Decentralization or Co-opting Ethnonationalism: 8 States or 14 States and Regions?

Lately, the question of whether 8 States or 14 States and Regions should be used for the equitable power-sharing solution, in rebuilding a genuine federal union, has rear its head and come up again, as a main sticking point for the fusion of Shan Nationalities League for Democracy (SNLD) and Shan Nationalities Democratic Party (SNDP), the two Shan political parties.

SNLD is headed by Hkun Htoon Oo, which had won the second place in 1990 nationwide election after Aung San Suu Kyi led National League for Democracy (NLD) and came out first in Shan State. SNDP is led by Sai Aik Pao, which came out third in 2010 nationwide election, after Union Solidarity and Development Party (USDP) and National Unity Party (NUP).

1. THE MAKING OF 7 STATES AND MYANMAR PYI-MA 

First, let us go back to the historical backdrop of how the 7 Ethnic States and Pyi-Ma or Mother State come into being, after the British had left Burma, in 1948.

Chin: 
On the eve of independence from the British in 1948, Chin Hills Special Division was carved out of Arakan Division, with the capital at Falam. On January 4, 1974, it was granted the state status and became Chin State.

Kachin:
The Burmese government under Aung San reached the Panglong Agreement with the Shan, Kachin, and Chin peoples on 12 February 1947. The agreement accepted "Full autonomy in internal administration for the Frontier Areas" in principle and envisioned the creation of a Kachin State by the Constituent Assembly. Kachin State was formed in 1948 out of the British Burma civil districts of Bhamo and Myitkyina, together with the larger northern district of Puta-o.

Shan State:
On 28 November 1885, the British captured Mandalay, officially ending the Third Anglo-Burmese War in just 11 days. But it was only in 1890 that the British were able to subdue all of Shan states. Under the British colonial administration, established in 1887, the Shan states were ruled by their saophas as feudatories of the British Crown. The British however placed Kachin Hills inside Mandalay Division and northwestern Shan areas under Sagaing Division. In October 1922, the Shan states, and Karenni states were merged to create the Federated Shan States, under a commissioner who also administered the Wa State. This arrangement survived the constitutional changes of 1923 and 1937.

During World War II, most of Shan States were occupied by the Japanese. Chinese Kuomingtang (KMT) forces came down to northeastern Shan states to face the Japanese. Thai forces, allied with the Japanese, occupied Kengtung and surrounding areas in 1942.

After the war, the British returned, while many Chinese KMT forces stayed inside Burmese Shan states. Negotiations leading to independence at the Panglong Conference in February 1947 secured a unitary Shan State, including former Wa states but without the Karenni states. More importantly, Shan State gained the right of secession in 10 years from independence.

Karenni:
The Constitution of the Union of Burma in 1947 proclaimed that the three Karenni States be amalgamated into a single constituent state of the union, called Karenni State. It also provided for the possibility of secession from the Union after 10 years.

In August 1948, the Karenni leader U Bee Htu Re was assassinated by central government militia for his opposition to the inclusion of the Karenni State in the Union of Burma. An armed uprising swept the state that has continued to the present-day.

In 1952, the former Shan State of Mong Pai (1901. pop - 19,351) was added to Karenni State, and the whole renamed Kayah State, possibly with the intent of driving a wedge between the Karenni (in Kayah State) and the rest of the Karen people (in Karen State), both fighting for independence.

Karen:
Since Burmese independence in 1948, the Karen relationship with Burma has been primarily political. The old Karenni states formed Kayah State, and in 1952 the Burmese government established Karen State with Pa-an as its capital. During the 1964 peace negotiations, the name was changed to the traditional Kawthoolei, but under the 1974 constitution the official name reverted to Karen State.

Mon:
In 1974, Mon State was created out of portions of Tenesserim Division and Pegue Division, partly to calm down the demand for rights of self-determination and separative tendency of the Mon resistance movement.

Arakan:
Arakan independence, spear-headed by the Arakan resistance movement have been ongoing, since the early 1950. In part to appease this sentiment, in 1974, the socialist government under General Ne Win constituted Arakan State from Arakan Division giving at least nominal acknowledgement of the regional majority of the Arakan people.

Burma Proper/ Pyi-Ma:
Various names have been in used concerning the homeland of Bama or Burman.  "Bama Pyi"-meaning: Bama State or Country-, "Myanmar Pyi" - Myanmar State or Country-, "Ministerial Burma, Burma Proper or Pyi-Ma", were used interchangeably. But the name Pyi-Ma is seldom used in official documents and instead used or refer to as "the remaining territories of the Union of Burma", in the 1947 Union of Burma Constitution.

