on the economic development of countries
than their form of government. He argues that constitutional and administrative arrangements of federalism
deeply affect the style of public policymaking, “but do not deeply affect the outcome” (144f).
6. Federalism and Democracy
It is not my intention to draw any general conclusions about the desirability of federalism. I think that the
feasibility of federalism is dependent on the specific historical, cultural and political circumstances of each and
every country at a particular moment of time. This is also the reason why I am not going to recommend any
specific form of government for a democratic Burma. I am simply too uninformed about Burma to be able to
give any kind of well-founded recommendation.
However, referring back to Robert A. Dahl it may be wise to take into account that steps toward liberalisation
are to be accompanied by “a dedicated and enlightened search for a viable system of mutual guarantees.”
Such guarantees may – as I have argued – be part of a federal form of government. On the other hand, it
seems wise not to expect too much of such a federal form of government with respect to public policies.
Instead of recommending anything I suggest a number of questions for your consideration and discussion. If
you are able to come to agreement on how to answers these questions I think that you on the basis of my
presentation should be able to draw your own conclusion about whether federalism will support the introduction
of democracy in Burma – or to be more precise: polyarchy in the longer run and possibilities for opposition and
contestation in the shorter run:
The questions I suggest that you should consider and discuss are the following:
• What is your own personal opinion of federalism?
What advantages do you see?
What problems or costs do you see?
• Do you think that federalism is needed?
Has Burma the size and population?
Does Burma face internal or external threats?
Does the ethnic diversity of Burma involve (strong) regional loyalties?
• What do you think is possible?
Politically: Can you agree among yourselves and with other main actors?
Economically: Does Burma at present have the resources for it?
157
Literature
Anckar, Carsten (1999). “Try Federalism”, Scandinavian Political Studies, vol. 22, no. 2, pp. 99-119.
Dahl, Robert A. (1971). Polyarchy. Participation and Opposition, New Haven & London: Yale University
Press.
Dahl, Robert A. (1989). Democracy and Its Critics, New Haven: Yale University Press.
Diamond, Larry (1999). Developing Democracy. Toward Consolidation, Baltimore & London: The Johns
Hopkins University Press.
Karvonen, Lauri (2003). Statsskick. Att bygga demokrati, Stockholm: SNS Förlag.
Lijphart, Arend (1999). Patterns of Democracy. Governments and Performance in Thirty-Six Countries,
New Haven & London: Yale University Press.
Potter, David, David Goldblatt, Margaret Kiloh & Paul Lewis (eds.)(1997).
Democratization, Cambridge: polity Press.
Riker, William F. (1975). “Federalism”, pp. 93-172 in Fred I. Greenstein & Nelson W. Polsby (eds.),
Handbook of Political Science, vol. 5: Governmental Institutions and Processes,
Reading, Mass. Addison-.Welsly Publishing Company.
Tarlton, Charles (1965). “Symmetry and asymmetry as elements of federalism: a theoretical speculation”,
The Journal of Politics, vol. 27, pp. 861-74.
158
FEDERALISM, DECENTALIZATION AND LOCAL AUTONOMY:
Constitution Making and State Building in the Union of Burma¨
By Lian H. Sakhong
Introduction
The Union of Burma was founded by four former British colonies, namely the Chin, Kachin, Federated Shan
States and Burma Proper, which already had their own constitutions, at Panglong on 12 February 1947. The
British occupied these four colonies separately as independent countries in different period of time, and applied
different administrative systems in accordance with different constitutions that the colonial power had promulgated
for them. The British officially promulgated the Chinland/Chinram Constitution called “Chin Hills Regulation” in
1896, the “Kachin Hill Tribes Regulation” in 1895, the “1919 Act of Federated Shan States” in 1920, and the
“1935 Burma Act” in 1937. The Chin Hills Regulation of 1896 covered present Chin State in Burma, present
Mizoram State, Nagaland State, and part of Manipur and Meghalaya States in India. The 1935 Burma Act was
applied for pre-colonial Myanmar/Burman Kingdom, which included formerly Arakan and Mon Kingdoms as
well as delta areas of Karen country.
Since independence, the 12th of February has been celebrated and observed as the “Union Day” of
Burma. The observation of “Union Day” as an official holiday in Burma means the recognition of the distinctive
national identities of those who signed Panglong Agreement and those who rectified the treaty through
constitutional arrangement of 1947; and the recognition of their political rights—the right to gain their own
independence and to establish their own nation-state separately. The essence of Panglong Agreement was,
and is, mutual recognition and respect, based on the principles of political equality, self-determination and
voluntary association.
However, Aung San, who persuaded Chin, Kachin, Shan and other ethnic nationalities to join the Union,
was assassinated before Burma gained her independence. After Aung San was assassinated, the 1947 Union
Constitution was rushed through to completion without reflecting the spirit of Panglong, which eventually led
the country into fifty years of civil war. It is, therefore, believed that political crisis in the Union of Burma today
is not merely ideological confrontation between military dictatorship and democracy but a constitutional problem
rooted in the rights of self-determination for non-Burman ethnic nationalities those who joined the Union as
equal partners, and the non-adherence to the spirit of Panglong.
In this paper, I shall argue that federalism is the only viable solution to political crisis, including five long
decades of civil war, in Burma. Federalism, therefore, is the ultimate goal of democracy movement; which will
guarantee political equality for all nationalities and the right of self-determination for all member states of the
Union, and democratic rights for all citizens of the Union. I will also argue that federalism is not only the
ultimate goal of the struggle, but an approach to federalism in a form of federal and state constitutions drafting
processes, which is undertaken by the SCSC under the National Reconciliation Programme (NRP), are a
means to end fifty years of conflicts and a way to reach a negotiated settlement in Burma.
♦ A paper to be presented at the Seminar on “Democracy, Constitution and Reconciliation in Burma”, organized by the Danish Burma
Committee, on 23-28 May 2004, in Chiang Mai, Thailand.
159
Federalism: Theoretical Analysis
The term Federal is derived from the Latin words foedus and fides. According to S. R. Davis, the Latin word
foedus is translated as “covenant”, while its cognate fides means “faith” and “trust”, which provide us with the
idea of “covenant, and synonymous ideas of promise, commitment, undertaking, or obligation, vowing, plighting
one’s word to a course of conduct in relations to others, we come upon a vital bonding device of civilization”.
The idea of covenant involves “the idea of co-operation, reciprocity, mutuality, and it implies the recognition of
entities—whether it be persons, a people, or a divine being”.1
According to Daniel J. Elazar, the first example of a federal state with the essential characteristic of the
“idea of a contract, treaty, or alliance” was the ancient Hebrew state, whose principles are even mentioned in
the Bible.2 In modern times, the rise of federal political thought went hand in hand with the emergence of a
“political-theological” philosophy of federalism in 16th and early 17th century Renaissance Europe, when the
sovereignty of the modern nation-state appeared as a conceptual instrument for the organization of power
within the state.
Since the emergence of modern nation-state, federalism is generally defined as an approach to government
that divides public powers not only horizontally, i.e. separation of powers between legislative, administrative
and judiciary; but vertically, i.e. division of powers between two or more levels of government. In other words,
federalism is “a constitutional device which provides for a secure, i.e. constitutional, division of powers between
central and ‘segmental’ authorities in such a way that each is acknowledged to be the supreme authority in
specific areas of responsibility.”3 The basic essence of federalism, therefore, is “the notion of two or more
orders of government combining elements of ‘shared rule’ for some purposes and regional ‘self-rule’ for the
other.”4 As such, federalism is seen as a constitutionally established balance between ‘shared rule’ and ‘selfrule’;
‘shared rule’ through common institutions and regional ‘self-rule’ through the governments of the constituent
units or states. The federal principles of “self-rule” and “shared rule”, on the other hand, is based on “the
objective of combining unity and diversity: i.e. of accommodating, preserving and promoting distinct identities
within a larger political union.”5
In a genuine federal system, neither the federal nor state governments (or, the constituent units) are
constitutionally subordinate to the other, i.e. each has sovereign powers derived from the constitution rather
than from one another level of government, each is empowered to deal with the citizens in exercise of its
legislative, executive and taxing powers, and each is directly elected by the its citizens. The structural
characteristics of a genuine federal system can be generally defined as follows:
1. Two or more orders of government each acting directly on their citizens, rather than indirectly through
the other order;
1 S. R. Davis, The Federal Principles: A Journey Through Time in Quest of a Meaning (London: University of California Press, 1978), p.
