Of Burma’s two Governments which is more powerful?

By Kanbawza Win | March 14, 2013

“Burma is working tirelessly for democratic change and for a lasting peace,” President Thein Sein told the Chairman of the European Parliament Committee on Foreign Affairs at the European Parliament in Brussels. 

Noting that the country had been mired in conflict since its independence in 1948, he said,
“This must stop. We must find a political and negotiated solution. My government is absolutely committed to this goal. We have over the past 18 months signed ceasefires with no fewer than 10 non-state armed groups. We will now double our efforts to reach an agreement with the last remaining major non-state armed group, the Kachin Independence Organization.”[1]

He concluded by saying that his government must find ways of addressing long-standing grievances and discus and work towards a new and more inclusive Burmese citizenship, and a new and more inclusive Burma. So far, at least in theory, the civilian façade government of the ex brass seems to be on the right track, but what about the other government of the Tatmadaw? that is lurking behind every move of the Thein Sein administration?

Everybody in the world knows that the current government is just an offshoot of the previous regime that does not have the guts to admit past gross human rights abuses or the brutal crackdowns committed by the former regime, which involved the imprisonment of many activists and ordinary citizens. Pursuing crimes committed by the former Junta are very crucial for healing as well as for solidifying reforms.[2] But neither the quasi-civilian government nor opposition led by Aung San Suu Kyi have any appetite to pursue the crimes against humanity committed by the former Junta.

“To learn from the past you need to understand what happened and not just to act as if nothing had happened in Burma that had a military regime for more than 40 years.”[3]

The crowning irony is that the Tatmadaw drafted the controversial Nargis Constitution of 2008 it included article 445, which provides immunity for all acts taken by m embers of the previous military government councils. “No proceeding shall be instituted against the said Councils or any member there of or any member of the Government, in respect of any act done in the execution of their respective duties,” And so, is there then no way to hold former junta officials responsible for the crimes they committed? Burma will never achieve democracy or human rights as long as the military is in power.[4]

It was also known that Burma has shamelessly lobbying member states of the UN Human Rights Council to end Tomas Ojea Quintana’s mandate, (which expires on May 2014) because they did not want to hear the truth nor admit the crimes they have committed. Now that the cat has been let out of the bag, it reveals that there are no human or ethnic rights in Burma. The illegal sham Nargis Constitution of 2008 followed by the fake election of 2010 remains an insurmountable obstacle to genuine democratic change. If it goes according to this Nargis Constitution it will be another half a century before the country reached real democracy.[5]

Only last week, police clashed with farmers protesting the confiscation of their land in the Irrawaddy Delta. That incident left one policeman dead, and bodes ill for the prospects of finding a peaceful resolution of protests erupting all over the country over the Tatmadaw’s rampant land-grabbing. There has also been an outcry over the government’s decision this week to submit a controversial draft press law to Parliament, a mere five days after it was released in the state-run media. To the astonishment of many, the government declined to consult the Burmese media on the bill, outraging many media professionals, who see the move as a step toward reinstating censorship. Such is the trend which the government is going.

But the crux of the Burmese problem now a day is the Nargis Constitution of 2008, which the evil genius Than Shwe meticulously crafted after taking lessons from the contemporary history of Burma. In his heart of hearts he knew that the people loves democracy and that all the ethnic nationalities wanted the Genuine Federal Republic of the Union of Burma and that he is determined out and out to prevent it at any cost even though he sense that time is not on his side. Instead he wants to build the 4th Burmese empire with the Myanmar race lording over all the ethnic nationalities and at the same time earned a respectable place in the international community with the semblance of democracy. That is why it takes nearly one and a half decades to draft this dubious constitution followed by a sham elections. But credit should be given that he was able to compel Thein Sein to recruit Daw Aung San Suu Kyi and the NLD which he knows very well will obediently act as a smokescreen for democracy which will be willingly accepted by the international community.

Practical Application of Nargis Constitution of 2008

To find evidence that the Tatmadaw is a state within a state is just by looking the simple aspects of the inconsistencies between military actions and the rhetoric of the civilian government. A classic example is that the President ordering of the army not to attack any ethnic nationalities groups by 19 January 2013 was clearly flaunted within hours, as the Tatmadaw renewed its offensive against the Kachin Independence Army (KIA), heedless of any efforts by the civilian government to negotiate a lasting peace. What more proof is wanted more than when the Tatmadaw is more powerful government of the two?

