THE POWER OF THE MYANMAR MILITARY UNDER

THE POWER OF THE MYANMAR MILITARY UNDER THE 2008 CONSTITUTION The Tatmadaw (Myanmar Armed Forces) retain significant control of the government under the 2008 constitution. 25% of seats in the Parliament of Myanmar are reserved for serving military officers. The ministries of home, border affairs and defense have to be headed by a serving military officer.The military also appoints one of the country's two vice presidents.Hence, the country's civilian leaders have little influence over the security establishment. At present, Myanmar’s constitution guarantees a role for the military in politics. It does so through formal nominations and declarations. It legally separates public order forces (the police and border guards) from its military. However, the forces that are intended to oversee public order are informally connected with the Tatmadaw, reflected in the fact that the minister in charge of these forces is a serving member of the military. The lessons learned from other military transitions suggest that finding a way to disengage forces protecting public order – providing civilian oversight, establishing distinct identities – improve public confidence in government and provide greater stability during transition. 8 This may be an important first step towards creating a closer and more meaningful engagement between civilian and military leaders

Myanmar’s constitution preserves significant influence and control for the Tatmadaw in politics and government. To say that is not to criticize the Tatmadaw or the constitution but merely to note the characteristics of the current constitution. If – as public statements of actors on all sides of Myanmar’s transition suggest – a system of democratic governance is desired, gradual changes directed towards a more engaged relation between civilian structures and the military will need to emerge. Existing practice suggests that two areas that will require attention are the system of military justice and the separation of the military from politics and its reintegration as an integral part of the body politic. According to Myanmar’s constitution, army officers are to be commissioned to all new national and local lawmaking bodies. Today, military appointees represent a quarter of each chamber of the bicameral national parliament: 110 seats in the Lower House (Pyithu Hluttaw), and 56 seats in the Upper House (Amyotha Hluttaw). In the fourteen local assemblies the number of army delegates is equal to one-third of the number of elected representatives. All military appointees are nominated by the Commander-inChief of the army and can be removed at will, without any oversight from the civilian government. To many observers, the sole reason that military officers have a seat in parliament is to ensure that the Tatmadaw has a non-negotiable “veto” on any potential constitutional amendment. Safeguarding the new constitution is one of the major tasks assigned to the army as enshrined in Article 20f, and military delegates are there to ensure that all reform proposals put forward by civilians are formulated according to the basic principles already specified in the text. A vote by 75 percent of all legislators is required to pass any constitutional amendment, and with its 25 per cent seat reservation, the Tatmadaw can effectively reject any proposed legislation.

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2008 Constitution of Myanmar - Wikipedia

2008 Constitution of Myanmar The Constitution of the Republic of the Union of Myanmar (2008) is the third Constitution of Myanmar after 1947 and 1974 constitutions which were aborted by military coups. It is part of the seven steps road map announced by then Prime Minister of State Peace and Development Council

2008 Constitution of Myanmar

government General Khin Nyunt on 30 August 2003. One of the seven steps include recalling of National Convention for the drafting of new constitution which was adjourned on 31 March 1996 by State Law and Order Restoration Council government.[1] The convention began on 17 May 2004 attended by 1076 of invited delegates and representatives from 25 ethnic ceasefire groups. After several sessions since 1993 the convention was concluded with the adoption of fundamental principles for constitution drafting commission with member of 54 which was later formed by SPDC. On 19 February 2008, The SPDC announced that the commission had finalised the drafted constitution and planned to approve through referendum in May 2008.[2] On 10 May 2008 (24 May 2008 in some townships) the Constitutional referendum was held in Myanmar and SPDC announced 93.82% of the voters favored it however there has been wide spread criticism of the process as the Cyclone Nargis hit Myanmar a few days before the referendum and free and fairness of the overall process.[3] The Tatmadaw (Myanmar Armed Forces) retain significant control of the government under the 2008 constitution. 25% of seats in the Parliament of Myanmar are reserved for serving military officers. The ministries of home, border affairs and defense have to be headed by a serving military officer.[4][5] The military also appoints one of the country's two vice presidents.[6] Hence, the country's civilian leaders have little influence over the security establishment.[7][8]

Page one of the original copy of the Constitution

Created 9 April 2008 Ratified 29 May 2008 Purpose To replace the

1974 Constitution of Burma

See also Constitution of Myanmar – contains significant information about the 2008 Constitution Myanmar constitutional referendum, 2015 – proposed amendments that did not proceed

References 1. "The National Convention" (http://www2.irrawaddy.com/research_show.php?art_id=3564). 2. "Chronology of Burma's constitutional Process" (https://www.hrw.org/sites/default/files/reports/burma0508chronolo gy.pdf) (PDF). https://en.wikipedia.org/wiki/2008_Constitution_of_Myanmar

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3. "A Preliminary Report on the referendum of May 10,2008" (http://anfrel.org/wp-content/uploads/2012/02/Prelimina ry-Report-on-the-Referendum-of-May-10-2008.pdf) (PDF). 4. http://www.bbc.com/news/av/world-asia-35457290/why-does-military-still-keep-25-of-the-seats-myanmarparliament 5. http://edition.cnn.com/2015/11/12/opinions/myanmar-aung-san-suu-kyi-military/index.html 6. https://www.mmtimes.com/national-news/19670-managing-the-defence-and-security-council.html 7. http://www.bbc.com/news/av/world-asia-35457290/why-does-military-still-keep-25-of-the-seats-myanmarparliament 8. http://edition.cnn.com/2015/11/12/opinions/myanmar-aung-san-suu-kyi-military/index.html Retrieved from "https://en.wikipedia.org/w/index.php?title=2008_Constitution_of_Myanmar&oldid=809291229"

This page was last edited on 8 November 2017, at 06:38. Text is available under the Creative Commons Attribution-ShareAlike License; additional terms may apply. By using this site, you agree to the Terms of Use and Privacy Policy. Wikipedia® is a registered trademark of the Wikimedia Foundation, Inc., a non-profit organization.

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1990-2010 Military Rule Continues

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1990-2010: Military Rule

Independence & General Aung San

In the years following the 1990 election, Burma’s

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leading generals focused on four objectives.

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First, they sought to expand the size of the armed

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forces, in order to be in a stronger position against

1988 Uprising & 1990 Election (/1988-

their opponents. The number of soldiers was

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increased from 180,000 in 1988 to about 300,000

1990 - 2010: Military Rule Continues

by the late 1990s. If mass protests were to break

(/1990-2010-military-rule-

out again, there would be enough troops to take

continues.html) Sa ron Revolution - 2007 (/sa ronrevolution.html) Cyclone Nargis - 2008 (/cyclonenargis.html) 2010 Elections (/2010-elections.html) E ect of the 2010 Elections (/e ectsof-the-2010-elections.html)

action.

(/uploads/9/1/8/4/9184764/4319713_orig.jpg) Burmese soldiers participating in a military parade in 2008 (Photo source: www.irrawaddy.org; Getty Images)

Foreign Investment (/foreign-

Second, the regime worked to break up the organizational structure of the pro-democracy movement,

investment.html)

particularly the NLD. By keeping Aung San Suu Kyi under house arrest and the top party strategists in prison, they ensured that the party leadership was in disarray.

The Opposition Third, the regime tried to neutralize the ethnic armed resistance movements by making cease re Daw Aung San Suu Kyi (/assk.html)

agreements with many of the armed groups, such as the Wa and Kachin, on its borders. The Karen,

National League for Democracy

however, would not negotiate, and while the Burmese military - the Tatmadaw - nally captured the main

(/nld.html)

Karen base in the spring of 1995, there still has been no nal peace settlement. In 1996 Khun Sa, an armed opposition leader and opium warlord who nominally controlled parts of Shan State, made a deal with the

Important Issues

SLORC, who allowed him to make property and transportation investments near the Thai border. By 2000, only pockets of resistance remained.

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1990-2010 Military Rule Continues Ethnic Nationalities of Burma (/ethnic-

Fourth, the SLORC tried to improve the economy

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by opening up the country to trade and foreign

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investment. However, the regime had no expertise in economic planning, and the generals were unwilling to delegate responsibility to trained economists. After an initial growth spurt in the early 1990s, Burma su ered from declining investment, a severed depletion of foreign reserves and rampant in ation.

(/uploads/9/1/8/4/9184764/5015875_o

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Than Shwe (Photo source: www.irrawaddy.org; Getty Images)

The Than Shwe Years In 1992 the regime replaced General Saw Maung with Senior General Than Shwe, who would stay in power until the 2010 election, while General Ne Win still possibly exerted in uence behind the scenes. Than Shwe relaxed some of the restrictions on Aung San Suu Kyi's house arrest, nally releasing her in July 1995, although she was forbidden to leave Rangoon. Than Shwe also nally allowed a National Convention to meet in January 1993, to draft a new constitution, but insisted that the assembly preserve a major role for the military in any future government, and suspended the convention from time to time. The NLD, fed up with the interference, walked out in late 1995, and the Convention was nally dismissed in March 1996 without producing a constitution. After the failure of the National Convention to create a new constitution, tensions between the government and the NLD increased, resulting in two major crackdowns on the NLD in 1996 and 1997. The SLORC faced challenges as it struggled with a weakening economy and pressure form domestic political groups, foreign organizations and governments and in November 1997 renamed itself the State Peace and Development Council (SPDC). Lieutenant General Khin Nyunt, and General Maung Aye, who both had leading roles in policy making, used the occasion to strengthen their own positions by promoting younger, more loyal men to second-line leadership positions. Than Shwe also tried to woo the masses and secure his own base of support through the establishment of the Union solidarity and Development Association (USDA). Supposedly a social organization, the USDA was often used to defend the interests of the regime. The authorities also gave military training to some USDA youth and used them to intimidate and attack Aung San Suu Kyi and her supporters. Continuing reports of human rights violations in Burma led the US to intensify sanctions in 1997, and the EU followed suit in 2000. In September 2000 the SPDC again placed Aung San Suu Kyi under house arrest, after she and members of the NLD tried to travel from Rangoon to Mandalay. When she was released in May 2002, reconciliation talks were held but ended when Aung San Suu Kyi was once again put under house arrest in May 2003 after an ambush on her motorcade by a pro-military mob not far from Depayin town, an event known as the ‘Depayin massacre’. The junta also carried out another large-scale crackdown on the NLD, arresting many of its leaders and closing down most of its o ces. In an e ort to de ect attention from the Depayin Massacre, Kyin Nyunt announced a seven-step “Roadmap to Democracy (http://www.ibiblio.org/obl/docs/how10.htm)” in August 2003. No time-frame was provided, giving the regime the opportunity to speed up or draw out any steps of the process as they wished. In May 2004, the regime reconvened the National Convention for the rst time since March 1996 in an attempt to rewrite the Constitution. The NLD was invited but, since the regime refused to release Aung San Suu Kyi from house arrest, boycotted, as did many ethnic parties when it was clear that the regime would not remove the principle that the military must play the leading role in politics. The Convention was adjourned again in January 2006 without having written a constitution.


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The 2008 Constitution In mid-August 2007, the regime unexpectedly announced a large increase in fuel prices.

(/uploads/9/1/8/4/9184764/myanmar_constitution_2008_en.pdf)Transportation and food costs skyrocketed, with Myanmar Constitution 2008

devastating e ects on the poor. This led to large-

Download File scale anti-government protests, later known as the ‘Sa ron Revolution’ because they were led by (/uploads/9/1/8/4/9184764/myanmar_constitution_2008_en.pdf) Naypyidaw. The new capital cost an estimated $4-5 billion to (/uploads/9/1/8/4/9184764/david-build. Meanwhile, the regime spent less than half US$1 per williams-briefer-on-powerperson on healthcare. (Photo of-burmes-military-undersource: BBC) the-2008-constitution1.pdf) Analysis of the 2008 Constitution

thousands of Buddhist monks wearing sa ron colored robes, which were viciously crushed by the military.

In November 2005 the junta moved the capital from Rangoon to a formerly underdeveloped area in Central

Download File Burma. The o cial reason was because of concerns about a potential US invasion, but more likely the move (/uploads/9/1/8/4/9184764/davidwas to avoid a repetition of 1988, since demonstrations in Rangoon would no longer directly threaten the williams-briefer-on-power-of-regime’s security. The new capital was named Naypyidaw, which means ‘royal abode’, and cost $4-5 billion to build. Meanwhile, in 2004/05, the regime spent only 458 Burmese Kyat (less than half US$1) per person burmes-military-under-the-2008on healthcare. constitution1.pdf)

After the Sa ron Revolution the regime moved quickly ahead with the Roadmap to Democracy. It closed the National Convention and set up a committee to write the Constitution, which was nalized in February 2008. The regime then announced it would hold a referendum on the Constitution in May 2008, saying that ‘To approve the state Constitution is a national duty of the entire people today.’ Copies of the Constitution were, however, hard to nd, especially outside Rangoon, and the regime made almost no e ort to educate people about its contents. Anyone campaigning for people to vote 'No' could be sentenced to three years’ imprisonment, and the domestic media were not allowed to cover the 'Vote No' campaign. The Constitution allows a degree of civilian participation in politics, as there will be an elected national parliament and state/regional legislatures. However, 25% of the seats in each legislative body are reserved for the military and the president must have a military background. The Tatmadaw has the right to manage military a airs without any civilian interference and the military can take power if they believe that national security is threatened. Moreover, Chapter VII, Article 4 states: “The Tatmadaw must play a leading role in safeguarding the Union of Myanmar against all internal and external dangers.” Also, citizens who are married to foreigners may not be President, and persons who have served a prison sentence or have been convicted in court may not be elected to Parliament. This is clearly to prevent Aung San Suu Kyi and other political prisoners from taking part in politics. *Update: The 2010 Political Parties Registration Law, which prevented any group with members who had been imprisoned from operating as a political party, was revised by Thein Sein in November 2011 in order to allow the National League for Democracy (NLD) - Aung San Suu Kyi's party - and other parties to participate in politics. In December 2011 the NLD o cially registered as a political party and its candidates, including Daw Suu, won all 43 seats they contested in the April 1st 2012 by-elections. Despite a huge victory in the by-elections, a testament to the immense popularity still enjoyed by Aung San Suu Kyi and her party, the NLD controls only 43 out of 664 seats in Parliament, of which 25% are reserved for the military. Consequently the NLD's real in uence will probably be marginal, and it may be di cult for the party to really in uence the country's politics.

POWERED BY


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ANALYSIS OF THE 2008 SPDC CONSTITUTION FOR BURMA David C. Williams, Executive Director, Center for Constitutional Democracy

THE POWER OF THE BURMESE MILITARY UNDER THE 2008 SPDC CONSTITUTION

Burma’s ruling junta, the SPDC, has decided to hold elections in 2010 to choose a civilian government under the 2008 constitution, which was adopted by force and fraud. Even if those elections are free and fair, however, they won’t bring about civilian rule because the constitution does not provide for it--a partially civilian government, yes, but civilian rule, no. On casual reading, the constitution seems to provide for a transition to civilian rule, but closer reading reveals a blueprint for continued military rule. The constitution allows the Tatmadaw to keep however much control it likes. International attention has focused most on the constitution’s mandate that the Tatmadaw will appoint 25% of the various legislative bodies. But there’s a much bigger problem: under the constitution, the Tatmadaw is not subject to civilian government, and it writes its own portfolio. It can do whatever it wants. The Constitution guarantees the power of the Tatmadaw in its section on “Basic Principles”—a clear sign that the framers thought the role of the Defence Services to be fundamental. Article 20(b) provides that the military will run its own show without being answerable to anyone: “The Defence Services has [sic] the right to independently administer and adjudicate all affairs of the armed forces.” The constitution defines the “affairs of the armed forces” so broadly as to encompass anything that the Tatmadaw might want to do. Article 6(f) provides that among the “Union’s consistent objectives” is “enabling the Defence Services to participate in the National political leadership role of the State.” Article 20(e) further assigns the Tatmadaw primary responsibility for “safeguarding the non-disintegration of the Union, the non-disintegration of National solidarity and the perpetuation of sovereignty.” This regime has frequently found a threat to “National solidarity” when people merely disagree with it; it is prepared to slaughter peacefully protesting monks. There is no reason to think that after 2010, the Tatmadaw will think differently. Because the Tatmadaw’s responsibilities are so broadly and vaguely defined, the question of who will have the power to interpret their scope is critical. The constitution answers that question clearly: the Tatmadaw will have the power to determine the powers of the Tatmadaw. Article 20(f) assigns the Tatmadaw primary responsibility “for safeguarding the Constitution.” But if the military is the principal protector of the constitution, then

Page 2 of 5 the military will presumably have the final authority to determine its meaning, so as to know what to protect. And indeed, Article 46 implicitly confirms this conclusion: it gives the Constitutional Tribunal power to declare legislative and executive actions unconstitutional, but it conspicuously omits the power to declare military actions unconstitutional. In other words, the Tatmadaw has the final authority to interpret the scope of its own constitutional responsibilities. Most first year law students have read a famous portion of Bishop Hoadly’s Sermon, preached before the King in 1717: “Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the lawgiver, to all intents and purposes, and not the person who first spoke or wrote them.”1 And under the Burmese constitution, the Tatmadaw will be “truly the lawgiver,” not the people elected in 2010. The Constitution further ensures that the Tatmadaw will have the power to control the citizenry on a day-to-day basis. Under Article 232(b)(ii), the Commander-in-Chief will appoint the Ministers for Defence, Home Affairs, and Border Affairs. The military’s control over home affairs is especially ominous because it gives the Defence Services broad power over the lives of ordinary citizens in their daily lives. The military’s control over Home Affairs (as well as Defence and Border Affairs) will constitute a military fiefdom, not part of the civilian government in any meaningful sense. The Commander-in-Chief will have power to name the ministers without interference from any civilian official. The President may not reject the Commander-inChief’s names; he must submit the list to the legislature. See Article 232(c). The legislature may reject those names only if they do not meet the formal qualifications for being a minister, such as age and residence. See Article 232(d). Theoretically, the legislature could impeach those ministers under Article 233, but the Commander-in-Chief would merely re-appoint a new minister acceptable to him. In addition, these ministers will continue to serve in the military, so they will be under orders from the Commander-in-Chief, not from the President. See Article 232(j)(ii). In other words, the Commander-in-Chief will be administering home affairs, immune from interference by the civilian government. Theoretically—again—the legislature might try to pass statutes controlling the Tatmadaw, but recall—again—that under Article 20(b), the Tatmadaw has the “right to independently administer and adjudicate all affairs of the armed forces.” The independent power of the Tatmadaw over ordinary citizens includes the power to impose military discipline on the entire population. Article 20 provides: “The Defence Services has the right to administer for participation of the entire people in Union security and defence.” In other words, the military may forcibly enlist the whole citizenry into a militia so as to maintain internal “security.” And, again, the civilian government has no control over the military’s operations. After the elections, Burma will be a military dictatorship just as much as now.

1

See Choper, Fallon, Kamisar, and Shiffrin, Constitutional Law: Cases—Comments—Questions, page 1 (Ninth Edition 2001).

Page 3 of 5 In short, during normal times, the Tatmadaw has constitutional power to do anything it wants without interference from the civilian government. But if it ever tires of the civilian government, it can declare a state of emergency and send everyone else home. On this subject, the constitution uses a bait and switch approach: in one section, it creates a process for declaring a state of emergency in which the civilian government will have a role; but in another section, it specifies that the military may re-take power entirely on its own initiative. Thus, in Chapter XI, the constitution provides for the declaration of a state of emergency in which the military would assume all powers of government, see Article 419, but it would require presidential agreement before the fact, see Article 417, as well as legislative ratification afterwards, see Article 421. But in Chapter I on Basic Principles, Article 40(c) provides for a very different, alternative process in which the Commander-in-Chief can act at his own discretion: “If there arises a state of emergency that could cause disintegration of the Union, disintegration of national solidarity and loss of sovereign power or attempts therefore by wrongful forcible means such as insurgency or violence, the Commander-in-Chief of the Defence Services has the right to take over and exercise State sovereign power in accord with the provisions of this Constitution.” (emphasis supplied). To be sure, the Tatmadaw may seize power only if “national solidarity” is threatened, but as already shown, the military has unreviewable authority to decide whether such a threat exists. In other words, the Tatmadaw can seize control just as it did in 1962, and this time it will be legal. The whole constitution is based on a “wait and see” strategy: if the civilian government does what the Tatmadaw wants, then it will be allowed to rule; if not, then not. This constitution is not a good faith gesture toward democracy; it’s a cynical attempt to buy off international pressure.

THE TREATMENT OF BURMESE ETHNIC MINORITIES UNDER THE 2008 SPDC CONSTITUTION Burma’s troubles began in a constitutional crisis rooted in ethnic conflict. Before the British occupied the area now within the boundaries of Burma, it had never been a single, unified country. Upon independence, many ethnic minority people wanted independence from the Burmese government because they feared that the majority ethnic group, the Burmans, would try to dominate them as the Burman king had traditionally sought to do. Other ethnic minority people agreed to become part of the new country, but only because Aung San indicated that they could have substantial self-determination. In the event, the minorities received neither independence from Burma nor meaningful self-determination within Burma. The civil war began when the Karen took up arms to struggle for control of their homeland, and eventually every major ethnic group formed its own resistance army. The military took control of Burma because it claimed that only the army could save the country from chaos. The army is committing daily atrocities against the civilian population in the ethnic areas. In other words, the war began with

Page 4 of 5 ethnic conflict, and even once it becomes democratic, it will likely revert to war and military rule unless the constitution addresses the underlying reasons for the ethnic conflict. The new constitution does not address those underlying reasons, and overwhelmingly the ethnic minorities have rejected it. Their objections are many, but three are particularly important. First, they want federalism. Burma’s ethnic minorities are concentrated in seven states lying on the country’s borders. Devolution of power to these state governments will therefore entail devolution to the minorities. Federalism will get the minorities what they want, however, only if the minorities themselves are in control of the state governments and if those governments have power over those issues that are especially important to the minorities. The 2008 constitution provides for neither. The most powerful official in the state governments will be the Chief Minister, who will be entirely controlled by the President of the Union. The President has the power to name the Chief Minister. See Article 261(b). The state legislature has the power to reject the president’s nominee but only if the nominee lacks the constitutional qualifications to serve as Chief Minister, see 261(d), such as age and residency, see Articles 261(a) and 120.. In addition, “[t]he Chief Minister of the Region or State shall be responsible to the President,” Article 262(l)(i), so the President may presumably remove him at will. In short, the Chief Minister will not be answerable to the citizens of the state; he will instead be a local agent of the central government. In addition, the state governments will be very weak. The Constitution gives power over some matters to the Union government and over others to the states. The balance is utterly lop-sided in favor of central power. Schedule One of the Constitution lists the powers of the Union legislature; Schedule Two lists the powers of the state legislatures. It is not possible concisely to summarize these two lists because they are detailed. Some facts may, however, give a sense of the imbalance. In the official English version, the list of Union powers goes on for seven pages; the list of state powers for only three. The Constitution’s division of power over the gem industry provides a useful focused example of the imbalance. On the one hand, Schedule One gives the Union broad power over “[m]inerals, mines, safety of mine workers, and environmental conservation and restoration,” Schedule One, Article 6(c), as well as “[g]ems,” id. at Article 6(d). By contrast, Schedule Two gives the states power over “[c]utting and polishing of gemstones within the . . . State.” Schedule Two, Article 4(c). In addition, the Constitution gives the Union legislature residual legislative power: all powers not specifically enumerated in the Schedules belong to the Union. See Article 98. Finally, whenever legislation passed by a state legislature conflicts with legislation passed by the Union, the latter shall prevail. See Article 198(b). In other words, the central government has the power to void state law. Second, the minorities want a super-proportional share of power in at least one major decision-making body in the central government so that they can protect themselves. In

Page 5 of 5 particular, they desire that representation in the upper house of the legislature should be structured in the same way as the United States Senate: each state, regardless of population, would send the same number of representatives. Because the minorities tend to live in the less populated states, they would have super-proportional power. This sort of arrangement is not anomalous in Burma: the 1947 Constitution provided for a Chamber of Nationalities in which the ethnic minorities received super-proportional power. Indeed, even the SPDC’s 2008 Constitution provides that the seven states shall send equal numbers of representatives to the upper house. But the Constitution also provides that Burma’s seven Regions—which are dominated by Burmans—will also send the same number of representatives. See Article 141(a). In addition, the military government has resettled large numbers of Burmans to the “minority” states, so it is quite unlikely that the minorities will actually control the election of all the representatives from those states. Finally, the military will appoint twenty-five percent of all the members of the upper house, even those coming from minority states. As a result, it is extremely unlikely that the minorities will have enough power in the upper house to have meaningful influence over legislation. Third, the minorities want plausible guarantees that the military will not resume attacks on them. The 2008 Constitution promises the opposite. Article 20(b) provides that the civilian government shall have no power over the military within its domain: “The Defence Services has [sic] the right to independently administer and adjudicate all affairs of the armed forces.” The affairs of the armed forces include “safeguarding the nondisintegration of the Union, the non-disintegration of National solidarity and the perpetuation of sovereignty.” Article 20(e). This phrase has a history: the junta has long claimed that the ethnic minorities want to disintegrate the union and that only armed force can stop them. For that reason, the military has long cast itself as the only thing that can keep the country together. These provisions are therefore code: they mean that the army can do anything it wants to the minorities, just as it has been doing. The run-up to the elections has already brought increased violence. The SPDC has demanded that the ethnic resistance armies, even those with ceasefire agreements, must become border guard units in the Tatmadaw, commanded by Burmese army officers. Overwhelmingly, the ceasefire groups have rejected those demands, and the SPDC has attacked some of the smaller groups, resulting in yet another refugee crisis on Burma’s borders. The conflict will escalate exponentially if the regime attacks the larger groups such as the United Wa State Army and the Kachin Independence Army.