3.
2 Daniel J. Elalzar, “Federalism”, in International Encyclopaedia of the Social Sciences, Vol. V (New York, 1968), pp. 361–2.
3 . Alan Smith, “Ethnic Conflict and Federalism: The Case of Burma” in Gunther Bächler (ed.), Federalism against Ethnicity? Institutional,
Legal and Democratic Instruments to Prevent Violent Minority Conflicts (Zurich: Verlag Ruegger, 1997), pp. 231-267.
4 . Raoul Blindenbacher and Arnold Koller (eds.), Federalism in a Changing World (London and Ithaca: McGill-Queen’s University Press,
2003), p. 9
5 . Ibid.
160
2. A formal constitutional distribution of legislative and executive authority, and allocation of revenue
resources between the orders of government ensuring some areas of genuine autonomy for each
other;
3. Provision for the designated representation of distinct regional or ethnic views within the federal
policy-making institutions, provided not only by a federal second chamber (i.e., what used to be
known in Burma as Chamber of Nationalities, or Upper House) composed of representatives of the
state and regional electorates, but also by state legislatures or governments;
4. A supreme written federal constitution, not unilaterally amendable by one order of government, and
therefore requiring the consent not only of the federal legislature but also of a significant portion of
the constituent units or states, through assent by their legislatures or by referendum majorities;
5. Written constitutions for all member states of the union, or constituent units, which can be promulgated,
exercised and amended independently and unilaterally by each constituent state for its own state, so
long as such procedures are conducted in accordance with the federal constitution;
6. A supreme court (an umpire in the form of court, or as in Switzerland provision for referendums) to
rule on interpretation or valid application of the federal constitution;
7. Process and institutions to facilitate inter-governmental collaboration in those areas where
governmental responsibilities are shared or inevitably overlap.6
What basically distinguishes federations from decentralized unitary system and from confederations,
according to Blindenbacher and Watts, is that “in unitary systems the governments of the constituent units
ultimately derive their authority from the central government, and in confederations the central institutions
ultimately derive their authority from the constituent units and consist of delegates of constituent units.”7 In a
federation, however, “each order of government derives its authority, not from each order of government, but
from the constitution.”8
Federalism in Burmese Context: Lessons Learned from the 1947 Union Constitution
At the Panglong Conference in 1947, the Chin, Kachin, Shan and other non-Burman nationalities were promised,
as Silverstein observes, the right to exercise political authority (in the form of administrative, judicial and
legislative powers in their own autonomous national states) and to preserve and protect their language, culture
and religion, in exchange for voluntarily joining the Burman in forming a political union and giving their loyalty
to a new state.9
On the basis of the Panglong Agreement, the Union Constitution was framed. Aung San himself
drafted the Union Constitution and submitted it to the AFPFL convention held in May 1947, at the Jubilee Hall
in Rangoon. Aung San delivered a long speech at the convention and explained the essence of the Panglong
Agreement, which had the aim of establishing a Federal Union. He also argued:
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.10
6 . Cf. Blindenbacher and Watts (2003), p. 10
7 . Ibid.
8 . Ibid.
9 Josef Silverstein, “Minority Problems in Burma Since 1962”, in Lehman (ed.), Military Rule in Burma Since 1962 (Singapore, 1981), p.
51.
161
Aung San also explained the right of self-determination for ethnic nationalities who signed the Panglong
Agreement in order to found a new Federal Union together with so-called Burma Proper. He referred to his cosignatories,
the Chin, Kachin and Shan, as nations, or pyidaung in Burmese. He said:
The right of self-determination means that a nation can arrange its life according to its will.
It has the right to arrange its life on the basis of autonomy. It has the right to enter into
federal relation with other nations. It has the right to complete secession.11
Moreover, Aung San clarified the nature of ethnic and cultural minority rights and their implications, an
issue which many of his contemporaries regarded as problematic:
What is it that particularly agitates a national minority? A minority is discontented because
it does not enjoy the right to use its native language. Permit it to use its native language
and this discontentment will pass of itself. A minority is discontented because it does not
enjoy liberty of conscience etc. Give it these liberties and it will cease to be discontented.
Thus, national equality in all forms (language, schools, etc.) is an essential element in the
solution of the national problem [or, ethnic conflict?].
A state law based on complete democracy in the country is required, prohibiting all national
privileges without exception and all kinds of disabilities and restrictions on the rights of
national minorities.12
On the basis of the principles of equality, the right of self-determination, and constitutional protection
of ethnic and cultural minority groups, Aung San drafted a new constitution for a new Union of Burma, which
was duly approved by the AFPFL convention. According to Aung San’s version of the constitution, the Union
would be composed of National States, or what he called “Union States”, such as the Chin, Kachin, Karen,
Karenni (Kayah), Mon, Myanamr (Burman), Rakhine (Arakan) and Shan States. The “original idea”, as Dr
Maung Maung points out, “was that the Union States should have their own separate constitutions, their own
organs of state, viz. Parliament, Government and Judiciary”.13
However, U Chan Htun reversed all these principles of the Federal Union after Aung San was
assassinated. According to U Chan Htun’s version of the Union Constitution, Burma Proper or the ethnic
Burman/Myanmar did not form their own separate National State; instead they combined the power of the
Burman/Myanmar National State with the whole sovereign authority of the Union of Burma. Thus, while one
ethnic group, the Burman/Myanmar, controlled the sovereign power of the Union, that is, the legislative, judicial
and administrative powers of the Union of Burma, the other ethnic nationalities who formed their own respective
National States became almost like “vassal states” of the ethnic Burman or Myanmar. This constitutional
arrangement was totally unacceptable to the Chin, Kachin and Shan who signed the Panglong Agreement on
the basis of the principle of equality, and also to other nationalities.
10 Aung San, Burma’s Challenge (Rangoon, 1947), reprinted in Josef Silverstein, The Political Legacy of Aung San (New York: Cornell
University Press, 1993), cited in Maung Maung, Burma’s Constitution (The Hague, 1959), p. 169.
11 Bogyoke Aung San’s Speeches, pp. 306–307. Also cited in The 1947 Constitution and the Nationalities, Volume 11 (Rangoon
University: University Historical Research Centre, 1999), p. 60.
12 Bogyoke Aung San’s Speeches, pp. 306–307.
13 U Maung Maung, Burma’s Constitution (1959), p. 170.
162
Another serious flaw in the 1947 Constitution was the absence of state constitutions for all the member
states of the Union. In contrast to the original agreement, according to which Aung San and Chin, Kachin and
Shan leaders intended to establish a separate state constitution for each and every state, U Chan Htun’s
version of the Union Constitution incorporated clauses covering all the affairs of the states. In this way, state
affairs became part and parcel of the Union Constitution, with no separate constitutions for the Chin, Kachin,
Shan and other ethnic nationalities. Such a constitutional arrangement indicated that whatever powers the
governments of states enjoyed and exercised under the 1947 Constitution were given to them by the central
government, and this was a characteristic of a unitary state system. In a unitary system, power lies in the hands
of the central government, and the powers of local governing or administrative units derive from or are devolved
to them by the central government.
What the Chin, Kachin, Shan and other ethnic nationalities envisioned in Panglong was a federal
system, in which the member or constituent states were the basic and founding units of the federation, and
whatever powers they exercised or possessed were not given to them by the centre. The powers of the constituent
states of a federation are, in principle, derived from the peoples of the respective states, and this is stated in
most state constitutions in countries that are federal in form. In theory, as Dr. Chao Tzang Yawnghwe observes;
A federation is formed when a number of states agree for some reason to live and work
together under one flag. And because there is an agreement among founding states to band
together as equal partners, there arises a need for another level of government to handle
matters of common interest. Accordingly, this government¾the federal or central
government¾is given or vested with certain powers by the member states. In a federation,
therefore, it is the power of the federal or central government that is derived from, or given to
it, by the member states. Thus, in federalism, the federal government is not a superior
government that holds all powers. Various and significant powers are held by the member
states, and these are clearly spelt out in the state constitutions. In addition, some powers
which are shared by all are given to the federal government, and these too are spelt out, this
time in the federal constitution. In a federation, therefore, there are two levels of powers as
well as two levels of governments, which are intertwined, yet separate. Hence, in a federal
system there are two constitutions: one is the federal constitution, and concurrently with it
there exists another set of constitutions, those of member states of the Union.14
U Chan Htun’s version of the 1947 Union Constitution of Burma did not allow for the existence of
separate constitutions for the founding member states of the Union, namely, the Chin, Kachin, Shan and
other nationalities—including the Burman.