On 29 November 2012, the use of white phosphorous against peaceful protesters demonstrating against Latpadaung, copper mine in central Burma, provided additional evidence of the rate within ague nature and power of the Tatmadaw. The police used excessive force, injuring more than 100 monks with severe chemical burns. The use of white phosphorous against civilians is illegal under international law and in direct conflict with the promises made by President Thein Sein’s representative on 23 November 2012 to forge a non-violent solution to the protest.[6]The raison d'être is that copper mine project used excessively in making bullets involves a contract between Union of Myanmar Economic Holdings Limited (UMEHL), a conglomerate run by the Tatmadaw, and the Chinese company Wanbao, which puts the Tatmadaw economic interests at the center of the controversy. Naturally, the Generals became very nervous when their income was threatened when they have been living on the blood and sweat of the people of Burma and hence in their eyes are very much justifies in using extreme force.

Another peculiar factor is that unlike the Western capitalist countries, the greatest source of wealth in Burma, are not taxed as like other businesses because they are owned by the Tatmadaw e.g., this Latpadaung mine corporations thereby curtailing a crucial revenue stream that could be invested in the people of Burma, such as by increased spending on desperately needed health and education programmes.

This incident raises serious questions about who authorised the use of this dangerous chemical weapon against peaceful protesters and about the contradiction between the civilian government’s promises and the police actions. The police forces in Burma report to the Minister of Home Affairs, Lieutenant General Ko Ko, who is an active military officer has in turn report to Commander-in-Chief of the Armed Forces, Vice Senior-General Min Aung Hlaing. Under military control, how can police be held civilly and criminally accountable for its activities?

The parliamentary inquiry into the incident, failed to hold any officials responsible for the violence. And it was highly anticipated as the mine has become a national flashpoint for local communities, rights activist and environmental groups.[7] The white phosphorous incident clearly reminds to the world that there is no weapon that will not be used to stop dissent. Perpetrators be they the police or military or private thugs hired by the military as in the case of Depayin incident are not deterred since no police or military have been punished nor has any civilian authority been capable of stopping police or military action since 1962.[8] What more the Tatmadaw is against the concept of “PEACE” itself because if there is peace then Burma will not need an army of nearly half a million men, just enough professionally trained men to defend the country in case of foreign aggression.

What more the Tatmadaw is against humanitarian aid, the most prominent being during the Nargis Cyclone as it did not want the people to live or prosperous as even now the Tatmadaw has repeatedly prevented aid from delivering aid to civilians affected by the Kachin conflict.[9]At a press conference in Rangoon, Nippon Foundation project coordinator Takehiro Umemura said, “Aid delivery plans for internally displaced ethnic Kachin were being delayed due to a lack of government access to the region.” An estimated 100,000 villagers have been displaced since a 17-year-old ceasefire between ethnic freedom fighters and the second government Tatmadaw broke down in June 2011.Umemura said the Nippon Foundation also wanted to deliver aid to the areas. “As everyone knows the road from Myitkyina to Laiza has been blocked and the people have many difficulties for getting food. Blocked roads are a big difficulty for the transportation of food,” he said. “The people really need aid, but we do not want to have problems with the Tatmadaw government over sending this aid,” Umemura added.[10]

But the most disturbing facts not only to the people of Burma but also for the international community is that in Nov. 2012, President Thein Sein announced he would sign an international protocol requiring declaration of nuclear facilities and materials and allowing more scrutiny by UN inspectors. However, how can he enforce this pledge since the constitution grants the commander-in-chief sole authority to admit inspectors into military-owned territory, including nuclear facilities? In fact the president has assured international leaders from South Korea and the United States in May 2012 that Burma would refrain from military cooperation with North Korea and abide by international sanctions against that nation. Yet, three months later, Japan seized a cargo shipment of materials suitable for uranium enrichment or missile development destined for a Rangoon-based construction company, which the US believes is a front for Burma’s military procurement, from North Korea (via China).[11] Isn’t it that the legal definition of sovereignty or of a sovereign state requires that the state have complete legal authority over the Tatmadaw? These are just the beginning and more serious implication will surely follow if the Nargis Constitution of 2008 is not changed and the Tatmadaw act as a government within a state.

Can the International Community Help the Democratic Forces?

