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The Federal Democracy Charter: A Path to Inter-Ethnic Peace in Post-Coup Myanmar

Costas Laoutides

Associate Professor, School of Humanities and Social Sciences, Deakin University, Australia

Abstract

This chapter analyses the Federal Democracy Charter in light of the question of ethnic minorities in Myanmar. Drawing on consociational and integrative patterns of power sharing, two issues are explored. First, I discuss the extent to which cultural differences can create problems for the federation, especially if the federal units aspire to cultivate further such differences. This is particularly important for the emerging minorities in a federal redrawing of the map. Crucial in this respect is how the charter creates mechanisms to counterbalance such developments. The second issue under examination is the way that federal units and ethnic minorities are treated in the charter. There is a tension between the right to self-determination granted to federal states and the collective rights granted to ethnic groups who may be more geographically dispersed. Accordingly, the ramifications towards the realisation of self-determination are discussed.

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A few weeks after the February 2021 coup, the National Unity Consultative Council (NUCC), a decision-making body that brings together the pro-democracy forces and ethnic armed organisations (EAOs) shaping the parallel governance system of Myanmar spearheaded by the National Unity Government (NUG), was formed. Soon afterwards, the NUCC issued the Federal Democracy Charter (FDC), claiming it would pave the way for a peaceful federal Myanmar in their hoped-for, post-coup future (Su Mon Thazin Aung 2022).

Globally, power sharing arrangements are based on the understanding that the unequal distribution of resources between communities leads to internal conflict. The denial of equal access to power and resources leads to frustration and mobilisation by oppressed minorities. Thus, power sharing offers an alternative approach to the design of the state to mediate the potential harm of majoritarian democracy. The models of power sharing oscillate between integration and consociationalism—that is, the formation of proportional representation and grand coalitions that ascertain the equal participation of ethnic minorities into the political process. However, the underlying assumption of power sharing is that persons are primordially separated into identity groups that cannot find sufficient common ground and are, therefore, eternally bound to antagonistic relations.

Some of the clauses in the FDC have been seen as progressive, especially viz. offering ethnic minorities the right to self-determination—although, at the same time, criticism of the lack of equal recognition of certain other minorities, especially the Rohingya, has mounted. Taking stock of the international experience in power sharing agreements, this chapter assesses the FDC to determine whether it has the potential to end decades of ethnic conflict in Myanmar, and, if so, whether it could, perhaps, unify the ethnic minorities behind a campaign to oust the brutal military regime.

The chapter examines two issues. First, it analyses the extent to which cultural differences can create problems for the federation, especially if the federal units aspire to cultivate further such differences. This is particularly important for the emerging minorities in a federal redrawing of the map. Crucial in this respect is how the FDC creates mechanisms to counterbalance such developments. The second issue under examination is the way that federal units and ethnic minorities are treated in the charter. There is a tension between the right to self-determination granted to federal states and the collective rights granted to ethnic groups who may be more geographically dispersed. This friction raises two questions. First, to what extent does the right to self-determination include the right to secession, especially in light of Article 4 of the FDC which recognises that the federal units and their people are ‘the original owners of sovereignty’? Second, how could the right to self-determination not be a collective right, given that it counts as the more fundamental right within the third generation of human rights in international practice (Laoutides 2019)? These issues and questions will be explored throughout the chapter.

Building consensus? The Federal Democracy Charter and the ethnic identity question

Broadly interpreted, power sharing political systems are those that foster governing coalitions inclusive of most, if not all, major mobilised ethnic groups in society. In most deeply divided societies, power sharing political systems are inclusive of generally legitimate representatives of all groups. Democratic rule has been seen as the solution to ethnic conflict if power sharing institutions are introduced to overcome politically motivated ethnic divisions and to ensure access to political power for all members of the society. In this context, decision-making is based on a consensus of coalitions that are widely inclusive, thus transcending strict ethnic boundaries. The central issue is the search for those institutions and practices that create an incentive structure for ethnic groups to negotiate their differences via the legitimate institutions of a common democratic state (Sisk 1996). Put differently, we might ask: what form should an inclusive and moderate democracy take in a deeply divided society like Myanmar?

The FDC constitutes the first step towards constitutional reform proposed by the NUG for a post-coup Myanmar. Similar to earlier historical phases, the international audience is more occupied with the struggle between the democratic forces led by the NUG and the dictatorship led by the military. Yet, the ethnic identity dimension has been a core element of the conflict and, therefore, a key constitutional debate since independence in 1948. The question of ethnic communities and their representation in the Union has been the cause of multiple prolonged civil wars, leading to the conclusion by some that Myanmar will have neither democracy nor peace unless the ethnic question is recognised in a power sharing constitutional agreement (Williams 2009).