The third point which betrayed the Panglong Agreement and Aung San’s policy of federalism was the
structure of the Chamber of Nationalities at the Union Assembly. The original idea of the creation of the Chamber
of Nationalities was to safeguard not only the rights of non-Burman ethnic nationalities, but also the symbolic
and real equality envisaged at the Panglong Conference. Thus, the intention was that each ethnic national
state should have the right to send equal numbers of representatives to the Chamber of Nationalities, no
14 . Chao Tzang Yawnghwe, “Burma: State Constitutions and the Challenges Facing the Ethnic Nationalities” in Yawnghwe and Sakhong
(eds.), Federalism, State Constitutions and Self-determination in Burma (Chiang Mai, UNLD Press, 2003), pp.99-110
163
matter how big or small their national state might be. But what happened under U Chan Htun’s version of the
Union Constitution was that, while all the non-Burman nationalities had to send their tribal or local chiefs and
princes to the Chamber of Nationalities, it allowed Burma Proper to elect representatives to the Chamber on
the basis of its population. Thus, the Burman or Myanmar from Burma Proper, who composed the majority in
terms of population, was given domination in the Union Assembly.
In this way, the Union Assembly, according to U Chan Htun’s version of the Union Constitution, was
completely under the control of the Burman or Myanmar ethnic nationality. Not only did the powerful Chamber
of Deputies have the power to thwart the aspirations and interests of the non-Burman nationalities, the Burman
also dominated the Chamber of Nationalities. That was the reason why the combined votes of the non-Burman
nationalities were unable to halt the passage of the “state religion bill” when U Nu promulgated Buddhism as a
state religion in 1961, even in the Chamber of Nationalities. Thus, all the non-Burman nationalities viewed the
Union Constitution itself as an instrument for imposing “a tyranny of the majority” and not as their protector, and
it was this that led Burma into fifty years of civil war.
The Panglong Agreement was the most solemn agreement that the Chin, Kachin and Shan had ever
signed in their history, and therefore had to be protected as the covenant on which they built the Union together
with the Burman and other ethnic nationalities. However, since the agreement, or the covenant that the Chin,
Kachin and Shan had entered into with the Burman and other ethnic nationalities, was betrayed or even broken
by the Burmese politicians after Aung San was assassinated, the Chin and other non-Burman ethnic nationalities
in the Union of Burma have had to redefine the covenant, or Union Constitution, through which they have
sought to build a peaceful Union of Burma.
Nation-building and the Problem of Forced Assimilation
When the Chin, Kachin and Shan signed the Panglong Agreement in 1947, what they aimed to achieve was to
“speed up” their own search for freedom, together with the Burman and other nationalities, based on the
principles of equality, mutual trust and recognition; but not to integrate their societies and their lands into the
Myanmar Buddhist society and Burman Kingdom. Thus, for them, the basic concept of independence was
“independence without integration”, that is, what political scientists used to term “coming together”, or “together
in difference”; which implies that nations come together in order to form a modern nation-state in the form of a
Federal Union, or Pyi-daung-suh in Burmese, while maintaining the right of national self-determination and the
autonomous status of their nations.
Within this concept of “coming together”, it is important to differentiate between “nation” and “state” (or
nation-state or union), or what Hannah Arendt refers to as a “secret conflict between state and nation”. According
to Arendt,
[The nation] presents the ‘milieu’ into which man is born, a closed society to which one
belongs by the right of birth; and a people becomes a nation when it arrives at a historical
consciousness of itself; as such it is attached to the soil which is the product of past
labour and where history has left its traces. The state on the other hand is an open society,
ruling over territory where its power protects and makes law. As a legal institution, the
164
state knows only citizens no matter of what nationality; its legal order is open to all who
happen to live on its territory.15
The state, far from being identical with the nation, is “the supreme protector of a law which guarantees
man his rights as man, his rights as citizen and his rights as a national”.16 By signing the Panglong Agreement,
the Chin, Kachin and Shan had co-founded a “Federal Union” of “nation-state”, which is an administrative and
legal unit, but they still wanted to keep their own respective “nations”, a concept which according to Weber
belongs to the sphere of values: culture, language, religion, ethnicity, homeland, shared memories and history,
a specific sentiment of solidarity in the face of other groups or people. Thus, what Aung San and Chin, Kachin,
Shan leaders wanted to achieve at Panglong was to build a “Union” through “state-building” process, not to
create a “nation” through the process of “nation-building”.
As mentioned above, the Burmese word for “Union” is “Pyi-daung-shu”, which means “the coming
together of different ‘nations’ and ‘national states’.”17 As the term indicates, the Pyi-daung-shu allows the
peaceful co-existing of different ethnic groups with different cultural and religious backgrounds, i.e. different
“nations”, within an administrative and legal unit of political union or state or nation-state. It is, therefore, clear
that “state-building” is very different from that of “nation-building”; within the process of “state-building” there
can be many “nation-building” processes taken place at the same time.
Contrast to ‘state-building’, ‘nation-building’ excludes other ethnic groups, cultures, religions and
everything that related with multiculturalism and diversity as nation-building factors. Thus, by accepting one
homogenous set of cultural and religious values as political values, the very notion of ‘nation-building’ can only
produce a “nation-state” or “state” made by a homogenous “people” or “nation” that claims “pre-state unity
based on culture, history or religion.”18 As a result, a “nation-state” or “state” made by a “nation” through
“nation-building” process cannot accommodate other cultures, religions and ethnic groups. At best, as Saunders
argues, “it can tolerate non-integrated minorities as guests, but not as equal citizens. The status of fully
recognized citizen can be attained only by integration. Those who want to become citizens must change their
cultural identity.” Moreover, as Saunders explains:
If a cultural minority demands political recognition and identity, the state must reject the
claim. Because it is unable to accommodate a fragmented political identity, it will ultimately
come into conflict with its minorities. Either the minorities must be integrated within the
majority culture, or destroying their original cultural roots, or they must denied the opportunity
to enhance their cultural identity through political means. A fragmented political identity is
rejected as a solution, because of is threat to the unity, homogeneity, and the roots of
state’s existence.19
Aung San seemed to have a clear policy of “state-building” based on the principles of “equality” and
“unity in diversity”. He criticized that the notion of “nation-building” in a form of “one race, one religion, and one
15 Hannah Arendt, “The Nation”, cited by Ronald Beiner, “Arendt and Nationalism”, in Dana Villa (ed.), The Cambridge Companion to
Hannah Arendt (Cambridge University Press: 2000), pp. 44–56.
16 Ronald Beiner, “Arendt and Nationalism”, in Dana Villa (ed.), The Cambridge Companion to Hannah Arendt (2000), p. 53.
17 Chao Tzang Yawnghwe “State Constitutions, Federalism and Ethnic Self-determination” in Yawnghwe and Sakhong (eds.) Federalism,
State Constitutions and Self-determination in Burma (Chiang Mai: UNLD Press, 2003), pp. 99-110
18 . Cf. Saunders in Blindenbacher and Koller (2003), p. 199
19 . Ibid., p. 201
165
language have gone obsolete.”20 By inviting the Chin, Kachin, Shan other ethnic nationalities to form a new
Union together, Aung San’s policy of “unity in diversity” transcended all different cultures and religions, and
rejected them as structural and functional factors that would serve to unite the country. By rejecting culture and
religion as uniting factors of the country, he opted for a secular state which political values are based not on
cultural and religious roots but on the basis of the equality of individual citizens and the right of self-determination
for member states of the Union. Aung San particularly rejected religious oriented ethno-nationalism, which
mixed religion with politics. He thus declared:
Religion is a matter of individual conscience, while politics is social science. We must see
to it that the individual enjoys his rights, including the right to freedom of religious belief
and worship. We must draw clear lines between politics and religion because the two are
not the same thing. If we mix religion with politics, then we offend the spirit of religion
itself.”21
However, after Aung San was assassinated, U Nu reintroduced cultural and religious values into political
debate and abandoned Aung San’s policy of “unity in diversity” together with “state/union-building” process.