According to Chao Tzang Yawnghwe, in his article " Putting Burma Back Together Again", writes :

In truth, the 1947 Constitution contravenes the Panglong Spirit. The principle contravention is the setting up of one state -- the Burma State or Burma Proper -- as the Mother State (Pyi-Ma, in Burmese).

What this means is that the Burma State, as the Pyi-Ma or Mother State, was the central power to which other member states of the Union were, or have to be, subordinated to. Clearly, such an arrangement is colonial in nature. And equally clear is the fact that the 1947 Constitution does not in any way, shape, or form fits in with the Panglong Spirit. A return to the 1947 Constitution or a similar kind of arrangement is therefore not adequate.

The understanding was that the peoples and leaders of the Frontier Areas would join with the Burman nationalist forces to jointly fight for independence, and that a federal Union (Pyidaungzu, in Burmese) of equal states, guaranteeing self-determination for all ethnic segments, would be established.

However, the constitution (the 1947 Union Constitution) which emerged was, from the viewpoint of the non-Burman leaders, not federal, but a centralized, or semi-unitary one. It was one where one constituent state, Ministerial Burma or Burma Proper, occupied the position or status of the mother-state (Pyi-Ma, in Burmese). The relationship was one like that which existed between England, the mother state, and Scotland, and Wales. The other seven states were not equal members of the Union, and were at best semi-autonomous, but subordinated entities vis-à-vis the Burman mother-state. Their status and competencies were defined not in the respective state constitutions— there were none— but in sections of the Union constitution which, in essence, was the constitution of Burma proper, the mother-state.

2. FOR AND AGAINST 14 STATES AND REGIONS CONFIGURATION

Recent set-up of 14 States and Regions, unitary system with some power devolving to the states; and 8 States-based federal arrangement, within the mould of federalism are two schools of thought, which are being considered to reach political settlement between the military-dominated government, the ethnic nationalities and democratic opposition groups.

Generally the non-Burman ethnic groups considered that in order to be a genuine and equitable federal union, there is no other way than creating a Bama State, as equal partner, in relation to the other ethnic states.

According to the NCGUB Border Office documentation, written in Burmese, on "Federal Proposal Petition", Sao Shwe Thaike tabled a personal letter to the Constitutional Amendment Committee, on 22 December 1960, which part of the letter writes:

"To observe the past 13 years of practical implementation of the Union of Burma Constitution, it seems like the constitutional law has allowed to practice the doctrine of "racism". Burma Proper or Myanmar Pyi-Ma has not function as a state, but seems to have administered and taken the place of the British colonial master. It is not like voluntary fusion of all the constituent states, but looks like becoming subordinate states under Myanmar Pyi-Ma domination. The States have to ask everything from it and there have been no rights of self-determination, under the constitution; and it is entirely up to the Union Government in the administration of the states."

He further pointed out: " The real essence of "Federation" should be that Myanmar Pyi-Ma should have equal rights and treated as an equal constituent state as all the other states. But according to the present constitution, Myanmar Pyi-Ma is having the advantage of usurping the power of union and that was why the other states were dissatisfied with it."

In a foreword written by the well known, Bama politician, Thein Pe Myint for an article written by U Htun Myint (Taunggyi) titled, “An equal Shan State within the Union”, on 24 February 1961, writes: “ If it is a union all states should have equal rights. To be equal, the first thing to do is to change and organize Myanmar Pyi-Ma into a state. The union will become genuine only when all equal states merge together.”

The States Unity Organization, made up of all non-Burman ethnic groups within Burma, submitted a document in January 1962, which part of it writes:

1. To ensure that the Union of Myanmar becomes a true federal union,it must be based on the national stand that all states coming together to form the union are equal. Therefore a true federal union cannot be a combination of Myanmar Proper and the states. Myanmar Proper must be established as a state, after which a true federal union of states should be formed.
2. As the usurpation of the central powers of government by Myanmar Proper means a lack of equality, thereby creating dissatisfaction, we strongly desire the removal of this dissatisfaction by establishing a Union of Myanmar with Myanmar Proper as one of the constituent states. (Source: History of Shan State; by: Sai Aung Tun; page 443.)

Another school of thought, which have resigned to the thought that the military-dominated government would not budge from its presidential unitary system with 14 States and Regions, have devised some plans on how to make the best out from the existing situation.

