Home Opinion Opinions BURMA: Breaching of Panglong Treaty, Military-Supremacy Constitution, Amendment Debacle and Secession Problematic

BURMA: Breaching of Panglong Treaty, Military-Supremacy Constitution, Amendment Debacle and Secession Problematic

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By: Sai Wansai
Monday, 9 January 2012

After two pre-meetings between the Shan State Army (SSA) ‘South’ and Naypyitaw representatives, first on 17 December 2011 in Tachilek and the second, this early January, U Khin Maung Soe, who is also Minister of Electric Power #2 said that the Union level meeting between the two sides will take place some time this month. According to recent report of Shan Herald Agency for News (SHAN), it would be between 15 to 20 January.

The SSA South sources said, a “Special Development Zone”, it has proposed still need to be agreed upon, where it will be able to move freely and launch its rural development projects.

President Thein Sein has said to personally urged the two sides to “tie up the loose ends as soon as possible” so the peace process could go forward, according to Sai La and Sai Ngeun, the two SSA South representatives.
Meanwhile, the Chin National Front (CNF), led by Joint General- Secretary Dr. Sui Khar signed a State level preliminary peace agreement with Chin State Government, in the presence of Union-level peace delegation leader, Railway Minister U Aung Min and Union-level delegation member, Environment and Forestry Minister U Win Htun, Chin State Chief Minister, U Hung Ngai and members of the Peace and Tranquillity Committee, on Friday, 6 January. According to Chinland Guardian, Union level negotiation should follow within a few weeks.
Conditions of Naypyitaw
At the same time, the Karen National Union (KNU) is scheduled to meet President Thein Sein’s chief negotiator, on 12 January, where it is believed that some of the Naypitaw’s set conditions will be discussed.
The conditions are, not to secede from the Union, agree to non-disintegration of the Union, non-disintegration of national unity and perpetuation of national sovereignty, agree to cooperate in joint economic programs, agree to cooperate in anti-narcotics programs, formation of political party or to contest elections, accept 2008 constitution and legally amend it as necessary and, one national armed force.

Oddly enough, the Kachin Independence Army (KIA) and the Shan State Army (SSA) ‘North’ are in open armed conflict, due to the Naypyitaw’s Border Guard Force (BGF) program to forcefully integrate the ethnic armies into its national defence forces. Until recently, the United Wa State Army (UWSA), National Democratic Alliance Army (NDAA) and Democratic Karen Buddhist Army (DKBA) were all on war footing against Naypyitaw, due to its “one national armed force” policy. The said ethnic armed forces have now signed ceasefire agreement, only after the Naypyitaw dropped its BGF program.

But recent report from SHAN, on 6 January said that the UWSA and NDAA have yet to consider, whether they should accept the 2008 constitution that had been ratified without their participation or not, according to sources from Sino-Burmese border.

Secession issue

As for the SSA South, the secession clause condition could become a sticking point in signing the Union level agreement, for it has made known unless the Panglong treaty enshrining the principles of Full Autonomy, Democracy and Human Rights are honoured; it is not prepared to go along with the non-secession pledge from the union.

The Shan Youth Power, a Chiang Mai based non-profit youth organization, which organized the meeting, on 17 and 18 December 2011, of a hundred or so youth, from 35 different townships across the Shan State main thrust, recommendation to the SSA South was that it should think twice, if it were to sign a non-secession pact with the Thein Sein government in its forth-coming Union level negotiation. The Shan youth further cautioned that unless the deal with Naypyitaw is better than the Panglong Agreement, it should not go along and sign the agreement.

Although the UWSA, NDAA and DKBA have already signed such non-secession clause in their ceasefire deals with Naypyitaw, the two former armies have yet to accept the 2008 Constitution, according to the recent report from SHAN.

Breaching of Panglong Agreement

The point is that the Panglong Agreement of 1947 has been breached by the Burmese military regime in 1962 and also nullified the 1948 Constitution, which formed the basis of the Union of Burma. And since, the Burman state, represented by the Burmese military has breached its contractual obligation, which is the sole legal bond between the Shan, Kachin and Chin, the union ceased to exist in a formal and legal sense. In other words, there is no more such a political entity called “Union of Burma” or “Republic of the Union of Myanmar”. In legal aspect, the status of non-Burman ethnic nationalities has returned to a pre-Panglong Agreement period. In other words, the Burman state, also known as Ministerial Burma or Burma Proper, has overnight turned from being a partner to an aggressor. And the non-Burman ethnic nationalities are waging a resistance war to wrestle back their rights of self-determination, which have been forcefully taken away from them.