Chapter I of the FDC frames the twofold root cause of conflict in the country as a lack of democracy and ethnic representation, and sets out the goal of the NUG to:

ensure all ethnic nationalities–population can participate and collaborate and to build a prosperous Federal Democracy Union where all citizens can live peacefully, share the common destiny and live harmoniously together. (FDC 2021, Chapter I)

Accordingly, Chapter I outlines as key objectives: the eradication of dictatorship, the abolition of the 2008 Constitution, the building of a Federal Union and the emergence of Public Government. The FDC attempts to set the ethnic question on a new base that would be in tune with the wider vision of an open and democratic country through abolition of the 2008 Constitution (Raynaud 2021). The concurrent use of the term ‘ethnic nationalities–population’ can be seen as an attempt to bridge ethnic and civic notions of peoplehood towards a common political community, a common demos, of the post-coup, future democracy. This intention is also attested in Chapter II, in which members of the FDC (i.e. those responsible for implementing the charter) are the elected MPs; political parties; the Civil Disobedience Movement; forces of the General Strike Committee; members of civil society organisations, including women and youth organisations; and EAOs. However, as will become clear, this effort remains undeveloped without a clear terminological pathway that can break from past views entrenched in identity politics towards an inclusive, democratic and tolerant Myanmar. The Conclusion of Part I of the FDC sets the context within which the charter would operate, referring to the need for members of the FDC to implement ‘the Panglong Agreement, Panglong Commitment and Panglong Principle … in order to build peaceful and prosperous Federal Union’.

In Chapter IV, Part I, the FDC outlines the core values of the NUG’s union, which include self-determination, social harmony, diversity, protection of minorities and commitment to human rights. In the second part of Chapter IV, the FDC identifies the locus of sovereignty as belonging to the member states of the Union and their people. This is also repeated in Part III of the same chapter under the heading ‘Power of the Union’. What is noteworthy is that the FDC does not mention which states constitute the Union. Despite the lack of clarity around territories and borders, the FDC ascribes to member states ‘the right to develop and enact State Constitutions’ (FDC 2021, Chapter IV, Art. 12). In addition, there is no provision for further devolution to self-administered zones and divisions as in the 2008 Constitution. The criterion for creating special administrative zones in the 2008 Constitution was based on an ethnic minority who did not have an ethnic state constituting the majority population in two or more adjacent townships. In the FDC, there is little reference to the people that inhabit those areas. The lack of reference to territories and peoples in the NUG’s charter appears as an attempt to overcome the challenge of identity politics that is so deeply embedded in Myanmar politics. At the same time, however, there is no clear positive step to replace the language of ethnicity/nationality, and this reluctance indicates a deferral of the thorny issue to a future constitution drafting debate. This is also supported by a reference to the protection of minorities in state constitutions, again without a clear description of who those minorities are and how they may be recognised as minorities (FDC 2021, Chapter IV, Part. III, Art. 14).

The reluctance (or inability) of the NUG to transcend identity politics is also evidenced in relation to the protection of fundamental rights and the rights of ethnic minorities (FDC 2021, Chapter IV, Part. III, Art. 23, 24). The FDC insists on another division that generates potentially two types of members in the political community of the Union. Article 23 provides individual and collective rights to ‘all ethnic nationalities … entitled as ethnic groups’, but this progressive and inclusive, yet loosely defined, approach is cut short in Article 24, in which the FDC provides that:

Every citizen who has adopted the citizenship of the Union although they are not ethnic nationalities born in the Union, shall have the full rights to fundamental rights of the citizens (citizen rights). (emphasis added)

This wording is particularly interesting as it indicates the future existence of two types of citizens in Myanmar: those with both individual and collective rights on the basis of ethnicity, and those who will bear only individual civil rights. Despite the willingness of the NUG to be inclusive, the insistence on ethnicity as a political marker that can generate two types of citizens is highly problematic, as it reproduces the precondition for ethnic discrimination.

Another interesting omission that has been a point of heated debate between EAOs and the central government for decades is the absence of a clause on the right to secession. If ultimate sovereignty lies with the states and their peoples, however ill-defined, and if ‘ethnic leaders who built the Union have given up their right to build their own separate nationals and signed 1947 Panglong Agreement to build this Union as a federation’ (FDC 2021, Part I, Conclusion), it follows that the right to secession, as an expression of the right to self-determination, should be provided in the charter and any future constitution. The lack of such reference highlights the vulnerability of Myanmar as a divided society.

Myanmar as a divided society

Although there are a range of scholarly accounts seeking to describe the role of ethnicity in the political organisation of societies, it is possible to discern a set of common patterns that can assist with identifying how deeply divided societies are. In any particular case, three issues determine the presence and degree of division: the structure of social cleavages, the level of access to political power by different ethnic groups, and the phases of conflict escalation and de-escalation. The salience of ethnicity as a marker of political distinction and the intensity of ethnic ties are critical elements in the shaping of a divided society. Salience and intensity are closely interconnected to the perceived stakes of ethnic relations (Esman 1994). According to Esman, the stakes are higher when group identity is threatened, especially symbols of ethnic identity that are held as sacred and thus are seen as non-negotiable. Consequently, ethnic group claims on issues such as language or customary practices have been referred to as ‘incommensurate goods’ that are not amenable to change (Horowitz 2000, 219–24).

There is a broad consensus in the literature that when social cleavages are reinforced by vertical divisions based on religion, ethnicity or class, the possibility for violent conflict is higher. This is particularly so when one distinct group dominates others (Huntington 1981). Donald Horowitz offers a vantage point by depicting a very clear, ideal scenario that describes a divided society:

Suppose a society contains two ascriptive (birth-derived) groups: the As with 60 percent of the population, and the Bs, with 40 percent. The groups have the same age structures and rates of natural increase; their proportions are not vulnerable to change through immigration; they vote at the same rates; and they vote for ascriptively defined political parties, the A party and the B party. Under virtually every form of fair majoritarian political arrangement and every electoral system, the As will dominate government and Bs will be in opposition for perpetuity. (Horowitz 2008, 1214)

