Analysis

 ‘Vocabulary Crisis’ Creates Yet Another Hurdle for Myanmar’s Federalism

By Nyein Nyein 1 October 2020

Disputes over terminology have been commonplace throughout the endless peace talks seeking to end armed conflicts and establish a federal union in Myanmar.

The latest dispute is over the Burmese term “state basic law” or “state constitution,” although the negotiators representing the government, military and the ethnic armed groups which are signatories to the Nationwide Ceasefire Agreement (NCA) “have agreed in principle” that the right to draft a state law, guaranteeing autonomy, is necessary.

A state constitution, once drafted, must guarantee a state/region’s authority over natural resources management, decision-making on finance and revenue, legislative structure, governance and the judicial system.

The aim is for each state/region in the future federal union to write its own law, which is acceptable to the residents of each federal unit. Therefore, the underlying principles of state constitutions might differ because each state/region would draft its law based on its particular needs.

The current structure of the union is based on the seven states, which are named after key ethnic groups; seven regions; six self-administered territories; and the Naypyitaw Union Territory. Although the state, regional and self-administered governments govern their areas, the Union government has centralized control.

Although the matter is on the negotiation table now, the right to draft the state constitutions will only come after the country’s military-backed 2008 Constitution is changed.

Since negotiators could not even agree on the Burmese term for a state constitution, the matter was set aside for further discussion after intense debate in early August. As a result, the issue of drafting state constitutions was not added as a principle in part three of the Union Accord, which was signed on Aug. 19 by the military, the political leaders and ethnic armed organizations.

Still, negotiators shared a consensus that when state constitutions are drafted, this must be done “without contravening or going beyond” the articles of the Union Constitution that ensure federalism and democracy values.

State Counselor Daw Aung San Suu Kyi, who is also the chairperson of the ruling National League for Democracy (NLD), also stressed in August that all matters related to formulating the state constitutions must be “in accordance with the law as long as they do not contravene the articles of the Constitution,” as stipulated in the first constitution or 1947 constitution, which emerged based on the Panglong Agreement signed by the late General Aung San and ethnic leaders.

In the 2008 Constitution, there is no mention of the right of states/regions to draft their own constitutions. The NLD and ethnic parties attempted to amend the 2008 Constitution, but that effort failed in March when the military’s appointees and the military-backed Union Solidarity and Development Party (USDP) lawmakers blocked the changes.

The approach by politicians, legislators and ethnic leaders so far has been to amend clauses in the 2008 Constitution, but they have failed to discuss how to achieve federal principles and have been “stuck on defining terms,” said Khun Okkar, a negotiator in the peace process, who is a patron of the Pa-O Nationalities Liberation Organization, an NCA signatory.

Call it a “vocabulary crisis” for now; the term “state constitution” has been familiar to most of the public for the last two decades.

Since the early 2000s, ethnic groups, including the ethnic armed organizations (EAOs) and ethnic politicians, have envisioned their respective state constitutions and a federal union constitution in Myanmar.

The issue was brought onto the peace talk table with the government and military in the last few years. The EAOs, not only the NCA signatories, but also the two non-NCA signatories, the Kachin Independence Army and the Karenni National Progressive Party, have also shared their thoughts on what basic principles should be included in a state constitution.

They say state constitutions are important because Myanmar is established based on the different sovereign states “coming together” to be a union in 1947 and not a “holding together” to be a country, Myanmar.

Based on that reality, the Naypyitaw government and the military nowadays have agreed in principle on the issue, said Kheunsai Jaiyen, a veteran Shan political observer, despite the persistent argument over terminology. The military proposed the term as “state basic law” while the EAOs consider it a “state constitution.”

There are also no interim provisions or guiding principles as of yet, but some think several key principles for the state constitution should be established via the peace process.

Regarding basic principles, Daw Aung San Suu Kyi said last October that when establishing “a genuine democratic federal union,” Myanmar needs to have sharing of power, resources and tax revenues in line with a federal system.

She also said, “All federal units should have equal status. States [in this context meaning the federal units] should have their own state constitutions capable of guaranteeing the right to self-determination. And the states’ exercise of powers must be based on the [wishes of the] people.”

The observers stressed that state constitutions need to ensure that every resident of the federal units (states) would be entitled to equal rights in access to land, social services, mother-tongue language, literature and governance, regardless of ethnicity or number of people in a group.

Talks among the EAOs about preparatory principles are pending because the groups could not meet yet due to the COVID-19 preventative measures. The peace talks with the government are also pending until April, when a new government will be formed after the 2020 general elections.

Implementing the state constitutions is likely to take longer even under the new government because the current Constitution is unlikely to be amended right away.

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