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How Does Myanmar’s Constitution Affect Investors?

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How Does Myanmar’s Constitution Affect Investors? The Constitution and the Military

While the 2008 Constitution is certainly a step in the right direction on many fronts, one of its main issues is that it enshrines military rule by stipulating that 25% of the seats in both assemblies be occupied by personnel from the military. So how does the fact that the military is strongly represented in the legislature affect the business interests of foreign investors? The first thing that we have to acknowledge is that every country needs a military to protect its national interests (unless it’s Costa Rica!) and Myanmar will always have some semblance of a military presence. In fact, strong militaries that don’t intervene in economic activity or violate human http://www.investinmyanmar.com/myanmar-constitution-investors/

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rights are generally seen as beneficial by investors because they offer stability. The Myanmar military, however, is a special case because of its history of human rights abuses and intolerance. What most investors want to see is the military step back and become a stabilizing body that promotes peace and allows basic freedoms. In an encouraging sign, the military has done almost exactly that since the first session of Parliament in 2011. Soldiers in Parliament have been relatively quiet – they are rarely interviewed by the press about legislative issues and have kept a low profile. We have seen very little economic interference by the military in the past year. While some investors have expressed worry over the 25% allocation, it is important to note that the NLD and other opposition parties combined now have an approximately equal number of seats as the military. As Myanmar continues to mature politically we expect the number of opposition party candidates to increase, and many are hopeful that changes to the Constitution in regards to the allocation of seats for the military will occur in the future. Investors should remember that President Thein Sein, one of the most pragmatic people in the new government, is a former military man.

The Constitution as it Relates to Business

Although several laws coming out of the new Parliament have a more direct impact on business, the Constitution contains several articles that businessmen should understand. Articles 35 and 36 of the Constitution spell out the basic economic system for Myanmar. Article 35 states http://www.investinmyanmar.com/myanmar-constitution-investors/

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explicitly that Myanmar will engage in a market economy, and article 36 explains that the government will not: • Nationalize economic enterprises • Demonetize the currency Article 36 also states that the government will take measures to prevent monopolization and ensure fair competition. It goes on to state that the government will promote the development of investments in Myanmar. These two articles of the Constitution are important for businessmen because they mean that as long as the Constitution is respected, a foreign business will not be taken over by the government. The stipulation about monopolization is also important because there are near-monopolies in Myanmar today, which can perhaps be challenged by foreign firms in the future. Article 37 of the Constitution is also important for business. We’ve included this article in its entirety here: 37. The Union : (a) is the ultimate owner of all lands and all natural resources above and below the ground, above and beneath the water and in the atmosphere in the Union; (b) shall enact necessary law to supervise extraction and utilization of State owned natural resources by economic forces; (c) shall permit citizens right of private property, right of inheritance, right of private initiative and patent in accord with the law. http://www.investinmyanmar.com/myanmar-constitution-investors/

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As you can see from article 37, all land in Myanmar is owned by the State. The State allows individuals to use the land, but that does not mean that they actually own it. We’ll address this issue in more depth in the legal chapter, but understand that under current law, individuals do not actually own physical land in Myanmar. You may think 37(c) stipulates that citizens can own property (meaning land), but after a careful reading of the Myanmar language version of this article, property in this case actually just means things- like cars or houses- not actual land. Article 37 (c) is also important because it provides patent protection. Patent and copyright laws are not strictly enforced in Myanmar at present, but foreign firms now have the Constitution as a legal precedent in this area. A similar article in the Constitution is Number 372: 372. The Union guarantees the right to ownership, the use of property and the right to private invention and patent in the conducting of business if it is not contrary to the provisions of this Constitution and the existing laws. This article helps to clarify article 37 in some ways because it states ‘the use of property’ which is exactly the right that people have in Myanmar – the right to use land, not to own land. Foreign investors worried about the nationalization of their assets in Myanmar should have some of their fears alleviated by the articles in the Constitution we’ve highlighted above. We’ve seen many people across the country taking the Constitution very seriously, so we expect that it will http://www.investinmyanmar.com/myanmar-constitution-investors/

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become a hallowed document in the future and that its articles will be protected by the legislature. Although the parliament can always amend the Constitution, it is extremely unlikely that they would strip out legal protections for private enterprises. Filed Under: Articles, Investment Procedures, Laws

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International Center for Transitional Justice

Impunity Prolonged: Burma and its 2008 Constitution September 2009

A young girl works in a field in Shan State, south of Hsipaw. The fields had been confiscated after the Shan State Army ended their truce and the Burmese authorities took the land belonging to the SSA and villagers. They then forced the entire village to harvest the rice before taking it to sell in the market in Lashio. 2005. Photo by Nic Dunlop/Panos Pictures.


September 2009

Impunity Prolonged: Burma and its 2008 Constitution


ICTJ New York 5 Hanover Square, 24th Floor New York, NY 10004 Tel + 1 917 637 3800 Fax + 1 917 637 3900

Acknowledgement ICTJ thanks the Netherlands Ministry for Development Cooperation, Embassy of the Kingdom of the Netherlands in Bangkok for making this publication possible. About ICTJ The International Center for Transitional Justice assists countries pursuing accountability for past mass atrocity or human rights abuse. ICTJ works in societies emerging from repressive rule or armed conflict, as well as in established democracies where historical injustices or systemic abuse remain unresolved. The use of geographical names in this report should not be interpreted as implying an ICTJ position on the political status of the mentioned locations.

A Burmese edition of this report is available at www.itcj.org ISBN: 978-1-936064-02-1 ISBN: 978-1-936064-03-8 Burmese © International Center for Transitional Justice 2009. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without full attribution.



Contents

Executive Summary............................................................................................................................................................................................................................................................................................................... 3 1. Recent Historical Context: The Roadmap to Democracy................................................................................................................................................................ 7 2. Burma’s Culture of Impunity for the Military. .................................................................................................................................................................................................... 10 Impunity for Sexual Violence ............................................................................................................................................................................................................................................................................ 11 The Nature of Sexual Violence in Burma ..................................................................................................................................................................................................................... 11 The Junta’s Response to the Allegations ............................................................................................................................................................................................................................ 15 Impunity for Forced Labor ...................................................................................................................................................................................................................................................................................... 18 The Nature of Forced Labor in Burma ............................................................................................................................................................................................................................... 18 The Junta’s Response to the Allegations: Pressure from the International Labor Organization ......................... 20 Impunity for the Recruitment and Use of Child Soldiers ......................................................................................................................................................................... 24 The Nature of Recruiting and Using Child Soldiers in Burma ......................................................................................................................................... 24 The Junta’s Response to the Allegations: Security Council Resolution 1612 ......................................................................................... 26 Patterns and Analysis in the Record of Impunity ....................................................................................................................................................................................................... 27 Impunity Is Related to Armed Conflict . ......................................................................................................................................................................................................................... 27 Impunity Is Reinforced by Attacking Those Who Complain ............................................................................................................................................... 28 Complaints Mechanisms Are Too Limited ................................................................................................................................................................................................................ 28 Are There Indications of Progress? . ............................................................................................................................................................................................................................................ 29 3. The 2008 Constitution: Entrenching Impunity ................................................................................................................................................................................................ 31 The Flawed Constitutional Process ......................................................................................................................................................................................................................................................... 32 Reinforcing Substantive and Structural Impunity .................................................................................................................................................................................................... 32 The Immunity Clause ......................................................................................................................................................................................................................................................................................... 32 The Legislature: Making the Law ................................................................................................................................................................................................................................................. 34 The Judiciary: Enforcing and Interpreting the Law . ................................................................................................................................................................................ 34 Amending the Constitution ................................................................................................................................................................................................................................................................... 35 4. Transitional Justice in the Current Context ............................................................................................................................................................................................................ 36 International Options for Justice .................................................................................................................................................................................................................................................. 36 National Preparations .......................................................................................................................................................................................................................................................................................... 38 5. Recommendations ............................................................................................................................................................................................................................................................................................................ 39

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Executive Summary Burma (also known as Myanmar) has been under military rule since 1962 when General Ne Win took power from the democratically elected government. Following nationwide protests in 1988, another coup marked the commencement of the current regime (initially called the State Law and Order Restoration Council, or SLORC, and now called the State Peace and Development Council, or SPDC). The new regime promised to usher in democracy and elections were held in 1990. However the military rulers refused to allow the winning National League for Democracy (NLD) to form a new government. Instead, they convened a National Convention to draft a new constitution, handpicking most of the initial 702 delegates and inviting only 106 of the elected Members of Parliament to participate. After many delays, the convention completed the draft on September 3, 2007. The convention ended just after a sudden rise in fuel costs caused the prices of commodities to increase considerably, prompting Buddhist monks to lead mass demonstrations calling for economic reform and national reconciliation. The military responded with ferocious force, raiding monasteries and firing on crowds of peaceful protestors. Many of the protesters were detained and reportedly tortured, and some were sentenced to long prison terms. In response to international criticism over the crackdown, the SPDC announced that a national referendum on a new constitution would take place on May 10, 2008, and elections would follow two years later. One week before the referendum, Cyclone Nargis hit Burma, and more than 130,000 people either died or were missing. Still, the military rulers insisted on proceeding with the referendum; they later claimed that, despite the death and mass destruction, more than 92 percent of eligible voters had approved the new constitution. An analysis of the constitution’s provisions suggests that instead of being a true catalyst for lasting change, it further entrenches the military within the government and the associated culture of impunity. In addition to providing amnesty to the ruling regime for any crimes committed, the constitution creates a governing structure that gives the military the ability to dominate the government and protect its interests in perpetuity. It reserves 25 percent of the seats in both houses of parliament for members of the security forces who undoubtedly will obey the instructions of their commanding officers. A substantial number of the remaining 75 percent of MPs will probably be ex-military and civil service officials who support the SPDC. To reinforce the structural guarantee that the regime retains its control, the constitution further requires that a number of the most important ministries be led by military personnel. As a result, military interests will dominate the government and parliament. The constitution declares that any amendment must be supported by more than 75 percent of parliament. So any changes would require that all nonmilitary MPs (including those who had formerly been in the www.ictj.org

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military) and at least one member of the armed forces vote for a proposed amendment to limit military dominance. The result is a carefully planned strategy in which a functioning democracy is impossible under the 2008 constitution, and altering its fundamentally undemocratic provisions is virtually impossible. Although human rights organizations are unable to operate freely inside Burma, people have been able to gather reports of violations, often at great risk, and smuggle them out of the country. These reports indicate that members of the military continue to be responsible for widespread, systematic human rights violations committed against anyone perceived to oppose the regime. Those responsible for such violations do so with almost total impunity. Although the range of reported violations is broad, including mass killings of civilians, this report focuses on three categories as a means of analyzing the manner in which impunity persists in Burma: sexual violence, forced labor, and the recruitment and use of child soldiers (often referred to as child soldiering). Each of these categories is the subject of international conventions that Burma has ratified, therefore raising obligations that the Burmese government must fulfill under international law. Such conventions include the 1979 Convention on the Elimination of All Forms of Discrimination against Women, ratified by Burma in 1997; the 1930 Forced Labour Convention, ratified by Burma in 1955; and the 1989 Convention on the Rights of the Child, with Burma’s accession in 1991. Sexual Violations The record of sexual violations, drawn from investigations carried out by UN special rapporteurs and Burmese women’s groups, demonstrates that rape is not a violation committed by rogue elements in the military, but rather appears to be a strategy of the SPDC. The perpetrators have a level of impunity that indicates institutional support for these practices. In general, the response of the military to international accusations of sexual violations has been consistent obfuscation. Burmese officials have said that national laws and remedies exist for these crimes and allegations that sexual violence by military forces is systematic are false. More recently, however, the SPDC has begun to accept that some members of the security forces are guilty of rape, and perpetrators have been forced to pay some compensation to their victims. Although the manner and degree of this punishment is far from appropriate for such horrific crimes, it signifies a relatively minor degree of willingness to acknowledge them. Still, this level of progress pales in significance compared with the magnitude of the problem of sexual violations in Burma. Forced Labor The SPDC has been implicated in widespread practices of forced labor. Some people are required to carry heavy loads for the military; if they move too slowly or collapse during the process, they are treated poorly and savagely beaten. Others are forced to work on construction and public works programs, on farms cultivating subsistence crops, and on development projects paid for by foreign companies, such as gas pipelines or hydroelectric plants. It appears that international action over the past decade—and the threat thereof—has made the SPDC take some action on forced labor as well as the related violation of child soldiering. However, it is less clear whether this pressure has prompted limited, yet meaningful change or merely created superficial steps designed to avert international scrutiny and sanctions. The International Labour Organization (ILO) established a Commission of Inquiry in 1998 and decided two years later to impose sanctions. In response, the SPDC allowed the ILO to open an office in Rangoon. The liaison officer there reported that impunity rendered the existing national complaints system relatively meaningless. Although a new complaints mechanism has been established through the ILO, it

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handles a small number of cases given the widespread nature of the practice. Significantly, several people who filed complaints have been prosecuted for doing so. Child Soldiers Battalion commanders in the Burmese army must recruit a specific number of new recruits each year, or risk losing their commands. One method of insuring that the quota is filled is through recruiting children—a widespread practice well documented by the UN, international NGOs, and local human rights organizations over the last decade. As in the case of forced labor, the Burmese government has reacted in a very limited fashion to international attention to the problem. During the months before the passage of UN Security Council Resolution 1612—requiring the UN Secretary General to provide the Security Council with a list of parties that recruit and use child soldiers—the SPDC began to develop a plan to deal with the issue. It established a committee to demobilize child soldiers and reintegrate them into society, as well as to raise the country’s awareness of the illegal practice and punish those responsible for it. Only a small number of child soldiers have been discharged so far. Impunity for recruitment and use of child soldiers remains strong. Impunity Whenever a country’s military is charged with taking strong action in the interests of national unity, sovereignty, and security, members of the armed forces often severely abuse civilians. Armed with guns and the knowledge that they are not likely to be held accountable for their abuses, members of the military often resort to inhumane behavior. Rape is tolerated and is seen not as a crime but rather as a necessary strategy to punish individuals, families, and communities that may oppose the government. This illusion validates and encourages more violations. Civilians are snatched from their homes and forced to provide free labor to support the military’s endeavors against opposition forces. Given the high rates of attrition in the armed forces, the expanding size of the army, the numbers of volunteers decreasing, and deserters increasing, recruiters have turned to children to meet their quotas. While all of these activities are illegal under Burmese and international law, they persist because of the country’s culture of impunity. As a result, Burma presents one of the most difficult challenges in the world in relation to making progress toward combating impunity, uncovering the truth, seeking to assist victims, and reforming institutions responsible for mass violations of human rights. The government severely restricts civil society’s ability to safely promote respect for human rights, and the constitution reinforces military dominance, including constitutional guarantees of impunity. In such a context, Burmese civil society and international actors can focus strategies on moderate shortterm goals to build the foundations for long-term change and mechanisms of accountability. One step these groups can take now is to strengthen the ability of activists in Burma and its border regions to objectively gather and use information and reports about human rights violations. In many post-conflict settings, the loss or decay of evidence, or improper methodology for collecting it has severely hampered progress on transitional justice issues. However, since recent history indicates that eventually some form of reckoning will come to those who have committed crimes in Burma, a coordinated, well-informed approach to documenting the violations can produce data that helps international actors formulate policy in response to the situation and preserves evidence for any potential prosecutions, truth-seeking mechanisms, or other measures to deal with the legacy of impunity. Recently Burmese activists have been considering the potential value in calling for a UN Commission of Inquiry into international crimes in Burma and/or calling for a referral of the situation to the International Criminal Court (ICC). Although the court’s jurisdiction generally applies to crimes committed in territories or by nationals of countries that ratified the Rome Statute, the UN Security Council has the

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power to refer a situation in a country that has not done so if it presents a threat to international peace and security. This happened with Sudan in 2005, where the subsequent investigation led the ICC to indict President Omar al-Bashir and issue an arrest warrant for him. However, referral requires Security Council agreement, and the unique factors that led to the Sudan referral are distinct from the current political dynamics in relation to Burma. Regardless of the likelihood of any possible referral to the ICC, establishing a Commission of Inquiry is a measure that the international community has supported in a range of situations in which more information is needed to decide if further action is necessary. Given the difficulties of getting thorough information from Burma, a commission could help assess the nature and extent of serious human rights violations. Many groups are either considering or supporting various other strategies. These include advocating a global embargo on supplying arms to the SPDC, bringing cases for mass crimes committed in Burma under the universal jurisdiction legislation in other countries, and bringing civil claims in the United States under the Alien Tort Claims Act, which allows victims to sue perpetrators of international torts or crimes even if the crime does not involve a U.S. citizen and is committed outside U.S. borders. Other recent experiences in Argentina, Peru, and Cambodia provide examples of national leaders who were tried in courts decades after they committed mass atrocities. Although the level of impunity in Burma may now appear intractable, it is no more so than the situations that existed during the reigns of the Argentine junta, Peru’s President Alberto Fujimori, or the Khmer Rouge in Cambodia. It is now clear that no leader who allows such violations to take place on their watch, no individual responsible for them, can be certain that they will never be held accountable. Burma is no exception. The Burmese continue to be forced to live with mass violations, impunity that encourages more crime, a constitution that entrenches the military’s power, and a blanket of terror over political opposition. While this context does not dictate that nothing can be done toward fulfilling the right to justice, truth, and reparations, any strategic approach needs to focus on catalyzing change, preparing for future accountability measures, preserving and organizing evidence, and effectively using available international mechanisms.

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1. Recent Historical Context: The Roadmap to Democracy The SLORC emerged in 1988 after 26 years of military rule under General Ne Win, who had staged a coup against the democratic government in 1962. In 1988, weary from dictatorship and disgruntled about the increasingly disastrous state of the economy, students in Rangoon began leading protests calling for democracy. The demonstrations spread to cities and towns throughout the country, culminating in a major nationwide protest on August 8, 1988 (now commonly referred to as “8-8-88”). Soldiers fired on the protestors, but then retreated and left ordinary citizens to take charge of maintaining daily order. Six weeks later the army, led by Army Chief Saw Maung, staged a coup. Saw Maung then announced the formation of the SLORC as a transitional regime and promised multiparty elections.1 Burma held parliamentary elections in 1990. The NLD won more than 80 percent, or 392 of the total 485 seats. The SLORC quickly nullified the elections by issuing Declaration 1/90, announcing that they had actually been held to choose delegates who would draft a new constitution at a National Convention.2 Many of those protesting these events were arrested, including newly elected MPs, and others fled the country. The convention met in January 1993. Elected representatives filled only 106 out of 702 delegate seats.3 According to the junta, one of the convention’s key objectives was “the participation of the [armed forces] in the national political leadership role of the State in the future.”4 The junta ordered the delegates to create “basic principles” for a new constitution, and throughout the process, it rejected proposals from representatives of various ethnic groups.5 Due to the flawed mandate and restrictions on open debate and discussion, the NLD delegates walked out in November 1995. Several months later, the convention adjourned and did not reconvene until 2004. During the interim, the government passed a law prohibiting any criticism of the convention; lawbreakers faced up to 20 years in prison.6 1 2 3 4 5

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F or a thorough review of the events of 1988, see Bertil Lintner, Outrage: Burma’s Struggle for Democracy (Bangkok: White Lotus, 1990). SLORC Declaration 1/90, July 27, 1990. Human Rights Watch, Vote to Nowhere: The May 2008 Constitutional Referendum in Burma, May 2008. The number of delegates increased over time. SLORC Order 13/02, “The Formation of the Commission for Holding the National Convention,” Oct. 2, 1992. “Burmese armed forces” is Tatmadaw, the English transcription of the Burmese word for “armed forces.” The regime rejected an August 1993 proposal from 13 ceasefire groups for a decentralized federal union and ignored a 19-point proposal from the Kachin Independence Organization in August 2007. The lack of genuine discussion prompted the New Mon State Party to downgrade its delegates’ involvement in the National Convention from participants to observers in December 2005. SLORC Law No. 5/96, The Law Protecting the Peaceful and Systematic Transfer of State Responsibility and the Successful Performance of the Functions of the National Convention against Disturbances and Oppositions, June 7, 2006. See http://www.blc-burma.org/html/Myanmar%20Law/lr_e_ml96_05.html.

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Burma’s political scene gradually opened in 2002. The government permitted the ILO to establish an office in Rangoon and released NLD leader Daw Aung San Suu Kyi from house arrest. She began drawing large, enthusiastic crowds while visiting various parts of the country. However, this increased level of freedom was short-lived. In May 2003, Aung San Suu Kyi’s convoy was attacked outside of Depayin in central Burma, and many of the people in her convoy were killed or injured. She returned to house arrest where she remained until May 2009 when she was detained for allegedly violating the terms of her house arrest. One year later, in a move that many analysts saw as an attempt to deflect international criticism for Aung San Suu Kyi’s treatment, Prime Minister Khin Nyunt announced the “roadmap to democracy” which consisted of the following seven steps: 1) Reconvene the National Convention. 2) Take the steps necessary to implement a genuine, disciplined democratic system. 3) Draft a new constitution in accordance with the basic principles established by the National Convention. 4) Adopt the constitution through a national referendum. 5) Hold free and fair elections for Pyithu Hluttaws (legislative bodies) according to the new constitution. 6) Convene Hluttaws in accordance with the new constitution. 7) Build a modern, developed, and democratic nation composed of state leaders elected by the Hluttaw, in addition to government and central organs formed by the Hluttaw.7 The National Convention reconvened in May 2004 and seemed likely to drag on, as it had since it first convened in 1993. However, once again dramatic events unfolded to push the process forward. Following a fuel price hike on August 15, 2007, the cost of commodities soared. Protesters gathered on the streets, with demonstrators demanding improvements in the economic situation. As the size of the demonstrations grew, the authorities once again resorted to force. They arrested protest leaders, including prominent former students who had been involved in the 8-8-88 movement. In the midst of this tumultuous period, the government—then called the SPDC—concluded the convention on September 3, 2007. As the month progressed, with most former student leaders detained or in hiding, Buddhist monks began leading the demonstrations, drawing tens of thousands of people into the streets. Demands broadened from economic reforms to national reconciliation and dialogue. The authorities began a final crackdown on September 25. Dozens of people were killed, and thousands were detained.8 International attention to the horrific events in Burma and the SPDC’s lack of democratic reforms prompted the regime to move quickly through the next steps of the roadmap. The SPDC announced that a national referendum on a new constitution would take place on May 10, 2008, and elections would be held in 2010.9 The week before the referendum, Cyclone Nargis slammed Burma. It was the country’s worst natural disaster on record. More than 130,000 people were either killed or listed as missing, and millions lost their homes.10 In the wake of this humanitarian disaster, many people, including the UN SecretaryGeneral, and civil society groups urged the regime to postpone the referendum so the country could concentrate on disaster relief.