Similarly, Arend Lijphart (2004) defines a divided society as one with strong ethnocultural divisions that have the potential to be politically salient and mobilising, threatening the stability of the state and the coexistence of the different groups that live within it. What needs to be underscored is that ethnocultural diversity is not itself problematic from a political point of view. What makes a divided society is when those differences become markers of political identity and mobilisation (Coakley 2009). In divided societies, core assumptions that underlie the competitive paradigm of democratic politics (the Westminster model) do not apply. The most important of these assumptions is the belief that cross-cutting cleavages of interests and outlooks among individuals prevent any permanent exclusion of segments of society from political power. It follows that there is always a possibility for opposition parties to win a share of power. However, the ethnic segmentation of divided societies based on politicised identity poses an impediment to the development of cross-cutting cleavages based on membership in multiple social groups, multiple outlooks and overlapping interests that can moderate the political process (Choudhry 2009).

Myanmar has been a deeply divided society since independence in 1948 in several key ways. First, the dominant cleavage between the state-controlling, ethnic Bamar majority and the ethnic minorities has been a permanent political marker, determining the level of access to political power based on ethnic identity. The takeover of the country by the military in 1962 created a second cleavage between the supporters of the military regime and those who envisioned a democratic polity for Myanmar. Being a friend or a foe of the regime would determine the interaction of individuals with the decision-making centre. A final line of division, which often but not always overlaps with ethnic divisions, runs along religious lines, with Buddhism as the predominant religion against a number of other religious groups in the country, including Muslims, Christians and Hindus (Walton 2016). These divisions have created multiple levels of segregation, raising challenging questions about the body politic in Myanmar and how the demos (i.e. the political community) should be defined to allow for a functional and inclusive democracy (Laoutides & Ware 2016).

Such conversations were underway after 2011, being fundamental to the peace process discussions attempted as the country entered into its democratic transition, but have now been interrupted by the military coup. The rise to power of the National League for Democracy (NLD) in the 2015 elections, and their Panglong II peace process created hope for a final peace agreement that would create a new Federal Union. The February 2021 coup brutally destroyed the (limited) progress made. The NUG’s FDC, issued a few months after the coup, aims to revive the conversation about federal democracy and instil an even greater sense of hope and unity for the future. The FDC proposes creating a set of power sharing arrangements among the communities to bridge the dividing cleavages and create a coherent demos. In the following section, I outline the two basic models of power sharing in divided societies; in the subsequent section, I provide an assessment of the power sharing elements of the FDC that address the ethnic sociopolitical cleavages of Myanmar society and examine the chances of it ending decades of ethnic conflict in a post-coup Myanmar and, thus, unifying the ethnic minorities in a united campaign to oust the military.

Models of power sharing in ethnic conflicts

During the Cold War period, ethno-political conflict was the cause of many cases of intense armed violence resulting in minority oppression. Based on the principle of self-determination, many ethnic groups sought to address their grievance through the creation of ethnically homogenous nation-states. In that period there was a bias against political divorce that would lead to secession, evidenced by the fact that only Bangladesh was successful in obtaining international recognition as an independent state (Laoutides 2019). However, since the early 1990s the breakup of former Yugoslavia and the Soviet Union, the bifurcation of Czechoslovakia, the successful Eritrean struggle and the creation of South Sudan have given an impetus to secessionist movements. There is a growing perception, by aspiring ethnic groups, that the creation of new sovereign states as a means of fulfilling self-determination is an achievable goal. The almost absolute logic of denial to secession by the international community, however, has led to ongoing oppression, war, humanitarian crises and genocide. Thus, international decision-makers face a fundamental choice: allow partition and political divorce or create new and more viable structures for living together in a common polity. The latter option is informed by the promotion of democracy as the form of government that can accommodate ethnic tension and create a political environment of coexistence and harmony. Many policymakers and scholars believe that broadly inclusive government is essential to successful conflict management in deeply divided societies.

There are two classical models for building conflict-preventing democratic institutions in ethnically divided societies: the consociational and centripetal/integrative approaches. The former, mainly represented in the work of Arend Lijphart (1968, 1969, 1977, 1995, 2004), defends inclusion through representation and assurances for minority protection. It introduces a series of proportional representation mechanisms, a grand coalition of communal leaders, group autonomy and mutual vetoes to protect vital interests. The centripetal/integrative approach is mainly associated with Donald Horowitz (1990, 1991, 1993, 2008) and aims to alter the identity of the body politic, away from ethnic affiliations, towards an integrative common demos. To this end, it encourages moderation by advocating institutions that provide incentives for the electoral success of cross- and multi-ethnic parties and candidates. Both approaches share a belief in coalescent democracy as an alternative to the adverse effects of majoritarian politics. Crucially, both approaches transcend standard notions of procedural democracy, since an impeccable procedure does not prevent minorities from complete exclusion (Horowitz 1993).

Consociational democracy

Consociationalism relies on elite cooperation as the principal characteristic of successful conflict management in deeply divided societies. Even if there are deeply communal differences, overarching elite cooperation is a necessary and sufficient condition to resolve conflict (Nordlinger 1972). In this context, group leaders are seen to legitimately represent various ethnic segments and their actions aim at forging political ties at the centre. The central tenet of consociationalism is to share, divide, decentralise, limit and separate power; the nature of this model is that of a fragmented political representation that ‘allows for legislative representation of territorially dispersed minorities who may be outvoted under First-Past-the-Post in single member districts’ (Choudhry 2009, 19).