A nation’s constitution is usually considered to be a quintessential exercise of sovereignty, and not typically a matter for international action, but in Burma the question is who has sovereign power? The legal definition of sovereignty or of a sovereign state requires that the state have complete legal authority over the Tatmadaw and over the constitutional amendment processes. In this case, the current Burma does not meet the standard of a sovereign state. The international community must recognise, as do democracy activists on the ground that for true democracy to take hold, the Constitution must be amended to reflect the will of the Burmese people rather than the political designs of the Tatmadaw. The Constitution anoints the Tatmadaw as the guardian of the Constitution and gives the Tatmadaw control over passage of any constitutional amendments. The Tatmadaw drafted and designed the Constitution to preserve its political power rather than foster democracy and the rule of law, and it will take concerted international effort to convince the Myanmar’s Tatmadaw to open the window to change.

There are good reasons for the Tatmadaw to be responsive to international pressure to amend the Constitution so that true democracy can take hold, given that development and aid greatly benefits the Tatmadaw’s economic interests. But the international community is not using its considerable power to pressure the Myanmar Tatmadaw. Instead, it ignores inconvenient truths such as continuing military attacks against civilians in ethnic areas, secretive weapons development, and failure, after some 60 years of armed conflict, to ever prosecute any member of the military for war crimes despite evidence of the endemic use of child soldiers and the rape of ethnic women as a weapon of war.

The international community must recognise, as do democracy activists on the ground that for true democracy to take hold, the Constitution must be amended to reflect the will of the Burmese people rather than the political designs of the military. The issue of weapons and nuclear energy development highlights yet another distressing and pronounced disconnect between government rhetoric and military action. On 22 December 2012, Vice Senior-General Min Aung Hlaing speaking to the graduating class of the Tatmadaw Medical Academy, announced plans to use nuclear technology for medical, research and energy purposes but not atomic weapons development. This contradicts previous statements by the government spokespersons, such as a June 2012 statement by the commander-in-chief that Burma had abandoned its nuclear programme and there was no point in having the International Atomic Energy Agency (IAEA) visit because there was nothing to see. Clearly, the Tatmadaw is lying not only to the people of Burma but also to the international community. Despite the inconsistencies between government statements and actions, and development of nuclear capacity through cooperation with North Korea in violation of international law, the global Community continues to ignore or downplay both the significance of these violations.[12]

Not Up to the Mark

Burma has been highlighted as the model of archetype of authoritarian repression to a supposedly shining example of peaceful transition towards democracy. But to a meticulous observer he could differentiate of what are the real reforms and what is the window dressing? But this did not answer the basic question is how much have human rights genuinely improved on the ground?

President Barack Obama’s visit last November led to significant but largely unfulfilled pledges from Thein Sein administration, including the formation of an effective mechanism to review the 240 remaining political prisoners, cessation of ongoing conflict in Kachin State and the opening of a U.N. Office of the High Commissioner for Human Rights in Burma. Only one major pledge, the resumption of prison visits and access to conflict areas by the International Committee for the Red Cross, has been fulfilled. The rest are yet in the cold storage and we doubt that will it be implemented at all.

A U.N. human rights office seems a long way from becoming a reality, despite Western states pledging financial support. Violence in Kachin State has decreased and the Tatmadaw has taken advantage and fortified their position and tensions are already high after nearly two years of conflict where 100,000 civilians have been displaced and serious war crimes perpetrated by the Tatmadaw.

“While the process of reform is continuing in the right direction, there are significant human rights shortcomings that remain unaddressed, such as discrimination against the Rohingya in Rakhine State and the ongoing human rights violations in relation to the conflict in Kachin State,” said, Tomas Ojea Quintana.

Arakan State is going through a profound crisis that threatens to spread to other parts of the country and has the potential to undermine the entire process of reforms in Burma. More than 1,100 people, the vast majority of them Rohingya men and boys, are detained and routinely mistreated. The “endemic discrimination” against the estimated 800,000 Muslim Rohingyas who lack legal status is still going on, while the Nasaka, a border security force accused of committing serious violations against Muslims, have not being suspended. Quintana also cited continued allegations of

“Attacks against civilian populations, extrajudicial killings, sexual and gender-based violence, arbitrary arrest and detention, as well as torture are widespread in the country.”[13]

So it is an important moment for the U.N. Human Rights Council in Geneva to take up the rights situation in Burma. No doubt the quasi-military government has enacted a serious of changes with a further promises to the international community that justify increased engagement and many a diplomatic observers argue that reform is now inevitable but it is too early to be rewarded.