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Speech by Khin Nyunt, New Light of Myanmar, Aug. 31, 2003. Human Rights Watch, Crackdown: Repression of the 2007 Popular Protests in Burma, December 2007. Human Rights Watch, Vote to Nowhere: The May 2008 Constitutional Referendum in Burma, May 2008. Office of the Coordination of Humanitarian Affairs (OCHA), Myanmar Cyclone Nargis OCHA Situation Update No. 37, July 3, 2008.

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Ignoring these requests and the plight of the Burmese people, the SPDC held the referendum. Officials claimed that 92.4 percent of voters approved of the new constitution and that, despite the humanitarian emergency, 26 million out of 27 million eligible voters cast ballots. Because these figures were so far outside the realm of possibility, international commentators unanimously dismissed the entire process as a sham.

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2. Burma’s Culture of Impunity for the Military During the course of the SPDC’s two decades as a transitional regime, human rights organizations and the United Nations have documented a wide array of human rights violations committed by the ruling junta and its predecessor, the SLORC. This section examines three categories of these allegations, specifically the military’s responsibility for acts of sexual violence, forced labor, and the recruitment and use of child soldiers, as well as the general lack of accountability for these violations. This report focuses on these particular categories because the Burmese government has clear international obligations to investigate and address them, having signed the 1979 Convention on the Elimination of All Forms of Discrimination against Women (ratified 1997), the 1930 Forced Labour Convention (ratified 1955), and the 1989 Convention on the Rights of the Child (accession 1991). The following section analyzes patterns in this record of impunity, drawing together common themes. It also highlights some areas where progress is being made, suggesting strategies that could potentially lead to reforms in Burma.

Burmese troops watch as women leave a Buddhist temple near Myitkyina in Kachin State, 1998. Photo by Nic Dunlop/Panos Pictures.

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Impunity for Sexual Violence The use of sexual violence as a strategy of war, as well as a reward for soldiers, continues to be a serious problem in Burma. In 1993, Yozo Yokota, the UN special rapporteur on the situation of human rights in Myanmar, reported that, “In the context of military operations, forced relocation, portering and forced labour, the practices allegedly involve… rape, burning, and mutilation before execution.”11 In response, the Burmese military stated that the allegations related to arbitrary executions “are totally false and unfounded…. The Tatmadaw [the Burmese military] has never, at any time committed such atrocities nor will it ever do so in the future…. Atrocities such as…rape of rural women, forced conscription and mass execution of villagers are being committed only by the insurgents time and again.”12 Fifteen years later, the SPDC refuses to acknowledge the widespread problem of sexual violence, despite a growing record that details how officers and troops systematically use rape and other forms of sexual abuse as a strategy of war. The Burmese government has not made any meaningful official investigations into specific incidents or wider patterns of sexual violence. Occasionally the military has made unofficial payments to victims as compensation for assaults by officers. Such payments suggest at least a recognition that the violations occurred and were wrong. However, on the rare occasion that a victim gets compensated, no other significant measures are made to hold the perpetrators accountable. In Special Rapporteur Yozo Yokota’s 1994 report, he responded to the SPDC’s continued denials with a specific recommendation: “Given the magnitude of the abuses, official condemnation should be made by the Government of all acts by authorities involving human rights violations. Such acts, including all acts of intimidation, threat or reprisal, should not benefit from the present system of complete denial by, and impunity under, the Government.”13 The recommendation, or one like it, has been made by the special rapporteurs nearly every year since.14 The Nature of Sexual Violence in Burma The record of violations, developed from investigations by the UN special rapporteurs as well as Burmese women’s groups, demonstrates that rape is not a violation committed by “rogue elements” in the military; instead it appears to be a strategy of the regime.15 The list of incidents in the box below—highlighting one per year since 1993—provides a brief anecdotal record of rapes military officers or soldiers have committed in various locations in Burma.

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N General Assembly, Situation of human rights in Myanmar, Nov. 16, 1993, sec.II. “Memorandum of Allegations to U the Government of Myanmar,” sub-sec. B. “Torture, cruel, inhuman or degrading treatment,” par. 10, (A/48/578). UN General Assembly, Situation of human rights in Myanmar, Nov. 16, 1993, sec.IV. “Response by the Government of Myanmar to the Memorandum of the Special Rapporteur,” par. 9, (A/48/578). UN Commission on Human Rights, Report on the situation of human rights in Myanmar, by the Special Rapporteur, par. 74(g), Feb. 16, 1994 (E/CN.4/1994/57). See for example UN General Assembly, Interim Report of the Special Rapporteur on the situation of human rights in Myanmar, Oct. 8, 1996 (A/51/466); UN Commission on Human Rights, Report of the Special Rapporteur on the situation of human rights in Myanmar, Jan. 15, 1998 (E/CN.4/1998/70); UN General Assembly, Report of the Special Rapporteur of the Commission on Human Rights on the situation of human rights in Myanmar, Sept. 10, 1998, (A/53/364); UN Commission on Human Rights, Report of the Special Rapporteur on the situation of human rights in Myanmar, Jan. 22, 1999 (E/CN.4/1999/35); UN General Assembly, Report by the Special Rapporteur on the situation of human rights in Myanmar, Oct. 4, 1999, (A/54/440); UN General Assembly, Situation of human rights in Myanmar—Interim Report of the Special Rapporteur, Aug. 22, 2000, (A/55/359); UN Commission on Human Rights, The situation of human rights in Myanmar: Report submitted by the Special Rapporteur, Dec. 27, 2002 (E/CN.4/2003/41); UN General Assembly, Situation of human rights in Myanmar, Aug. 30, 2004 (A/59/311); UN Commission on Human Rights, Report of Paulo Sérgio Pinheiro, Special Rapporteur on the situation of human rights in Myanmar, Dec. 2, 2004 (E/CN.4/2005/36); UN General Assembly, Interim report of Paulo Sérgio Pinheiro, Special Rapporteur of the Commission on Human Rights on the situation of human rights in Myanmar, Aug. 12, 2005 (A/60/221); UN General Assembly, Report of the Special Rapporteur on the situation of human rights in Myanmar, Paulo Sérgio Pinheiro, Sept. 21, 2006 (A/61/369); UN Human Rights Council, Report of the Special Rapporteur on the situation of human rights in Myanmar, Paulo Sérgio Pinheiro, Feb. 12, 2007 (A/HRC/4/14); UN Human Rights Council, Report of the Special Rapporteur on the situation of human rights in Myanmar, Paulo Sérgio Pinheiro, March 7, 2008 (A/HRC/7/18). Women’s League of Burma, System of Impunity: Nationwide Patterns of Sexual Violence by the Military Regime’s Army and Authorities in Burma, September 2004, 1.

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A sample of reported incidents of rape, 1993-2008

On August 2, 1993, soldiers from Infantry Battalion 64 arrested 12 women in southern Shan State, ages 15 to 30 years, and took them to a nearby farm and gang-raped them. (UN General Assembly, Interim Report on the situation of human rights in Myanmar, Special Rapporteur, October 28, 1994, A/49/594, sec. III, par. 15.) In February 1994, a 33-year-old Karen widow and mother of three children was interrogated by a SLORC officer about her village’s contact with the Karen National Liberation Army (KNLA) and accused of working for the rebels. The officer raped her three times the night she was interrogated. (Karen Women’s Organization, Shattering Silences: Karen women speak out about the Burmese Military Regime’s use of Rape as a Strategy of War in Karen State, Case 12, April 2004.) On January 1, 1995, Light Infantry Battalion 410 abducted a group of women in Mon State and took them to Paukpinkwin Village in order to rape them. (UN General Assembly, Interim Report on the situation of human rights in Myanmar, Special Rapporteur, October 16, 1995, A/50/568, sec. III, par. 22(e).) In 1996, a 15-year-old girl from Kywe Thone Nyi Ma was raped so many times by soldiers at a railway worksite that she bled to death. (UN General Assembly, Interim Report on the situation of human rights in Myanmar, Special Rapporteur, October 8, 1996, A/51/466, par. 51.) On July 1, 1997, soldiers raped many women in the Kaeng Lom area as they ransacked the village, eventually killing 96 villagers. (UN General Assembly, Interim Report on the situation of human rights in Myanmar, Special Rapporteur, October 16, 1997, A/52/484, par. 108.) On May 11, 1998, Maj. Myint Than, protected by 85 to 90 of his troops, raped a girl repeatedly for a day near Lai-Kha before burning her in her hut. (UN General Assembly, Interim Report on the situation of human rights in Myanmar, Special Rapporteur, September 10, 1998, A/53/364, par. 51.) In July 1999, soldiers from Infantry Battalion 101, led by Lt. Col. Soe Win, gang-raped a 19-yearold, causing her death. (UN General Assembly, Interim Report on the situation of human rights in Myanmar, Special Rapporteur, October 4, 1999, A/54/440, par. 34.) In May 2000, Capt. Tun Aung of Light Infantry Battalion 515 raped a 19-year-old for three and a half hours. When she and her family went to the military camp to identify him, he was not in the lineup. The young woman, her family, and the headman of her village were fined and threatened with 10-year prison sentences if they could not pay. (Shan Human Rights Foundation and Shan Women’s Action Network, License to Rape: The Burmese military regime’s use of sexual violence in the ongoing war in Shan State, Case 112.) In mid-2001, soldiers from Infantry Battalion 244 raped a 14-year-old girl near Wan Kad village in Shan State, resulting in her death. They left her naked body by the river. (Women’s League of Burma, System of Impunity: Nationwide Patterns of Sexual Violence by the Military Regime’s Army and Authorities in Burma, September 2004, Case 40.) In October 2002, a lance corporal and a private from Light Infantry Battalion 309 in Chin State raped and murdered a ninth-grade student. She had to pass through the military camp every day on her way to and from school, and the soldiers attacked her one evening. (Women’s League of Chinland, Unsafe State: State-sanctioned sexual violence against Chin women in Burma, March 2007, Case 22.)

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In February 2003, a 15-year-old Lahu girl was gang-raped and murdered by SPDC troops patrolling in the Mong Pyark area of Shan State. (Women’s League of Burma, System of Impunity: Nationwide Patterns of Sexual Violence by the Military Regime’s Army and Authorities in Burma, September 2004, Case 1.) In January 2004, a 20-year-old Mon woman went to negotiate the release of her father, who had been detained after he was accused of having contact with Mon rebels. Capt. Hla Khaing of Light Infantry Battalion 586 took her into a house, kicked out the homeowner, and raped the woman repeatedly for two days. (Women’s League of Burma, System of Impunity: Nationwide Patterns of Sexual Violence by the Military Regime’s Army and Authorities in Burma, September 2004, Case 5.) In April 2005, Corp. Zaw Min of Light Infantry Battalion in Shan State took the 6–year-old daughter of a fellow officer to “buy sweets.” She did not come back. When her body was found, she had been brutally raped and killed. (Women of Burma, In the Shadow of the Junta: CEDAW Shadow Report, 2008, 63-64, citing report from Shan Herald Agency for News and confirmed by a source inside Burma.) In June 2006, two women, 28 and 24 years old, were traveling through Sagaing Division on their way home from Mizoram, India. Passing near an army camp, they were stopped by soldiers from Light Infantry Battalion 268 who checked their identity cards and demanded they sleep a night in the village. That night, five of the soldiers raped the women. (Women’s League of Chinland, Unsafe State: State-sanctioned sexual violence against Chin women in Burma, March 2007, Cases 2 and 3.) In February 2007, seven soldiers from Infantry Battalion 138 in Kachin State raped four girls, ages 14 to 16. Recognizing that the rapes had taken place, the army later paid the girls about $230 in compensation, but their families requested more money. When the incident was reported in the exile media, the girls were arrested and imprisoned. (The Irrawaddy, February 15, 2007, and Human Rights Watch’s World Report 2008, 249.) In July 2008, soldiers from Light Infantry Battalion 437 raped and killed a 15-year-old girl in Kachin State. Her body was found three days later, 200 feet from the army camp. Her body had been stabbed seven times, and her face was badly mutilated. (Women of Burma, In the Shadow of the Junta: CEDAW Shadow Report, 2008, 65-66, citing Kachin News Group, “Teenage Kachin schoolgirl gang raped and killed by sadistic Burmese soldiers,” August 9, 2008.)

In the 2006 report Unsafe State, the Women’s League of Chinland maps the incidents of rape it has documented, showing that rapes are committed by troops from at least 11 battalions throughout Chin State and in close proximity to military camps.16 The UN Committee on Human Rights (now the Human Rights Council) and the General Assembly have acknowledged that the problem of rape in Burma entails more than a few isolated incidents. Following the publication of License to Rape in 2002, the UN Committee on Human Rights passed a resolution deploring the state’s systematic violations of human rights, including rape.17 The General Assembly also passed resolutions expressing grave concern and calling for an end to systematic human rights violations, including rape.18

16 17 18

Women’s League of Chinland, Unsafe State: State-sanctioned sexual violence against Chin women in Burma, March 2007, 2. United Nations Commission on Human Rights Resolution 2002/67, April 25, 2002, par. 5(a) E/2002/23—E/CN.4/2002/200. United Nations General Assembly Resolution 59/263, Situation of human rights in Myanmar, March 17, 2005, par. 2 and 3, A/RES/59/263.

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Table: Documentation of Rape and Sexual Violence19202122 Name of Report

License to Rape

Shattering Silences

System of Impunity

Catwalk to the Barracks

Unsafe State

Release Date

May 2002

April 2004

September 2004

July 2005

March 2007

Focus Area

Shan State

Karen State

All ethnic states and central Burma21

Mon State

Chin State

Period Covered

1996–2001

1988–2004

2002–2004

1995–2004

1989–2006

Number of Cases

173

125

26

37

38

399

Number of Women and Girls

625

127

34

50

39

875

Number of Girls (younger than 18)

77

20

15

11

5

12822

Remark

High-ranking military officers (commander— corporal) committed 83 percent of cases, 61 percent were gang rapes, and 25 percent resulted in death. Perpetrator punished by commanding officer in only one case.

Half of the incidents were committed by high-ranking officers; 40 percent were gang rapes. In 28 percent of cases women were killed after being raped.

Seventeen cases were gang rapes by senior military officers, authorities, or with their complicity.

Scores of “comfort women” forced to work by day and be sex slaves at night; 30 young women, including schoolgirls, made to stay at military base and take part in a military “fashion and beauty show.” More than half the cases committed by military officers, often in front of or together with their troops.

Women and girls as young as 12 are being raped in their homes and on farms, while traveling outside their villages and when conscripted as forced labor

Total Cases Cited20

19 20 21

Adapted from Women of Burma, In the Shadow of the Junta: CEDAW Shadow Report, 2008. Total number is sum total of all reports with no cases repeated among the reports Burma’s seven states are Kachin, Karen (Kayin), Karenni (Kayah), Chin, Mon, Arakan (Rakhine), and Shan. It also has seven divisions: Sagaing, Tenasserim (Tanintharyi), Pegu (Bago), Magway, Mandalay, Rangoon (Yangon), and Irrawaddy (Ayeyawady). In 1989, the SLORC changed the English language names of the country and several states, divisions, towns, etc., from what it perceived to be colonial era names. The revised names are in parentheses. 22 In the Shadow of the Junta mistakenly gives a total of 161.

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From 2002 to 2007, women’s organizations from Burma documented nearly 400 incidents of rape and other forms of sexual violence that Burmese military personnel committed between 1988 and 2006. They identified 875 victims, 128 of whom were younger than 18. Several factors suggest that the number of incidents detailed in these reports is a fraction of those that actually occurred. While some communities sympathize with and support rape victims, the social stigma connected with sexual violence leads many women to remain silent about what they have experienced or even to leave their communities. In its 2005 report, Catwalk to the Barracks, the Women and Child Rights Project (Southern Burma) reports that three women interviewed for the report “decided to flee from their villages after the incidents because they felt ‘blamed and despised’ by local villagers.”23 Another woman reported feeling too ashamed to call for help while she was being sexually assaulted. We can assume that, along with the social stigma, the isolation of many rural villages in Burma, the presence of military checkpoints, and the physical dangers of armed conflict also lead to an underreporting of incidents of sexual violence. A pattern connecting increased armed conflict with rape emerges from a close reading of the records. The 2008 shadow report the Women’s League of Burma (WLB) prepared for the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) committee found that the “majority of incidents…take place in the ethnic states which have been most impacted by the regime’s policies of military expansion. Sexual violence is being used by the regime as an integral part of its strategy to subjugate the ethnic peoples.”24 When rape is used in this way, it is a criminal act under international law.25 The Junta’s Response to the Allegations The SPDC responded to rape allegations by identifying the Defense Services Act, Defense Services Rules, the Myanmar Penal Code, and the Civil and Criminal Procedures as domestic laws against rape; breaking these laws can be punishable by death.26 However, the existence of laws that prohibit sexual offenses and provide strong punishments does not mean they are enforced. Through the 1990s, the military junta generally denied that its troops were perpetrating sexual violence and consistently claimed no reliable evidence existed. In response to a 1994 charge of gang rape in Shan State’s Laikha Township, the junta told the UN, “No reports from civil or military have been received and no information about the alleged incidence has been received from the local populace. Here again, no proof has been provided.”27 The junta’s response, however, did make vague references to some members of the army who break laws and said, “Actions have been taken against them.”28

23 24 25

26

27 28

Women and Child Rights Project (Southern Burma), Catwalk to the Barracks. July 2005. Women of Burma, In the Shadow of the Junta: CEDAW Shadow Report, 2008. Shadow reports are a method for civil society groups to supplement or present alternative information to the periodic government reports that state parties submit under treaties. The record of international tribunals holding people accountable for committing rape has improved in the last decade. A 1997 decision at the International Criminal Tribunal for the former Yugoslavia found Duško Tadi guilty of crimes against humanity for acts that included crimes of sexual violence. The court’s decision marked a shift away from the traditional approach of viewing sexual violence as a crime against honor to viewing it as a weapon of war. This view gained prominence when the 1998 Rome Statute of the ICC defined rape committed as part of a widespread or systematic attack against civilians as a crime against humanity. The ICC used this definition when it indicted Germain Katanga and Mathieu Ngudjolo Chui of the Democratic Republic of Congo, Joseph Kony of Uganda, and Jean-Pierre Bemba Gombo of the Central African Republic. The Special Court for Sierra Leone and the International Criminal Tribunal for Rwanda also found people guilty of crimes against humanity for acts of rape. Article 375 of the Myanmar Penal Code prohibits rape, and Article 376 allows the courts to sentence convicted rapists to life in prison. In U Win Mra’s statement responding to the 1997 U.N. General Assembly Resolution on the Situation of Human Rights in Myanmar, the permanent representative and alternate chairman of Myanmar’s UN delegation said, “Any member of the Armed Forces convicted of murder or rape can be sentenced to the maximum punishment of death penalty.” See www.burmalibrary.org/reg.burma/archives/199803/msg00043.html. UN General Assembly, Addendum to the Report on the situation of human rights in Myanmar, Special Rapporteur, Oct. 28, 1994, A/49/594/Add.1, Observations and rebuttals on the summary of allegations, par. 23. Ibid.

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The special rapporteurs have increasingly expressed concern about the junta’s mechanisms of impunity in their annual reports to the Committee on Human Rights and the General Assembly. Given the magnitude of abuses, the Government should subject all officials committing human rights abuses and violations to strict disciplinary control and punishment and put an end to the culture of impunity that prevails in the public and military sectors.29 The Special Rapporteur is deeply concerned about the serious human rights violations that continue to be committed by the armed forces in the ethnic minority areas. The violations include extrajudicial and arbitrary executions (not sparing women and children), rape, torture, inhuman treatment, forced labour and denial of freedom of movement. These violations have been so numerous and consistent over the past years as to suggest that they are not simply isolated or the acts of individual misbehaviour by middle- and lower-rank officers but are rather the result of policy at the highest level, entailing political and legal responsibility.30 Following the 2002 publication of License to Rape by the Shan Human Rights Foundation and the Shan Women’s Action Network (SWAN), the SPDC came under much greater international pressure to address the issue of sexual violence, particularly in Shan State.31 The official response consisted of denials, accusations that those making the allegations were politically motivated and therefore unreliable, and cosmetic investigations. All of these responses have permitted the regime to prolong impunity. During a press conference held on July 12, 2002, Labor Minister U Tin Winn called the allegations “false and groundless.” U Thaung Tun, director-general of the Ministry of Foreign Affairs’ Political Affairs Department said the charges were “fabrications of the insurgents” and claimed that the “gentle and calm” nature of Burmese Buddhists made such atrocities unacceptable, pointing out that “it is generally believed that guilty-conscience [sic] of a rapist is more severe than legal punishment.”32 During a meeting on women’s affairs later that month, Khin Nyunt called the allegations “a conspiracy of the expatriate groups opposing Myanmar, insurgent groups and news agencies.”33 However, in an apparent bow to growing international pressure, he proposed the development of an official investigation, adding, “If there are offenders who have really committed the said crime, severe action will be taken against them. Thus special duties will have to be assigned to set up the enquiry.”34 The junta later reported to the special rapporteur that three investigations were carried out. These investigations found: • “Almost all of the allegations were highly exaggerated and their main purpose was to hurt the prestige of Myanmar and the Myanmar Armed Forces.” • There was no proof supporting the “allegation of the SURA [Shan United Revolutionary Army] narco-terrorists.” • “It is clear that the accusations are unfounded,” and there were “no rape cases committed by military personnel between 1996 and 1999 and in 2002,” but there were “three cases in 2000 and

29

33 34

N General Assembly, Report on the situation of human rights in Myanmar, Special Rapporteur, Oct. 16, 1997, U A/52/484, par. 152(r). UN General Assembly, Report on the situation of human rights in Myanmar, Special Rapporteur, Sept. 10, 1998, A/53/364, par. 59. As outlined in the chart above, the groundbreaking report identified 173 incidents of rape or other forms of sexual violence the Burmese military carried out against 625 women and girls; 83 percent of the perpetrators were high-ranking officials. “(4) Report saying Myanmar Government suppressing Shan nationals and Tatmadawmen raping Shan women totally untrue,” New Light of Myanmar, July 13, 2002. “1. Secretary-1 attends special meeting on women’s affairs,” The New Light of Myanmar, Aug. 1, 2002. Ibid.