There are two key elements for establishing a successful consociational democracy. The first element is power sharing in the executive through a grand coalition that ensures the minority is not permanently excluded from the political power. In grand coalitions, political elites negotiate their differences in an effort to reach consensus, but public contestation among them is limited (Lijphart 2004). The most important feature is that decision-making takes place consensually at the top among elites representing underlying segments of the society (Lijphart 1977). The possibility of sharing power transforms all participant elites into stakeholders who will defend the viability of the constitutional system. Power sharing at the executive level is also supported by the minority veto through which each segment of the society is given a guarantee that it cannot be outvoted by the majority on crucial issues affecting vital interests of the minority. The minority veto is at the heart of the concrete assurances of consociationalism, but, most importantly, it offers each ethnic group the power to protect themselves. Similarly, the principle of proportionality facilitates consociational systems, as it is introduced at every level of decision-making to give minority groups access to power and influence that reflects their size within the society. Proportionality is manifested through the commensurate representation of the ethnic group in parliament, and through the allocation of material and human resources by the state to the ethnic communities.

The second element is autonomy of communal groups on the basis of territorial or non-territorial federalism that devolves decision-making authority to the segments and, thus, promotes the internal autonomy of all groups. There is a distinction between issues that concern the whole of the society and those that mainly concern the ethnic segments: for the former, decision-making occurs via consensus, whereas for the latter, decision-making is delegated to the autonomous ethnic groups. Group autonomy means that communal groups ‘have authority to run their own internal affairs, especially in the areas of education and culture’ (Lijphart 2004, 97). An important element of the call for entrenched minority group rights is the question of whether power sharing should be made on an ethnic basis or with ethnically neutral criteria. Accordingly, the different segments of society should have the option of voluntary affiliation, away from strict, predefined ethnic markers, through a proportional electoral system (Lijphart 1995).

There are three areas of criticism of the consociational model. The first is the inherent assertion that elites can regulate ethnic conflict in divided societies. This is part of a wider argument about ethnic conflict as an elite-driven process (Brass 1991; Gurr & Harff 1994). Although political elites may agree on a formula for accommodation, peace cannot endure without grassroots backing. In the context of Myanmar, this has been captured in the fallout of ‘ceasefire capitalism’—when ethnic communities in the borderland areas became disillusioned with their elites, who were coopted by the Burmese regime, and resumed violence to defend their lands from exploitation (Woods 2011). This experience reinforces the argument that consociationalism overestimates the deference communal groups pay to their elites and downplays the power of popular dissatisfaction with intergroup compromise. Elites will not necessarily use their leadership to promote peace (Horowitz 1991, 141). The second drawback is the entrenching of ethnic identity in the political system by consociationalism, as it maintains and legitimises ethnic claims against the state. By hardening ethnic boundaries—for example, through the statutory reservation of offices for specific group representatives—consociationalism normalises ethnicity as a paramount part of the political process and the body politic (Andeweg 2000). This leads to a form of systemic sectarianism that denies citizens in divided societies peace and justice (Taylor 2009). A third point of criticism concerns the arguably anti-democratic character of consociational institutions. The model of grand ethnic elite coalitions minimises the possibility of vigorous opposition politics. In turn, the potential lack of a strong opposition party may detract from the accountability of the government (Borman 2017).

Consociational democracies are rare, with prime examples to be found mostly in Western Europe. Austria, Belgium, Switzerland and the Netherlands are all classic consociations that elect their parliaments with the help of list proportional representation (Lijphart 1991). Although there is no universal agreement, Bosnia and Herzegovina, Burundi, Lebanon and Northern Ireland are frequently mentioned as consociational democracies.

The centripetal/integrative approach

The integrative approach promotes a politics of moderation and compromise as a way for effective democratic governance in deeply divided societies. Democracy can be best managed by depoliticising ethnicity through institutional incentives for cross-ethnic voting that increase accommodation among competing ethnic segments (Reilly 2012). Whereas consociationalism seeks to guarantee that all groups are represented in the government and the state apparatus, the centripetal/integrative approach seeks to foster initiatives that capture the middle/moderate ground. To achieve the integrative spin, there is a need for electoral incentives for broad-based moderation by political leaders and disincentives for hardliners (Horowitz 2000, 597–600). The incentives will be provided to politicians who can appeal beyond their communal segment for support. The assumption behind this rationale is that politicians, as rational actors, will do whatever they need to do to get elected (Horowitz 1991, 291). If they are rewarded electorally for moderation, politicians will control their rhetoric and action. This line of argument opts for incentives, as these provide reasons for behaving moderately; by contract, consociational constraints provide obstacles to prevent politicians from becoming entrenched in their ethnic segments. In addition, rather than (over)relying on ethnic leaders, the integrative approach puts the constituency at the centre of the moderation process. The electoral system must be designed so that the leaders have to appeal to the moderate sentiments of the electorate, thereby cutting across ethnic rival groups. Moving the basis of moderation from the elites to the constituency allows politicians to make compromises at the centre to achieve democratic stability for the divided society. Constituency-based consent via moderation can function only if minority votes in the electoral system are designed to be influential, rather than merely representative, thereby safeguarding the interests of the minority. There are, arguably, three institutional practices that can have this effect: vote pooling, devolution of power and a presidential system of politics.