For U Nu, the only means to build a new nation was by reviving pre-colonial cultural unity of Buda-bata Maynmar
Lu-myo (literally, “to be a Myanmar is to be a Buddhist”), which had nothing to do with the Chin, Kachin, Shan
and other ethnic nationalities who joined the Union in order to speed up their own freedom.
Although Buddhism had been a powerful integrative force in traditional Myanmar society, a modern
nation-state of the Union of Burma with its multi-religious, multi-cultural, multi-ethnic plural society was a very
different country from that of pre-colonial Myanmar Kingdom. However, leaders like U Nu still believed that
Buddhism could make a significant contribution to some aspects of national integration. When he became the
Prime Minister of the newly independent Burma, U Nu reversed Aung San’s version of Union Constitution,
particularly the clause that separated between religion and politics, by declaring: “in the marrow of my bones
there is a belief that government should enter into the sphere of religion.”22 In this way, U Nu’s government
officially adopted state religion of Buddhism as a means of “national integration”; through which an attempt
was made to achieve homogeneity by imposing religious and cultural assimilation into the predominant group
of Myanmar Buddhists. In 1953, Ministry of Religious and Cultural Affairs was created to promote the process
of assimilation, and eventually promulgated Buddhism as a state religion of the Union of Burma in 1961.23
While U Nu opted for cultural and religious assimilation into Buddhism, or Buda-bata Myanmar-lumyo,
as a means of integration, General Ne Win, who came to power through military coup in 1962, removed the
rights of the country’s religious and cultural minorities, including all civil and basic human rights, as a means of
creating a homogeneous unitary state. Moreover, General Ne Win imposed his national language policy by
declaring Myanmar-sa as the only official language in the entire Union of Burma, which must therefore be used
at all levels of government and public functions, and it must also be the only medium of instruction at all levels
of schools in the country—from primary to university levels. He not only imposed the Myanmar-sa as official
language, but deprived the rights to learn the rest of ethnic national languages in the country.
20 Aung San’s speech entitled “Problems for Burma’s Freedom”, delivered on January 20, 1946, in Josef Silverstein (ed.), Political
Legacy of Aung San (Ithaca, New York: Cornell University Press, 1993), p. 96.
21 Aung San’s speech entitled “Problems for Burma’s Freedom”, delivered on January 20, 1946, in Josef Silverstein (ed.), Political
Legacy of Aung San (Ithaca, New York: Cornell University Press, 1993), p. 96.
22 Jerold Schector, The New Face of Buddha (1967), p. 106.
23 Cf. John F. Cady, A History of Modern Burma (Ithaca, New York: Cornell University Press, 1960), p. 638.
166
Nation-building, for both U Nu and Ne Win, was simply based on the notion of “one race, one language
and one religion”—that is to say, the ethnicity of Myanmar-lumyo, the language of Myanmar-sa and the state
religion of Buddhism. Thus, what they wanted to achieve through “nation-building” process was to create a
homogenous nation of Myanmar Naing-ngan, based on its cultural and religious values of Maynmar-sa and
Buddhism as a combine political values. Although their approaches to “national integration” were different, U
Nu and Ne Win both had the same goal of creating a homogeneous people in the country. While U Nu opted for
cultural and religious assimilation into Buddhism as a means of integration, Ne Win used national language
policy of Myanmar-sa and removed the rights of the country’s religious and cultural minorities as a means of
creating a homogeneous unitary state. U Nu and Ne Win thus complemented each other, although their
approaches in depriving cultural and religious minorities of their rights were different in nature.
To complement U Nu’s policy of state religion and Ne Win’s national language policy, current military
regime is opting “ethnicity” as a means of national integration, by imposing ethnic assimilation into Myanmarlumyo.
The changing of the country name from Burma to Myanmar, purely the name of ethnic Myanmar, in
1989 is the case in point. When they implemented their policy of ethnic assimilation by force, present military
junta apply various methods; killing people and destroying the livelihood of ethnic minorities in fifty years of civil
war, using rape as weapon of war against ethnic minorities, and religious persecution as a means of destroying
ethnic identity, especially against the Chin, Kachin and Karen Christians. In this way, the successive governments
of the Union of Burma—from U Nu to Ne Win to Saw Maung and Than Shwe—have carried out “nationbuilding”
process in terms of “one race, one language, one religion”, that is—Myanmar-lunyo, Myanmar-sa,
Buddhism.
In the name of “nation-building”, the successive governments of the Union of Burma violated not only
basic human rights and civic rights but all kind of collective rights. In the name of “national sovereignty” the
rights of self-determination for ethnic nationalities are rejected; in the name of “national integration” the right to
worship different religion, the right to practice different culture and the right to speak different language are
deprived; and in the name of “national assimilation” the rights to up-hold different identities and traditions are
denied. In short, they are practicing ethnic cleansing and cultural genocide for fifty years.
State-making and Unity in Diversity: An Option for the Future
As mentioned above, “nation-building” belongs to what social scientists called “subjective values”, that is —
culture, language, religion, ethnicity, homeland, shared memories and history, etc., which differentiate one
group people from another, and the values that cannot be shared objectively. Thus, “nation-building” process is
impossible to implement in multi-ethnic, multi-cultural, multi-religious plural societies like the Union of Burma.
The only means to implement “nation-building” process in plural society is using coercive force of assimilation,
but it will definitely be resulted in confrontation and conflict because the very notion of “nation-building” is
“hostile to multiculturalism and diversity”.24 Unfortunately, this exactly is what happened in Burma during the
past fifty years.
In plural society like Burma, the only option is federalism with strong emphasis on decentralization and
local autonomy where the parallel processes of “nation-building” and “state/union building” or “state-making”
can go hand in hand. Federalism by definition is division of powers between federal government and state
24 . Saunder (2003), ibid., p. 198
167
governments, which have their own separate constitutions. Where member states of the federal union are
composed in terms of ethnicity and historical homeland, each state can implement their own “nation-building”
process within the territory of their homeland based on their culture, language, religion, ethnicity and shared
memories, etc., by making their own national state constitution. Thus, while the sole purpose of state constitution
making process is for “self-rule” through “nation-building” process which may lead to the preservation and
promotion of distinct identities; the purpose of making federal constitution is for “shared rule” through “state/
union-building process” which aimed at the establishment of common institutions for multiculturalism and
diversity. In this way, federalism can combine “state/union-building” process with the objectives of “unity in
diversity”, that is, “accommodating, preserving and promoting distinct identities within a larger political union.”25
Although the state constitution making process through “nation-building” can be value-based
“subjective approach”, federal constitution making process through “state/union-building” process is purely
“objective value”; for federal constitution is “a legal institution, [which] knows only citizens no matter of
what nationality, and its legal order is open to all who happen to live on its territory.”26 As a legal institution,
federal constitution is “ruling over territory where its power protects and makes law,” which guarantees
“man his rights as man, his rights as citizen and his rights as a national.”27 Thus, in a genuine federal
system, federal constitution shall never adopt cultural values as political values, and shall never promulgate
a law that aims at the creation of homogeneous culture, which excludes other cultures.
Conclusion: Finding Equilibrium between Nation-building and State-making
The question of constitution making is usually focused on the structure and function of state and
government; how state should be formed, how government should be organized, and how people should
be governed. In multicultural plural society like Burma, such simple questions related only with the issue
of “good governance” are simply not enough. We need to raise more controversial issues like: Who
should govern whom? What majority or majorities should rule over what minorities? Who should control
political power of state, and with regards to whom? Who should decide the procedure by which it is settled
who should govern whom?