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2001” in which the perpetrators were sentenced to five to ten years in prison.35 Military personnel, including Dr. Daw Khin Win Shwe, Khin Nyunt’s wife, carried out the investigations. SWAN tracked them and found that the investigators traveled in a 12-truck military convoy with armed soldiers. Village heads were warned ahead of time to be sure that villagers who met the investigators did not mention any incidents of rape. The investigating teams had prepared statements that villagers were told to sign confirming that there had been no incidents of rape by military personnel. The statements were in Burmese, and the meetings were held in Burmese,36 a language that many, if not most, villagers could not understand. The SPDC did not release details related to the three incidents it claimed to have discovered.37 The special rapporteur concurred generally with SWAN’s analysis, stating that “having been undertaken by military and other SPDC personnel, the investigations lacked the independence required to be convincing and credible.”38 He suggested that the SPDC explore a set of alternatives, including an independent assessment under his mandate, an international Commission of Inquiry with a new UN mandate, or a balanced national inquiry involving the SPDC and possibly the NLD with technical assistance from the UN.39 The SPDC did not take any of those suggestions. The reports that followed the Shan report covered incidents in Karen, Mon, and Chin states, and a comprehensive account by the Women League of Burma’s (WLB) documented incidents in all seven states as well as some of the divisions in central Burma. As mapped out in the Chin account, all the reports identified a significant link between increased armed conflict and sexual violence. In reports since 2002, the special rapporteurs continued to identify sexual violence as a systematic violation of human rights. This characterization echoes the findings of the women’s organizations’ reports that identified sexual violence as a political and military strategy, including its use as punishment for allegedly supporting opposition armies. Throughout these reports, generally the Burmese government did nothing about the incidents. In some cases, victims and their families were threatened and told not to speak of the incidents to others; some were imprisoned. Many survivors of rape who provided testimony to the women’s groups said fear and the stigma of sexual violence were major barriers in combating impunity. Victims of sexual violence in Burma cannot submit complaints to the CEDAW Committee because the SPDC has not signed the optional protocol that allows people to take advantage of that procedure. However, because Burma is a party to CEDAW, the junta is obliged to report regularly to the committee on measures it has taken to end all forms of discrimination against women. In the most recent session, the committee affirmed the findings of the Burmese women’s organizations. The Committee expresses its deep concern at the high prevalence of sexual and other forms of violence, including rape, perpetrated by members of the armed forces against rural ethnic women, including, inter alia, the Shan, Mon, Karen, Palaung, and Chin. The Committee is also concerned at the apparent impunity of the perpetrators of such violence, although a few cases have been prosecuted, and at reports of threats, intimidation and punishment of the victims. The Committee regrets the lack of information on mechanisms and remedies available to victims of sexual violence as well as measures to bring perpetrators to justice.40 35

nited Nations Commission on Human Rights, Report on the situation of human rights in Myanmar, Special Rapporteur, Dec. 27, U 2002, E/CN.4/2003/41, par. 40. 36 SWAN, A Mockery of Justice: The State Peace and Development Council’s Investigation into the ‘License to Rape’ Report, Sept. 24, 2002. 37 Ibid. 38 United Nations Commission on Human Rights, Report on the situation of human rights in Myanmar, Special Rapporteur, Dec. 27, 2002, E/CN.4/2003/41, par. 42. 39 Ibid., par. 43. 40 Committee on the Elimination of Discrimination against Women, Forty-second session, Oct. 20 to Nov. 7, 2008, Concluding observations of the Committee on the Elimination of Discrimination against Women, Myanmar CEDAW/C/MMR/CO/3.

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The intimidation of victims has made genuine inquiries about sexual violence difficult and dangerous. The junta’s response violates the right to truth, justice, and a guarantee of non-recurrence that are integral parts of combating impunity. This pattern too often leaves victims without recourse and at times punishes them for the violence they have suffered. A similar pattern of response emerges from the analysis of forced labor and child soldiering in Burma.


Impunity for Forced Labor Forced labor is one of the most widespread human rights violations perpetrated in Burma. It is also the area in which some of the most intensive pressure has been applied to combat impunity. The violation features in nearly every special rapporteur’s report on the situation of human rights in Myanmar since 1993 and throughout dozens of reports by local and international human rights organizations.41 Forced labor was legalized under British colonial rule through the Towns Act (1907) and the Village Act (1908). The government finally amended the laws in 1999 to conform to Section 374 of the penal code outlawing the practice.42 Yet the authorities apply Section 374 selectively, and the military continues to use forced labor to support basic functions. The Nature of Forced Labor in Burma The practice of forced labor in Burma falls generally into four main categories: • Military operations, i.e. carrying goods and supplies for troops, with loads weighing from 16 and 33 kilograms (35 to 73 pounds). The work is dangerous, entailing extensive walking without rest, being used as human minesweepers, and being subjected to beatings and killings if one slows down or collapses. • Construction and maintenance of infrastructure, including roads and military facilities. 41

42

18

E xamples include U.S. State Department, Country Reports on Human Rights Practices 2007; Karen Human Rights Group, Forced Labour and extortion in Pa’an District, Aug. 8, 2008, KHRG #2008-F11 (among dozens of other reports the group has written on forced labor in Burma); Human Rights Documentation Unit, Human Rights Yearbook 2008 (and its other annual reports); and Amnesty International, Crimes against humanity in eastern Myanmar, June 2008 (ASA 16/022/2008). International law prohibits forced labor also. See the ILO section below.

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• Cultivation of subsistence and cash crops. • Construction of development projects, including gas pipelines and hydroelectric dams.43 The first two are the most closely connected to military abuse, but considering the junta’s needs for food and energy, the third and fourth categories are also areas related to military impunity. The following account, drawn from the Network for Human Rights Documentation— Burma (ND-Burma) database, is typical.44 This account is based on testimony given on May 10, 2006, to a fieldworker from the Human Rights Foundation of Monland (HURFOM), an ND-Burma member organization. The speaker is a 26-year-old male farmer from Mon State. I don’t remember the date of the first time I was used as a porter by the army. But it was in 2004, I think. At that time, they gathered all porters, about 20 people from my village. The troops took us to Kone Pae village, which is about 2 miles from my home, Mu Hae village. They ordered us to carry bullets, rations, and shells. How heavy was it? Oh, I am not sure how to measure it in kilograms, but I think it was about 28 to 30 viss (45 to 48 kilograms, or 99 to 106 pounds). They forced us to walk faster and faster. I was kicked from behind by a soldier several times because I was walking too slowly. The distance was so very far because it took a whole day’s walk; we started in the morning, and we didn’t set up camp until the evening. My body was so seriously sore, but I dared not tell them. Each time, the portering has taken about 20 to 35 days. The sixth time I went was in February 2005. It was for about 45 days, and I had to carry soldiers’ rations. At that time, I was seriously sick, but the only medical assistance I received was Burmese traditional medicine. It did not help make me well again. I thought I would die. Finally I could not walk, so they left me. Fortunately, I met a hunter from the nearby village, and he took me to his hut and cared for me. After five days, I went back to my village. Since then, whenever I have been called to serve as a porter I have paid the army about 5,000 to 8,000 kyat (U.S. $5 to $8). This was the same amount that would be paid to recruit another porter. I owed a lot of money for that. My wife was very depressed. My son was suffering from malnutrition, and he was slowly starving because there was not enough income to feed him. I felt so very sad. Life is very hard living in my village. Most of the villagers are faced with poverty; we were not allowed to work on our farms, which were situated outside the village. Most of the underage children are facing starvation because their parents can’t earn money. Including the last time, I have been forced to serve as porter seven times by the Burmese army. Each time I served was when they launched offensives against the Mon armed rebel group near my village. On the April 21, 2006, one of the troops from the Burmese army came and called villagers from each household to gather at the square in the middle of village. Then they announced that each household must send one man to serve as a porter with the army. They divided the village into four parts; each part contained 30 households which had to rotate porter duty.

43 Human Rights Documentation Unit, Human Rights Yearbook 2007. 44 ND-Burma is a network of 12 Burmese organizations that use a shared database of human rights violations.

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My house was from one of the first parts that had to go. I explained that I was the one who paid for porter fees very often and they must exempt me from the duty. But the sergeant denied my request, and he ordered me to pay another 8,000 kyat (about U.S. $8) if I did not want to serve as a porter. I told my wife, and my wife said that there was no more money to pay them. So we decided to leave my village. We left secretly with three other households. We traveled for a day before we met a group of traders, and we traveled with them the following day. Finally we reached this place, the Loh-Loe Refugee Camp, near the Burma-Thai border. Forced labor goes on in almost every state and division. As the testimony above demonstrates, it correlates closely with increased armed conflict in which battalions must follow a “self-reliance policy,” conscripting forced laborers because the government does not provide adequate support.45 When the military orders people to work for them, those who are unable or unwilling to go must send replacements or pay a fine.46 When villagers are taken for forced labor, they are also at risk of becoming victims of other human rights violations, including extrajudicial killings, rape, torture, ill treatment, and forced relocation. The 1998 ILO Commission of Inquiry noted in its concluding observations: [T]he impunity with which government officials, in particular the military, treat the civilian population as an unlimited pool of unpaid forced labourers and servants at their disposal is part of a political system built on the use of force and intimidation to deny the people of Myanmar democracy and the rule of law. The experience of the past years tends to prove that the establishment of a government freely chosen by the people and the submission of all public authorities to the rule of law are, in practice, indispensable prerequisites for the suppression of forced labour in Myanmar.47 The Junta’s Response to the Allegations: Pressure from the International Labor Organization The Burmese government became a member of the ILO in 1948 and has ratified 19 ILO conventions, including the Forced Labour Convention No. 29 (1930) that it ratified in March 1955. The ILO’s unique form of membership, comprised of governments, employers, and workers, has allowed it to pressure the Burmese junta to address impunity in ways that other UN agencies have not.48 The International Confederation of Free Trade Unions (ICFTU) has taken the lead within the ILO in documenting the junta’s noncompliance with the Forced Labour Convention and calling for action. The 1998 Commission of Inquiry then issued an exhaustive report finding forced labor to be widespread and systematic in Burma.49 The report’s recommendations called for the SPDC to investigate complaints of forced labor and to prosecute and punish those responsible. It noted that the “power to impose compulsory labour will not cease to be taken for granted unless those used to exercising it are actually brought to face criminal responsibility.”50

45 46 47

50

UN General Assembly, Report on the situation of human rights in Myanmar, Special Rapporteur, Sept. 21, 2006, A/61/369, par. 33. National Coalition Government of the Union of Burma, Human Rights Documentation Unit, Burma Yearbook 2007, 187. ILO, Forced labour in Myanmar (Burma): Report of the Commission of Inquiry appointed under article 26 of the Constitution of the International Labour Organization to examine the observance by Myanmar of the Forced Labour Convention, 1930 (No. 29), GB.273/5, par. 542, July 2, 1998. The ILO organizes an annual conference to adopt conventions and recommendations with two government delegates, one employer delegate, and one worker delegate from each member state. The ILO’s executive body is called the Governing Body. ILO, Forced labour in Myanmar (Burma): Report of the Commission of Inquiry appointed under article 26 of the Constitution of the International Labour Organization to examine the observance by Myanmar of the Forced Labour Convention, 1930 (No. 29), GB.273/5, par. 275, July 2, 1998. Ibid., par. 539(b).

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Following the report, the ILO increased pressure. In 2000, the organization barred the SPDC from receiving any technical cooperation or attending ILO meetings, symposia, or seminars except in cases where the sole purpose was securing compliance with the commission’s recommendations.51 The ILO also requested that all members review their relations with the regime and “take appropriate measures” to ensure that those relations did not perpetuate the system of forced labor.52 These measures related to foreign direct investment in the country and relations with state- and military-owned enterprises that contributed to forced labor.53 The SPDC yielded to the pressure. The junta allowed a “High-Level Team” in the country in 2001 to assess the forced labor situation—a significant development given that the members of the 1998 Commission of Inquiry had not been allowed to visit Burma. The team found that although the laws had been updated to prevent the practice of forced labor, victims did not trust the police and the judicial system to operate independently of the regime.54 The team recommended that the ILO establish a presence in Burma to create a “facilitator mechanism” as recourse for victims.55 In 2002, the ILO opened an office in Rangoon and appointed a liaison officer. The ILO sought to establish a formal Plan of Action with the SPDC to address the ILO’s concerns about forced labor and the need for a mechanism that victims of forced labor could use to lodge complaints. The liaison officer traveled to various parts of Burma and referred cases of forced labor to the authorities. In the negotiations regarding the Plan of Action, a consistent tension emerged between the authorities’ stated commitments to eradicate forced labor, and reality, which suggested that they were merely giving lip service to the issue. During this time, the liaison officer began monitoring the courts and the Convention 29 Implementation Committee, an administrative body developed as a national supervisory mechanism for monitoring compliance with the Forced Labour Convention that the SPDC created after the 1998 Commission of Inquiry report. The ILO director-general observed that, based on the liaison officer’s reports, “Specific complaints of forced labour brought to the attention of the Convention 29 Implementation Committee are systematically denied, and cases brought directly before the courts are rejected.”56 In 2004 the committee reviewed 38 cases; it issued a response in 18 of those and rejected the charges in each of those. Individuals brought six cases directly to the courts; three were dismissed and three were ongoing at the end of 2004. In two of the rejected cases, the alleged victims were prosecuted for defamation and imprisoned for six months.57 This aggressive action against people filing complaints sent a warning to others considering similar legal action. The Burmese press, generally viewed as a mouthpiece of the government, issued statements denouncing the ILO and its acceptance of “one-sided” information from the ICFTU. This media attention was ac51

esolution concerning the measures recommended by the Governing Body under article 33 of the ILO Constitution on the R subject of Myanmar, adopted by the International Labour Conference at its 88th Session (Geneva, June 2000). 52 Ibid. 53 International Labour Office, Governing Body, Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29), Further action taken pursuant to the resolution adopted in 2000 by the International Labour Conference, Geneva, GB.294/6/2, November 2005. 54 Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29) Report of the High-Level Team, par. 68, GB.282/4, Geneva, November 2001. 55 Ibid., par.80-81. 56 International Labour Office, Governing Body, Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29), Report of the Director-General, par. 13, GB.291/5/2, Geneva, November 2004. 57 International Labour Office, Governing Body, Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29), Report of the Liaison Officer a.i., par. 13, GB.291/5/1, Geneva, November 2004. A similar situation occurred in 2006 with people from Aunglan Township. International Labour Office, Governing Body, Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29), par. 12 (Geneva, March 2006) (GB.295/7).

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companied by legal action against victims and their representatives. The media attacks drew a connection between the ILO and what the press called “terrorist” organizations providing information on forced labor.58 The ILO liaison officer faced increasing restrictions; additionally he and another ILO representative endured a campaign of orchestrated death threats. Government-affiliated organizations held mass rallies and began calling for the SPDC to consider withdrawing from the ILO.59 In light of these developments, the liaison officer stopped referring cases of forced labor to the authorities because he had no assurances that anyone who filed complaints would be safe from retaliation. Late in 2005, the SPDC rejected the concept of setting up a more formal complaints mechanism that would involve the ILO. Burma’s political climate was changing significantly during this time. Putting NLD leader Daw Aung San Suu Kyi under house arrest again in 2003 cost the SPDC some of the credibility it gained in working with the ILO. At the end of 2004, Prime Minster Khin Nyunt was removed from his post. This was a blow for the ILO because he had been one of its key interlocutors within the Burmese government. Other important ILO contacts, including the Minister of Labor, also lost their jobs.60 Despite continued tension between the SPDC and the international community, in early 2005 the junta told the ILO that the first prosecutions of local officials for imposing forced labor were completed. Three people received eight-month prison sentences, and another person got 16 months in jail. Since all four were civilians, the ILO reported that it was vital to take similar actions with military personnel.61 The ILO also began negotiations again with the SPDC on establishing a formal complaints mechanism. As these discussions progressed, the sticking point remained the SPDC’s insistence that it be able to take legal action against anyone who made false allegations. The Burmese officials said this was necessary because the NLD and other opposition forces, including those in exile, were bent on undermining the regime; therefore any complaints lodged by anyone with ties to the NLD or the opposition were spurious.62 Such a view meant that cases should be considered based primarily on who brought them rather than on their merits. The ILO argued that the best deterrent to the political manipulation of a complaints process “would precisely be the establishment of an objective, impartial mechanism involving persons of unimpeachable integrity that would have the required credibility in dismissing such false complaints.”63 In light of this stalemate, the International Labour Conference decided to review potential actions it could take against Burma for breaching the Forced Labour Convention.64 In addition, the ILO’s Governing Body was scheduled to meet in November 2006 to evaluate the SPDC’s progress in carrying out

58 “Big nations of west bloc use ILO as political forum to put pressure on Myanmar in order to install their puppet government in power,” New Light of Myanmar, March 16, 2005. 59 International Labour Office, Governing Body, Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29), par. 4, GB.294/6/2, Geneva, November 2005. 60 International Labour Conference, Provisional Record, 95th Session, Geneva, 2006, Additional agenda item, Review of further action that could be taken by the ILO in accordance with its Constitution in order to: (i) effectively secure Myanmar’s compliance with the recommendations of the Commission of Inquiry; and (ii) ensure that no action is taken against complainants or their representatives, par. 17. 61 International Labour Office, Governing Body, Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29), Report of the Liaison Officer a.i., par. 13, Geneva, March 2005. 62 The minister of Labor explained this view during a meeting in 2006 with the ILO liaison officer; “As regards the question of prosecutions, the Minister strongly insisted that the situation in Myanmar was different from that of other countries in view of the fact that political forces were taking full advantage of issues such as forced labour to politicize the situation and tarnish the reputation of the Myanmar authorities. This is why the authorities were determined to use the relevant provisions of the Penal Code 8 to deter such political manipulation. The Minister indicated that it was of the view of the authorities that a distinction had to be made between genuine complaints, which they could accept, and politically motivated allegations, which they could not.” International Labour Office, Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29), par. 22, GB.295/7, Geneva, March 2006. 63 International Labour Office, Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29), par. 21, GB.295/7, Geneva, March 2006. 64 International Labour Conference, Provisional Record, 95th Session, Additional Agenda Item, Appendix I, Geneva, 2006.

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the recommendations of the Commission of Inquiry (particularly the establishment of a complaints mechanism). Based on that evaluation, the Governing Body would be authorized to decide on a course of action. The document the ILO prepared for that meeting explained various legal remedies that the Governing Body could implement if it was not satisfied with the SPDC’s progress, including an analysis of forced labor as a crime against humanity.65 This document suggested a process for future action that included a path to access international justice for forced labor and explained that the ILO could request a ruling from the International Court of Justice for a breach of the Forced Labour Convention (1930). Based on that ruling, a strategy could be developed for bringing a case, through a UN Security Council referral, to the ICC.66 In May 2006, the SPDC announced a six-month moratorium on taking legal action against people filing complaints of forced labor and promised to continue discussing with the ILO liaison officer how to create a complaints process.67 Then, with the November 2006 Governing Body meeting looming and consideration of punitive action against the SPDC on the agenda, the junta went a step further. On September 20, 2006, the SPDC acquitted three people of making false complaints of forced labor. By this time, the ILO and the SPDC had negotiated the terms of a complaints mechanism to formalize the de facto process that had already been operating, with the liaison officer receiving complaints. The agreement, known as the Supplementary Understanding, included guarantees against retaliatory action against those who filed complaints. However, talks reached an impasse over a seemingly minor issue of adding more staff to the ILO’s office. According to the ILO report on the meeting, the impasse was difficult to understand since the SPDC had seemed ready to accept, in principle, the increase.68 When the ILO Governing Body met in November 2006, it acknowledged the release of the people who had been prosecuted for making “false allegations,” as well as the moratorium on prosecuting similar cases. The decision it then had to make is one often at the heart of the question of impunity in Burma: Was the progress enough to be applauded, or was it a cosmetic act obscuring the more basic system of impunity for forced labor, designed to remove the threat of punitive action? The Governing Body decided not to accept either of the SPDC’s actions as acceptable progress and placed on the agenda of the March 2007 session an item allowing it to consider the options outlined in the ILO “legal remedies” document. The SPDC took notice. Just before the March session, Burmese officials and the ILO signed the Supplementary Understanding on February 26, 2007, effectively establishing a formal complaints mechanism for forced labor through the liaison officer. According to the agreement, the officer (or someone he or she appoints) would conduct an initial, confidential examination of the complaints and assess whether they constituted forced labor. The officer would then refer relevant cases to a working group, established by the SPDC,

65 66 67 68

rticle 7 of the Rome Statute of the ICC (2002) defines crimes against humanity as any in a series of acts, which includes A enslavement or severe deprivation of liberty, “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack International Labour Office, Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29), Legal aspects arising out of the 95th Session of the International Labour Conference, par. 9, GB.297/8/2, Geneva, November 2006, citing the UN Charter, Article 94(2). International Labour Conference, Provisional Record, 95th Session, Part Three: Observations and Information Concerning Particular Countries, Special sitting to examine developments concerning the question of observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29), Geneva, 2006. International Labour Office, Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29), par. 18, GB.297/8/1, Geneva, November 2006. One explanation is that the SPDC was throwing up a last-minute obstacle on purpose so that during the Governing Body’s meeting in November, the liaison officer would report that they were close to getting an agreement, but needed more time.

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to be investigated by “the most competent civilian or military authority concerned, as appropriate.”69 When the Governing Body met the next month, it deferred the question of potential legal remedies, but noted that “the necessary question or questions would continue to be studied and prepared by the Office…to be available at any time that might be necessary.”70 The Supplementary Understanding was effective for a year. It was renewed for an additional year in February 2008 and again in February 2009. At the end of 2008, the liaison officer reported that since the previous February, the office had received 121 complaints of forced labor, including recruitment of child soldiers, and it had forwarded 70 to the SPDC.71 Of those 70 cases, the liaison officer considered 50 of the SPDC’s responses satisfactory. In most cases the response was a reprimand, but in some instances authorities paid compensation to victims, established an activity to educate communities or local authorities about the illegality of forced labor, issued new instructions, dismissed the village chairman, or stopped the violations.72 These outcomes were light on punitive measures and, although they show progress in that they upheld the right to truth and compensation, the absence of justice measures in most cases points to a pattern of ongoing impunity.

Impunity for the Recruitment and Use of Child Soldiers In his December 2007 report to the Security Council on children and armed conflict, the UN SecretaryGeneral said there were reliable reports that the Burmese army and other armed groups in the country were recruiting child soldiers.73 Other UN reports, as well as studies done by international NGOs and local human rights organizations, confirm this finding.74 While estimates on the number of child soldiers in Burma vary and are nearly impossible to confirm, the Coalition to Stop the Use of Child Soldiers says thousands of children are used.75 The Nature of Recruiting and Using Child Soldiers in Burma

A child soldier, conscripted at 15 years old, who escaped in April 2009 from a Burmese army battalion in Papun District of Karen State. Photo provided by the Free Burma Rangers, which provides media free of charge to help the people of Burma.

Battalions deploy recruiters to train stations and other public places to find potential recruits. Children are often compelled to join out of poverty or are physically threatened into joining the army. At the recruitment centers, officers rarely attempt to verify ages, and a recruiter can easily bribe an officer if any question is raised.

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ccording to the International Labour Office’s November 2006 report, the working group comprised the deputy minister of A Labor as chairman, together with the deputy attorney general, the director-general of the Office of the Chief Justice, the directorgeneral of Labor, the director-general of the General Administration Department (Home Affairs) and the deputy director-general of the International Organizations and Economic Department (Foreign Affairs). International Labour Office, Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29), Status report on decisions regarding Myanmar, par. 12, GB.303/8/1, Geneva, November 2008, citing GB.298/5. The complaints mechanism covers cases of forced labor and child soldiering. Of the 70 reported cases, 39 involved child soldiering and 31, forced labor. The issue of child soldiers is taken up in the following section of this report. The cases that did not fall within the definition involved other issues, such as land, pensions, and wage disputes. International Labour Office Governing Body, Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29), Report of the Liaison Officer a.i., GB.303/8/2, Geneva, November 2008. This document refers to “village chairman” but this position is more often referred to as a headman. Report of the Secretary-General on Children and Armed Conflict A/62/609-S/2007/757 Dec. 21, 2007, 15-17. The 2006 report names four groups: the Burma Army, United Wa State Army (UWSA), Karen National Liberation Army (KNLA, the armed wing of the Karen National Union, or KNU), and the Karenni Army (KA). The following groups were added to that list in the 2007 report: KNU– KNLA Peace Council (a breakaway from the KNU-KNLA), Democratic Karen Buddhist Army, Kachin Independence Army, Karenni Nationalities People’s Liberation Front, Myanmar National Democratic Alliance Army (Kokang), and Shan State Army—South. The most significant of these are: Images Asia, No Childhood at All, 1996; Human Rights Watch, My Gun Was As Tall As Me, 2002; UNICEF, Adult Wars, Child Soldiers: Voices of Children Involved in Armed Conflict in the East Asia and Pacific Region, 2002; Human Rights Education Institute of Burma, Despite Promises: Child Soldiers in Burma’s Armed Forces, 2006; and Human Rights Watch, Sold to Be Soldiers: The Recruitment and Use of Child Soldiers in Burma, October 2007. Coalition to Stop the Use of Child Soldiers, Child Soldiers Global Report, 2008.

