Myanmar’s November Elections: The Challenging Task of Federalisation Awaits a New Government

The Myanmar elections will reinvigorate contestations over the transition to federalism. The possibility of a coalition government and expected better performance of ethnic political parties may enhance the prospects for progress. Nevertheless, reversing the failures of the past will require an inclusive extra-parliamentary engagement than tried so far, including the involvement of all ethnic armed organisations and parties – writes Ja Nan Lahtaw.

Myanmar is set to have national elections on 8 November 2020. The elections come on the heels of ongoing peace negotiations between the government, the Tatmadaw (military) and armed ethnic groups. The electoral politics must be seen in connection with prospects for peace and democratic governance, which would necessitate constitutional reforms, notably towards democratisation and federalisation. While the electoral outcomes cannot be projected with certainty, it is not clear if the two major parties, the National Democratic League (NLD) and the Union for Solidarity and Development Party (USDP), will win outright, making a coalition government a possibility. Crucially, ethnic political parties are expected to perform better than in the 2015 elections.

These possibilities will affect the trajectory of the negotiations on contentious issues, notably the transition to a genuine federal arrangement. The sustainable solution to over 70 years of armed conflict in Myanmar is building a genuine federal democratic union through constitutional reform based on consensus built in extra-parliamentary political dialogues inclusive of relevant stakeholders. Regardless of the outcomes, success in the negotiations may require the representation of ethnic political parties and even non-signatory Ethnic Armed Organisations (EAOs)  to the Nationwide Ceasefire Agreement (NCA).

As part of the NCA negotiations and political dialogues between the Myanmar Government, including the Tatmadaw, and EAOs, and technical adviser to EAOs and co-facilitator of political dialogues, this piece reflects the author’s observations on ongoing negotiations toward a federal arrangement. 

Stalled peace and constitution reform process

The ethnic armed conflict in Myanmar has roots in the disruption of agreement on building a genuine federal union in the historic 1947 Panglong Conference.  Particularly, the federal aspiration of minority non-Bamar ethnic nationality groups remains unaddressed. This has precipitated conflicts between armed-wings of minority ethnic groups and the government, dominated by the Bamar ethnic majority, which constitute about 70% of the country’s population.  EAOs do not aspire to displace the military or the national government from power. Instead, they seek to reform the political system towards a ‘genuine federal system’ rooted in historical political aspirations.

Historically, when ethnic nationalities are identified, there are eight major groups: Bamar, Chin, Kachin, Karen, Rakhine, Kayah, Mon, and Shan. Yet, increasingly, Bamar tend to not identify themselves as an ‘ethnic’ group, an understanding shared by the other groups. This mindset is critical in building a future federal union.  Since the country was formed based on ethnic territories, this divide will have serious implications to the designing of federal units.

The recent drive towards federalization emerged out of the NCA signed by 10 EAOs and the government in 2015 and 2018, which anticipates constitutional amendments.  In recognition of historical grievances and following the ascendance to power of the NLD, Daw Aung San Su Kyi, daughter of Panglong Conference initiator General Aung San, launched the 21st century ‘Panglong Conference’ as part of the Union Peace Conference (UPC), the extra parliamentary political dialogues mandated in the NCA.  There are concerns among EAOs, ethnic political parties and communities regarding the reference to the ‘21st Century Panglong Conference’ as it might overshadow and nullify the aspirations of the historic Panglong Agreement.  Sai Nyunt Lwin, vice chair (1) of Shan Nationalities League for Democracy noted in his opening remark at the Conference that he wishes to see the UPC as a means to fully implement the 1947 Panglong Agreement signed in 1947.

EAOs do not recognize the 2008 Constitution as legitimate.

EAOs do not recognize the 2008 Constitution as legitimate because it was adopted without consideration of their political aspirations as noted in the 2004 constitutional convention. Moreover, the constitutional making process was not inclusive as some EAOs were not under ceasefire to enable their participation in the process. The military backed government of Thein Sein, the first elected government under the 2008 constitution, called for peace talks on 18 August 2011 and proposed a three-phases peace plan.  All EAOs rejected some of the points laid out under the union level peace plan, which required them to join mainstream the political process by forming political parties, contest elections and resolve political contestations inside parliament. EAOs refused to join the mainstream political process under 2008 constitution.  Instead, 16 EAOs collectively negotiated the extra-parliamentary political dialogues process, which laid out a seven-steps political roadmap in the NCA (2015).

Nevertheless, the process has not generated needed constitutional reforms and it remains non-inclusive as the current government, including the Tatmadaw, has banned EAOs who are not NCA signatories, which includes a number of prominent groups, including the biggest armed group – the United Wa State Army, which is not interested in signing the NCA and wants to pursue an alternative process.  Hopes that the new Panglong Dialogues would lead to consensus towards constitutional reform have not materialised. Limited efforts to progressively reduce the role of the military in the democratic process were defeated in March 2020, as the military is guaranteed sufficient number of members to block constitutional reforms.   

Negotiations towards a federal arrangement: Devil in the details  

The Union Peace Conference – 21st Century Panglong has been convened four times under the NLD government between August 2016 and August 2020. According to the Political Dialogue Framework, the interval between each conference is six months, but the dialogues were not convened as scheduled. Notably, there have been challenges in the implementation of ceasefire monitoring components and sub-national level political dialogues. Despite the challenges, the national government (and Tatmadaw), EAOs and political parties signed three sets of Union Accord, which were ratified by Pyidaungsu Hluttaw (Union Parliament) under the NLD government. 

The parliamentary ratification of the Union Accords seeks to ensure that any government who takes up office after the November elections will be accountable to implement the agreements, which would include the establishment of a genuine federation through constitutional reform. There are different views on how constitutional reform will occur considering the divergent and multiple political actors. While the government and Tatmadaw seek to amend the 2008 constitution, some EAOs want extensive amendments that would effectively re-write the constitution, and others want a completely new constitution. 

