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Constitutional rights for states is key item for peace process in Burma

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by Banya Hongsar – A constitution is the foundation of a nation and people. Burma was a land of peace in spirit for thousands of centuries of civilization, and it has even managed to sustain a Buddhist community with inner-peace in the modern era under the politics of violence.

Over sixty years of armed conflicts underline the nature of violence in our time, killing young men and women for the cause of justice, freedom, and liberation from military oppression. The new Burmese government formed in March with an uncertain future for the peace process and for its future legitimacy. The real test for the government and the opposition forces is whether the question of constitutional rights for ethnic states will be adequately addressed in the foreseeable peace process between the government and the ethnic armed groups.

The seven ethnic states of Burma were formed under the constitutions of 1947 and 1975 in different contexts and under political pressure faced by the governments of the ruling elites of the majority Burmese (Burman), despite the fact that the rights of the states are not legally defined or respected in political terms. After sixty years of a lack of political vision by the ruling elites, a new constitution was forced to redress the grief of the ethnic leaders and people in 2010. However, the armed conflicts have never been solved in good faith due to widespread mistrust and festering political wounds on all sides.

President U Thein Sein has predictably called for a renewed peace process with ethnic armed forces under his tenure as the head of the new government. The ruling elites have drastically expanded militarization in the lands of the ethnic people for the past sixty years. Every major city or town across the country is provided with ex-military men and their families as local authorities, filling positions from municipal services to local militia forces. The policy of assimilation of Burma’s kings from the 17th century will never disappear from the mindset of the new ruling elites. Consequently, the repressed ethnic people have little option but to take up arms in resistance.

A new peace process must be welcomed by all key players within Burma and abroad. A plan for the peace process should be drawn to deal with the concerns of legitimate groups. The first key concern to be acknowledged is that constitutional rights for ethnic states must be developed and respected, both in political and legal terms. This is not an easy task for negotiators, where to find compromise or a win-win deal will be difficult to attain unless genuine political trust is in place prior to the peace process.

Burma observer and journalist Brian McCartan concluded recently that ‘Concrete moves towards reform may put the government on a path that will be difficult to reverse without reverting to direct military rule and a return to pariah status. But then, Myanmar’s military rulers have never shown a need to rely on logical thinking, instead making decisions based more on preservation of their power. This is now compounded by the interest of many generals to maintain their grip on very lucrative business empires’. Business deals are a primary concern for Burma’s new politicians, regardless of the condition of the local population – many who cannot afford adequate food or shelter for their families.

Constitutional rights are clearly outlined in all Western nations, especially in countries that exercise federalism in modern politics. USA, Australia, and Germany are some of the best models that exercise federal and state powers as amended under the constitution. Burma’s last three constitutions were all adopted without the legitimate support of the citizens, and contain insufficient guarantees for the constitutional rights of the seven ethnic states.

According to Aung Htoo, a prominent Burmese lawyer-in-exile, “The current state constitution written by the military regime will continue to destroy the people’s political party system in Burma, in particular due to Article 404, which states, ‘The aim of a political party must be non-disintegration of the union, non-disintegration of national solidarity, and perpetuation of sovereignty’.” Burma’s new political system only addresses cosmetic changes within its own environment of power plays instead of addressing the bottom line of constitutional failure of the past half century.

A nation’s constitutional power is not limited by, but is rather safeguarded by, the federal model. According to the model of the Australian Constitution, “Although the State Parliament can pass laws on wider subjects than the Commonwealth (Federal) Parliament, the Commonwealth is generally regarded as the more powerful partner in the federation. Accordingly, the Commonwealth can, within the subject matters conferred on it by the Constitution, override state laws. As a result, many subjects of a Commonwealth power are regulated almost entirely by Commonwealth law, for example, bankruptcy, marriage and divorce, and immigration”. The formation of a properly functioning constitution is difficult task for ex-soldiers of both the government and ethnic leaders if they are poorly informed of both legal and political principles.

Ethnic leaders and representatives from other social forces in the seven ethnic sates must not miss the opportunity of the upcoming peace process to include constitutional rights for ethnic states as good tool for real changes in the country. At least, the ethnic leaders need to draw a ten-year peace plan that includes legal and political safeguards. U Myo, a Burmese writer for exile media, asserted in 2010 that, “The presence of many ethnic minorities is one reason a multi-party democratic system is so essential to the rule of law in Burma. It would allow for various regions to be governed by those with the closest understanding of the issues faced by groups and individuals in the locality. Ethnic minorities would be represented in the political sphere and would be less inclined to resort to violence.”

After sixty years of armed conflicts under the ruling elites’ national assimilation policy towards the ethnic people in Burma, Burma’s new leaders must seek common ground with ethnic leaders. This is a peace process. For all this hope, the leaders must re-write the current constitution prior to an agreement of a peace deal that satisfies all key players, and at last, the citizens of the country. President U Thein Sein addressed the nation in March, saying that, “Myanmar will be able to stand as a democratic nation in the long run with justice, freedom, and equality, while steadfastly shouldering state duties. At the same time, I would like to urge and invite all the people to work together with the government in the interests of the nation.”

Freedom and equality only exist if the laws are fair and just for all. Constitutional rights must be for all, not exclusively for the ruling elites. The possibility of peace comes when fair and just laws are followed by all — the government and the citizens in this new century of global changes. Burma is a small land with the misery of past mistrust. The time to heal is now.

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