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New recruits are treated severely during training, especially if they try to escape or disobey rules. Once they are deployed to battalions, they may be forced to carry out human rights violations alongside the other soldiers. This account is based on testimony given to a fieldworker from EarthRights International (ERI)), an ND-Burma member organization, in 2005. The speaker is a 24-year-old male villager from Pegu Division, Burma. I arrived here a few days ago after I escaped from the Burmese army. I came with two other friends as well. We spent one night in the jungle before we met Karen National Union (opposition force) soldiers. We were treated well by the soldiers here and not like how the officers used to order us. We were always told that if we were ever captured by Karen soldiers that they would just kill us. I have six brothers and two sisters back home. I am the third child. Our family business was selling items, and it was not so bad because we were able to survive. I joined the military for about seven years since I was about 17 years old. I was forced to join the military and become a soldier. I was picked up by one man, who I had never met, and he sent me to the police station. When I arrived at the police station, they forced me to join the military. That same night I was sent to Rangoon with four other people for military training. All of them were my friends. Two of them are younger than I am, and the other friend is the same age as me. We were accompanied by one sergeant, and he led us to the train. The next day we arrived in Rangoon at the Da Nyn Gone recruitment center. While at the recruitment center, I was thinking of trying to escape, but it was too late because they already cut our hair in a military style, so it was hard to run away. I was also shy and scared of escaping. Again because of the military haircut they could easily find and recapture us. While we were at the recruitment center, we were asked to state the reason we joined the army. If we didn’t respond that we joined by ourselves on our decision, they threatened to lock us up. So I was forced to say that I willingly joined the military by myself. This occurred in July 1998. We were held at the recruitment center for a month before being sent to the training center. In August 1998, I was sent to Cho Pyu training camp in Tike Gyi town. I had to attend the training for four and half months. During this training we were given food that was not good such as rice that was not well cooked, chili or fish paste that was not fresh. Some people tried to escape during 1144 the training, but some were recaptured and were severely punished. When I was in the training camp and also in the training recruitment center, I never wrote to my parents because it was so difficult. In addition, whenever I thought of writing to them I wanted to cry. Again when I saw my friends’ parents visit them, 557 they were crying so I didn’t want my parents to cry. The worst thing that happened was even though I wrote to my parents, the letters never arrived to my parents, because most of the time the officers in charge of the mail never sent out the 233 letters, and they didn’t deliver the letters that were sent to us. I hardly came through the training, and after that training I was sent to artillery training for another two and half months at Mit Htee La. After that I was sent to Artillery Battalion 324 based in Tavoy. It was early 1999 when I arrived to Ta Bay Chang in Tavoy where the battalion was based. When I arrived to the base there are about 55 soldiers in the camp. The Burmese government is obligated under the Convention on the Rights of the Child, which it signed in 1991, not to allow children younger than 15 to be soldiers. Under Burma’s own domestic law, that

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standard is raised to the age of 18.76 Burma has further obligations under customary international law torestrict the recruitment and use of child soldiers, despite having not yet signed many of the specifically relevant individual agreements.77 The Junta’s Response to the Allegations: Security Council Resolution 1612 The recruitment and use of child soldiers is generally treated as a separate category of human rights violation. However, because it is also a form of forced labor, monitoring child soldiering has fallen to the ILO. The incidents of child soldiering understandably have increased in combat areas. Because the ILO’s mechanisms to address forced labor include child soldiering, the previous discussion of the junta’s response to the ILO on issues of forced labor are relevant here as well. However, some interactions related specifically to child soldiering deserve some additional discussion. While the ILO and SPDC were negotiating mechanisms to prosecute forced labor, the UN began to increase pressure on the SPDC for child soldiering. The UN Security Council has passed several resolutions that directly address children and armed conflict, and UN Security Council Resolution 1612 established a monitoring and reporting mechanism on the use of child soldiers.78 Resolution 1612 and the previous resolutions called on the UN Secretary General to report to the Security Council a list of parties that recruit and use child soldiers. The resolutions also called on those parties to develop an action plan to address conflict-related violations against children.79 Before Resolution 1612 passed in July 2005, the SPDC began developing a plan to address child soldiering. In 2004, it established the Committee for the Prevention of Military Recruitment of Underage Children. That committee’s Plan of Action outlines five activities to carry out: demobilization and reintegration of child soldiers, raising public awareness about the problem, cooperation with international agencies on ending the practice of child soldiering, and, most significantly with regard to impunity, punishment for recruitment. In a 2005 press statement, the SPDC claimed it discharged 213 child soldiers between 2002 and February 2005.80 By Human Right Watch estimates, demobilization actually took place between 2002 and 2006 at an average rate of 41 child soldiers per year, a very small percentage of the likely total of child soldiers in Burma.81 The Secretary-General’s Special Representative for Children and Armed Conflict visited Burma in June 2007. During her visit, she recommended that: A transparent complaints procedure for incidents of recruitment of underage children be instituted and disciplinary action be taken against responsible parties (both military agents and local…officials

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ccording to correspondence sent to Human Rights Watch from the Permanent Mission of the Union of Myanmar to the A United Nations, Burma’s “Regulation for the Persons Subject to the Defense Services” sets 18 as the minimum age for military recruitment. See Human Rights Watch, Sold to be Soldiers, October 2007. These include Optional Protocols I and II to the Geneva Conventions, the Worst Forms of Child Labour Convention (No. 182), and the Rome Statute. In the summary of decision on Preliminary Motion on Lack of Jurisdiction (Child Recruitment), Prosecutor v. Samuel Hinga Norman, May 31, 2004, Case Number SCSL-2003-14-AR72 (E), the Appeals Chamber of the Special Court for Sierra Leone affirmed that recruiting child soldiers, as defined by the Rome Statute, was part of customary international law as early as 1996. United Nations Security Council, Resolution 1612, July 16, 2005. S/RES/1612 (2005). The relevant UNSC resolutions are 1261 (1991), 1314 (2000), 1379 (2001), 1460 (2003), and 1539 (2004). A helpful summary and analysis of legal obligations can be found in the Human Rights Education Institute of Burma’s Forgotten Future: Children Affected by Armed Conflict in Burma (2008). “Alleged forced recruitment of soldiers especially child conscriptions are based on false information,” Information Committee of the State Peace and Development Council, Rangoon, March 16, 2005. Human Rights Watch, Sold to be Soldiers, October 2007.

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or other parties aiding and abetting underage recruitment) and information shared with the monitoring and reporting mechanism.82 The special representative found that the complaints mechanism established to prevent recruitment of child soldiers did not meet international standards, and she encouraged the SPDC to work with the UN Country Team to update the action plan and its implementation. Regarding accountability measures, she said the UN Country Team should be “more closely informed of any actions in this regard.”83 The UN Security Council has a mandate under Resolution 1612 to consider imposing “graduated measures, such as, inter alia, a ban on the export and supply of small arms and light weapons, other military equipment, and on military assistance.”84 Under the weight of this mandate, the SPDC agreed, in principle, to a complaints mechanism, to a disciplinary procedure for parties responsible for aiding and abetting recruitment of child soldiers, and to cooperation with UNICEF on reintegrating former child soldiers.85 That agreement has been largely included in the framework of the forced labor complaints mechanism. According to Burmese government reports, 68 children in military training schools were released to their parents and guardians in 2008. While the Secretary General noted that the Government Working Group for the elimination of forced labor dealt with these complaints expeditiously, he also acknowledged that they “represent only a portion of the actual cases.”86 Impunity for recruiting child soldiers remains a problem, although the SPDC has taken some positive steps. The government claimed that it has discharged nine military recruitment officers, and the ILO verified that three members of the military received administrative penalties (such as demotion or loss of salary) in relation to child recruitment violations in 2008. However, the government does not appear to have applied the penal code of military regulations in any child soldiering cases, which could have resulted in imprisonment.87

Patterns and Analysis in the Record of Impunity A review and analysis of impunity for violations related to sexual violence, forced labor, and child soldiering highlights several patterns. The first is that impunity for the abuses committed by the military appears to be most prevalent when the abuses are related to activities surrounding ongoing armed conflict. The second is that the government actively discourages complaints regarding military abuses by retaliating against anyone who speaks up through punishments and smear campaigns. Third, the complaints mechanisms are too limited in scope and capacity to address the vast number of abuses taking place. The Burmese government has attempted to provide some semblance of justice. While the recognition that abuses are wrong may be interpreted as an important first step in what is often a long, slow process of transition toward broader accountability, this progress must be seen as being mitigated by larger political and military priorities that undermine those very efforts. Impunity Is Related to Armed Conflict The human rights violations outlined in this report have occurred throughout Burma, but are most severe 82 83 84 85 86 87

eport of the Visit to Myanmar of the Special Representative of the Secretary-General for Children and Armed Conflict, R June 25-29, 2007. Ibid. UN Security Council Resolution 1612, par. 9, July 26, 2005 (S/RES/1612 (2005)). Report of the Secretary-General on Children and Armed Conflict A/62/609-S/2007/757, Dec. 21, 2007, 15-17. UN General Assembly, Children and armed conflict: report of the Secretary-General, March 26, 2009. A/63/785–S/2009/158, para. 72 (available at www.un-casa.org/bulletinboard/Default.aspx?g=posts&t=205). Ibid.

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in rural ethnic areas. They are directly related to the military’s attacks on the people it sees as supporting armed opposition. The scale of reported violations, and the associated tolerance and impunity for them, indicates the SPDC’s acceptance of sexual violence as a legitimate part of the strategy to intimidate people in areas of armed conflict or potential resistance, and to punish communities for appearing to support the government’s opposition. Forced labor and child soldiering are also associated with areas of continuing armed conflict. The military has grown from 180,000 soldiers in 1988 to an estimated 300,000 in 2007.88 This expansion has forced commanders to rely on local communities to supply labor for building infrastructure and for portering. The pressure to fill recruitment quotas has led to a situation in which the Burmese armed forces are believed to include the highest numbers of child soldiers in the world. Impunity Is Reinforced by Attacking Those Who Complain The authorities maintain a culture of impunity not only by restricting access to complaints mechanisms, but by harassing and taking legal action against those who bring complaints against the military. As noted above, rape victims have been imprisoned after making formal complaints or bringing their story to the press. The ILO has also developed a detailed record of this tactic in relation to forced labor. Considerable progress has been made in relation to this issue, especially through the ILO’s formal complaints mechanism for forced labor. Yet it is clear that the fear of retribution is deeply rooted in the minds of Burmese victims. Human Rights Watch gives one example of this fear, familiar to any activist or researcher who has talked with victims of human rights violations in Burma. A researcher for the organization asked a community leader whether parents report their children’s forced conscription into the army. The man responded that it was too dangerous because local authorities would punish the parents, and the ILO and the UN would be powerless to protect them.89 The regime reinforces this fear by using the press and other propaganda techniques to smear victims, based on their political or ethnic affiliations. Accusations that insurgents made up the allegations in the Shan License to Rape report were echoed in the mass rallies in 2005 calling for a withdrawal from the ILO because of the organization’s connection with alleged “terrorist”elements. Similarly, the SPDC denied conscripting child soldiers and dismissed allegations as the fabrications of neo-colonialists supported by “alien-reliant national traitors at home and abroad.”90 Press attacks on the people or organizations involved in the complaints mechanisms have also strengthened perpetrators’ sense of impunity.91 Complaints Mechanisms Are Too Limited The existing complaints mechanisms are too limited in scope and capacity to deal with the vast number of abuses taking place. As of November 6, 2008, 121 complaints of forced labor had been filed under the ILO’s complaints mechanism, and the ILO determined that 70 of them met the requirements. Thirty-nine of those cases involved child soldiering.92 Because Burmese authorities handle cases of sexual violence, including rape, in an ad-hoc way, official numbers are unavailable.

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hristina Fink, “Militarization in Burma’s ethnic states: causes and consequences,” Contemporary Politics, 14:4, 2008, 450, citing C Mary Callahan, Political authority in Burma’s ethnic minority states: devolution, occupation, and coexistence (Washington, DC: EastWest Center, 2007), 7. 89 Human Rights Watch, Sold to be Soldiers, October 2007. 90 Ibid., citing Information Sheet N0. D-3936(I) Feb. 2, 2007, Myanmar Information Committee, Rangoon; “Myanmar still facing unjust accusations of child soldiers as only slanders and falsehood reach UN.” 91 UN General Assembly, Report on the situation of human rights in Myanmar, Special Rapporteur, Sept. 21, 2006, A/61/369, par. 31. 92 Report of the Liaison Officer, ILO Governing Body 303rd Session, November 2008. (GB.303/8/2). Recent statistics from the SPDC’s Committee for the Prevention of Military Recruitment of Underage Children are unavailable, and the ILO mechanism is handling most of the child soldiering cases.

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The number of complaints pales in comparison to the actual number of violations. Thousands, if not tens of thousands, of child soldiers are believed to be serving in the army.93 The number of cases of forced labor is likely to be at least that high. Burmese women’s organizations have documented 875 cases of rape from 1988 to 2006 and believe that number is a mere fraction of the total number because of the difficulty in accessing communities under SPDC control and the fear and stigma that keeps women and girls from reporting rape. The complaints mechanisms are not sufficient to address the breadth of the abuses. According to a 2007 report on eastern Burma by Amnesty International, the ILO did not receive any official complaints of forced labor in Karen State where local organizations have documented some of the most severe cases of human rights violations linked to forced labor. The ILO attributed this gap to fear, a lack of awareness about the complaints mechanism, and difficulty getting to Rangoon to file a complaint in the ILO’s office.94 Are There Indications of Progress? Moves Toward Accountability In a context where impunity and lack of accountability dominate, change may require relatively small advances that could stimulate broader institutional improvement. The Burmese regime has taken steps that should be recognized as important moves away from total impunity. Recognizing that members of the security forces have committed some serious crimes and that the perpetrators deserve punishment are steps in the right direction, even though the manner in which the perpetrators and victims have been handled has been highly inadequate. An example of such recognition is the compensation that the military has made to victims of sexual violence and their families. Although these payments are not consistent, sufficient, or the most appropriate means of redress, they do suggest that the military may recognize that sexual violence is wrong and should be redressed. Similarly, creating the ILO’s complaints mechanism for forced labor also is at least a rhetorical recognition that the practice, as well as child soldiering, is wrong.95 The military’s recognition of these crimes is a necessary precondition for it to take steps to avoid or address such violations in the future. These small steps taken to date reflect an inconsistent approach to crimes and victims that is often determined by the real or perceived political views of the victim (i.e. whether or not they are supportive of the regime). Hence, they are grossly inadequate and inappropriate when considering the gravity of the victims’ suffering. However, considering that the Burmese government before was in a state of total denial about any wrongdoing, the steps may indicate a growing openness to accountability. Many transitions move in fits and starts, and they may be influenced considerably by both internal and external pressures. But experience shows that progress in transition often happens through such slow cultural, structural, and institutional changes. 93

94 95

uman Rights Watch’s My Gun Was As Tall As Me gave a rough estimate of 70,000 and cited a 1996 UN study on children in H armed conflict that put the number at more than 50,000. The Coalition to Stop the Use of Child Soldiers said thousands were involved in its 2008 Global Report on Child Soldiers. Human Rights Watch’s Sold to be Soldiers does not offer an estimate, but relates credible eyewitness accounts of at least 30 percent of soldiers in recruiting centers being underage. Amnesty International, Crimes against humanity in eastern Myanmar, June 2008 (ASA 16/011/2008). Attention to the issue, however, needs to remain in the context of the larger reality of ongoing widespread and systematic forced labor, especially in highly militarized zones. The army continues to impose forced labor for portering, military operations, and other military and infrastructure-related projects. See United Nations Human Rights Council, Report of the Special Rapporteur on the situation of human rights in Myanmar, March 7, 2008 (A/HRC/7/18), par. 33. According to Human Rights Education Institute of Burma’s Forgotten Future: Children and Armed Conflict in Burma (November 2008), recruiting child soldiers is still common. According to Human Rights Watch’s World Report 2007, the ongoing military offensive in northern Karen State and eastern Pegu Division has led to massive human rights abuses, including forced labor and use of child soldiers. Because of the offensive, the military has used forced laborers and convicts to build at least 43 new army bases.

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Responsiveness to the Imminent Threat of International Punishment Analysis of the limited progress suggests that the Burmese regime responds to threats from the international community. After considerable negotiations, the regime agreed to the ILO mechanism to address forced labor and child soldiers. (Yet no effective mechanisms exist to address other violations, such as rape, torture, arbitrary arrests, and detention.) As noted in the case of forced labor, 10 days before the ILO Governing Body was due to consider the legal remedies it could take before the International Court of Justice, the UN Security Council, and the ICC, Burma concluded the Supplementary Agreement with the ILO. The UN has monitoring mechanisms and agencies that address the wide range of human rights that the Burmese people have suffered, including violations of the right to food, internal displacement, freedom of religion and belief, and extrajudicial, summary, and arbitrary executions. However, the SPDC has not allowed UN personnel who report on these issues into the country.96 Why then has the regime been willing to work with the UN’s special representative on Children and Armed Conflict? The representative was allowed to visit Burma in June 2007, as she was preparing a report for the secretary-general so he could brief the UN Security Council’s Working Group on Children and Armed Conflict later that year. During her visit, the SPDC made commitments to revise the Plan of Action, to improve the complaints mechanism, and to ensure that the disciplinary procedures for child soldiering complied with UN Resolution 1612. If the Security Council found that Burmese officials were not complying with the resolution, it could impose measures such as bans on supplying arms, military equipment, and military assistance to the junta.97 The working group submitted its conclusions to the Security Council the following July. They reflected relative weaknesses in the special representative’s language and did not include any concrete recommendations that would prompt the SPDC to take concrete actions. In Human Rights Watch’s comments on the conclusions, the group explained that the “Security Council’s failure—in large part due to efforts by China to block a more principled response—was particularly glaring given its previous pledges to seriously consider arms embargoes and other targeted measures against parties that repeatedly recruit and use child soldiers.”98 So while the threat of sanctions prompted a small step in the right direction—consenting to the special representative’s visit—neither the working group nor Security Council members capitalized on that step.

96 97 98

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Amnesty International, Crimes against humanity in eastern Myanmar, June 2008, 40-41. UN Security Council Resolution 1612, par. 9, July 26, 2005 (S/RES/1612 [2005]). Human Rights Watch, World Report 2009 (Events of 2008).

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3. The 2008 Constitution: Entrenching Impunity The most recent step along the Burmese regime’s “roadmap to democracy” has been the passage of the new constitution through referendum in May 2008. The Burmese constitution’s “basic principles,” as outlined in its first chapter, state that among the country’s objectives is the “flourishing of a genuine, disciplined multi-party democratic system.”99 Experience in other transitional regimes has proven that passing a constitution is an important step in the long process toward democratic reform. To cite just one example from the region, after Indonesia’s military dictator General Suharto fell in 1998, that country’s constitution was amended to include a comprehensive “bill of rights.” Despite the ongoing challenges of massive corruption, impunity, and lack of accountability, the constitution is one of the most powerful tools available to human rights advocates in Indonesia.

The 2008 Burma Constitution

Indonesia’s example is particularly applicable to Burma. One of the fundamental reasons Indonesia has been able to move forward in its transition from military dictatorship to democracy is that the previous guarantee that 30 percent of seats in parliament go to military officers was not entrenched in the constitution. Therefore, those laws could be amended. The quota gradually decreased over seven years and now no longer applies. Supporters of the Burmese constitution argue that it makes significant advances toward a democratic state by declaring new norms and advancing certain democratic reforms. However, the constitution was passed without genuine consultation with any sector of society except the military elite or true democratic participation or acceptance. This suggests that the document is based on the junta’s interests, not those of the people. Such concerns are buttressed by the fact that the constitution includes objectionable elements that reinforce the existing culture of impunity for those who commit human rights violations. One such element is a substantive immunity clause, which appears to provide blanket amnesties for human rights abuses committed by junta members. Another element is the structural entrenchment of the military in the government by giving its members perpetual and disproportionate influence in the legislature and the ability to single-handedly veto any constitutional amendments. And the third element is the complete separation of the military from civilian justice, which permits members of the military to be tried for violations against civilians in military courts with separate rules. 99

2008 Constitution, Article 6(d).

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The Flawed Constitutional Process The manner in which the 2008 constitution was drafted and adopted was fundamentally flawed. Professor Yash Ghai, a constitutional expert from Kenya, notes that the process of writing a constitution is as important as the outcome and, in fact, determines the outcome. He also says that constitutions drafted in conflict or post-conflict situations should be the result of negotiations if they are to succeed in fostering reconciliation or building trust.100 The Burmese government’s resistance to any initiatives not prescribed by the SPDC demonstrated a lack of commitment to basic democratic processes and foreshadowed potential difficulties in amending the constitution. The influence that the military authorities exerted over the National Convention means that the constitution may not provide a stable foundation for further democratic transition. Rather, the flawed drafting process may actually increase short-term conflict as opponents question its legitimacy. A similar issue arises in relation to the adoption of the constitution during the May 10, 2008, constitutional referendum. The draft constitution became available to the public only five weeks before the scheduled referendum. It was published only in Burmese, which many ethnic minorities could not read, and was only available in Rangoon bookstores for 1,000 Kyat (about U.S. $1).101 As a result, most people did not know what it said. The few people who had been able to study the contents were barred from commenting critically about the draft in public, publishing articles that carried any criticisms, or bringing people together to discuss it.102 Significant portions of the population were prohibited from voting on the referendum, including 500,000 Buddhist monks and over a million people who were out of the country without the government’s permission. There were no official policies on what would happen if voters rejected the draft constitution and no independent monitoring of the voting. A week before the referendum, Cyclone Nargis hit Burma, killing thousands and causing thousands more to lose their homes. Despite the urgent need to direct resources and attention to disaster relief, the SPDC went ahead with the constitutional referendum in all but the 47 townships most severely affected by the cyclone. When the final tallies were announced, the regime claimed that 92.4 percent of the voters approved the new constitution and that 26 million out of 27 million eligible voters (96 percent) had turned out to vote. It is unlikely that a new constitution in any country would garner this level of support. And given the recent widespread anti-government protests, the various ongoing conflicts, and the chaos and devastation caused by the cyclone, these numbers appear to bear little resemblance to the truth.

Reinforcing Substantive and Structural Impunity Despite the regime’s claims that the constitution supports democratic transition in Burma, several substantive elements within the document reinforce and entrench impunity for the junta’s past and present human rights violations. The Immunity Clause The final article in the constitution’s chapter on transitory provisions effectively provides amnesty for the 100 Yash Ghai, “The 2008 Myanmar Constitution: Analysis and Assessment,” unpublished. 101 Since the average Burmese worker earns less than $200 a year, buying a copy of the constitution would cost two days’ wages. The constitution was later published in both Burmese and English. 102 National Convention Law (No. 5/96).