Examples of what could be done to enhance the decentralized aspects of the present constitutional framework in order to strengthen its federal features - with or in many cases without  amendments  to the 2008 Constitution – would be:

• to delegate more administrative and financial resources to the States and Regions, to delegate by union law the implementation of union legislation to States and Regions,
• to boost their share in public expenditure,
• to allow them a margin of deviation from national policy frameworks to adjust union norms to their particular social and geographic circumstances,
• to allow State and Region governments to coordinate positions amongst themselves vis-à-vis the union government,
• to develop a modern framework for decentralization of administrative services to the local level, both in urban and rural areas and move towards local self-government.
• to allow States and Regions to take their own decisions facilitating the use of local languages beside Myanmar language,
• to increase the availability of disaggregated data which should make planning and investments by sub-national governments more tailored to local needs,
• to allow more genuine public participation of citizens and access to government at the local and Region/State level.

(Source: Constitutionalism and Legal Change in Myanmar Workshop, 13-14 Feb 2014 Singapore
Towards “genuine federalism”?- By: Marcus Brand)

Another gist guideline recommendation made by the Asia foundation on reform process are as follows:

Rationalize state and region government administration and human resources

• Further clarify the roles and responsibilities of the state and region departments
• Separate state/region departments from union ministry structures; programmes and incentives for relocating civil servants
• Consider creating state/region civil service organizations
• Support state and region ministers’ and departments’ independence from the General Administration Department

Issues:

• Role of GAD as state/region government office in Constitution
• Civil service reform & restructuring a challenge

Deepen the deconcentration process within union ministries

• Policy framework for line ministries to further deconcentrate responsibilities across administrative levels
• Capacity support to line ministries as they deconcentrate, and to state and region ministry offices as they take on new tasks
• Ensure resources for functions at state/region level are predictable and transparent; modest budget deconcentration
• Ensure offices engage in participation and outreach with state and region governments and hluttaws, as well as civil society and communities

Issues:

• Care needed to avoid unfunded responsibilities

Broaden the scope of state and region government responsibilities

• Consider including aspects of education policy and provision including hiring and language of instruction in state/region legislative or administrative list
• Foster more state and region participation in the management of significant natural resources, and approval and oversight of natural resource extraction and development concessions and projects, possible involving state and region authorities in EITI

Issues:

• Modification of Schedule Two, or addition of functions through union law

Strengthen public expenditure management, budgeting and resource allocation

• Strengthen tax policy and administration at state and region level
• Improve union public financial management capacity for fiscal projections
• Revise allocation of the Poverty Reduction Fund & develop intergovernmental fiscal arrangements
• Ensure donor programmes support state and region planning, budgeting and monitoring capacities
• Support Union Financial Commission to develop and apply transparent fiscal policies
• Improve clarity of national accounting and budget presentation

Issues:

• Budget comprehensiveness challenge

Develop a transparent and rules-based intergovernmental fiscal system

• Consider wealth sharing arrangements including what should be included, who collects, and the formula
• Consider the overall transfer system including what functions must be financed, what equity and policy goals are important, and what will encourage good governance, revenue or service performance.
• Policies for management of foreign financial flows in relation to states and regions

Issues:

• Participation of peace process stakeholders

Strengthen the political autonomy of the state/region government

• Support state and region hluttaws to function more effectively in legislative and oversight roles, especially for small hluttaws
• Consider how to increase Chief Minister accountability to state/region
• Comprehensive communication and constituency engagement strategies at the state/region level

Issues:

• Rules on hluttaw formation or size
• Rules on Chief Minister appointment

(Source: The Asia Foundation: State and Region Governments in Myanmar; September 2013)

3. THE BASIC ARGUMENT

The basic argument whether the 14 States and Regions configuration with the a built-in unitary system could accommodate the ethnic nationalities demand for full fledged federal system of governance is an open question.

The splitting of Burma Proper or Pyi-Ma into 7 Divisions, in BSPP era, and later changed to 7 Regions by 2008 Constitution, and the subsequent acceptance of the SLORC , SPDC and present Thein Sein government is to pre-empt the ethnic groups' bargaining position and ensure Bama majority superior posture in all political decision-making power. While the Bama military leaders like to portray this diversifying Pyi-Ma as an act of decentralization, the real motivation is more to balance the ethnic bargaining power.