As mentioned above, federalism is an approach to government that divides public powers not
only horizontally, but also vertically. Federalism, therefore, has been viewed as a useful way of limiting
governmental power in order to secure good governance. In addition to balancing between “self-rule” and
“shared rule” through constitutionally established mechanism, recognition and participation of cultural and
ethnic minorities can also be achieved through:
 Emphasis on the political rather than the cultural base of the nation-state or union;
 Separation of state and religious or other socio-cultural powers;
 Emphasis on human rights as protection of minority rights;
 Emphasis on separation of powers, formally and informally;
 Executive power sharing;
 Multiparty system and proportional rule in elections of the parliament;
 Decentralization and local autonomy, including bi-cameralism, as a means of vertical
power sharing.
25. Ibid.
26. Ronald Beiner in Dana Villa (2000), op.cit., p. 53.
27. Ibid.
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In today’s Burmese political context, the processes of federal constitution and state constitutions
drafting can be defined as finding a political compromise between “state-making”, i.e. “state/union-building”
and “nation-building”, which will hopefully result in an institutional equilibrium. A political compromise has
to be found between a cultural majority having enough power to define a majority regime on the one hand,
and cultural and minorities seeking recognition in the constitutional framework and participation in political
decision making on the other. The institutional equilibrium is always a compromise between a majority
regime and institutional forms of minority protection and power sharing.
In a context of legal system, an institutional equilibrium between state-making and nation-building
implies the concept of “equality”. Thus, a nation-state or a union that implements this fundamental principle
must translate the concept of equality into effective collective rights. Although democracy is based on the
majority principles, the majority should not abuse its democratic power by tyrannising its minorities.
Federalism can effectively condom the “tyranny of majority” not only through constitutionally division of
powers and decentralizations, but also through equalising majority and minority before the law; which
recognizes the rights of minority to be treated equally both as individuals and as communities.
The concept of “equality” implies both collective rights and individual rights. Protection of human
rights of individual prevents the authorities of the state from discriminating against individual who belongs
to minorities, on the grounds of their language, religion, ethnicity or race. The guarantee of human rights
as individual rights according to the law is different from that of “tolerance”. Tolerance also allows everyone
to live within the communities as a respected individual, free from discrimination on the ground of ethnicity,
religion or language. However, for those who are tolerated cannot constitute the “We”; and for members of
minorities, such a nation-state is “their” country or their union, not “our” country or union. “They” have no
legitimacy to define the policy of the “We”. Diversity might be respected, but not as political value. Minorities
are respected because that is required by the universal values enshrined in the constitution, like in the
1947 Constitution of the Union of Burma. But in such a situation, “diversity” is neither a policy nor a gaol of
the union or state.
Learning lessons from fifty years of negative experiences of constitutional making and practices,
there are enough reasons to believe that federalism is the only option for the future of Burma. In order that
“unity in diversity” becomes “political value” of the Union, it is needed to equalise between “nation-building”
process, which is for state constitutions drafting process, and “state-making” or “state/union-building”
process, which is for federal constitution drafting process. Thus, the ultimate goal of democracy movement
in Burma is to establish a genuine Federal Union of Burma, which will guarantee democratic rights for all
citizens, political equality for all ethnic nationalities, the rights of self-determination for all member state of
the Union.
Lian H Sakhong
Kathmandu, Nepal
(2004-05-19)
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Human rights and gender in constitution and lawmaking – brief
outline of the presentation
The presentation focuses on the importance and place of human rights and gender in the constitution making
process and development of follow-up legislation. This outline aims to give a brief overview of the presentation
during the seminar, with reflection on discussions of participants in the days prior to this presentation. Focus
will be on practical implementation of human rights and gender aspects, and not on academic discourses in
international and human rights law.
The presentation looks at 3 issues:
1. Link between the international and national level
2. Place of human rights in the constitution making process
3. Gender aspects as a cross cutting theme throughout all processes and the utmost importance of inclusion
of women.
To look at all these aspects answer to the following questions is given:
1. Why international law and human rights principles are important on national
level?
International law principles are important for the implementation of treaties, including human rights norms, on
national level. Particularly in the era of globalisation, international law influences developments on national level.
International human rights standards can be found in written and unwritten norms: treaties, declarations,
customary law, decisions of international, regional and national level. However, international human rights
documents, ratified by the states are seen as minimum human rights standards and states can choose to
implement higher guarantees for human rights and freedoms. In respect to implementation of these standards
states have negative obligation: to abstain from certain actions limiting exercise of rights; and positive obligation:
to take necessary steps giving possibility for individuals or groups to exercise the rights.
International human rights instruments can serve as “checklist” for the discussion of human rights in national
constitution-making process, Universal Declaration of Human Rights being one of the standard setting sources.
In respect to gender – Convention on the Elimination of all forms of Discrimination against Women (CEDAW)
constitute one of the inalienable “checklist” documents in the constitution drafting process.
2. Why human rights need to be included?
During the seminar discussions on democratic governments, federalism and issues relevant to the Burma
democratisation process, certain human rights issues have been identified they seem to be of high importance
for Burma. However, this list shall not be seen as exclusive and examples are given thinking of Burma context:
170
• Principle of equality – non-discrimination in exercising rights, but also in building the democratic regime.
Non-discrimination based on sex, ethnic origin, religious and political views seem to be the main
points of discussion, but other forms of discrimination i.e. sexual orientation, disability, shall not be
forgotten. For certain political rights, citizenship can have an impact – e.g. right to vote or right to run
for elections can be restricted to citizens while other rights can apply for all people on the territory of
given state.
• Right to vote and be elected – is linked to the principle of non-discrimination, but such restrictions as
citizenship or age can be included. Special provisions can be adopted to ensure ethnic balance in the
election process, and requirements ensuring gender equality.
• Freedom of expression – an issues particularly relevant in the context of present national Convention
of Burma (May-June 2004):
o access to information – linked to transparency and accountability of government and other
state structures;
o freedom of expression – including freedom of press and prohibition of censorship
• Freedom of religion – shall be considering in the discussions of place of Buddhism in Burma and
secularisation of the state.
• Freedom of association – right to form political and civil society organisations, as well as professional
unions. This would give right to various political parties to participate in the constitution making process
and participation in state affairs. Forming of unions and parties usually is a “bottom-up” approach and
very important for the flourishing of multiparty democracy. This includes also existence of associations
critical to the government.
• Freedom of assembly – covering possibilities for public expression of opinions and meetings. Most
typical example of freedom of assembly is right to organise demonstrations and rallies, either for
political or for human rights advocacy purposes.
• Fair trial in the context of division of powers between executive, legislative and judiciary. This would
reflect fairness of administrative proceeding, including fairness and objectiveness in administrative
decision making, which is also linked to access to information question above; and obviously fair trial
principles in judiciary at all levels.
Social, economic and cultural rights are now to be found in many state constitutions and should be considered.
Economic, social and cultural rights usually require positive steps from the state to ensure their implementation
and political will to ensure constant increase of the level these rights are provided. For example to ensure
primary education accessible to all may be an impossible task as it may require initiation of reforms followed by
national budget implications, but the state would undertake to increase the provision of accessibility of the
education over a certain period of time and likewise, increase of resources necessary for the implementation.
Similar illustration can be seen with right to health, right to work and other economic or social rights.
Constitution making process, like example of Thailand has showed, should be open for various opinions, for
participation at different levels of society, and participation of women. Agreeing on the principles and values is
important in order to ensure the future implementation of the Constitution.
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Apart from a specific section in the Constitution on the rights and freedoms, one should look with human rights
perspective on all aspects of constitution. Because human rights aspects are present in virtually all areas of
the constitution a question “What human rights are present?” needs to be asked looking at the preamble, that
sets general principles, at the sections on state powers and including a catalogue of specific rights and freedoms
in a special section of the constitution.
3. Why “women’s rights are human rights”?
Like with human rights in constitution, avoiding gender equality in all these processes would be unacceptable.
The expression “women’s rights are human rights” could be used to stop this presentation at this very point.
Human rights have been discussed and why then to talk more about women’s rights? The reason is very
simple – because women are discriminated and often not considered important in such supposedly “neutral”
discussion on constitution, state, peace and stability or globalisation.