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conduct of the SPDC and its predecessor. Article 445 in Chapter 14 (herewith “immunity clause”) states, “All policy guidelines, laws, rules, regulations, notifications and declarations of the State Law and Order Restoration Council and the State Peace and Development Council or actions, rights and responsibilities of the State Law and Order Restoration Council and the State Peace and Development Council shall devolve on the Republic of the Union of Myanmar. No proceeding shall be instituted against the said Councils or any member thereof or any member of the Government, in respect to any act done in the execution of their respective duties.” The clause does not specify which acts would be covered by the amnesty. It only holds that it applies to “any act done in the execution of their respective duties.” This language could be interpreted widely to encompass administrative, civil, and criminal activities. Alternatively, it may be interpreted more restrictively, for example holding that any act done in violation of national or international law must, by definition, have been outside the scope of “their respective duties.” Such a restrictive interpretation of this immunity clause would permit criminal liability for severe human rights abuses. It is not clear whether the amnesty is intended to apply only to past actions or present and future actions. How these ambiguities are interpreted will likely depend on the new judiciary, discussed below. The scope of this immunity clause may also be limited by international law and Burma’s international treaty obligations. There is a general consensus under international law that national laws or constitutions cannot provide amnesties for genocide, crimes against humanity, or other serious violations of international humanitarian law.103 Burma is also party to the Convention on the Prevention and Punishment of the Crime of Genocide (ratified on March 14, 1956) and the Geneva Conventions (ratified on August 25, 1992), both of which require parties to punish perpetrators of genocide and grave breaches of the Geneva Conventions in national courts or tribunals, regardless of the perpetrators’ political affiliation or military status.104 If Burma’s national courts decide to uphold this amnesty provision in relation to serious crimes, they may be violating the country’s international obligations. Moreover, such an amnesty probably would not affect possible international prosecutions against the Burmese regime for genocide, crimes against humanity, or serious violations of international humanitarian law. There is growing international consensus that countries have an obligation to investigate gross human rights violations, hold those most responsible legally accountable, and provide victims with an effective remedy. These principles have emerged out of a range of treaties that have been almost universally ratified, as well as (nonbinding) UN declarations and resolutions, and dozens of decisions by treaty-monitoring

103 S ee, e.g., the Secretary–General, Report of the Secretary–General on the Establishment of a Special Court for Sierra Leone, par. 22, U.N. Doc. S/2000/915 (noting that “the United Nations has consistently maintained the position that amnesty cannot be granted in respect of international crimes, such as genocide, crimes against humanity or other serious violations of international humanitarian law.”) See also Decision of the Inter-American Court of Human Rights, Case of Almonacid-Arellano et al v. Chile, Judgment Sept. 26, 2006. Series C No. 154, par. 114 (holding that “States cannot neglect their duty to investigate, identify, and punish those persons responsible for crimes against humanity by enforcing amnesty laws or any other similar domestic provisions. Consequently, crimes against humanity are crimes which cannot be susceptible of amnesty.”); Decision of the Inter-American Court of Human Rights, Case of Barrios Altos v. Peru. Judgment March 14, 2001. Series C No. 75, par. 41 (www.corteidh.or.cr/docs/casos/articulos/seriec_75_ing.pdf), which states that Peru had violated the American Convention on Human Rights by enacting Amnesty Law No. 26479 because “the establishment of measures designed to eliminate responsibility are inadmissible because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture, extrajudicial, summary or arbitrary execution and forced disappearance, all of them prohibited because they violate non-derogable rights recognized by international human rights law.”). 104 See Convention on the Prevention and Punishment of the Crime of Genocide, Articles 1, 4, and 6; Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, Aug. 12, 1949, Articles 49-50; Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva, Aug. 12,1949, Articles 50-51; Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949, Articles 129-30; Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, Aug. 12, 1949, Articles 146-47. While grave breaches only relate to international armed conflicts, Burma’s constitutional clause makes no distinction regarding the context in which the acts are committed.

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bodies and supranational tribunals.105 Such broad recognition may mean that these principles could be customary international law,106 and therefore they are binding on Burma’s regime. The Legislature: Making the Law The constitution creates seven regions (composed of what are now the seven divisions, consisting largely of ethnic Burmans), seven states, several self-administered areas within regions or states, and a Union territory.107 It creates a bicameral legislature at the top-most “Union” level, composed of an upper and lower house.108 In each one, the commander-in-chief of the military designates 25 percent of the membership (56 of 224 in the upper house and 110 of 440 in the lower house). At the state, region, and self-administered areas levels, the legislature has one chamber, and the commander-in-chief designates 25 percent of the membership of these bodies as well. Since all military representatives remain members of the armed forces, they are compelled to act on the instructions of the commander-in-chief. This arrangement gives the military a perpetual voting block with significant control over the legislature and the numbers to obstruct any legislation that could threaten the military’s power. While the new constitution requires the military to work with other “elected officials” to pass laws, it is very likely that a large contingency of former military and ex-government officials will become civilians and be elected through political parties. The Judiciary: Enforcing and Interpreting the Law The structure of the judiciary consists of ordinary courts, the courts-martial (military courts), and a constitutional tribunal. Within the ordinary courts, the Supreme Court is the highest and the only one at the national level, with a high court in each state and region, and courts at the levels of self-administered area, district, and township.109 While the various judges are appointed by the president with the approval of the legislature, the constitution attempts to assert the independence of judiciary by requiring that all judges be free from political affiliation.110 Yet the constitution’s provisions relating to the judiciary probably will not affect the culture of impunity that permeates the military because all cases against the military must be adjudicated in the courtsmartial. The constitution includes just two articles on those courts. Article 20(b) in Chapter 1 states, 105 See Diane Orentlicher, Report of the independent expert to update the Set of Principles to combat impunity, UN Doc. E/CN.4/2005/102/Add.1 (Feb. 18, 2005), 7. This notes every state’s obligation to “to investigate violations; to take appropriate measures in respect of the perpetrators, particularly in the area of justice, by ensuring that those suspected of criminal responsibility are prosecuted, tried and duly punished; to provide victims with effective remedies and to ensure that they receive reparation for the injuries suffered; to ensure the inalienable right to know the truth about violations; and to take other necessary steps to prevent a recurrence of violations.” See also Article 18 of the UN Draft Declaration on the Protection of All Persons from Enforced Disappearances ( “[P]ersons who have or are alleged to have committed [disappearances]...shall not benefit from any special amnesty law or similar measures that might have the effect of exempting them from any criminal proceedings or sanction,”) and Article 19 of the UN Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions (“In no circumstances, including a state of war, siege or other public emergency, shall blanket immunity from prosecution be granted to any person allegedly involved in extra-legal, arbitrary or summary executions.”) Other relevant, albeit nonbinding, declarations include the following: UN General Assembly Resolutions 1583 (Dec. 15, 1969), 2712 (Dec. 15, 1970), 2840 (Dec. 18, 1971), and 3074 (Dec. 3, 1973). See also ECOSOC Res. 1989/65, Principle 19.2: “In no circumstances, including a state of war, siege, or other public emergency, shall blanket immunity from prosecution be granted to any person allegedly involved in extra-legal, arbitrary or summary executions.” 106 For something to be considered customary international law, it must meet two criteria: state practice and opinio juris. Whether or not these principles truly meet the threshold required to become customary international law is the subject of legal debate that is outside the scope of this report. 107 According to Articles 49, 50, and 56, the states are Kachin, Kayah, Kayin, Chin, Mon, Rakhine, and Shan. The regions are Sagaing, Taninthayi, Bago, Magway, Mandalay, Yangon, and Ayeyawady; the capital, Nay Pyi Taw, is a union territory. Self-administered zones will be created for Naga, Danu, Pa-O, Pa Laung, and Kokang areas, and a self-administered division will be created for the Wa area. 108 The collective legislature is called the Pyindaungsu Hluttaw. The upper house is the Amyotha Hluttaw, and the lower house is the Pyithu Hluttaw. 109 Articles 293 and 294. 110 Articles 300(a), 301(f), 309(a), 310(f), 330(c), and 333(e).

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“The Defense Services has the right to independently administer and adjudicate all affairs of the armed forces.” How this is handled is clarified in Article 319: “The Courts-Martial shall be constituted in accord with the constitution and the other law and shall adjudicate Defense Services personnel.” Under this formulation, major human rights violations including rape, forced labor, and recruiting child soldiers appear to fall under the jurisdiction of the courts-martial, with the commander-in-chief having the final say.111 Given the history of impunity outlined above and the lack of trust in the armed forces, it is not clear that the military courts can be trusted to provide justice for human rights violations. Ghai puts this in proper perspective, asserting that the trend internationally is to recognize that military personnel are entitled to the same sort of guarantees of a fair trial as civilians and that members of the military charged with human rights violations should be tried in ordinary courts, citing a ruling by the Constitutional Court of Colombia that gross human rights violations are not service-related acts.112 The constitutional tribunal has sole authority to interpret the constitution. While it is impossible to know how the tribunal might address immunity issues, the fact that it will be made up of nine members—three chosen by the president and three chosen by both houses in the legislature—who cannot belong to a political party suggests at least a move in the right direction.113 As noted above, the immunity clause in the 2008 constitution is ambiguous and may be open to interpretation by Burma’s courts. The clause could also be challenged in various serious criminal cases because amnesty for such crimes would either violate international law or contravene Burma’s treaty obligations. Amending the Constitution Perhaps the most concerning element of the new constitution in relation to its effect on impunity is that it gives the military veto power over any prospective amendments. The procedure for amending the constitution is outlined in Articles 433 to 436. Ratifying any constitutional amendment requires a vote of more than 75 percent in the parliament, effectively giving the military a veto over any proposed amendment since it controls 25 percent of the seats. The quota, combined with the facts that those who fill it will be bound to comply with orders from their superiors and that pro-military factions in other parties will win seats in parliament, render Burma’s government virtually impossible to change. The military’s entrenched power calls into question the regime’s rhetoric of supporting a true democratic transition.

111 Article 343(b). 112 Yash Ghai, “The 2008 Myanmar Constitution: Analysis and Assessment,” unpublished, 30. 113 Article 333(e).

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4. Transitional Justice in the Current Context Real transition does not exist in Burma. The changes that the SPDC has proposed are cosmetic and have made actual transition to democracy even more difficult to achieve. In situations where impunity is so entrenched, achieving advances in terms of truth, justice, and victims’ rights requires a great deal of strategically aligned work to bring slow, hard-fought, incremental change. The examples cited earlier in this report demonstrate clearly that widespread, systematic human rights violations continue to occur in Burma and those who commit them generally are exempt from punishment. The military’s dominance is likely to continue because of the new constitution and changes in the government’s structure. Despite these difficulties, the plight of past and future victims dictates that transitional justice advocates consider what actions can be taken to move their agenda forward. On a more local level, even in a sustained culture of impunity, important preparations can be undertaken so that when the opportunity for justice arrives—however far in the future that may be—the necessary records are available to appropriately recognize victims and their families, and to hold those most responsible accountable.

International Options for Justice Given the SPDC’s continued support for giving the military impunity for severe human rights violations, significant accountability on the national level probably will not occur any time soon. The prospect of justice for anyone responsible for mass violations depends on international prosecutions or pressure from the international community. Potential avenues include an international commission of inquiry and a UN Security Council referral of the situation to the ICC, and national jurisdictions that recognize universal jurisdiction for such crimes. The evidence of the serious abuses against civilians within Burma suggests that the crimes are widespread and systematic; therefore they may constitute crimes against humanity. In Special Rapporteur Paulo Sérgio Pinheiro’s 2006 report to the UN General Assembly, he described sexual violence, forced labor, and child soldiering as “widespread and systematic over the last decade [so] as to suggest they are not simply isolated acts of individual misconduct of middle or low rank officers but rather the result of the upholding of a system under which individuals and groups have been allowed to breach the law and violate human rights without being held to account.”114 These crimes would fall under the ICC’s jurisdiction if such jurisdiction could be triggered in the absence of Burma’s ratification of the ICC Statute. In such an event, 114 UN General Assembly, Report on the situation of human rights in Myanmar, Special Rapporteur, Sept.21, 2006, A/61/369, par. 32.

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Burma’s history of impunity and the new constitution’s immunity clause would help meet the ICC’s criteria for admitting a case, namely that a country is unwilling or unable to prosecute such crimes itself.115 Since Burma has not ratified the Rome Statute, the ICC’s jurisdiction could be triggered if the UN Security Council referred the situation to the ICC. In order to do so, the Security Council would need to determine that the situation constituted a threat to international peace and to exercise its powers under Chapter VII of the UN Charter to act to restore international peace and security. The Security Council demonstrated it is willing to exercise this power when it referred the situation in Darfur to the ICC in 2005. Monitors of the Security Council’s internal workings indicate that Burma’s case may be significantly more challenging. While the political realities of the Security Council referring Burma to the ICC are beyond this report’s scope, there is certainly room for continued exploration of what may be possible on this front.116 If the Security Council does make such a referral and subsequent investigations lead the court to issue an arrest warrant, the Burmese leaders’ ability to flee the country would be limited because they could be arrested in ICC member states. Leaders who cannot travel outside their country become increasingly susceptible to challenge from political opponents who may argue that this limitation weakens their ability to govern effectively. Though this tactic runs the risk of further isolating an already reclusive regime, it may also provide political pressure that has helped combat the junta’s culture of impunity in the past.117 One of the primary principles behind the establishment of the ICC is that its jurisdiction is intended to complement those of national courts, which have the primary responsibility to prosecute perpetrators of mass crimes. Even if the UN Security Council does not refer the situation in Burma to the ICC, could the threat and accompanying international advocacy create enough pressure on the SPDC to take action on a national level? History has shown that the Burmese junta is sensitive to the possibility of imminent international sanctions, especially when backed by the UN Security Council. The serious prospect of the UN Security Council referring the situation to the ICC, implicating members of its government or military, may be enough pressure to spur the regime to stop committing violations and/or to prosecute members of the military for mass human rights abuses. In such a situation, those accused could argue that the constitution’s new immunity clause gives them immunity in national courts. As mentioned previously, the immunity clause covers acts “done in execution of their respective duties.” It appears to be up to the national courts to decide that these serious crimes could not, by definition, have been part of an individual’s official duties because such acts violated Burma’s national laws, treaty obligations, or international law. Such a position appears unlikely, however, in the current context in which the Burmese courts function as an extension of military rule. While a Security Council referral of the situation in Burma to the ICC may seem politically unviable at present, the UN could push for an assessment of the human rights situation. A UN commission of inquiry could be mandated to determine whether or not international crimes, including crimes against humanity, have been committed in Burma, to identify perpetrators, and to make recommendations on addressing those crimes. The UN Security Council should be prepared to carry out the recommendations of any such inquiry, including the declaration that the situation in Burma constitutes a threat to the peace and warrants further action and monitoring. In addition to pursuing international justice with the UN and the ICC, it may be worthwhile to pursue the possibility of trying Burmese leaders in a country claiming universal jurisdiction. The doctrine of 115 However, the complaints mechanism for forced labor cases may preclude cases based on crimes of forced labor. 116 Various initiatives aimed at bringing a Burmese case before the ICC are under way, including a campaign led by the Burma Lawyers’ Council. 117 See section above on forced labor and the ILO.

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universal jurisdiction is based on the theory that certain crimes may be tried by any country’s court, regardless of where the crimes occurred or the nationalities of the victims or perpetrators, because the crime is considered to have affected the international community as a whole. Since World War II, universal jurisdiction has focused mainly on issues of war crimes, crimes against humanity, and genocide, and more than a dozen countries have relied on universal jurisdiction to investigate or prosecute people suspected of such crimes.118 The specifics of how each country addresses such cases depend on the legal framework and domestic criminal system. Continued advocacy toward initiating a criminal investigation against Burmese leaders in any country claiming universal jurisdiction, especially a country with a connection to any potential perpetrators or victims, could help challenge Burma’s culture of impunity.

National Preparations Despite some indications that Burma may be moving toward a more democratic future, the culture of impunity seems entrenched enough to continue for some time and threatens to pull the country back from a genuine transition. While history has shown that situations can change over time, such change is not inevitable and must be achieved through the proactive defense of human rights and concerted advocacy for measures to combat impunity. Countries with similar histories of abuse and repression demonstrate that authoritarian conditions generally have trouble sustaining themselves and that people eventually seek to recognize the suffering of victims and bring major perpetrators to justice, whether in national, international, or hybrid institutions. These outcomes result from the hard work of human rights advocates, other civil society actors, and at times progressive government officials. Societies may take years, even decades, to change significantly enough to begin addressing a legacy of human rights violations. During that time, valuable evidence may be lost, and witnesses, victims, and perpetrators may die or forget many important facts. Experience working in transitional justice institutions, including courts, truth commissions, reparations schemes, and vetting programs around the world has taught the importance of careful documentation during times of conflict or oppression. Too often crucial evidence has been lost because of insufficient methods of documentation, particularly when those involved in gathering information do not understand the requirements of future prosecutions, truth commissions, and other mechanisms. For example, statements from victims need to be taken objectively in a consistent format that includes all relevant details. If such statements from various sources are recorded in a single format or form, they can be put into a common database. The database then provides a powerful, more accurate picture of the violations that is useful for advocacy, informs international policy, and assists future transitional justice mechanisms. In addition, if those involved in the risky activity of gathering such information understand such concepts as “widespread or systematic,” they can include them in their methodologies, resulting in more relevant evidence to support investigations and prosecutions. As Burmese activist Khin Maung Shwe noted in 2007, “We can’t predict when our transition will come, but whatever follows this long era of military oppression, it will be vital to be organized in advance—not only to steer the process in the right direction, but also to be ready with a historical record that can be used to secure justice for victims.”119

118 T hese countries include Australia, Austria, Belgium, Canada, Denmark, Finland, France, Germany, Israel, Netherlands, Norway, Senegal, Spain, the United Kingdom, and the United States. Others, such as Mexico, have extradited people to countries for prosecution based on universal jurisdiction. For more information on universal jurisdiction, see ICTJ, “Universal Jurisdiction: The War on Terror,” April 17, 2009, available at www.ictj.org/en/news/features/2532.html. 119 ICTJ, Annual Report 2006/2007, 9.

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5. Recommendations In Pinheiro’s 2008 report to the UN Human Rights Council, the special rapporteur found impunity in Burma was “deeply entrenched and cannot be attributed to lack of institutional capacity alone.”120 He asserted that the culture of impunity was the main obstacle to securing respect for human rights, and he brought the Human Rights Council’s attention to the reports of widespread and systematic violations, including summary executions, torture, forced labor, sexual violence, and the recruitment of child soldiers that have not been investigated, prosecuted, or remedied.121 His findings were consistent with his reports from the previous seven years as well as with those by Amnesty International, Human Rights Watch, and a host of local human rights organizations. The following recommendations address that pattern of impunity that continues to be the main obstacle to developing a culture that respects human rights in Burma, a key component for a transition to genuine democracy.

To the State Peace and Development Council • Recognize the results of the 1990 general election and carry out the following recommendations with the guidance of the elected members of parliament. • Adhere to the three conditions paraphrased below as enumerated in the NLD’s April 29, 2009, “Shwegondaing Declaration.”122 In this declaration, the NLD stated it would participate in new elections only after “gravely considering” the elections as a special case and studying the Party Registration Act once it is published and the laws related to the elections. (1) Unconditionally release all political prisoners, including the leaders of the NLD. (2) Amend the provisions of the 2008 constitution that are not in accord with democratic principles. (3) Allow international supervision of all-inclusive free, fair elections. • Conduct a review of the constitution through an inclusive consultation process involving all political parties. • Through that review, remove the provisions in the 2008 constitution that maintain impunity for human rights violations, particularly the immunity clause and the various articles that could exclude people from exercising their rights to fundamental freedoms. 120 U N Human Rights Council, Report of the Special Rapporteur on the situation of human rights in Myanmar, March 7, 2008 (A/HRC/7/18), par. 42. 121 Ibid., par. 58. 122 Go to http://euro-burma.eu/doc/NLD%20Statement%20-%20Shwegondaing%20Declaration%20-%2029.04.09.pdf.

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• Remove from the constitution the requirement that 25 percent of MPs be military officials, and allow the general population to elect MPs. • Give the courts under the Supervision of the High Court of the Region or the High Court of the State the jurisdiction to hear and decide on criminal cases against members of the military if a civilian is filing the complaint. • Conduct a new referendum for the updated constitution, permitting international observers to monitor the voting process. • Work with the international community to establish an independent Commission of Inquiry into serious human rights violations, including sexual violence, the recruitment and use of child soldiers, and forced labor.

To the International Community • Withhold support for and recognition of the 2010 elections until a review of the constitution is conducted through an inclusive process that involves all political parties. • Work with the Burmese government to establish an independent Commission of Inquiry into serious human rights violations, including sexual violence, the recruitment and use of child soldiers, and forced labor. • Strengthen the application of mechanisms in place through Security Council Resolution 1612 and the Forced Labour Convention to address the government policy of imposing widespread, systematic human rights violations, including forced labor and child soldiering. • Declare that the situation in Burma is one of grave international concern and that it constitutes a threat to international peace and security. • Pursue possible avenues to hold Burmese human rights violators accountable in countries whose courts recognize universal jurisdiction. • Take action to strengthen local capacity to conduct systematic collection and documentation of information on human rights violations in Burma in a fashion that could be useful to courts, truth commissions, reparation schemes, and vetting programs that may exist in the future. Insure that such training takes into account safety precautions for the interviewers and those they interview.

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CHAPTER 4 Myanmar Security Outlook: Tatmadaw under Stress? Tin Maung Maung Than Introduction Myanmar entered 2014, the penultimate year before the 2015 elections, with high hopes for peace through a nationwide ceasefire agreement (NCA) with all the major ethnic armed groups (EAGs) from among the many non-state armed groups (NSAGs) seen by the ruling establishment as the most serious hard security threat of the day. The protracted armed conflict between the EAGs and Tatmadaw (Myanmar armed forces) under successive governments, since independence in 1948, have resulted in material and financial losses, stunted development of affected regions, hardship and misery to the population, and countless casualties not only of combatants but also innocent civilians. At present, as the NCA remains elusive, the unresolved conflict is challenging the legitimacy of the government and the 2008 Constitution as well as the territorial integrity of the Myanmar state formally known as the Republic of the Union of Myanmar.