Vote pooling occurs when politicians are dependent on cross-communal support to get elected and voters exchange votes across group boundaries. Vote pooling is based on the assumption that divided societies need electoral systems that fragment support of one or more ethnic groups and induce inter-ethnic bargaining that encourage electoral candidates to adopt a moderate stance. To win, politicians must seek to obtain the second or third preference votes of those who, in all probability, would not vote for them because they do not represent the voter’s community (Horowitz 1993). The key difference of the integrative approach is the formation of electoral conditions by constituents, as they specify their second and third preferences that will lie outside the boundaries of the ethnic brethren. However, it is easier for vote pooling to occur in heterogeneous electoral districts (Bogaards 2003).

Devolution of power can facilitate ethnic coexistence in deeply divided societies (Horowitz 2000, 601). It can combine with the electoral system to promote moderate political parties that pursue inter-ethnic coalitions. Regional and local levels of politics provide the ideal space for the fostering of intergroup ties at the centre that can be projected in higher-stakes issues at the level of central government. Similarly, a devolved structure can absorb and resolve conflict at lower levels of government while promoting cleavages within ethnically homogenous groups. In addition, federalism can block any party from attempting a hegemonic grip of the entire country.

The integrative approach has attracted considerable criticism. The scarcity of empirical examples of the system at work is an important point of critique. Elements of the integrative model have been identified and assessed in 11 cases (Reilly 2001; McCulloch 2013; Coakley & Fraenkel 2017).¹ In addition, there is an inherent assumption that politicians will respond to the incentive system for moderation and, in a similar vein, that voters be willing to vote for parties not based in their own ethnic group (Lijphart 2004). Most importantly, centripetalist electoral systems have been criticised as majoritarian, since the logic of the model advocates the benefits of aggregation in terms of votes, parties and issues. As such, the integrative model is underpinned by a ‘majoritarian vision’ of democracy in which aggregation matters at the expense of an equitable reflection of all points of view into the legislature (Powell 2000).

At the heart of the difference between consociational and integrative approaches to power sharing are the nature and formation of multi-ethnic coalitions. Consociationalism advocates the formation of coalitions by elites after an election, whereas centripetalism advocates the forming of coalitions before the election. To paraphrase Horowitz (2000, 365ff), it is a dilemma between coalitions of convenience versus coalitions of commitment.

Ethnic minorities and the Federal Democracy Charter

A deeply divided society, Myanmar has been marred by long periods of armed conflict between the military government and ethnic groups, resulting in rounds of displacement, persecution and ethnic cleansing. According to Horowitz (2004, 252), ‘most divided societies have crafted no institutions at all to attend to their ethnic problems’, and this certainly applies to Myanmar. Although the conflict in Myanmar has been depicted as a clash between militarism and democracy, it is foundationally a conflict about ethnic identity. Even if Myanmar returns to democracy after the 2021 coup, stability will not be secured unless the ethnic identity question is addressed. Although ethnicity is socially constructed, the ethnic minorities in Myanmar perceive their different identities as real in their consequence. Their experience since the country’s independence in 1948 is one of oppression and war perpetrated by Bamar-dominated military governments. The response to the aggression from the centre has been the creation of strong ethnic communities and inter-ethnic cooperation, with solid structures that look after their own in a nexus of dynamically evolving forms of ethnic identity (Sadan 2013). The gradual increase in political importance placed on ethnicity by successive Myanmar governments since 1962 has influenced minorities’ political perceptions and agendas. Thus, the expression of ethnic difference is something that needs to be clearly reflected in any future power sharing constitutional arrangement as an acknowledgement of the existence of different ethnic communities in the political space of the union.

There are three main issues behind the call for power sharing measures. The first is the cultural denialism of the Bamar majority and the cultural domination of the political system on the basis of majoritarian politics unsuited for culturally diverse societies. The ethnic minorities in Myanmar have a different sense of belonging—they speak different languages, they practise different religions and they have different political structures (Smith 1999; Sadan 2013). The military governments have systematically oppressed the ethnic communities through a series of measures—from the lack of equal opportunities to access high civil and military offices and ban on local languages, to the burning down of churches and mosques and the utter denial of existence of particular ethnic groups like the Rohingya in Rakhine State (South 2008; Ware & Laoutides 2018). Even during the democratic transition, which ended abruptly in 2021, the Bamar-dominated state and military apparatus continued many of these measures, leaving the ethnic minorities in a constant state of fear. It is noteworthy that ethnic violence escalated under the NLD’s first term, with genocidal aggression against the Rohingya in 2017, the war in Rakhine between the Arakan Army and the military in 2018–20, and the intensification of violence in Chin, Kachin, Karen and Shan states (Mathieson 2021). Thus, the ethnic minorities look for constitutional guarantees to block similar future behaviour on the part of the Bamar majority.

The second issue builds on the deep distrust towards the Bamar by the ethnic minorities, especially after the shortcomings of the NLD government that, until then, had been seen as the force of political and social change in the country. The ethnic minorities feel that a narrative of superiority is still strong among the ethnic Bamar. Such a narrative assumes that the country should be run primarily by the Bamar majority, with insouciance towards the needs and suffering of the minority ethnic communities. This was evidenced by the way that the national reconciliation process under the NLD became a Bamar-dominated affair—an elite bargain between the Bamar civilian political party and the Bamar-dominated military: hence the need for power sharing constitutional boundaries to control what the ethnic majority can do to the ethnic minorities.