Women constitute approximately 50% of the world population and shall be equally present in deciding on
issues relevant for the whole society. However, statistics show that women are underrepresented in political
processes – on national, regional and international level; women receive less in salary for their work; women
suffer from regular gender based violence, either in form of traditional practices, domestic violence or from
state “approved” gender based persecution. Women from ethnic minority groups often suffer double
discrimination. Women have less access to schools and two thirds of illiterate people are women.1
Burmese Women’s Union has stated in 2000 that even “many men in the Burmese Opposition movement
resist in women’s participation in high level political debates such as (…) constitution drafting processes claiming
either women do not understand the issues well enough, or because they claim they have no particular impact
on women. It has been argued that these issues are immune or beyond feminist analysis. When considering
issues of sovereignty, territory, state use of force and state responsibility in the abstract, gender issues are
obscured.”2 With reflection on overall facts on situation of women inherent principles of equality and participation
in democratic society, it is important to pay special attention to include women in all processes relating to the
life of society, because they constitute half of the society.
Open process in deciding on the form of government, elaboration of basic state instruments (e.g. constitution),
discussions on values and principles to be included have to be open for women as well as men on equal basis
in order to ensure:
- diversity of opinions to be heard
- inclusion of priorities important for men and women
- ensuring additional steps to eliminate existing discrimination by taking special temporary
measures
1 For examples see the presentation material.
2 BWU Position paper on constitution and the role of women, October 2000, Burmese women’s union, Activity report
1998-2001
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CEDAW can serve as a check-list for the consideration og gender perspective and women’s position in the
constitution making process and development of legislation. It covers not only civil and political rights of women,
but also such aspects as cultural practices, violence against women and trafficking. CEDAW provides for
definition of discrimination against women highlighting that “any distinction, exclusion or restriction made on
the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise
(…of rights…) by women” shall be considered discrimination. This definition reminds of evaluation of the
measures prescribed in the light of “purpose” of the measures, and whether they are discriminatory, and in the
light of “effect” where seemingly neutral measures can have negative effect on exercise of rights by women.
For example: right to access to information can be linked to literacy rate and in addition to regular
measures on providing information (in writing), there may be need to have special measures to ensure
that illiterate people have access to information. Women may be particularly affected – thus excluded
form receiving information relating to their lives – considering that “two thirds of the world’s 876 million
illiterates are women”3
Gendering the Constitution
Below I will suggest few steps that may help to ensure that constitution and legislation making processes
include awareness of gender aspects.
The first step: to ensure that Constitution and other legislative instruments have equality as basic value,
providing for equal access to exercise the rights. To avoid potential “traps of neutrality”, it is suggested to look
beyond the measure discussed, to “take one step backwards” and see what the purpose of the measure is and
then evaluate what effect would it have on men and what effect would it have on women.
For example, a provision granting the right to be elected as President of the state limited to military
personnel. The questions to be asked: What is the purpose of having such measure? Who can participate
in the military? What is the current situation on proportions between men and women in the military
and what effect this measure may have men and women standing for presidential elections?
Ensuring that men and women participate in elaboration of legislative norms on equal basis, such traps could
be avoided, as various views can be expressed and heard.
The second step would be to ensure that apart from legislative measures, there are necessary executive
measures taken: policies, action plans, and where necessary temporary measures for the underrepresented
sex to achieve de facto equality.
3 https://unstats.un.org/
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For example, quota system for national election can be established, stipulating that each party has to
have “x %” of delegates on the lists of one sex. In Macedonia, the Parliament in may 2004 adopted
changes to the law on local elections where a provision to have at least 30% of city councillors of one
gender in the election lists.
To implement legislation and constitution, there will be need to develop national action plans not only specifically
on gender equality, but have considerations of gender in all other policies.
Finally, special attention has to be made on the social aspects of discrimination against women. These could
be cultural practices, traditions, social pressure and stereotypes. This aspect of discrimination is the most
difficult to change and would take long-term inputs. CEDAW is the only legally binding international instrument
providing for States to take necessary measures to eliminate prejudices, customary and other practices which
are based on idea of inferiority and superiority of either of sexes, or on stereotyped roles of men and women
(Article 5).
Examples of stereotypes can be found on state level – where certain professions informally considered
“female” are receiving less state attention and are considered “soft” sectors, while those where men
are represented more are considered “hard” sectors and accordingly receive more funds. This shows
that even areas that are far from direct discrimination practices (legislation, policies, etc), have very
strong gender implications, for example in preparing national budget.
In families – division between male-female jobs, i.e. women having the child care function,
men taking the jobs in fixing the house, car etc. Extremes of physical abuse of women based on and
justified by “cultural” practices – i.e. female circumcision; or general cultural and social setting
undermining “value” of the girl child, resulting in selective abortion.
Some superstitious extremes have developed in relation to AIDS, for example, belief that AIDS can be
cured if a man has intercourse with a virgin: resulting in extremes of girls from being few months old
being raped to “cure AIDS”.
To address these issues, much more than legislation and policies is necessary. It involves discussions about
public-private sphere, it involves being open for change that starts from the individual opinions and practices
and empowerment of individuals in respect to their rights. While legislation can address the issues of
discrimination based on sex, the differences of being man and woman, the implementation of equality norms is
often obstructed by socially determined understanding of gender roles. Therefore, in practice discrimination
against women is often justified by tradition and culture, but in addition to asking the question “Where are the
women?” to find out what is their status in each part of the life of society, few more questions shall be asked:
- Who is deciding, who is imposing on the cultural practice used to justify discrimination?
- What is the origin of this practice?
- What is its value?
- Who is benefiting from such practice?
- And who is loosing and is disadvantaged from such practice?
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Concluding remarks
International instruments, like the universal Declaration for Human Right and in respect to women – CEDAW,
can be used as “catalogues” for discussions of inclusion of certain rights in the national constitution, while
international and other national practices can be used as examples of how to address the issue of implementation
of the rights.
Every part of constitution can be evaluated with the human rights angle and as mentioned – two steps ahead,
one backwards - can be the tactics to ensure that all relevant issues are covered and that proper assessment
of the purpose and effect will be made.
Women, constituting half of the population should be heard, should have the possibility to participate to ensure
legitimacy of the measures taken. It will require first and foremost changes in the attitudes of the constitutional
development process organisers and participants. Gender equality is not only about women’s rights, but it is
about society as a whole. And like with human rights perspective in each and every article of the Constitution,
gender shall be one of the mainstreaming elements for the consideration.
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What’s next: Prospect for Democratic Change in Burma
Background:
International efforts for the success of National Reconciliation in Burma
Bangkok Process
Non-paper of the UN – Modification of SPDC’s Seven Points Road Map and incentives for the
implementation of each phase
Non-paper of UK – Reform of the NC Process
Proposal of the Asian Dialogue Society – Modification of the 7 points road map
All proposals have similar starting point – inclusive and transparent NC process which provides a
venue to have a free debate on constitutional matters.
Positive Signals at the earlier stage:
- Possibility to release ASSK on the 1st day of Burmese New Year
- Possibility for the review of 104 Principles and 6 objectives
- Dialogue between DASSK and SPDC team ( KW, Tin Hlaing and Than Htun)
- Arrangements to have consultation among NLD leaders under house arrest
- U Lwin’s comment at earlier stage: some level of understanding between NLD and SPDC/
Possibility to attend NC if there were reforms:
- 6 Objectives and 104 principles should be regarded as suggestions for the consideration
of delegates.
- Delegates should be freely selected by the political paties
- Reopening of NLD offices
- Release of DASSK and UTO
Proposal was turned down at the final stage by TS.
Diplomatic sources believes that KN is willing to accommodate with proposal made by the NLD.
But it’s TS who turned down the NLD’s proposal.
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SPDC’s National Convention Process:
- Reaffirmed that discussion will be continued within the framework of 6 objectives and 104
Principles.
- Out of 1088, MP-Elects (15) and Representatives of Parties (29) – 4%
- Ethnic Delegates (633) and cease-fire groups (105) – 67%
- It seems that SPDC aims to claim for the legitimacy pointing at such a significant presence of
delegates in the name of ethnic representatives.
- NC rules and procedures – become more restrictive.
- Time Frame of the NC – No public announcement. It seems that SPDC will accelerate to
conclude the NC in 2004.
- NLD, UNA/UNLD refused to join the NC since SPDC refused to fulfill minimum conditions.
- 6 cease-fire groups also send a letter to Gen. Thein Sein, Chairman of the NCCC demanding
for the reform of NC. So far, no response.
- What will be the position of cease-fire groups if the NC proceeds in such way.