However, the successive Burmese military, including the present Thein Sein regime, continue to act as if the legal union is still intact, when actually it is coercively keeping it together by means of military occupation and intimidation through gross human rights violations on all the non-Burman ethnic population. And thus, the former, voluntary union in a legal sense ceased to exist, but only a forceful, so-called, union, imposed by military might, continues to exist as is known to us today.

What the non-Burman nationalities are advocating now is to rebuild a new federal union, where every states, including a yet to be formed Burman state, would have equal power – one state one vote and one veto power - and not power-sharing with an artificial creation of seven divisions, now renamed by 2008 Constitution as regions, which is derived from a single Burman state.

And as such, the Thein Sein, military-backed government has no right whatsoever or legal base to demand non-secession from the non-Burmans ethnic armed groups for it doesn’t own the ethnic homelands, or even have a status of partnership in a legal sense, after the nullification of Panglong Agreement and 1948 Union Constitution, which is the sole legal bond between the Burman and non-Burman states. To put it another way, all areas of the former Union of Burma have now reverted back to the situation of a pre-Panglong Agreement period and secession becomes irrelevant, for there is no more Union in a legal sense to secede from.

The ceasefire armies that have signed ceasefire pact, which also include the secession clause, is  in fact, giving in to the Thein Sein government’s claim of ownership right of the non-Burman ethnic areas, when in reality it is no more than just an aggressor and colonizer.

And as such, all ethnic armed forces should have a clear political position and common goal on how a pragmatic peaceful co-habitation could be worked out. And this is none other than the awareness of accepting the hard reality that the so-called Union of Burma ceased to exist since 1962 and they are now trying to rebuild a genuine federalism, envisaged by the founding fathers, made possible by virtue of the 1947 Panglong Agreement.

Constitutional Amendment Debacle
It should also be clear to the Thein Sein government that its pre-condition demand to accept the 2008 Constitution and amend it as necessary is too vague and full of pitfalls. At the least, it should remove one of the Basic Principles clauses, which writes: “enabling the Defence Services to be able to participate in the National political leadership role of the State”. Further, it should do away with the 25% automatic, allotment seats of the active military personals in national, states and regions parliaments. Even better, if it would lower the ceiling of more than 75% affirmative votes needed within the parliament to amend the constitution. For with the military occupying 25% seats automatically in the parliament, there is no way the amendment could sail through, even if the opposition could woo the ruling party, which is the creation of the military class, to its side.
If the above mentioned points would be earnestly addressed, which is highly unlikely, as a good will gesture, on the part of Thein Sein government, the armed ethnic groups would have no qualm to accept the 2008 Constitution. Otherwise, it will be quite hard to convince them to sign.

However, regarding the possible amendment of the 2008 Constitution by the ethnic armed forces, the 6 January SHAN report writes: “How about pushing for legislation after their people have been represented in the union parliament? “No, no, that’s impossible,” replied a Wa official. “We will be a very small, negligible minority there while the Burmese military and its party are the absolute majority. How can you hope to get their approval for anything that is against what they had already decided?”

The Wa official’s statement generally reflects all the non-Burman ethnic nationalities’ doubtfulness of their ability to change anything within the Naypyitaw’s prescribed game plan. And as such, mainstream ethnic resistance movements from Kachin, Shan, Karenni, Karen, Mon, Arakan and Chin states would find it quite hard to buy the Thein Sein regime’s proposal or pre-set condition of amending the constitution from within.

