Burma Redux: Global Justice and the Quest for Political Reform in Myanmar (19 page)

Throughout, dictatorship was the dominant reality. In its founding moment in 1988, the junta revealed its true nature in a harsh clampdown that saw all traces of the four eights movement erased from the public domain. Thereafter, it reacted with repression to the NLD landslide in 1990, the saffron uprising in 2007 and many smaller, largely hidden challenges, devastating countless lives and communities along the way.
¹⁸³
As Selth wrote of the saffron uprising, “Despite claims of confusion and dissension within the regime, its response to these disturbances was never in doubt.”
¹⁸⁴
That his point was applicable throughout the period was shown in the official response to Cyclone Nargis less than one year later, when regime security in a garrison state was prioritized over human security in a razed and ravaged delta. However, although the junta took the political initiative through constitutional reform in the 2000s, it never succeeded in moving decisively beyond the deadlock that visibly ensnared the country in 1988. Notwithstanding a degree of grassroots acquiescence and even support, military leaders failed to establish broad popular legitimacy in the face of democratic mobilization and taunts.
¹⁸⁵
A lasting solution to ethnic nationality claims was even more elusive, with one clear indictment being extensive migration. By the start of the 2010s, the diaspora in Thailand alone numbered maybe 1.5 million individuals. All too many exiles were the “disposable people” chronicled by Kevin Bales.
¹⁸⁶

For more than 22 years, dismal impacts of military control were notably visible in the sphere of political institutions. At the outset, SLORC adopted a scorched earth policy, abrogating the 1974 constitution, either eliminating or colonizing existing structures, and making everything subject to enhanced military control. As much as possible, the generals sought to eliminate the competing sources of power that surfaced in 1988. Indeed, the very notion of dividing authority was wholly foreign to their way of thinking. In consequence, the period was characterized throughout by an austere, desolate and destitute institutional landscape in which only a core of laws and structures found helpful to government by junta remained in place. Not until the revival of parliamentary institutions in 2011 was anything done to reconstruct structures devastated in 1988, and even then the prospects for meaningful change remained highly uncertain.

The best explanation for this bleak state of affairs looks to the past. Dependence and disintegration in the colonial period implanted social tensions that a jejune political class was unable to manage, and entrenched modes of state-society relations premised on violence. Dominion and dissent in the first phase of independence were both consequences of what had gone before, and cause of much that was to follow. For sure, historical contingency and human agency played key parts. Nothing had to turn out the way it did, and choices made by elite actors were often significant. Nevertheless, there was a strong element of path dependence in this case, with most programming undertaken by the British.
¹⁸⁷
This placed severe constraints on available courses of action and ensured that when major challenges arose, as they often did, leading figures forcefully reasserted state control and pointed the way to the dictatorship and deadlock of the junta years.
¹⁸⁸

4

Democracy and deliberation

Disintegration under colonial rule, dissent under military-backed state socialism and deadlock under martial law combined to create a situation in which Myanmar today faces major political challenges. For the military leaders who retain control and seized a degree of political initiative through constitutional reforms underpinning a return to civilian government in 2011, the pathway is clear and will comprise full institutionalization of discipline-flourishing democracy. For activists in the democratic camp and minority ethnic nationalities, by contrast, any attempt to return to a political track congruent with all that the notion of Burma now signifies is likely to require at least three important departures from the military roadmap. First, reformers will need to confront authoritarianism and sponsor reforms capable of entrenching and sustaining real democracy. Second, they will have to tackle issues of ethnic discord and thereby determine the shape of the political nation. Third, they may have no choice but to address difficult individual matters of truth, reconciliation and justice. This chapter begins by looking at the disciplined democracy brought into being in 2011. It then switches to a Burma redux agenda and in a speculative context of genuine democratization explores issues of transitional process, national reconciliation and transitional justice. Drawing on the considerable body of work amassed by comparative political science, it seeks not to lay down a fixed route for the Myanmar people, but rather to learn from experience elsewhere about the challenges they will in all probability encounter if they embark on large-scale institutional reform.

Disciplined democracy

Foundations for what the junta eventually called discipline-flourishing democracy were laid before the National Convention was launched in January 1993. SLORC Order No. 13/92, issued by Khin Nyunt on October 2, 1992, set out six core constitutional objectives: non-disintegration of the union; non-disintegration of national solidarity; consolidation and perpetuation of sovereignty; emergence of a genuine multiparty democratic system; development of principles of justice, liberty and equality; and
tatmadaw
participation in national leadership.
¹
On September 16, 1993, delegates ratified 104 detailed basic principles in line with these objectives, covering core aspects of the state, legislature, executive, judiciary, and so on. Even though these principles strongly determined the shape of the future constitution, however, drafting work proceeded slowly. Following a November 1995 NLD withdrawal and subsequent expulsion, proceedings were formally suspended in April 1996.
²
For many years thereafter little public progress was made, though the Convention’s steering committee continued to meet frequently.
³