International Response:
UN
Immediate Response by UN Secretary-General
expressed disappointment
urged for the release of DASSK/UTO and reopening of offices.
Differentiate between SPDC and Govt. – got assurances from govt. but SPDC didn’t take
these steps.
Appeals the countries in the region to counsel SPDC
Proposed for the visit of Razali to revive the dialogue between NLD and SPDC.
Planned Move of the UN
Mobilization of regional diplomatic pressure.
Razali’s visit to China and India.
UN Strategy Meeting (probably ICGM)
Western Countries
US, EU, Canada, Japan
Region Thailand/Malaysia/Indonesia.
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Possible Scenarios:
I. SPDC pursues the NC without NLD and UNA/UNLD, increase repression against political
parties inside Burma, and outlaw parties, which refused to participate in NC. Referendum
on the constitution which legitimizes the dominant role of military in political life Burma
without international observation and it is approved by manipulation.
II. Current NC is stopped either because of the international pressure or cease-fire groups
walk out from NC. SPDC revives the Dialogue with NLD, and UNA/UNLD. Five minimum
conditions proposed by the NLD is accommodated. NLD and UNA/UNLD finally join the
NC.
P.S. Five minimum conditions:
- Six objectives are considered as suggestions.
- 104 principles are considered as suggestions. Not as binding principles.
- Reopening of NLD Offices.
- Parties can select their own delegates.
- Release DASSK and U Tin Oo
III. While attending the NC, a parallel dialogue between NLD and SPDC and later joined by
UNA/UNLD. SPDC calls for a nation wide ceasefire and the National Reconciliation Council
is formed with top line leaders from SPDC, NLD, UNA/UNLD and ethnic armed groups.
IV. SPDC rejects UN facilitation and there is no dialogue between NLD and SPDC. CRPP or
NLD publicly declare its vision for national reconciliation and democratic transition in Burma
which begins with formation of an interim government that consists of SPDC, NLD and
leaders of ethnic nationalities.
Interim government ——Constitution drafting process ——New Election
CRPP/NLD’s proposal is endorsed by all political forces of Burma and supported by the
international community. There may be harsh response by radical faction within the army,
which will lead to the political intervention of UN Security Council.
MILITARY/AUTHOURITARIAN WITHDRAWAL FROM POLITICS
Figure 1.1
Withdrawal in Crisis Situation
Economic crisis
Low cohesion of the military establishment
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Withdrawal of support by military’s alliance
Opposition popular mobilization and mass action
International Diplomatic pressure
e.g. Argentina, Brazil, Bolivia, Peru, Philippines
Withdrawal in Non-Crisis Situation
Cohesion of Military Establishment is solid
Regime can survive the economic crisis and even bring development in some cases
Increased Middle class demand for political liberalization
Diplomatic pressure
Regime manage to find its own exit
e.g . Thailand, Chile, Korea, Taiwan
STATE OF ECONOMY
FY 2003
Continued budget deficit
Decreased export of textiles and other goods
Decreased import of certain items
Deficit in balance of payments ( $ 38 millions in the 1st Six months of 2003)
Constrained growth
The use of essential production factors ( Fertilizer, Pesticides, Crude Oil, Natural Gas
has been flat or reduced.)
Shortage of Electricity
Banking Crisis – caused lost of confidence in financial system
Decreased in fixed investment
Under-investment in Social Sector ( 0.3% of GDP in Health in FY 2002)
Outlook for 2004-2005
In view of the very limited reform agenda apparent at this time, growth
prospects in the medium term are limited. International sanctions look
likely to continue curbing exports and FDI. Insufficient investment in
social areas and the slowdown in fixed investment suggest less than
satisfactory reductions in poverty.
(Source: Asian Development Outlook for 2004)
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SPDC/BURMESE MILITARY:
Strength
Cohesion of the military establishment still intact mainly because of:-
Custom to obey military command
Burmese Culture of respecting elders
Patron-client relationship
Fusion of political and military at the top
Ideological Indoctrination ( Burmese Army as a patriotic army born out of
Independent Struggle and savior of the country)
Common interest ( power, wealth, privileges)
Fear of retributions
Weakness
New Signals erosion (?) that should be counted with caution:
Difference of opinion in making risks assessment and taking policy initiatives
S. General Than Shwe’s Faction
(TS, SW, TS and Generals from Bureau of Special Military Operation)
Conservative
Inward looking in policy thinking
Reluctant to take risks by taking new policy initiatives
Prefer Status Quo
Prefer overt coercive measures to eliminate the opposition
Gen. Khin Nyunt’s Faction
(KN and officials from OSS/MI)
Willing to integrate with international community.
Incline to accommodate the opposition
Willing to begin a transformation process, timing and terms dictated by the military.
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Policy Initiatives, which reflected division in policy thinking
Political
Inconsistent engagement with UN Special Envoy, UN Special Rapporteur, ILO,
ICRC
Depayin incident
Cease-fire initiative with KNU
Dialogue with DASSK/NLD on NC
Economic
Structural Adjustment Programme proposed by Japan.
Rice Policy
Purging of Gen. Zaw Htun, Minister of Finance for his critics on slowness in economic
reform
Results:
Military can’t effectively respond to economic and humanitarian crisis.
Inconsistency in taking policy initiatives- one step forward but two steps backward.
No consensus in terms of the transition.
Used overt means of political violence and restrictions of political activities to maintain political stability.
OPPOSITION
Strength
Legitimacy based on results of 1990 general elections
Charismatic leader
International sympathy and limited support
Peoples’ aspiration for democracy remain alive
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Weakness
Not much sophisticated in political maneuvering in response to the emergence of cleavages within
the Army.
Can’t exploit destabilizing effects of economic and humanitarian crisis. Discontents of the people
can’t be transformed into mass political action.
Society is still atomized and there is no civil society development.
No unified strategy. Different groups are playing with different interests.
MEASURES TO PROMOTE DIALOGUE AND DEMOCRATIC TRANSITION IN
BURMA
PUSH FACTORS
Internal –
Public call for national reconciliation and formation of an interim government in
response to the proposal of the NLD.
Economic deterioration
Humanitarian crisis leading to social unrest.
More pressure within the army to find a compromised solution with democratic
opposition and ethnic nationalities.
Cease-fire groups walk out from the NC and the process completely lost its
legitimacy.
No votes for the constitutional referendum.
Political instability because of small but frequent mass activities.
e.g - Release political prisoners campaign lead by mothers of political
prisoners.
- Rights based movements of students, workers and farmers.
External –
US – continued sanction
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Maintain Burma in the list of drugs de-certification (DEA)
EU – Targeted sanctions
Exclusion of Burma in ASEM
Japan – withhold ODA
ASEAN/Neighboring Countries:
Quiet diplomatic pressure
Public call for national reconciliation through ARF/AMM/PMM
ASEAN Troika Visit (???)
Use Burma’s membership as a leverage for diplomatic efforts
Use Burma’s turn for ASEAN Presidency in 2006 as a leverage.
Bangkok Process –
should be continued
participation should be widened ( international players as well as stake holders of Burma)
Role of the UN should be increased. UN-Thailand joint sponsorship (???)
Timing and participants shouldn’t be dictated by SPDC.
Should such meeting be hosted by China ????
China
Explore access
Raise Burma Issue through EU-China Dialogue
India
Explore support of the new government.
UNGA/UNCHR
Resolutions which condemn on human rights violations
UN Security Council
- Discussion on Burma under the agenda of “other matters”.
- Informal Security Council briefing
- SC pressure based on the agenda of children and armed conflict
- SC endorsement on UN sponsored democratic transition plan
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International grassroots campaigns
- corporate withdrawal campaigns
- share holders campaigns
- consumer boycott campaigns
PULL FACTORS
UN facilitation/mediation
- Formulation of a UN Sponsored road map for democratic transition in
Burma.
- Upgrade from UN Special Envoy to Special Representative of the UN
- Increased mandate – from facilitation to mediation
- Visit of UN Secretary-General to Burma
Development of transitional options
How are we going to respond to military’s prerogatives?
Civil-military relation in transition and in the long run?
Interim Constitution?