The third issue relates to the collective distinctiveness of the ethnic minorities in Myanmar. They feel different and they associate this difference with the lands in which they constitute a majority. Therefore, they put forward a claim for self-determination, both as a collective within the Union of Myanmar, and as separate ethnic groups. For the ethnic minorities, this is the unfinished business of decolonisation. Whereas in 1948 the Bamar majority saw themselves recognised and liberated from alien rule, this is still an unfulfilled promise for the ethnic minorities. This claim is not only in cultural/historical terms, but also is meaningful in current material terms, given the long-term exploitation of natural resources from these regions by the central state. The members of ethnic minorities have a very strong sense of common belonging and participating in a self-determined future gives them meaning and purpose as a community. To this end, power sharing constitutional arrangements are seen as a way of guaranteeing a path to self-determination within the boundaries of a federal polity.

Strong territorial manifestations of ethnicity render the configuration of territorial power division extremely important. The range of solutions varies from partition to a centralised unitary state with a number of options in between, such as confederal, federal and semi-confederal systems. The territorial division of power can be manifested in an array of policy issues, such as economic mechanisms for the distribution of resources and political tools to reduce the stakes of conflict at the centre. Among the several options, federalism has been extensively analysed for its conflict-management effects. Federalism can be structured to serve both consociational and integrative/centripetal purposes. It can potentially create incentives for inter-ethnic cooperation and encourage alignments along non-ethnic interests. Devolution of power can give minorities some degree of power when it is unlikely that they would achieve majority status at the centre.

Federalism denotes a division of power based on mutual consent. The central government is allocated a defined area of authority while the territorial units are provided degrees of autonomy; both levels of government enjoy some limited coordinated powers. The most distinctive characteristic of federalism is that neither the centre nor the regions can unilaterally amend the arrangement—consent is a sine qua non condition of federalism. The principle of unity through diversity, a core democratic principle for deeply divided societies, can be realised through federalism. This obtains stronger normative and political purchase when the protection of minorities is a priority through a number of federal tools, such as internal self-determination, semi-sovereign ancestral lands, autonomous rule and indigenous rights.

The FDC was published at an important juncture in terms of the history of constitutional battles between ethnic minorities and the central government in Myanmar (Williams 2009). The coup d’état in February 2021 followed a landslide victory of the NLD at the national elections, which resulted in a massive wave of resistance and led to the creation of the NUG, which, in turn, now leads the struggle for the restoration of democracy in the country. The FDC’s aim is to create a federal democracy that will:

bring an end to the conflicts and problematic root causes in the Union, to ensure all ethnic nationalities–population can participate and collaborate and to build a prosperous Federal Democracy Union where all citizens can live peacefully. (FDC 2021, Chapter 1)

The FDC is an attempt to both establish a roadmap for the restoration of democracy and recognise the participation of ethnic minorities in a new, post-coup democracy. In doing so, the charter addresses, at a preliminary level, civil–military relations as well as the deeper issue of the representation of ethnic minorities in the political realm.

However, a persistent problem with federal solutions like this is how to resolve questions of dual sovereignty. Which unit has sovereign power over the various functions of the states? The locus of sovereignty is of paramount importance because it determines the supreme authority and the ultimate holder of decision-making power. In its ‘Guiding Principles’, the FDC affirms that ‘the member states of the Union and the people in these states are the original owners of sovereignty’ (FDC 2021, Chapter 4, Part II, Art. 1), and that:

the Federal Democracy Union is established with member states which have equal rights and right to self-determination in full. All the member states of the Union (all the federal units) are equal in terms of politics. (FDC 2021, Chapter 4, Part II, Art. 2)

Further, it asserts that ‘member states of the Union have the right to enact their own respective State Constitution’ (FDC 2021, Chapter 4, Part II, Art. 3). Neither the territories (states) nor the people are specified as the proteogenic source of sovereignty and power. Given the emphasis it places on ethnicity, the FDC veers towards an elite-driven, semi-consociational approach, in which power and authority are allocated to ethnic groups.

Yet, the ambiguity between states and ethnic groups is not resolved. In earlier efforts (e.g. the 2008 Constitution) there is reference to specific space, but in the FDC, the demographics—if ethnicity is to determine the boundaries of the units—are not clear in terms of majorities and minorities. Although there are certain perceptions of ownership, often based on narratives of ancestral land, the reality for a future territorial demarcation of federal units could be problematic. Many members of ethnic minorities want to live their culture and be responsible for the wealth of their land, but, at the same time, the high degree of ethnic mobility and intermarriage, and the presence of other minorities in ethnic states, means that an ethnic/territorial approach does not reflect the complexities on the ground. A case in point is Rakhine State; in a future scenario that involves a return to democracy along the NUG’s framework, the United League of Arakan and the Arakan Army would want to see a sovereign Arakan State as member of the Union of Myanmar. The current FDC would ascribe the locus of sovereignty to ethnic Rakhine in the state, leaving in limbo both other ethno-religious groups of the region (predominantly the Rohingya) as well as ethnic Rakhine residing in other parts of the country. How would the Rohingya or the Bamar or the Daignet in Rakhine exercise their constitutional right of self-determination within such an Arakan State? And how would social harmony (FDC 2021, Chapter 4, Part I, Art. 4) be realised if ethnicity continues to separate communities? This same conundrum is replicated across the country.