Tatmadaw and Myanmar’s national security: internal and external challenges The major internal security challenge which has been the concern of Tatmadaw leaders has been the insurgency problem all along. Realizing that a military solution is neither possible nor desirable in this era of democratic transition, the current leadership of the Tatmadaw has supported the peace process while keeping the option for employing force of arms when deemed necessary. Moreover, it holds on to its role of safeguarding peace, security and stability of the Myanmar state by containing communal violence, upholding the 2008 Constitution and participating in ‘national politics’ as a balancing force against polarizing tendencies of ‘party politics.’ On the other hand, the traditional challenge of foreign aggression remains an improbable potential threat which is being addressed through regional cooperation, defence diplomacy, continuing force modernization, and military professionalization

34 Security Outlook of the Asia Pacific Countries and Its Implications for the Defense Sector

Insurgency: the military dimension Counter-insurgency remains the primary focus of Tatmadaw’s role in protecting national security and preserving the territorial integrity of the republic. It still has to contend with nearly 100,000 armed personnel affiliated with a multitude of NSAGs, the majority of whom belong to non-Bamar EAGs1. Only a small number of EAG have joined the Border Guard Force (BGF) units under Tatmadaw command and control while the majority has maintained their order of battle and many of the socalled ceasefire groups (CFGs) have flouted the rules forbidding recruitment and weapon acquisition. Even among the 23 BGF battalions thirteen “formed with the former Democratic Kayin Buddhist Army [DKBA, now known as Democratic Kayin Benevolent Army] are more or less outside of the control of the Tatmadaw2.” There are also dozens of NSAG co-opted as local militia totalling hundreds of troops that are loosely controlled by the territorial commands in the Kachin and Shan states. In dealing with the threat posed by the yet to be resolved insurgency, the Tatmadaw pursued a containment strategy towards EAGs who had not made ceasefires while refraining from launching offensive operations against them in line with the President’s directive (in December 2011) to take defensive actions only3. In fact, despite continued hostilities, the Kachin Independent Army (KIA; a major nonCFG) had joined the ceasefire negotiations conducted between the government team and the team representing the majority of CFGs (see section on peace process below). As for the CFGs, Tatmadaw leaders engaged them more or less bilaterally4 to maintain confidence and to nudge toward participation in the eventual signing of

1 See, Maung Aung Myoe, “The soldier and the state: the Tatmadaw and political liberalization in Myanmar since 2011,” Southeast Research 22, no. 2 (2014), p. 246. 2 Ibid. For details on the BGF setup, see Tin Maung Maung Than, “Myanmar’s Post-Election Security Challenges” in Security Outlook of the Asia-Pacific Countries and Its Implications for the Defense Sector, NIDS Joint Research Series No. 6 (Tokyo: National Institute for Defense Studies, 2011), pp. 77-79. 3 See, e.g., Danielle Bernstein, “Burma’s President Orders Ceasefire in Kachin State,” VOA News, 13 December 2011, available at http://www.voanews.com/content/burmas-president-orders-ceasefire-in-kachinstate-135582003/168275.html; and Ba Kaung, “Stop Offensive President’s Ceasefire Order Fails to Stop Offensive,” Irrawaddy online, 28 December 2011, available at http://www.irrawaddy.org/print_article.php? art_ id+22741. However, EAGs had, all along, argued that since then fighting had erupted time and again due to Tatmadaw’s aggressive actions and offensive operations. 4 See, e.g., Nyein Nyein, “Burma Army Chief Meets Armed Group Leaders in Shan State,” Irrawaddy online, 7 April 2014, available at http://www.irrawaddy.org/burma/burma-army-chief-meets-armed-group-leaders-shanstate.html; and Saw Yan Naing, “Army chief meets KNU, says he supports stalled ceasefire process,” Irrawaddy online, 1 December 2014, available at http://www.irrawaddy.org/burma/burma-army-chief-meets-knu-sayssupports-stalled-ceasefire-process.html

Myanmar Security Outlook: Tatmadaw under Stress? 35

the NCA which has been under negotiations since 20135. Meanwhile, short sharp clashes between the Tatmadaw and EAGs occurred throughout 2014 in Kachin State (northern Myanmar) and Shan State (eastern Myanmar), whose territories include borders with China and Thailand respectively. In fact, according to monthly reports from ALTSEAN-Burma (a Thai-based confederation of NGOs) sporadic fighting broke out every month during the year6. In Kachin State, the clashes were mainly with units of the Kachin Independence Army (KIA, with a strength of nearly 10,000 fighters, the armed wing of the KIO or Kachin Independence Organization; a former CFG, but hostilities broke out in mid-2011)7. The most serious fighting among the many skirmishes which negatively affected the peace negotiations, occurred on 19 November 2014 when a “warning shot of large-calibre weapon” fell on a cadet school in Laiza (KIA headquarters), leaving 23 trainees dead and some twenty wounded8. KIA troops were also involved in fighting in the Shan State where it had joined forces with the TNLA (Ta’ang National Liberation Army, a non-CFG Palaung armed organization numbering in the hundreds) and the breakaway group (several hundred strong) from MNDAA (Myanmar National Democratic Alliance Army (MNDAA, a Kokang CFG) in a loose alliance9. Other clashes in the Shan State were between the army and the SSPP/SSA (Shan State Progressive Party/Shan State Army; popularly known as SSA-North; a CFG that has roots in the original Shan resistance movement of the 1960s with an estimated strength of more than a thousand soldiers)10.

5 See, e.g., Aung Naing Oo, “Nationwide Ceasefire Agreement: Myanmar’s road to peace,” Myanmar Times online, 31 October 2013, available at http://www.mmtimes.com/index.php/national-news/8643-nationwideceasefire-agreement-myanmar-s-road-to-peace.html. 6 See “Burma Bulletin” by ALTSEAN-Burma (Alternative ASEAN Network on Burma), available at http://www. altsean.org/Reports.php. 7 See, e.g., Tin Maung Maung Than, “Myanmar’s Security Outlook and Myanmar Defence Services” in Security Outlook of the Asia-Pacific Countries and Its Implications for the Defense Sector, NIDS Joint Research Series No. 7 (Tokyo: National Institute for Defense Studies, 2012), p. 97; and Global New Light of Myanmar (hereafter GNLM), 25 November 2014, p. 2. 8 GNLM, 21 November 2014, p. 1; “the military explained that it was a response to multiple attacks by KIA troops against army personnel engaging in “normal activities” (ibid.). It was believed to be a 105 mm artillery round and was seen by KIA and its allies as an uncalled for provocation; see, e.g., Sai Wansai, Kachin Cadet School Shelling: Trust-building at its lowest ebb,” Shan Herald Agency for News, 24 November 2014, available at http://english.panglong.org/category/c115-opinions/. 9 See, e.g., Lawi Wong, “Fighting escalates between government, rebel alliance in Shan State,” Irrawaddy, 17 October 2014, available at http://www.irrawaddy.org/burma/fighting-escalates-govt-rebel-alliance-shan-state. html. 10 See, e.g., S.H.A.N., “Peace process in limbo, when ceasefire is a joke,” Shan Herald Agency for News, 20 October 2014, available at http://english.panglong.org/category/c115-opinions/page/5/.


On the other hand, fighting in the Kayin State was less frequent and occurred only in September and November involving two different Kayin CFGs. They are the KNDO (Karen National Defence Organization, a brigade-level faction of the KNLA (Karen National Liberation Army) and DKBA11. Tatmadaw faced another hard security challenge when it was announced, on 14 October 2014, that the Kawthoolei Armed Forces (KAF) was established with KNDO, DKBA, a tactical command of the KNU/KNLA-PC (also known as Karen Peace Council, or KPC, another KNLA splinter CFG) and some units of KNLA12. Though not yet an integrated force, with each member maintaining its formation, uniform and insignia, KAF’s nominal strength of over 5,000 personnel poses a credible potential military threat13. That announcement, not only created some confusion and consternation among friends and foes but also revealed fissures and tensions within the KNU top leadership some of whom had distanced themselves from the act14. Ceasefire negotiations and peace process15 Those who expected the peace process which invited all EAGs to peace negotiations and was initiated by President Thein Sein on 18 August 2011, to reach a conclusion in 2014 through the signing of the NCA, were disappointed. Negotiations for a single text draft agreement remained deadlocked after several rounds of formal and informal meetings in Myanmar and Thailand between the Union Peace-making Work Committee (UPWC) and the Ceasefire Coordination Team (NCCT)—

KNLA is the several-thousand strong armed wing of the KNU (Karen National Union) which is the main Kayin political organization that has led the armed resistance for more than six decades. DKBA is a Buddhist Kayin EAG formerly known as Democratic Karen Buddhist Army when it split from the Christian-dominated KNU in 1994. For reports on fighting, see, e.g., “Karen Soldier Killed in Latest Fighting, KNU Claims Government Troops Attacked First,” Karen News, 30 September 2014, available at http://karennews.org/2014/09/karen-soldier-killedin-latest-fighting-knu-claims-government-troops-attacked-first.html/; and “DKBA and Burma Army Fighting Spreads Throughout Karen State,” Karen News, 10 October 2014, available at http://karennews.org/2014/10/dkbaand-burma-army-fighting-spreads-throughout-karen-state.html/. 12 The announcement was signed by “General Baw Kyaw Heh, the KNLA’s Vice-Chief of Staff, General Ner Dah Mya, Chief of KNDO, General Saw Lah Pwe, DKBA’s Chief of Staff and Colonel Saw Tiger, Tactical Commander for KNU/KNLA – PC’s border security and development tactical command.” (“Karen Armed Groups to Form United ‘Kawthoolei Armed Forces,’ but Questions Remain,” Karen News, 16 October 2014, available at http:// karennews.org/2014/10/karen-armed-groups-to-form-united-kawthoolei-armed-forces-but-questions-remain. html/). 13 See, e.g., Saw Yan Naing, “Karen Rebel Groups Plan Military Cooperation,” Irrawaddy, 14 October 2014, available at http://www.irrawaddy.org/burma/karen-rebel-groups-plan-military-cooperation.html 14 See, e.g., Saw Yan Naing & Lawi Weng, “Karen Leadership Puts Problems on Hold,” Irrawaddy. 29 October, 2014, www.irrawaddy.org/burma/karen-leadership-puts-problems-hold.html. 15 For a comprehensive account of the peace process up to early 2014, see Burma News International (BNI), Deciphering Myanmar’s Peace Process: A Reference Guide 2014 (BNI: Chiang Mai, 2014); available at http:// mmpeacemonitor.org/images/pdf/deciphering_myanmar_peace_process_2014.pdf. 11


representing most of the EAGs endorsed by the United Nationalities Federal Council (UNFC)16. The latest (sixth) round of talks between the UPWC led by its vice chair and President Office Minister U Aung Min and NCCT led by Naing Han Tha (Nai Hong Sa of the New Mon State Party) agreed on a fourth working draft of the NCA but had yet to finalize the elusive single text agreement. The five-day meeting in Yangon, which included senior military officers and began on 22 September worked with a 104-point draft of which five points remained unresolved17. The next round of negotiations scheduled for October was postponed, but teams from both sides continued meeting to lay the groundwork for the seventh round of negotiations, tentatively scheduled for late November. After another round of coordination meetings in December, however, it was again re-scheduled to mid-January 201518. Meanwhile, the first UNFC Congress held from 25 August to 3 September saw some discord within its ranks as the Karen National Union (KNU) delegation left the meeting stating that the KNU was suspending its membership for the time being, citing its objection to the “UNFC holding decision-making authority over its members19.” However, the KNU reaffirmed its commitment to both NCCT and the peace process, and the UNFC had left vacant seats reserved for the KNU in the newly-elected UNFC Council. The KAF announcement in October, and more significantly the Laiza shelling on 19 November, complicated the AEOs effort to take a unified approach in peace negotiations, to say the least. Moreover, the many skirmishes between the Myanmar military and Kachin, Palaung Shan and Kayin forces (see previous section) that

The NCCT was formed on 2 November 2013 with 16 armed ethnic organizations (all except KIO had signed bilateral ceasefire agreements). It had appointed 13 individuals from the member organizations to negotiate with the government. The UNFC is an umbrella group formed on 16 February 2011 and based in Chiang Mai, Thailand. It has 11 member organizations and is dedicated to establishing a federal system of government in Myanmar state. It is currently chaired by the KIO vice chairman. 17 See e.g., Paul Keenan, “Struggling for Peace,” Analysis Paper No.8, Burma Centre for Ethnic Studies; and “Deadlock or the last hurdle for peace-making,” Mizzima News, 12 November 2014. The Wa and Mongla CFGs (former Burma Communist Party NSAGs with territories bordering China) were also engaged by another group of government representatives led by U Thein Zaw, Vice Chairman of UPWC (see, e.g., GNLM, 23 October 2014, pp. 1, 9). 18 See “UPWC-NCCT talks to fix opportune time for nationwide truce,” Eleven Media, 7 November 2014. The UPWC technical team consisted of experts and advisors from the Myanmar Peace Centre (MPC) a think-tank cum facilitator sponsored by the government and mainly supported by funds from the European Union (EU) and Nordic states. See, also, the joint communique (in Myanmar) produced by the UPWC and NCCT on 23 December 2014 and published in Myanma Alin, 24 December 2014, pp. 5, 24. 19 Keenan op. cit., p. 5. This reflected KNU’s dissatisfaction with its diminished role in the organization seemingly dominated by its Kachin and Mon members as well as the power struggle within the KNU leadership (ibid., pp. 4-5). 16


occurred throughout the year had impaired trust and confidence between the AEGs and the government, and prompted the UNFC to state that “doubt has been growing within us to ask whether it [Myanmar military] really desires to have peace in the country.” On the other hand, in the next paragraph of the same statement it would “continue to find means and ways” towards a successful peace process20. The Tatmadaw Commander-in-Chief (C-in-C) Senior General Min Aung Hlaing had also reiterated that the military is dedicated to bring peace in a lawful manner, and had exercised great restraint when confronted with attacks by EAGs21. Meanwhile, a serious challenge to Tatmadaw’s structural integrity emerged in the ceasefire negotiations in the form of a demand by the EAGs to establish a “Federal Army” as a component of a federal political system 22. The proposed “Federal Union,” the main objective of the UNFC would allow a high level of authority and autonomy for the ethnic states in a “Union” of equal states, each with their own government and legislature, as well as an ill-defined Union Army which EAGs could join without losing their identity and control of their troops. To that end, the UNFC announced it had taken steps to form a “Federal Union Army” or FUA with troops from its 12 member organizations23. The UNFC’s concept of the Federal Army is unacceptable to the government and Tatmadaw leaders, who also pointed out that the Tatmadaw already has a federal character in its multi-ethnic composition of officers and other ranks24. Moreover, the Constitution does not allow the existence of any other armed force apart from the Tatmadaw and the FUA would be an unacceptable anomaly25. Coping with communal violence The communal violence between Buddhist and Muslim communities that originated in 2012 in both urban and rural areas of Myanmar’s western Rakhine State bordering “Statement of the UNFC Council First Meeting of UNFC First Congress,” dated 22 October 2014 (document in possession) See, e.g., transcript of VOA (Burmese) exclusive interview with Senior General Min Aung Hlaing, 23 November 2014, available at http://burmese.voanews.com/content/voa-burmese-exclusive-interviews-with-seniorgeneral-min-aung-hlaing-/2530688.html. 22 See, e.g., Kyaw San Wai, “Myanmar’s Nationwide Ceasefire Agreement: Second Chance at Peace?” RSIS Commentary No. 175, 8 September 2014; available at http://www.rsis.edu.sg/wp-content/uploads/2014/09/ CO14175.pdf. 23 See, e.g., Saw Yan Naing, “Ethnic Alliance Ponders Future Federalism, Creates ‘Federal Union Army’,” Irrawaddy, 9 December 2014, available at http://www.irrawaddy.org/burma/ethnic-alliance-ponders-futurefederalism-creates-federal-union-army.html. 24 See Hein Ko Soe, “Govt rejects ethnic group bid for a federal force,” Mizzima, 10 December 2014, available at http://www.mizzima.com/mizzima-news/myanmar/item/15710-govt-rejects-ethnic-group-bid-for-a-federal-force/ 15710-govt-rejects-ethnic-group-bid-for-a-federal-force. 25 See Myanma Alin, 6 December 2014, p. 9. 20

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Bangladesh26 unexpectedly broke out again on 1 July 2014 in Mandalay, a city steeped in Myanmar/Buddhist culture and monastic tradition, after rumours about the rape of a Buddhist woman by two Muslim men spread. Further aggravated by the dissemination of the unsubstantiated news via Facebook, angry mobs rampaged for 4 days with two fatalities. Curfew was imposed and the President himself issued a warning against using media freedom to “endanger state security27.” This violence in Myanmar’s heartland where a substantial Muslim community had existed since its founding, and whose members were supposed to have been integrated with the majority Buddhists, was an indication of the enduring strength of religious intolerance and volatility of communal relations. Although these violent conflicts could be seen as a law enforcement problem to be tackled by the police and regional authorities, their potential for contagion effect that could threaten national security especially when it become internationalized and this is not lost upon the Tatmadaw leaders. Theatre commanders (Lt. Generals) and regional commanders (Maj. Generals) as well as the Union Minister of border affairs (Lt. General) and regional/State security ministers (colonels) have to be involved in coordinating, overseeing, and executing security measures not only to deter and control violent conflict but also to stabilize and normalize the post-conflict situation. In that context, the Tatmadaw is expected to play a crucial non-traditional security role in ensuring communal peace and stability throughout the country. Conundrum of the political role of Tatmadaw As mandated by the 2008 Constitution, Tatmadaw plays an important role in politics. Representatives nominated by the C-in-C have been serving, since the beginning of the current government’s term in March 2011 in the government, as minister and deputy ministers, and in the parliaments, with 25% of the total number of seats, at both the Union and national level (upper and lower house) and the region/state level28.

The initial conflict in Rakhine broke out between native Rakhine people and resident Muslims who identified themselves as Rohingya claiming to be a distinct ethnic group with right of citizenship. However, most of the Muslim population claiming to be Rohingya are undocumented and ‘stateless’ and are regarded by both the government and the Buddhist polity as illegal migrants not indigenous to Myanmar. See, e.g. International Crisis Group, “Myanmar: The Politics of Rakhine State,” Asia Report No. 261, 22 October 2014, Brussels. 27 Burma Bulletin, July 2014, p. 3. Those killed were bystanders. Later it turned out that the rape allegation was false. See also Olivia Cable, “Sectarian conflict in Mandalay,” New Mandala, 18 July 2014, at http://asiapacific. anu.edu.au/newmandala/2014/07/18/sectarian-conflict-in-mandalay/. 28 For details see Maung Aung Myoe, op. cit., pp. 238-39. 26


Recently, liberal democratic forces led by NLD (National League for Democracy) leader Daw Aung San Suu Kyi have been attempting, both inside and outside the legislative assemblies (parliament), to amend the Constitution and some of the major amendments proposed by them had to do with reducing or even removing the military’s political role and its institutional autonomy. On the other hand, Tatmadaw is not averse to the idea of lawfully changing the Constitution as indicated by the C-in-C Senior General Min Aung Hlaing in his address on 27 March 2014 at the military parade commemorating the Armed Forces Day: … according to the constitution, the Tatmadaw—the Armed Forces—is mainly responsible for safeguarding the constitution, which can only be amended in accordance with chapter 1229.

However, as evident in his speech on 5 December 2014 at the graduation ceremony of the 56th intake of the Defence Services Academy (DSA) in Pyin Oo Lwin, it is worth noting that the C-in-C had insisted that Tatmadaw would welcome changes that would not harm the state’s stability, peace and national ethnic solidarity, and carried out in accordance with law. He reminded the audience that it was the 2008 Constitution that had mainly facilitated the country to steadily set off along the democratic path. He also pointed out that the Constitution was systematically formulated by a combined effort of ethnic representatives, intelligentsia and experts, and not a copy of other countries’ democracy30. The aforementioned discourse seems to indicate that military leaders do not wish to make major changes that would harm peace and stability, destroy national unity or deprive Tatmadaw of the prerogatives provided by the 2008 Constitution. On the other hand, some military representatives in the parliament had expressed views tantamount to keeping the Constitution unchanged and others reportedly tabled amendments that would expand the military’s role in decision-making31. As pointed out by a knowledgeable observer of Myanmar’s military affairs: Tatmadaw is not yet prepared to tolerate any structural changes that might undermine its national political role, the basic principles for national unity and solidarity set out in the 2008 Constitution … or its institutional autonomy32.” See speech in New Light of Myanmar (hereafter NLM), 28 March 2014. See speech in Myanmar language reported in Myanma Alin, 6 December 2014, p. 9. See Kyaw Kha, “Military MPs Object to Constitution al Change,” Irrawaddy, 17 November 2014, available at http://www.irrawaddy.org/burma/military-mps-object-constitutional-change.html. 32 Maung Aung Myoe, op. cit., p. 234. 29 30 31


Regional cooperation and defence diplomacy: minimizing external threats There appears to be no external security threat on the horizon, and Myanmar is at peace with its neighbours and regional powers such as India and China. As a member of ASEAN (Association of Southeast Asian Nations) since 1997 Myanmar, enjoys the safeguards provided by its charter and treaties (like the Treaty of Amity and Cooperation) against regional insecurity and interference in internal affairs at the regional and, to a certain extent, the international level as well. Since the advent of the reformist new government of President Thein Sein, Myanmar had steadily improved relations with the West in general and the United States in particular, especially under President’s Obama’ watch33. All Western sanctions except arms embargoes, the United States (U.S.) restriction on importing jade and rubies and the U.S. Treasury Department’s SDN (specially designated nationals, including individuals and entities, popularly known as the blacklist, whom U.S. persons/ companies are not allowed to do business with) had been removed34. In this new era of democratic transition, Myanmar’s vastly improved relations with the international community, and enhanced friendly relations with regional states, mean that there is no credible external threat warranting attention by the Tatmadaw as a security problem. The potential of border insecurity involving NSAGs ensconced in remote border regions that could lead to countermeasures by foreign military/security forces is always there but has, thus far, not manifested and appears well managed through personal diplomacy by government leaders and defence diplomacy35. Senior General Min Aung Hlaing travelled extensively in 2014 to engage in personal diplomacy with military and government leaders, not only to Southeast Asian states such as Indonesia (February), Laos (February), Philippines (July), and Thailand (July) but also to Northeast Asia, visiting Japan (September) and the Republic of Korea (September), and even further afield to Belarus (November) and Russia (November). Since Myanmar was the ASEAN Chair for 2014, Tatmadaw leaders

See, e.g., Matthews Pennington, “US sends mixed messages to Burma military,” The Associated Press, 12 December 2014, in BurmaNet News, 12 December 2014. 34 See US Department of Treasury, “Burma Sanctions Program,” 29 January 2014, available at http://www. treasury.gov/resource-center/sanctions/Documents/burma.pdf. 35 See, e.g., Bertil Lintner, “The Forgotten Frontier,” Irrawaddy magazine (November 2014), pp. 24-26; “C-in-C meets Minister of National Defence of PRC”, 20 May 2014, available at http://www.asiapacificms.com/articles/ pdf/irrawaddy-2014-indiaborder.pdf; Nirmal Ghosh, “Thailand and Myanmar: Traditional rivals now brothers in arms,” The Straits Times, 14 July 2014, available at http://www.straitstimes.com/st/print/2610933; and “Senior General Min Aung Hlaing meets Bangladesh chief of naval staff,” GNLM, 27 November 2014, p. 9. 33


were able to seize the rare opportunity of hosting a multitude of defence and security meetings under the ASEAN ambit and managed to renew military ties with leaders of the ASEAN armed forces. In the case of ADMM-Plus (ASEAN Defence Minister’s Meeting expanded to include eight dialogue partners) and ARF (ASEAN Regional Forum; ASEAN 10 plus 17 dialogue partners) the engagement involved high-level representatives from international partners as well36. Myanmar’s participation in Shangri-La Dialogue, the premier non-governmental regional security forum, in Singapore continued with the deputy defence minister representing the country. Myanmar also joined the joint US-Thai annual Cobra Gold exercise, in February 2014, as an observer on the invitation of host Thailand37. On 1 December 2014 Myanmar’s deputy foreign minister presented the instrument of ratification to the BWC (Biological Weapon Convention, which it had signed in 1972 but did not ratify), thereby fulfilling its international obligation on the “Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction38.” Non-traditional security threats Sources of non-traditional security (NTS) threats could be internal or external (cross-border or international contagion). Under the current presidential system of government guided by the 2008 Constitution, Tatmadaw is not responsible for first-line defence against security challenges in the NTS domain such as terrorism, piracy, trafficking in persons, arms and narcotic and psychotropic substances, natural disasters and vector-borne health hazards. However, Tatmadaw representatives are usually present in various committees and task forces assigned to deal with such threats and the Tatmadaw is likely to be called upon to assist in national emergencies