Based on the unfulfilled pledges Burma has made, it’s clear that the wish of some member states of the Human Rights Council to reward the government – by shifting Burma in the Human Rights Council from “Item 4” (human rights situations that require the Council’s attention) to “Item 10” (technical assistance and capacity-building) on the official agenda – is surely premature. The process and the debate over shifting cooperation modes at the U.N. Human Rights Council should be guided by improvements in Burma’s engagements on human rights.[14]

Eliminating scrutiny is not the right thing to do so long as serious human rights violations continue in various parts of the country. The role of the special rapporteur is crucial in providing neutral expertise and documenting both the government’s achievements and continued concerns over abuses. Keeping the special rapporteur mandate is a necessary measure to ensure that Burma’s reforms are sustained and irreversible – and that steps backward could be rapidly flagged and addressed. It must be remembered that it was only two years ago, during Burma’s Universal Periodic Review at the Human Rights Council, that the government denied all the abuses that it is now taking credit for addressing? Just admitting to these abuses has been a small but significant step is not enough. But actually doing something about it is the hard part, and this will take time, focus, and increased assistance from the international community. In short, now is not the time to remove the pressure that has led to the country’s recent advances.[15] Keeping Burma a high priority in the Council will guarantee that improvements continue, build genuine rule of law, and give essential backing to the country’s increasingly assertive civil society and human rights defenders. As a Burmese nationalist who really love to see democracy and prevalence of Human rights and ethnic equality I was quite appalled to witness of how quickly the international donor community has already acted: comprehensive economic sanctions removed or suspended, massive debt to international financial institutions cancelled, humanitarian assistance increased, and a rash of high level international visitors.

Thus when Thein Sein says, “I would strongly like to urge the EU leaders to adopt the EU Commission’s proposal to restore Myanmar’s trade preferences,” we have to take it with a pinch of salt when the other government the Tatmadaw is the real power and the irony is that the civilian government itself has willingly agreed to this arrangement when he added that “Because of Burma’s history of armed conflict the Tatmadaw should also play its part in the country’s affairs.”[16] As all these things are going on, I strongly think that the United States should not sit idly by. Just as Washington played an important part in facilitating dialogue between Daw Aung San Suu Kyi and the government in 2011-2012, the Obama Administration now needs to put its weight behind the revitalized peace talks -- and should also do what it can to make sure the Tatmadaw plays along. Of course, all sides must be pragmatic and willing to make compromises for a sustainable solution that the people of this war-torn Burma deserve.[17]

Kanbawza Win can be reached at bathannwin@gmail.com

End Notes

[1] Govt works ‘tirelessly’ for peace, Thein Sein tells Brussels. Mizzima News 7-3-2913
[2] Nebehay; Stephanie, Myanmar Must Face Up To Junta Crimes, UN Envoy Says Reuters 11-3-2013
[3] Ibid
[4] U Win Tin’s speech as published by Between News 13-3-2013
[5] Zaw; Aung, From Europe with Love The Irrawaddy, March 7, 2013
[6] Report conducted by the Lawyers Network (Burma) and Justice Trust (USA
[7] Activists, Locals Reject Letpadaung Inquiry Irrawaddy 12-3-2012
[8] Benshof ; Janet, Its time for the International community to address Burma’s Constitution 20-2-2013
[9] Weng;Lawi, Nippon Foundation Says Aid to Kachin Blocked, Irrawaddy 14-3-2013
[10] Ibid
[11] Benshof ; Janet, Its time for the International community to address Burma’s Constitution 20-2-2013
[12] . http://www.dvb.no/analysis/its-time-for-the-int%E2%80%99l-community-to-address-burma%E2%80%99s-constitution/26505
[13] Nebayhay; Stephane,Arakan Crisis Risks Spread, Endangering Burma Reforms: UN Reuters 8-3-2013
[14] Mathieson;David, Why it’s too soon to ease pressure on Myanmar CNN 4-3-2013
[15] Ibid
[16] Zaw; Aung, From Europe with Love The Irrawaddy, March 7, 2013
[17] http://transitions.foreignpolicy.com/posts/2013/03/05/finally_a_window_for_peace_in_burma

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