Coupled with the lack of clarity on the definition of peoples and territories is the stipulation that the union exercises power sharing and revenue sharing based on the principle of subsidiarity (FDC 2021, Chapter 4, Part II, Art. 4):

The original owner of all land and natural resources within a State is the people who live in the State. The State shall have the right to independently manage the exploration, extraction, selling, trading, preservation, and protection etc. of the natural resources within the State. (FDC 2022, Chapter 4, Part III, Art. 20)

The consociational underpinnings of this clause promote a new power equilibrium between the centre and the periphery that is further supported by the rights of ethnic minorities (FDC 2021, Chapter 4, Part III, Art. 23–4, 26–7). However, the overall scheme aims at the de-Burmanisation of politics—not through the downgrading of ethnicity as a critical factor for political discourse, but through an increased recognition of ethnic communities as such. The FDC moves towards a more consociational path as the basis for a post-coup democratic Myanmar. Yet, the labyrinth of ethnic definitions and territorial demarcations may lead more towards the Minotaur of conflict than Ariadne’s thread of exodus to peace.

Since the publication of the FDC, the clash to oust the military junta continues. The NUG had originally hoped to complete a final draft of a new constitution by December 2021 (Saw Thonya 2021), but this did not eventuate. The lack of progress in finalising the union’s constitution based on the FDC highlights the challenges that the NUG faces. It takes considerable effort to coordinate and hold together a unified campaign against the junta on the promise and vision of an ethnically based, semi-consociational polity. The NUG hopes the payoff will be an open, peaceful society for all, with an open democracy that resembles the established models of open liberal democracies around the world. However, the situation on the ground seems to be changing into a long-term, low-intensity civil war between the PDFs and the military. The issues outlined in this chapter highlight why the FDC has not offered a compelling vision for the EAOs to unite around. Without a clear victory, it remains for the NUG to convince the EAOs to unite with the progressive forces. Past experience through the ceasefire agreements in the 1990s indicate that ethnic elites may opt for a non-democratic regime as long as their interests are promoted. The recent decision by some less significant EAOs to start ceasefire talks with the military points in this direction (Moe Thuzar & Htet Myet Min Tun 2022). The semi-consociational approach adopted by the FDC moves towards a choice of convenience rather than a choice of commitment. Despite its progressive character, the charter seems to be locked in the past rather than paving the way forward for a future that unites the people.

References

Andeweg, Rudy B. 2000. ‘Consociational Democracy’. Annual Review of Political Science 3: 509–36. doi.org/10.1146/annurev.polisci.3.1.509

Bogaards, M. 2003. ‘Electoral Choices for Divided Societies: Multi-Ethnic Parties and Constituency Pooling in Africa’. Commonwealth and Comparative Politics 41 (3): 59–80. doi.org/10.1080/14662040412331310201

Borman, Nils-Christian. 2017. ‘Ethnic Power-Sharing Coalitions and Democratization’. In Power-Sharing: Empirical and Normative Challenges, edited by Allison McCulloch and John McGarry, 124–47. Abingdon: Routledge. doi.org/10.4324/9781315636689-7

Brass, Paul. 1991. Ethnicity and Nationalism: Theory and Comparison. London: London.

Choudhry, Sujit. 2009. ‘Bridging Comparative Politics and Comparative Constitutional Law: Constitutional Design in Divided Societies’. In Constitutional Design for Divided Societies: Integration or Accommodation?, edited by Sujit Choudhry, 3–40. Oxford: Oxford University Press.

Coakley, John. 2009. ‘Ethnic Conflict Resolution: Routes towards Settlement’. Nationalism and Ethnic Politics 15 (3–4): 462–83. doi.org/10.1080/13537110903392670

Coakley, J. and J. Fraenkel. 2017. ‘The Ethnic Implications of Preferential Voting’. Government and Opposition 52 (4): 671–97. doi.org/10.1017/gov.2017.4

Esman, Milton J. 1994. Ethnic Politics. Ithaca: Cornell University Press.

FDC (Federal Democracy Charter). 2021. Part 1. Declaration of the Federal Democary Union. crphmyanmar.org/wp-content/uploads/2021/04/Federal-Democracy-Charter-English.pdf

Gurr, Ted Robert and Barbara Harff. 1994. Ethnic Conflict in World Politics. Boulder: Westview Press.

Horowitz, Donald L. 1990. ‘Making Moderation Pay: The Comparative Politics of Ethnic Conflict Management’. In Conflict and Peacemaking in Multiethnic Societies, edited by Joseph V. Montville, 451–76. Lexington: Lexington Books.

Horowitz, Donald L. 1991. A Democratic South Africa? Constitutional Engineering in a Divided Society. Berkeley: University of California Press. doi.org/10.1525/9780520328884

Horowitz, Donald. 1993. ‘The Challenge of Ethnic Conflict: Democracy in Divided Societies’. Journal of Democracy 4 (4): 20–38. doi.org/10.1353/jod.1993.0054

Horowitz, Donald. 2000. Ethnic Groups in Conflict. 2nd ed. Berkeley: University of California Press.

Horowitz, Donald. 2004. ‘Some Realism about Constitutional Engineering’. In Facing Ethnic Conflicts: Toward a New Realism, edited by A. Wimmer, R. Goldstone, D. Horowitz, U. Joras and C. Schetter, 245–57. Lanham: Rowman & Littlefield.

Horowitz, Donald. 2008. ‘Conciliatory Institutions and Constitutional Processes in Post-Conflict States’. William and Mary Law Review 49 (4): 1213–48.