The understanding that the federal union be formed, along the 8 major ethnic line, with built-in minorities' rights, has been the norm all along. And the splitting of Pyi-Ma into 7 Regions is a direct assault to the territorial-ethnic-based federal agreement, and replace it with just a territorial-based federal system. In other words, it is aimed at diluting the ethnic identities and co-opting ethnonationalism with the replacement of individual, civil and citizenship rights.

During a short-lived parliamentary era from 1948 to 1962, with the exception of care-taker, military rule from 1958 to 1960, the Bama have always been the majority in Chamber of Nationalities and also in Chamber of Deputies, under 1947 Union of Burma Constitution. In Chamber of Nationalities, the Bama-dominated areas were represented with 62 seats, while the combined ethnic states were just 63. In the Chamber of deputies, needless to say, the Bama, having the numerical majority within the country, dominates the parliament.

The one party system rule of BSPP era was a military rule, in fact, and the military is dominated by the Bama, as it is also the case now.

The present, military-backed Thein Sein regime also act like the parliamentary era, with the Bama-dominated military calling the shots in all aspects of political and social lives. No wonder, House speaker Thura Shwe Mann said that he would have no rejection on federal system governance installation, if 14 states and regions configuration is accepted. The ethnic nationalities see this as a pre-empt act to undercut the ethnic veto position in a federal set-up; and the successive regimes just follow the remake of Burma Proper for this is an advantaged position vis-a-vis the ethnic nationalities.

The argument of the ethnic groups today is still the same as the demand spelled out in 1961, documented by the Shan Federal Proposal, i.e., the creation of a Bama State, as an equal constituent state like all the others; amendment of the 1947 Union of Burma Constitution, according to the 1962 Shan Federal Proposal; and last but not least, to refine or fine-tune the whole process according to the existing political nature of the day.

4. INTRA-SUBSTATES' MINORITIES EMPOWERMENT AND PROTECTION

Whatever the case, whether the rebuilding of a federal form of governance happens within the mould of 8 States or 14 States and Regions, the empowerment and protection of the sub-states' or sub-national units' minorities have to be guaranteed constitutionally.

A geographical configuration of a federal state, including one that heavily relies on ethnicity in the making of sub-national units, don’t leave us with separate ethnically pure territorial units. Be it indigenous ethnic groups (i.e. indigenous to the area they inhabit) or ethnic migrants, there will always be ethnic minorities that are scattered in the midst of regional majorities. It is also indicated that federalism may not adequately respond to the security and respect of intra-substate minorities. A federal arrangement that grants a mother state to a numerically dominant ethnic group within a territorial unit often exposes minority groups to discriminatory policies of the regionally dominant group. Such an arrangement would only move the locus of inter-ethnic conflict and tension from the central government to the level of the constituent units. Of particular importance in any multi-ethnic federation is thus the need to take into account the interest and rights of intra-substate minorities. Securing the rights of minorities which are created by autonomy arrangements is crucial for the long term success of any federal arrangement

It is submitted addressing the anxieties of regional minorities requires the state to accept that the constituent units are sharing with the larger state the same problem of accommodating ethnic diversities but only at a constituent unit level. In prescribing a particular response, however, a distinction has to be made between ethnic groups that are scattered throughout the country, on the one hand, and those that are territorially concentrated but do not have their own self-governing unit, on the other. For the former, the application of aspects of self rule and shared rule, owing to their territorial dimension, may not be appealing. The anxieties of such geographically dispersed ethnic groups can be addressed by adopting a judicially enforceable bill of rights. For geographically concentrated ethnic groups, on the other hand, the constituent units, recognising their multi-ethnic character, can apply, to the extent possible, processes and institutions of both self rule and shared-rule. (Source: IACL World Congress, Mexico 2010 - Federalism and intra-substate minorities: First draft)

In Burma context, Shan State's Pa-o, Palaung, Danu, Intha, Wa and the likes will fall into sub-national units' minorities. In Kachin State, the Red Tai will fall into this category. In Irrawaddy Region, the Karen will be the case.In Sagaing Region, Shan, Naga and Chin will be minorities, while the Bama will be in majority, and so on.

In short, any attempt made to transform the unitary to federal system will have to incorporate “self rule, shared rule and adopting a judicially enforceable bill of rights” for the sub-national units' minorities, if reconciliation and peaceful co-habitation is to be achieved in Burma.

NOTE: “The Making of 7 States and Myanmar Pyi-Ma” part is written with the reference of 1947 Union of Burma Constitution, 1974 BSPP Constitution, Chao Tzang Yawnghwe's various articles and numerous other sources.)

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