Only after Khin Nyunt, now prime minister as well as MI chief, unveiled a seven-point “roadmap to democracy” in August 2003 was the Convention revived in May 2004. This time, more than 1,000 delegates were corralled in an isolated purpose-built facility north of Yangon. Law No. 5/96 criminalized all public criticism. Meeting sporadically over more than three years, the Convention concluded its proceedings on September 3, 2007. On May 10, 2008, a draft constitution, with 15 chapters and 457 articles, was put to a national referendum. In 47 townships largely destroyed by Cyclone Nargis on May 2–3, voting was postponed until May 24. Turnout was reported at 98 percent, and 92 percent of voters were said to have endorsed the draft.
⁴
The constitution was formally adopted on May 29, 2008, with a proviso that it would come into effect when parliament assembled.
⁵

Many aspects of the 2008 constitution reflect current global practice. In a bicameral national legislature, the 440-member lower house or
Pyithu Hluttaw
(House of Representatives) is formed chiefly through township constituencies adjusted for population, and the 224-member upper house or
Amyotha Hluttaw
(House of Nationalities) is formed mainly through elected representatives drawn in equal numbers from each of the country’s seven regions (formerly divisions) and seven states.
⁶
The 14 territorial assemblies are also constituted largely by popular vote. The 664 members of the national legislature come together as an electoral college to nominate three candidates and select one as president and head of state, and the other two as vice-presidents. While candidates are required to be members of the national legislature, once selected they are deemed to have vacated their parliamentary seats. The president serves a maximum of two five-year terms, and constructs an executive drawing in individuals from any walk of life. Again, ministers cannot serve concurrently in the legislature. The judiciary is structured from townships up to a Supreme Court. Article 11 enunciates a commitment to separation of powers and checks and balances among the major branches of government. Chapter VIII on rights and duties enshrines core values of justice, liberty and equality.

From the outset, however, the contentious sixth and final item on the junta’s October 1992 list of objectives,
tatmadaw
participation in national leadership, was seen by many as a disabling distortion. Faithfully reflected in the 104 detailed basic principles, it became the animating core of the 2008 constitution. In both houses of the national parliament and in all 14 territorial assemblies, only 75 percent of members are elected. The other 25 percent are appointed by the commander-in-chief of the
tatmadaw
(Articles 109, 141, 161). In the executive, all presidential candidates must be well acquainted with military affairs (Article 59). While two candidates are nominated by elected members of the bicameral legislature, the third is named by military appointees (Article 60). Once selected, the president is effectively placed above the law by provisions ruling out answerability to parliament or the judiciary (Article 215). The commander-in-chief of the
tatmadaw
has the right to appoint ministers in the key fields of domestic and national security (Article 232). The National Defense and Security Council, chaired by the president, has pivotal powers (Articles 201, 204, 206, 213, 340, 342, and 410–32). Ethnic militias are placed under
tatmadaw
supervision (Article 338). Looking to the past, all senior junta officials are given immunity from prosecution for acts carried out in accordance with prevailing laws (Article 445). Looking to the future, provisions for military rule during a state of emergency effectively legitimate a coup (Articles 40, 410–32). Although there is, then, much of value in the 2008 constitution, clauses entrenching military control have elicited broad criticism.
⁷

Popular endorsement of the constitution set the stage for a general election.
⁸
While 2010 was long trailed as the chosen year, it was not until August 13 that polling was scheduled for November 7, two and a half years after the referendum. Among other things, a Political Parties Registration Law of March 8, 2010 stipulated that only persons not serving a prison term could join a party.
⁹
Complementary laws declared the 1990 election void, and laid down a battery of restrictions on party formation and operation.
¹⁰
One early consequence was that about 160 members of the NLD, victor in the 1990 poll, met on March 29 to decide how to proceed. In the context of a statement from Aung San Suu Kyi, transmitted from house arrest by her lawyer Nyan Win, that she “would not even think of registering under these unjust [election] laws,” members agreed unanimously not to contest the election.
¹¹
In effect, the NLD ceased to exist when a May 6 deadline for party re-registration passed, and formal dissolution was confirmed on September 14, 2010. In January 2011, a special appellant court in Nay Pyi Taw affirmed that the NLD was an “unlawful organization.”
¹²
Nevertheless, the party’s Yangon office continued to function, and following Aung San Suu Kyi’s November 2010 release NLD statements and position papers were issued. Across the wider society, views on the election were quite diverse.
¹³

For the 2010 general election, 1,163 constituencies were mapped: 330 lower-house and 168 upper-house seats in the national parliament, and 665 seats in the 14 state and regional assemblies.
¹⁴
At sub-national level, elected members ranged from 109 in the largest assembly in Shan State to 15 in the smallest in Kayah State.
¹⁵
Other than in Chin State, all territorial assemblies reserved a small set of elected seats for designated ethnic minorities.
¹⁶
However, problems in insecure or conflict areas meant that voting did not take place in a handful of constituencies, bringing the total down to 1,154: 325 lower-house and 168 upper-house seats in the national parliament, and 661 seats in territorial assemblies. To contest the poll, 47 parties applied for registration to the Election Commission. Five had existed since 1990, and 42 were new.
¹⁷
Constitutional provisions for
tatmadaw
control of ethnic militias always looked like being a major issue, and non-compliance by the Kachin Independence Organization and the UWSA ceasefire group meant either that party registrations were restricted or that polling did not take place.
¹⁸
Failure to field candidates in three constituencies, at a non-refundable cost of roughly $500 per candidate, triggered further non-registrations.