Education on Civil-Military relation in democratic transitions
- Radio
- Thorough Second Tract Diplomacy ( Governmental/NGO engagements)
Advocacy on options for democratic transition and gradual withdrawal of military from politics
Incentives for taking positive steps:-
- Welcoming in UN resolutions
- Humanitarian assistance
- Capacity building progarmmes for Civil Service for national reconstruction
- gradual lifting of sanction measures in response to the progress
- conditional aid for selective development projects ( should be in accordance with
recommendation of NRC)
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PUSH-PULL FACTORS
Informal Consultative Group Meeting of the UN (ICGM)
Diplomatic efforts of US Special Envoy
Diplomatic Efforts of EU Special Envoy
Expansion of ICRC Presence
Expansion of ILO Presence
Presence of UN Human Rights Monitoring Mechanism inside.
PROGRAMMES
• Peoples’ Empowerment Programme and Civil Society Building
• International Policy lobbying
• Documentation and Advocacy on human rights, humanitarian, economic and environmental
situation
• Capacity Building for the movement
• Coalition/Unity Building
Strategic Consultation
Federal/State Constitutional Dialogues
Youth/Women Exchange Programmes
• Women Empowerment Programme
• Transitional Policy Research
RECOMMANDED STRATEGIC OPTION
Under the present circumstances, we should better take necessary pro-active initiatives to make
scenario III happen. In short, we should put efforts to:
MOBLIZE for the emergence of the NATIONAL RECONCILIATION MOVEMENT inside Burma, and
LOBBY to obtain international support for the UN INITIATED POLITICAL INTERVENTION in Burma.
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What’s Next?
By: Lian H. Sakhong
1. Possible Scenarios and Options:
(i) How can we turn the SPCD’s NC into a Tripartite Dialogue?
(ii) Can we completely stop the SPDC’s NC, and start a new one?
(iii) Ignore the SPDC’s NC, and convene a parallel convention by NLD and EN?
(iv) Ignore the whole process of NC, and declare an interim government?
2. Option One: To Turn NC into a Dialogue Process
(A) Strength
(i) 1990 Election Result
(ii) 1994 UNGA Resolution
(iii) International Community Support
(iv) Unity among Ethnic Nationalities Forces Inside/outside
(v) Understanding between Democratic Forces and Ethnic Nationalities
(vi) Public Support
(vii) The Leadership of Daw Aung San Suu Kyi
(B) Weakness
(i) The SPDC has started their convention already
(ii) The SPDC rejected the concept of dialogue and peaceful transition
(iii) The SPDC even ignored the boycott of NLD and UNA/UNLD by continuing its own convention
(iv) The SPDC ignored the Bangkok Process, and Bangkok Process now is almost dead
(v) The SPDC postponed the Talk with KNU
(vi) Inside opposition groups, both NLD and EN, are very weak because of all kinds of repression
(vii) A number of democratic forces do not believe in tripartite dialogue, especially ethnic
nationalities participation in dialogue process
(viii) A number of ethnic groups, especially CF groups, have attended the NC
3. Option Two: Stop the SPDC’s NC and Start a New One, organized jointly by SPDC, NLD & EN
(A) Strength: (mentioned as option one)
(B) Weakness
(i) The SPDC has already started the first step of its seven steps Road Map
(ii) The SPDC will go ahead with their Road Map and Draft a New Constitution
(iii) The SPDC will conduct the Referendum
(iv) The SPDC will promulgate a New Constitution
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(v) The SPDC will held a New Election
(vi) The SPDC will declare itself as a “de jure government”
(vii) The SPDC will occupy the Presidency of ASEAN in 2006
(C) What Can We Do?
(i) Denounce the SPDC’s shame NC
(ii) To empower the People to say “NO” at the Referendum
(iii) To encourage the CF groups not to give-up their arms before the Referendum
(iv) To use the method of “non-cooperation” and “People’s Power”
(v) To up grate the role of UN, and bring the Burma’s case to UN Security Council
(vi) To use neighbouring countries as major players, and use US, EU and Japan as the supporters
of ASEAN, China, India and Bangladesh
(Note: Hers is a major shift in our foreign policy)
4. Option Three: Ignore the SPDC’s Convention, Start a Parallel Convention
(A) Strength
(i) As Mentioned in Option One
(ii) As Mentioned in Option Two: What Can We Do?
(B) Methods:
1. Outside Democratic Forces and Ethnic Nationalities Forces
(i) To convene Strategy Consultation Meeting for Ethnic Nationalities Forces and Organizations by
ENC
(ii) To convene Strategy Consultation Meeting for Democratic Forces in Exile by NCGUB/NCUB
(iii) To convene Joint Strategy Consultation Meeting for both DF and EN by ENC and NCGUB/
NCUB
(iv) To convene a parallel National Convention in Liberated Areas by ENC and NCGUB/NCUB
(v) The Parallel Convention shall be supported by State Constitutions Drafting Process led by
SCSC and Federal Constitution Drafting Process led by NCUB
(vi) In order to support the Parallel Convention, the SCSC and Federal Constitution Drafting
Committee should lay down common working plan as soon as possible.
(vii) To Lobby International Support
(viii) To Create a channel between Inside/outside
2. Inside Groups: NLD and UNA/UNLD and CF
(i) More or less the same strategy and method can be applied also in inside.
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(C) Weakness:
(i) The SPDC will definitely crush such a move, especially inside the country
(ii) Thus, mass arrest and even mass killing can be expected
(iii) How much of International Recognition and Support can receive is unknown
(iv) Unity among DF, EN and CF as well as overseas Burmese communities need to be tested
5. Ignore the Whole Process of NC, and Declare an Interim Government
A. Strength
1. As mentioned above
B. Weakness
1. As mentioned above
C. Methods:
1. Declared an Interim Government by NLD
2. Declared an Interim Government by NLD and 1990 election winning parties, i.e. UNA/UNLD
3. Declared an Interim Government by all Democratic Forces and Ethnic Nationalities Forces
both inside and outside simultaneously
D. Possibilities:
1. Possibilities of success: very slim
2. International community support: unlikely
E. Should We Do It?
1. Entirely depend on NLD leadership, especially Daw Aung San Suu Kyi
Submitted by
Dr. Lian H Sakhong
Chiang Mai, 2004-05-27
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Abbreviations:
ABFSU-FAC - All Burma Federation of Student Union (Foreign Affairs Committee)
ABSDF - All Burma Students’ Democratic Front
ANC - African National Congress
Arakan SCDC - Arakan State Constitution Drafting Committee
ASEAN - Association of South East Asia Nations
BSCSG - Burman State Constitution Study Group
BLC - Burma Lawyer’s Council
BWU - Burmese Women Union
CEDAW - Convention on the Elimination of all Discrimination against Women
Chin CDC - Chinland Constitution Drafting Committee
CNLD - Chin Nationalities League for Democracy
DAB - Democratic Alliance of Burma
DBC - Danish Burma Committee
DPNS - Democratic Party for New Society
EBO - Euro Burma Office
ENC - Ethnic Nationalities Council
ENSCC - Ethnic Nationalities for Solidarity and Cooperation Committee
FDI - Foreign Direct Investment
Kachin SCDC - Kachin Sate Constitution Drafting Committee
Karen SCDC - Karen State Constitution Drafting Committee
KNPP - Karenni National Progressive Party
KNU - Karen National Union
MI - Military Intelligence
MPU - Member of Parliamentary Union
Mon SCDC - Mon State Constitution Drafting Committee
NC - National Convention
NCCC - National Convention Convening Committee
NCGUB - National Coalition Government of Union of Burma
NCUB - National Council of Union of Burma
NDD - Network for Democracy and Development
NDF - National Democratic Front
NLD - National League for Democracy
NRP - National Reconciliation Program
NUP - Nationals Unity Party
RCSS - Restoration Council of Shan State
SCDCs - State Constitution Drafting Committees
SCSC - Supporting Committee for State Constitution
SLORC - State Law and Order Restoration Council
SNLD - Shan Nationalities League for Democracy
SSCDC - Shan State Constitution Drafting Commission
SPDC - State Peace and Development Council
TRC - Truth and Reconciliation Commission
UNLD-LA - United Nationalities League for Democracy (LA)
UN - United Nations
UNA - United Nationalities Alliance
UNGA - United Nations General Assembly
USA - United States of America
WLB - Women League of Burma

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