Huntington, Samuel. 1981. ‘Reform and Stability in a Modernizing, Multi‐Ethnic Society’. Politikon: South African Journal of Political Studies 8 (2): 8–26. doi.org/10.1080/02589348108704792

Laoutides, Costas. 2019. ‘Self-Determination and the Recognition of States’. In Routledge Handbook of State Recognition, edited by Gezim Visoka, John Doyle and Edward Newman, 59–70. London: Routledge. doi.org/10.4324/9781351131759-5

Laoutides, Costas and Anthony Ware. 2016. ‘Re-Examining the Centrality of Ethnic Identity to the Kachin Conflict’. Conflict in Myanmar: War, Politics, Religion, edited by Nick Cheesman and Nicholas Farrelly, 47–65. Singapore: ISEAS–Yusof Ishak Institute.

Lijphart, A. 1968. ‘Typologies of Democratic Systems’. Comparative Political Studies 1 (1): 3–44. doi.org/10.1177/001041406800100101

Lijphart, A. 1969. ‘Consociational Democracy’. World Politics 21(2): 207–25. doi.org/10.2307/2009820

Lijphart, Arendt. 1977. Democracy in Plural Societies. New Haven: Yale University Press.

Lijphart, A. 1991. ‘Constitutional Choices for New Democracies’. Journal of Democracy, 2 (1): 72–84. doi.org/10.1353/jod.1991.0011

Lijphart, Arendt. 1995. ‘Self-Determination versus Pre-Determination of Ethnic Minorities in Power-Sharing Systems’. In The Rights of Minority Cultures, edited by Will Kymlicka, 275–87. Oxford: Oxford University Press.

Lijphart, Arendt. 2004. ‘Constitutional Design for Divided Societies’. Journal of Democracy 15 (2): 96–107. doi.org/10.1353/jod.2004.0029

Mathieson, David S. 2021. ‘Myanmar’s Army of Darkness: The Military Was Never Interested in Peace or a Democratic Transition—and Neither Was Aung San Suu Kyi’. Nation, 12 February. www.thenation.com/article/world/myanmar-burma-coup-rohingya/

McCulloch, A. 2013. ‘Does Moderation Pay? Centripetalism in Deeply Divided Societies’. Ethnopolitics 12 (2): 111–32. doi.org/10.1080/17449057.2012.658002

Moe Thuzar and Htet Myet Min Tun. 2022. ‘Myanmar’s National Unity Government: A Radical Arrangement to Counteract the Coup’. Perspective, no. 8. ISEAS – Yusof Ishak Institute.

Nordlinger, Eric A. 1972. Conflict Regulation in Divided Societies. Cambridge, MA: Harvard University Centre for International Affairs.

Powell, G. Bingham. 2000. Elections as Instruments of Democracy: Majoritarian and Proportional Visions. New Haven: Yale University Press.

Raynaud, Mael. 2021. ‘Asymmetric Territorial Arrangements and Federalism in Myanmar’. Perspective, no. 160. ISEAS – Yusof Ishak Institute.

Reilly, B. 2001. Democracy in Divided Societies: Electoral Engineering for Conflict Management. Cambridge: Cambridge University Press. doi.org/10.1017/CBO9780511491108

Reilly, Benjamin. 2012. ‘Institutional Designs for Diverse Democracies: Consociationalism, Centripetalism and Communalism Compared’. European Political Science 11 (2): 259–70. doi.org/10.1057/eps.2011.36

Sadan, Mandy. 2013. Being and Becoming Kachin: Histories beyond the State in the Borderworlds of Burma. Oxford: Oxford University Press. doi.org/10.5871/bacad/9780197265550.001.0001

Saw Thonya. 2021. ‘Draft Federal Union Constitution to be Finalized in December’. Burma News International, 24 May. www.bnionline.net/en/news/draft-federal-union-constitution-be-finalized-december

Sisk, Timothy D. 1996. Power Sharing and International Mediation in Ethnic Conflicts. Washington, DC: United States Institute for Peace.

Smith, Martin. 1999. Burma: Insurgency and the Politics of Ethnicity. 2nd ed. London: Zed Books.

South, A. 2008. Ethnic Politics in Burma: States of Conflict. London: Routledge. doi.org/10.4324/9780203895191

Su Mon Thazin Aung. 2022. ‘Myanmar’s Quest for a Federal and Democratic Future: Considerations, Constraints and Compromises’. Perspective, no.28. ISEAS –Yusof Ishak Institute.

Taylor, Rupert. 2009. ‘The Injustice of Consociational Solution to the Northern Ireland Problem’. In Consociational Theory: McGarry & O’Leary and the Northern Ireland Conflict, edited by Rupert Taylor, 325–46. London: Routledge. doi.org/10.4324/9780203962565

Walton, Matthew. 2016. Buddhism, Politics and Political Thought in Myanmar. Cambridge: Cambridge University Press. doi.org/10.1017/9781316659144

Ware, Anthony and Costas Laoutides. 2018. Myanmar’s Rohingya Conflict. London: Hurst and Oxford University Press.

Williams, David C. 2009. ‘Constitutionalism before Constitutions: Burma’s Struggle to Build a New Order’. Texas Law Review 87: 1657–93.

Woods, Kevin. 2011. ‘Ceasefire Capitalism: Military–Private Partnerships, Resource Concessions and Military-State Building in the Burma–China Borderlands’. Journal of Peasant Studies 38 (4): 747–70. doi.org/10.1080/03066150.2011.607699

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