Agreements from the dialogues are expected to provide guiding principles and policies for constitutional and legal reform towards the establishment of a democratic federal union. Under formal frameworks, the responsibility to initiate the implementation of the agreements lies with the government and parliament. In recognition of concerns of absence of NCA Signatory EAOs in the federalization process beyond signing the accords, there was agreement in the recently signed Union Accord to set up an implementation mechanism that includes EAOs. 

A more inclusive implementation mechanism to follow up on agreed reforms has been set up.

While there are crucial federal principles that have already been agreed, they have raised serious concerns among some signatory EAOs, non-signatories, and ethnic political parties because the principles undercut their federal vision and aspirations.  For example, in terms of forming future federal units, the government, particularly the Tatmadaw, insist on the 2008 constitutional arrangement, in which there are seven regions and seven states.  This set up has been interpreted by most ethnic groups as ‘region’ implying bigger size and strength, while ‘state’, which is historically named after each ethnic group, symbolically implying smaller size and weak powers.  EAOs and ethnic political parties envision that all the federal unit will be equally named with equal powers. In addition, Government and EAOs interpret ‘later discussion on naming of regions and states’ differently.  The government, particularly the Tatmadaw, understood this clause as ‘simply renaming’ the existing regions/states into more inclusive names. In contrast, EAOs and ethnic political parties consider the clause as implying ‘reforming’ of existing regions/states into equal states.  The number of federal units is another contentious issue that must be addressed in the future dialogues.

Considering the early stages of the agreements on key issues, the Union Agreement establishes further negotiation steps and implementation phases beyond 2020, once the elections have been held, to consolidate consensus on partial agreements on federal guiding principles. One key issue for this post-election period relates to the choice of words between ‘state basic law’ and ‘state constitution’, as remarked by Aung San Su Kyi. Behind the terminology, the suggestions have strong symbolic connotations to the concept of self-determination of negotiating parties, with EAOs preferring a state ‘constitution’.  As there remain significant contentious issues, the post-2020 negotiation is likely to take longer than popular wishes to see the ending of armed conflict through federal reform.

Prospects of post-election federal reform

Amid increased numbers of COVID-19 positive cases, particularly in Yangon, the NLD and the military-linked USDP are striving to win the 2020 elections. Almost all the contesting political parties have committed to building a democratic federal union as a priority. 

The projection is that neither NLD nor USDP will win enough seats to unilaterally form a new government. This is party because ethnic political parties are more prepared than in the 2015 elections, including through ‘mergers’ and ‘no-compete’ arrangement. The failure to secure outright victory would provide opportunity for smaller political or ethnic parties to ally with one of the big parties, enhancing their bargaining power, including notably on federalisation.

The NLD has been seeking to form an ethnic affairs committee and to integrate ethnic concerns, to portray itself as an inclusive non-Bamar party.  Dr. Zaw Myint Maung, NLD vice chair, recently noted that NLD itself is an ethnic party and under its leadership ethnic concerns would be protected better than under its rivals. This message has been criticized by many ethnic political parties and ethnic communities for undermining ethnic political parties, amid accusations that NLD is moving towards one party dominant system. This recent election message indicates that alliance with other parties is not in NLD plans.

Regardless of the outcomes, the positions of the Tatmadaw and EAOs are likely to remain the same in a post-election federal reform process.

The USDP also portrays itself as inclusive of all ethnic nationalities. U Khin Yee, vice-chair (2) of USDP and former union minister, has stated that the party favors ethnic political parties by choosing not to contest in areas where non-ethnic nationalities will be very likely to win. USDP has also shown its recognition of non-Bamar ethnic nationalities with willingness to form a coalition government.

Regardless of whether there will be a one party or coalition government, the positions of the Tatmadaw and EAOs will remain the same in a post-election federal reform process.  The military will remain in politics and will be part of the federal reform process, both in parliament and in the extra parliamentary political dialogues. In fact, the military affiliated USDP may have better representation in parliament than currently enjoys. Nevertheless, some changes in military delegation could be expected at the negotiation table beyond 2020. Whether this change of faces would lead to evolution of positions is unclear.

U Kyaw Win, a prominent writer and political analyst, said a recent that a new government has to find ways to work with both the Tatmadaw and EAOs in order to address persistent armed and political conflicts.  Notably, he advised that NLD should put more efforts to work with EAOs.  

If ethnic political parties win more seats at the Union and regional/state level parliaments, the federal reform is likely to be high on the agenda both inside parliament and outside political dialogues and should also be more inclusive with the formal participation of ethnic political parties. 

Inclusion of all EAOs and political parties may hold the key to unlock progress towards ending the intractable armed contestation.

In the past dialogues under NLD leadership, only winning political parties were part of the political dialogue process and those that did not win in 2015 elections were excluded. Only winning parties are viewed to have legitimate representation in the process. This excluded a number of ethnic political parties. While better performance from these parties could ensure their formal representation, a comprehensive and inclusive process may require space for all registered political parties in the extra parliamentary federal negotiation process.

It is also not clear whether the new government will consider mechanisms for the participation of non-signatories to the NCA. Without bringing the remaining key EAOs organizations on board, plans for ‘beyond 2020 federal negotiation steps and phases of implementation’ may not bring in significant changes that will unlock the key differences and address the persistent problem of armed conflict.

The next government has the tasks cut out for it and the challenging federal reform will be at the centre of it.

Ja Nan Lahtaw is Executive Director of Nyein (Shalom) Foundation, a local peacebuilding organization in Myanmar, is a technical adviser to EAOs and co-facilitator of political dialogues between the government and EAOs.