Constitutional concerns for Ethnic rights

Government’s

2008 Constitution

Ethnic’s

Federal Constitution

The 2008 Constitution, which came into force on January 31, 2011 shows optimistic signs of progress towards the ethnic nationalities’ goal for self-determination. There are provisions for ethnic nationality rights and equality, and more importantly, it takes the form of federalism with decentralization and democratization of power.

At the same time there are important issues that have not been addressed, namely revenue sharing and division of power. Both of these are defined in general terms in the constitution without detailed implementation. In particular, how administrative functions will be divided and coordinated between central government ministries and regional governments have not been worked out in practice. In addition, the overriding power reserved for the military at all levels of government, which even supersedes that of the president, is the biggest concern for ethnic groups. The 25% seats in parliament reserved for the military also means that making any amendments will be difficult to pass without their approval. Most importantly, in a state of emergency, all provisions for human rights and democracy can be overturned. For these reasons, most active armed groups are demanding to hold political talks outside of parliament.

According to the ethnic umbrella group United Nationalities League for Democracy (UNLD) Policies & 8 Basic Principles in 1990, 5 out of 8 points have been met.

1. Popular Sovereignty: The people of the Union of Burma, not a particular ethnic group or state, shall be vested with the sovereign power of the Union
2. Bicameral Legislature at Union Assembly
3. Equal Representation at Chamber of Nationalities
4. State Assembly, State Government & State Supreme Court
5. Multi-party Democracy
6. *State Constitutions (self-determination & constitutional rights); No State Constitutions (gradual transition is needed)
7. *Democracy, Human Rights & Gender Equality (30% reserved seats for women at all levels of National & State Assemblies) – 25% Military; No quota for women (gradual transition is needed)
8. *Equality and Self-determination Ambiguous & No real self- determination (From Lian H. Sakhong “The 2008 Constitution and Ethnic Issues: To What Extent Did It Satisfy the Aspirations of Various Ethnic Groups?”)

Sections in the constitution providing rights and protection for “national races”

Chapter I Basic Principles of the Union
15. For national races with suitable population, National races representatives are entitled to participate in legislature of Regions or States and Self-Administered Areas concerned.
17. (c) For national races of which representatives are so permitted to participate in legislature of Regions, States or Self-Administered Areas in accord with Section 15, such representatives are to be permitted to participate, mainly, to undertake their National races affairs.
22. The Union shall assist :(a) to develop language, literature, fine arts and culture of the National races;(b) to promote solidarity, mutual amity and respect and mutual assistance among the National races;(c) to promote socio-economic development including education, health, economy, transport and communication, so forth, of less-developed national races.

Chapter VIII Citizen
Fundamental Rights and Duties of the Citizens 354. Every citizen shall be at liberty in the exercise of the following rights, if not contrary to the laws, enacted for Union security, prevalence of law and order, community peace and tranquility or public order and morality: (a) to express and publish freely their convictions and opinions; (b) to assemble peacefully without arms and holding procession; (c) to form associations and organizations; (d) to develop their language, literature, culture they cherish, religion they profess, and customs without prejudice to the relations between one national race and another or among national races and to other faiths.

​Chapter IX ELECTION
391.c The relevant national races having right to vote in accord with the provisions contained in this Constitution have also the right to vote to elect Hluttaw representatives of national races for their Region or State Hluttaw

Structures dominated by USDP

All of the decentralized powers and structures are dominated by the military’s Union Solidarity and Development Party (USDP).

The speakers for all of state legislatures are from the USDP, as are the chief ministers, who head the state executives (with the exception of the Chief Minister for Kayin [Karen] State, who is a military legislator).

Speakers of the State Legislatures:

Kachin state U Rawan Jone USDP
Kayah state U Kyaw Swe USDP
Kayin state U Saw Aung Kyaw Min USDP
Chin state U Hauk Khin Kham USDP
Mon state U Kyin Pe USDP
Rakhine state U Htein Lin USDP
Shan state U Sai Lone Saing USDP

Chief Ministers of the states:

Kachin state U La John Ngan Hsai USDP Kachin businessman
Kayah state U Khin Maung Oo USDP Prominent Kayah individual
Kayin state Brig-Gen Zaw Min Military legislator Ex-chairman, Kayin state PDC
Chin state U Hong Ngai USDP Ex-chairman, Chin state PDC (retired brig-gen)
Mon state U Ohn Myint USDP Ex-minister for mines (retired maj-gen)
Rakhine state U Hla Maung Tin USDP Retired army colonel
Shan state U Aung Myat USDP Retired Lt-col, Light Infantry Division 66

Criticisms of the constitution

Major issues raised by ethnic armed groups

​Article 6: (f) The military should not have a role in politics.
​Article 20: (b)(c) Too much power granted to the military. Military personnel should not have impunity.
​Article 17: (b)Too much power given to the army at all levels, from union to state.

others:

​Article 14: The military should not have reserved seats and should compete fairly with others.
​Article 40: (c) State of emergency should only be allowed to be declared by the President – not only advise. The military should not be allowed to take over state power.
​Article 141: (a) Should not be allowed reserved seats in the national parliament.
​Article 232: (b) Defense, Home affairs and Border Affairs minister should not be decided by the Commander in Chief, but only by the President.
​Article 232: (d) Defense, border and home affairs ministers should also be equally qualified and forced to retire or resign like other civil service personnel if proven to be under qualified.
Article 338, 340 The ethnic armed forces do not want to come under the command of the Myanmar army before holding political dialogue and sufficient confidence measures are in place.

Chapter 12 Amendment of the constitution (6 steps)
It is too difficult to amend the constitution, therefore they are requesting to negotiate outside the parliament and refusing to compete in elections, or join parliament. i.e. believe there is little hope to make changes within the parliament
→ However the government believes that the constitution was endorsed by 93.82% of the population in a nationwide referendum.
← The opposition say the referendum does not reflect the true wishes of the people as it was pushed through during Cyclone Nargis. People were also pressured by the military to vote in favor of the referendum out of fear and therefore it was not free and fair.

Ethnic Parties in Parliament

Ethnic political parties will have some limited influence over these structures through their seats in the legislatures (some of which have sizable blocs):

1. SNDP – Shan Nationalities Democratic Party 58
2. RNDP – Rakhine Nationalities Development Party 35
3. AMRDP – All Mon Region Democracy Party 16
4. PSDP – Phalon-Sawaw Democratic Party 9
5. CNP – Chin National Party 9
6. PNO – Pa-O National Organization 8
7. KPP – Karen/Kayin People’s Party 6
8. CPP – Chin Progressive Party 6
9. INPP – Inn National Progressive Party 4
10. WDP – Wa Democratic Party 4
11. TPNP – Taaung (Palaung) National Party 2
12. KSDDP – Kayin State Democracy and Development Party 2
13. KNP – Kayan National Party 2
14. LNDP – Lahu National Development Party 1

State Ministers from Ethnic Parties

Membership of legislative standing committees and their ministerial positions in state governments (see table below). They include a number of areas that can have a significant impact on people’s lives: land, including allocation of land and agricultural loans, local business (small business loans and some taxation), cultural promotion, and municipal issues. However, some argue that most of the power remains at the National and State level ministry representatives lack any real power.