Meanwhile, President Thein Sein has made it clear, in his 4 January, Independence Day message, that the military will remain a pillar and assume leading role in national politics and heaped praise for its role as a protector and facilitator. The message said: “From political perspective, internal peace was built and efforts were exerted to make sure that national race armed groups returned to people’s hearts. Besides, the Tatmadaw government laid down seven-step road map of the State and took step-by-step measures for writing a constitution in order to practise multi-party democracy, holding referendum, approving the constitution, holding the general election, holding Pyithu Hluttaw sessions with people’s representatives and forming a government with the representatives elected by the people. As a result, a new people’s government has emerged today.”
Given such unwavering stance of President Thein Sein, it is highly unlikely that he would do anything drastically to disempower the military. Besides, it is not even clear if he has the real power and ability to do so.
The ongoing massive offensive against the KIA in northern Shan state and Kachin state, even after the President has ordered to stop the offensive on 10 December, is a rude reminder that he has no real authority upon the military. And another indication that has made headlines is his unwillingness to recognise the existence of political prisoners, much less to grant blanket amnesty to those languishing behind bars. Some said that the National Defense and Security Council (NDSC), made up of military hardliners, were against the release.
Half-hearted and Failed Piecemeal Reform Process
To sum up, President Thein Sein has failed or disappointed the people of Burma and international community, particularly, on the issue of amnesty for all political prisoners and the resolving the decades-long ethnic conflict plaguing Burma. It might have secure ceasefire agreements with the UWSA, NDAA, DKBA, SSA South and lately, the CNF, but the Union level negotiation, encompassing all ethnic groups still has to be convened and agreed upon. This is a tall order and with the full scale onslaught going on with the KIA, there is little hope that a new, Panglong Agreement-like convention could be held.
True, on the issue of political accommodation for Aung San Suu Kyi and her party NLD, President Thein Sein has selectively made some concession. But the gains he made through such piecemeal reform could in no time go down the drain, if the other facets of reconciliation with the detained politicians and far-reaching, ethnic conflict resolution could not be delivered.
Aung San Suu Kyi puts it correctly, when she said, “Unless there is ethnic harmony it will be very difficult for us to build up a strong democracy.” She also rightly pointed out that resolving the Burma’s long-running ethnic conflicts is likely to be the more important issue over time.
Given such negative development occurring on the ground, it is hard to be optimistic that Naypyitaw is striving for real democratisation process. It looks more like that it is making some political space for Aung San Suu Kyi and National League for Democracy (NLD) to register and run for the forthcoming by-elections of some 40 seats, in April, so that it could achieve more legitimacy and eventual lifting of the sanctions imposed by the West. Regionally, it has already been endorsed to chair ASEAN in 2014, just by its initiative of piecemeal reform process.
As it is, the chances of lifting the Western sanctions are good, due to the strategic considerations of the West to woo Burma away from Chinese orbit and also to exploit the natural resources and untapped human resources market. But still the problems and woes of the people of Burma will continue to exist, so long as the aspirations of the people are not tackled or addressed properly.
On 6 January, AP report that British Foreign Secretary William Hague, who is visiting Burma, cautioned: "The risk is that we assume it's all done and forget that this is only part way through," adding, "It's very important that we do not relax the pressure prematurely."
He outlined other areas of Britain's concern as “humanitarian access to areas of ethnic conflict and open, free and fair by-elections.”

The real motive of the Burmese generals, including President Thein Sein, is to create a kind of fall-back position or cushion for the military-ruler class. In other words, they want to fade away in dignity, without having to meet the faith of Gaddafi or Mubarak, with all their ill-gotten wealth of the country. In fact, Naypyitaw is only interested to use Aung San Suu Kyi as a passport to more international legitimacy, as Shyan Saran, a former Indian foreign secretary and ambassador to Burma, bluntly puts it. This might explain why the regime is reluctant to engage in a comprehensive peace process, like nation-wide ceasefire, all-encompassing peace and reconciliation talks. The regime’s present piecemeal reform democratization process is just a facade to lessen the public anger and as well, to have a continued indirect, firm grip on political and economic aspects of the country. Meaning: extending the military rule with a civilian face.
Last but not least, the genuine reform process or democratisation will only be possible, if the military top brass - retired or active - which are involved in shaping the future of Burma, could do away with their acquired military mindset of “military and racial supremacy” doctrine and replace it with “unity in diversity”, in accordance with the norm of a multi-ethnic state.

The contributor is the General Secretary of Shan Democratic Union (SDU) - Editor

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