These included ADSOM (Asean Defence Senior Officials Meeting), ACDFIM (Asean Chiefs of Defence Forces Informal Meeting), AMIIM (Asean Military Intelligence Informal Meeting), AMOIM (Asean Military Operation Informal Meeting), ARFDOD (Asean Regional Forum Defence Officials Dialogue), ASPC (Asean Security Policy Conference), AACC (Asean Air Chiefs Conference), and ACAMM (Asean Chiefs of Army Multilateral Meeting). The “Plus” countries for the ADMM-Plus are Australia, China, India, Japan, New Zealand, ROK, Russian Federation, and the United States. Non-ASEAN members of ARF are the 10 ASEAN dialogue partners (Australia, Canada, China, the EU, India, Japan, New Zealand, ROK, Russia and the United States), one ASEAN observer (PNG) as well as the DPRK, Mongolia, Pakistan, Timor-Leste, Bangladesh and Sri Lanka. 37 See Teri Moon Cronk, “Exercise Cobra Gold 2014 Kicks Off in Thailand,” American Forces Press Service, 12 February 2014, available at http://iipdigital.usembassy.gov/st/english/article/2014/02/20140212292843. html#axzz3P5qfdjn3. 38 GNLM, 3 December 2014, p. 9; for details see Andrew Selth, “Burma and the Biological Weapons Convention,” Lowy Interpreter, 15 October 2014, available at http://www.lowyinterpreter.org/post/ 2014/10/15/Burma-BWConvention.aspx?COLLCC=3787972304&. 36


and crisis situations precipitated by events and actions relating to NTS issues. In fact, the C-in-C had exhorted armed forces personnel make efforts “from the nationalist” perspective “to deter possible threats of religious extremism and illegal immigrants and prevent the trafficking of land and water resources39.” Moreover, since the ministers of ministries such as home affairs and border affairs, which are directly involved in tackling NTS problems, are serving officers (Lt. Generals) nominated by the C-in-C the role of Tatmadaw in countering such threats remains fairly significant40. Force modernization and embracing professionalism Force modernization is an ongoing process in Myanmar since the early 1990s when the military junta began to acquire modern weapon systems from China, North Korea, Russia and Eastern Europe and to reformulate doctrines in a bid to develop Tatmadaw’s capability for conventional warfare. Despite the Western arms embargo and limited financial resources, especially in foreign currencies, the infantry heavy COIN (counter-insurgency) posture of the Tatmadaw has been gradually transforming into a somewhat more balanced tri-service posture with the navy and the air force deploying modern weapon systems like fast corvettes, frigates, supersonic jet fighters, helicopter gunships41. It appears that “the creation of a professional and domestically and internationally respected armed forces amounts to a … major concern of the military leadership42.” Due to the aforementioned constraints in sourcing and finance, as well as human resources, Tatmadaw leaders have emphasized self-reliance and developing indigenous technological capability to that affect, as reflected in Senior General Min Aung Hlaing’s exhortation to the graduation class of DSTA (Defence Services Technological Academy) cadets on 12 December 201443:

“Senior General Min Aung Hlaing says armed forces endowed with significant characteristics throughout history,” GNLM, 29 December 2014, p. 3. 40 Tatmadaw units are known to have assisted in interdicting drug and arms trafficking as well as destroying poppy fields and even in curbing illegal logging. The navy is also vigilant against illegal fishing, human trafficking, seaborne illicit commerce and illegal migration. 41 For detailed accounts, see, e.g., Maung Aung Myoe, Building the Tatmadaw: Myanmar Armed Forces Since 1948 (Singapore: Institute of Southeast Asian Studies, 2009); and Jacob Sommer, “Myanmar’s military: Money and guns,” New Mandala, 6 December 2013, available at http://asiapacific.anu/ newmandala/2013/12/06/ myanmars-military-money-and-guns/. 42 Robert H. Taylor, The Armed Forces in Myanmar Politics: A Terminating Role? Trends in Southeast Asia TRS2/15 (Singapore: Institute of Southeast Asian Studies, 2015), p. 15. 43 “Senior General Min Aung Hlaing attends graduation ceremony of DSTA,” GNLM, 13 December 2014, p. 3. 39

44 Security Outlook of the Asia Pacific Countries and Its Implications for the Defense Sector … Constantly study modern technologies to build a modern army and to produce and maintain weapons, warplanes, and warships locally without relying on other countries by conducting research and development …

Hundreds of military personnel sent to Russia for technical training during the last decade have been deployed in Tatmadaw-run arms industries, air bases and naval shipyards, together with thousands of officers graduating from DSTA. One example of indigenous technological capability is the indigenously built missile-armed stealth frigate F14 commissioned in March 201444. Though Myanmar’s economy has grown at a fast pace under the new government, the defence ministry’s budget share is still the highest among all ministries, and the grossly overvalued exchanged rate (by nearly a hundred-and-fifty times) was corrected in 2012 by introducing the managed float system under Myanmar Central Bank’s supervision, Tatmadaw still lacks adequate funds for rapid modernization. Under pressure by the parliamentarians, activists and the international community to reduce the share of the defence budget in the government budget, it had fallen from over 19 per cent in 2012 to over 12 percent in 2014. It was reported that the defence budget for fiscal year (April to March) 2013/14 was over 2.2 billion USD (converted from local currency at market rate) and the proposed budget for fiscal year 2014/15 was over 2.3 billion USD, only a 5.4 per cent increase in local currency45. Though the share of government budget is high when compared to other ministries and most neighbouring countries Myanmar’s defence budget for 2014 in value terms was relatively small vis a vis other in Southeast Asia46. For a military with a nominal strength of nearly 400,000 personnel and practically on a war footing (against numerous NSAGs0, the allocated amount is apparently inadequate to procure costly modern weapon systems in its modernization effort. See “Myanmar Navy commissions frigate,” NLM, 1 April 2014, p. 3. It is the second indigenous stealth frigate commissioned; see “New Stealth Frigate for Myanmar Navy,” Pakistan Defence, 31 March 2014, available at http://defence.pk/threads/new-stealth-frigate-for-myanmar-navy.307055/#post-5470957. 45 See “Myanmar military handed $2.4 billion budget,” Agence France-Presse, 6 March, 2013, available at http:// www.globalpost.com/dispatch/news/afp/130306/myanmar-military-handed-24-billion-budget; Ei Ei Toe Lwin, “Military spending still dwarfs education and health.” Myanmar Times, 30 March 2014, available at http:// www.mmtimes.com/index.php/national-news/10000-military-spending-still-dwarfs-education-and-health.html. Another source stated the share as 14 per cent (IHS Jane’s 360, 15 January 2014, available at http://defence482. rssing.com/chan-19811087/all_p49.html#item977); and “7 Day Daily and Mizzima Newspapers Misreport Defense Budget for Military Operation in 2013-2014 Fiscal Years,” Eleven Media, 28 October 2014, available at http://www.elevenmyanmar.com/index.php?option=com_content&view=article&id=7961:7-day-dailyand-mizzima-newspapers-misreport-defense-budget-for-military-operation-in-2013-2014-fiscal-years&catid=44:national&Itemid=384. 46 I wish to thank Professor Robert Taylor for pointing out this fact. 44


Having consolidated his position as C-in-C Senior General Min Aung Hlaing made a major reshuffle of the top Tatmadaw command and staff leadership (see Table 1) in late 2014. A new Adjutant General (previously commander of Yangon Regional Command), and a Quartermaster General (previously commander of Central Regional Command) were appointed. The military intelligence (officially called the Military Affairs Security or MAS) chief was posted to the powerful position of Army Chief of Staff while concurrently taking up a theatre commander post (officially known as Chief, Bureau of Special Operations or BSO). His predecessor Lt. General Mya Tun Oo (known as a rising star and the youngest among the top brass) was given the MAS post and chief of BSO No.6 which was vacant. Since it is unusual to have an officer concurrently holding both command and intelligence appointments, there has been speculation that Lt. General Mya Tun Oo is being groomed for higher duties in the near future47. Table 1: Generational Change in Army Leadership Position C-in-C

September 1988 Gen. Saw Maung (OTS 6)

November 1997 Snr.Gen. Than Shwe (OTS 6)

December 2014 Snr.Gen. Min Aung Hlaing (DSA 19)

Dy. C-in-C Lt.G. Than Shwe (OTS 9)

Gen. Maung Aye (DSA 1)

V.Snr.Gen. Soe Win (DSA 22)

JCS

n.a.

Gen. Hla Htay Win (DSA 20)

n.a.

AG

B.G. Aung Ye Kyaw (OTS 6)

Lt.G. Win Myint (OTS 28)

M.G. Hsan Oo (DSA 24)

QMG

M.G. Phone Myint (OTS 9)

Lt.G. Tin Hla (DSA 3)

Lt.G. Nyo Saw (DSA 23)

BSO 1

M.G. Sein Aung (OTS 10)

Lt.G. Tin Oo* (OTS 22)

Lt.G. Myint Soe (OTS 61)

BSO 2

M.G. Chit Swe (OTS 8)

--

Lt.G. Aung Than Htut (DSA 20)

BSO 3

n.a.

n.a.

Lt.G. Hla Min (DSA 22)

BSO 4

n.a.

n.a.

Lt.G. Khin Zaw Oo (OTS 56)

BSO 5

n.a.

n.a.

Lt.G. Kyaw Swe (DSA 22) concurrently Army Chief of Staff Lt..G. Mya Tun Oo (DSA 25)

BSO 6

n.a.

n.a.

CMAS

B.G. Khin Nyunt (OTS 25)

Lt.G. Khin Nyunt (OTS 25)** Lt..G. Mya Tun Oo (DSA 25)

Notes: n.a. = not applicable; -- = vacant; Snr.= Senior; V.Snr. = Vice Senior; Gen. = General; Lt.G. = Lieutenant General; M.G. = Major General; B.G. = Brigadier General; C-in-C = Commander-in-Chief; Dy. = Deputy; JCS = Joint Chief of Staff; AG = Adjutant General; QMG = Quartermaster General; BSO = Bureau of Special Operations (Chief); CMAS = Chief of Military Affairs Security (intelligence); OTS = Officer Training School (for graduates); DSA = Defence Services Academy (for high school leavers); *Lt. G. Tin Oo was killed in a helicopter crash in 2001. **(Then) Gen. Khin Nyunt was removed and arrested in October 2004. Sources: Maung Aung Myo. Building the Tatmadaw: Myanmar Armed Forces Since 1948 (Singapore: Institute of Southeast Asian Studies, 2009); media reports; and personal communications

Personal communications. See, also, Ei Ei Toe Lwin “Military shuffles generals,” Myanmar Times, 12 September 2014, available at http://www.mmtimes.com/index.php/national-news/11605-major-reshufflesin-tatmadaw-ranks.html. 47


Live-firing exercises and multi-formation maneuvers are an integral part of professional armies in peace time, although they are expensive and logistically taxing. Nevertheless, Tatmadaw conducted two major war games in 2014. The first, code named Anwarahtar, was conducted in early March near the garrison town of Meiktila in central Myanmar. The combined arms exercise involved artillery, armour, infantry and aircraft which provided close air support. The show of massive firepower and agility of ground forces was witnessed by Senior General Min Aung Hlaing and the military top brass and widely publicized on state-owned (broadcast and print) media48. The second exercise was a naval exercise in the open sea in late March, again witnessed by the C-in-C and top generals. Exercise Sea Shield 2014 involved all major naval assets (some 20 surface combatants) and there were livefirings of weapons such as SAM (surface-to-air missile), AAM (surface-to-surface missile), anti-submarine ordnance and large-calibre naval guns49.

Allegations of human rights violations: Tatmadaw under pressure With a significantly vocal local private media pushing the boundaries of press freedom, and rapidly expanding social media in combination with the public, that has shed its ‘freedom from fear,’ allegations against and complaints about human rights violations committed by soldiers and units abound in Myanmar. Tatmadaw appears to have been generally ill-prepared to respond effectively. However, in the case of ‘child soldiers,’ the military had cooperated with UN agencies like UNICEF since 2012. Initiatives resulted in the discharging of 553 underage boys up to November 2014, of whom 376 were released in 201450. However, President Obama had announced in September that Myanmar would not be granted a waiver from sanctions under the Child Soldier Prevention Act that prohibits US military assistance and commercial military sales51.

48 See, e.g., Anthony Davis, “Wardrums in Myanmar’s Wa hills,” Asia Times, 23 April 2014, available at http:// www.atimes.com/atimes/Southeast_Asia/SEA-01-230414.html. 49 See, e.g., “Exercise Sea Shield 2014: Myanmar Naval Exercise in Bay of Bengal,” Pakistan Defence, 1 April 2014, available at http://defence.pk/threads/exercise-sea-shield-2014-myanmar-naval-exercise-in-bay-ofbengal.307112/. 50 See “376 Children Released from Armed Forces in Myanmar in 2014,” UNICEF press release, 26 November 2014; “Myanmar Military Speeds Up Release of Children,” UNICEF Media Centre, 25 September 2014. 51 See Obama keeps Myanmar on child soldier sanctions list,” AFP, 1 October 2014, available at http:// www.mizzima.com/mizzima-news/myanmar/item/13308-obama-keeps-myanmar-on-child-soldier-sanctionslist/13308-obama-keeps-myanmar-on-child-soldier-sanctions-list.


As for concerns regarding the use of land mines, Myanmar has yet to sign the Ottawa Mine Ban Treaty of 1997 (The Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction), and allegations of producing and deploying anti-personnel mines continued in 201452. Other allegations by victims and human rights lobbies against Tatmadaw which were widely publicized in the Western press included the blocking of aid to Kachin IDPs (internally displaced persons), rape as a weapon, torture, arbitrary detention, and abuses during military operations53. The most serious allegation that manifested in 2014 was the report by the Harvard University Human Rights Clinic accusing three generals of command responsibility for war crimes and crimes against humanity during military operations in the eastern Karen State during the period 2005 to 2008. It claimed to have enough evidence to involve the international Criminal Court54. Tatmadaw’s response to all such allegations and complaints was rejection and refutation of all reports on abuses and attending to complaints deemed legitimate, often cooperating with Myanmar National Human Rights Commission for individual cases. Senior General Min Aung Hlaing had also appointed three generals as contact persons for the media.55 He also conceded in an exclusive interview with VOA (Burmese) programme that there might be individual violations, but indicated that they were a very small minority and strongly insisted he had instituted harsh punishment for transgressions of rules and regulations that prohibit all kinds of abuse and deterrent measures are in place to prevent further violations of human rights by Tatmadaw personnel. Colin Hinshelwood, “Landmine victims down but Burma still produces: ICBL,” DVB News, 5 December 2014, available at https://www.dvb.no/news/landmine-victims-down-but-burma-still-produces-icbl-myanmar/46338. 53 See, e.g., Yen Snaing and Nang Seng Nom, “Government blocking aid to Kachin IDP camp: KIO,” Irrawaddy, 5 December 2015, in BurmaNet News, 5 December 2014; Kate Hodal, “Burma’s army uses rape to demoralize ethnic minorities, report says,” The Guardian, 25 November 2014, in BurmaNet News, 25 November 2014; and Phyu Phyu Zin, “Shan rights group claims government troops abuse during offensive,” Mizzima, 23 October 2014, in BurmaNet News, 23 October 2014. There have been numerous op-eds, news reports and articles in British and American magazines and prominent newspapers such as the South China Morning Post, Washington Post, New York Times, The Guardian, The Independent, Bangkok Post, The Nation, and European newspapers on abuses by the Tatmadaw; much of them originating from wire services and freelance writers. Similarly postings on websites, blogs, Facebook and other social media platforms also contain many allegations of abuses by Tatmadaw members. 54 See Andrew D Kasper, “Myanmar needs to talk about how to deal with its past,” Irrawaddy, 29 November 2014, available at http://www.irrawaddy.org/interview/myanmar-needs-talk-deal-past.html. 55 See Htet Naing Zaw, “Burma military appoints point men for media relations,” Irrawaddy, 15 October 2014, available at http://www.irrawaddy.org/burma/burmas-military-appoints-point-men-media-relations.html 52


Concluding remarks 2014 was a taxing year for the Tatmadaw. As the year drew to a close, the Tatmadaw appeared to be under stress as it juggled its role in enforcing state security and contributing to peace-making in ceasefire negotiations while adjusting to the newfound openness in public discourse and expected behavioural norms informed by democratic practice and pluralism. It found itself having to defend its political role enshrined in the 2008 Constitution against socio-political forces demanding constitutional amendments that could considerably reduce its autonomy and influence in Myanmar politics. Measures to enhance professionalism and increase military capability through force modernization and large scale exercise were undertaken, while preparations for leadership renewal appeared to be taking shape as the incumbent top leaders approached the retirement age of 60.

Bingham Centre Myanmar Project: Constitutional Transitions and the Role of the Military Bingham Centre for the Rule of Law November 2014

www.binghamcentre.biicl.org

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Andrew McLeod, Research Fellow, University of Oxford INTRODUCTION 1. It is now common to isolate two separate phases of large-scale constitutional and political reforms whose ultimate goal is the establishment of a stable system of democracy. The first phase – the transition – is said to be complete when: a. agreement about political procedures produces an elected government; b. a government assumes power as a direct result of a free and popular elections; c. the government so elected has actual – and not merely legal – authority to generate new policies; and d. the executive, legislative and judicial power established by the new democracy as a matter of law does not have to share power with other bodies. The second phase – the consolidation – relies on politicians and citizens applying the new rules to other issues and thereby adjust the democratic structure. 2. In this paper, I focus on the role constitutions and constitutional reform can play in transitions to democracy which involve the military. I aim to explore the experiences of selected other countries who have undergone transitions to democracy and to offer some insights for Myanmar’s current phase of reform. There is no doubt that Myanmar is in the transition phase of its reforms. When that transition began is debatable – it can be placed anywhere between the grant of local governance through the Government of Burma Act 1935 and the announcement in March 2013 of the formation of a parliamentary committee to review the constitution – but ultimately a point of scholarly and historical rather than practical interest. I do not seek to make recommendations here or to interfere in what is and must remain a domestic process. Rather, I hope to assist Myanmar’s leaders and its citizens to make informed choices. I feel able to do so because I note from the public statements of the government, the ruling Union Development and Solidarity Party, the Tatmadaw, the major political parties and many of the ethnic nationalities groups that a stable democratic system is a shared goal, though the precise shape of that system is still under discussion.

THE NATURE OF TRANSITIONS AND THE ROLE OF CONSTITUTIONS 3. Past experience and careful study of transitions has indicated some recurrent themes. Small groups of leaders play a disproportionately large role in the decision-making process leading to the completion of the transition. A widespread fear that civil war or other forms of internal strife are likely makes gradual changes appear more attractive than radical and rapid ones. Political consensus – an act of explicit agreement in which

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political leaders accept the existence of diversity in unity and consent to forming the basic structures and procedures of a democracy – is essential to make serious progress. 4. While there is now a rich body of scholarship on democratic transitions there has been relatively little study of transitions involving the military. There is even less that focuses on the role of constitutions and constitutional reform in such cases. This is despite many countries completing democratic transitions where militaries have previously held sovereign power or played a significant political role. Such countries are not limited to particular regions or cultures and (to take a random sample from the past 50 years or so) include Algeria, Turkey, Pakistan, Portugal, Egypt, Spain, Chile, Indonesia, South Korea, Nigeria, Ghana and Venezuela. 5. Some initial remarks are therefore warranted to provide context to the role of constitutional reform in these transitions. Some of the points that follow apply to all constitutional transitions but they are particularly apt for transitions in which the military plays an outsize role. First, there is a tendency to misunderstand the nature and potential impact of constitutional change on its own. Constitutions often come to be seen as the solution (or at least part of the solution) for every issue or conflict that arises in relation to the transition. This overplays their resolutive power and underplays the importance of other forms of law (statutes passed by parliaments, decisions issued by judges). From a legal perspective, successful transitions to a new constitutional order are achieved through a combination of constitutional alterations, new laws and a judiciary whose decisions command public confidence. 6. Secondly, constitutional reform is often mistakenly viewed as a purely technical and legal process. The mistake lies in considering that alterations to the text of a constitution by themselves can achieve lasting progress. Politics and political agreements are as important, and sometimes more important, than perfecting the text of a constitution. Meaningful constitutional renewal relies on three propositions: a. All political stakeholders consider the new constitution to be the highest law according to which power will be wielded. The text of the constitution cannot be a sham: its terms and its practice must be to the same effect. b. Building a culture of constitutionalism – the recognition across all major facets of society that the constitution ought to be followed and interpreted in accordance with its spirit and that political actors should be held to account where they do not – is a process that must operate in tandem with drafting constitutional amendments. c. The constitution is a facultative instrument that sets basic parameters and minimum standards but leaves room for change and informal arrangements. Offering too great a degree of specification – and here Zimbabwe’s current constitution, adopted in 2013, is a good example – ensures that the first two propositions will be broken. This will do serious long-term damage, as it will undermine any trust or confidence that political actors and the public at large may place in a constitution or constitution making. Agreeing a set of minimum standards for the most important aspects of political governance with an understanding that other changes may be agreed without being reflected immediately in the written constitution can be a helpful tool towards compromise. 7. Finally, there are two significant risks for the long-term stability of constitutional transitions where a significant portion of governmental power is held by military. The first is that, at the conclusion of the transition, the military retains reserve domains of policymaking or protective powers to intervene in the affairs of state for the safeguarding of some higher

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purpose. An example of the former is found is Chile, where the military directly controls the national copper industry and retains 10 per cent of its revenue. The Portuguese Constitution adopted in 1976 offers an example of the latter: it established a non-elected Revolutionary Council, controlled by the military and separate from the executive and the legislature, with the power to veto legislation and oversee the armed forces. The second is that civilian politicians prioritise negative consolidation (the removal of existing powers or privileges possessed by the military) at the expense of positive consolidation (the incorporation of the military into the goals and institutions of the new democratic system). Both are equally important. A failure to plan and undertake meaningful positive consolidation through successful constitutional design will reduce the likelihood of stable constitutional government.

THE RELEVANT PARTS OF MYANMAR’S CONSTITUTION 8. Myanmar’s current constitution reflects the fact it represents a transition from a system of government led by the military. The Tatmadaw is guaranteed a role in national political leadership of the country by section 6(f) and section 20 makes it the principal safeguarding force for the constitution. These features and others are common to constitutions developed during the course of transitions involving the military. In describing these provisions, I pass no comment on their merits and legitimacy. I intend simply to state how the current constitution distributes power with respect to Tatmadaw personnel. A. Nominations and positions of significance 9. The constitution guarantees, in section 17(a) and (b) of the Basic Principles, that military personnel will play a significant role in the operation of both the executive and legislative branches of government at the Union and sub-Union levels. This is reflected across several provisions. The nomination of one quarter of all positions in all legislatures – at both Union and state or regional level – is vested in the Commander in Chief (sections 74, 109, 141, 276(i)). In addition to the legislative influence this grants, the bloc provides an effective veto-power to military personnel on any proposed changes to the constitution (section 436). The Commander in Chief is also given the power to nominate the ministers of defence, home affairs and border affairs (section 232(b)(ii) and (iii)). The nomination is entirely discretionary and cannot be refused: sections 232(d), (j)(ii), 234(b), 235(c)(ii). The ministry of home affairs is particularly important: the Head of the General Administration Department for a region or state, who ultimately reports to the minister of home affairs, is deemed to be secretary of the region or state government (section 260). As a result, the minister for home affairs, and through him the military, has a significant role in state and regional government administration in addition to the powers granted to appoint state and region ministers (sections 262(a)(ii), (n)(ii), 276(d)(ii)). The military have representation on the Nay Pyi Taw Council (section 285(b)(iii) and (f)) and the military personnel who serve in the Union legislature are, in effect, granted the nomination of one of the vice-presidents by section 60(b)(iii). 10. Chapter V of the constitution creates the executive of the Union and establishes as part of the executive the National Defence and Security Council (section 201). The full powers or scope of responsibilities of this council are not specified in the constitution. However, the Council has the authority to abolish the three branches of government and transfer sovereign power for up to two years to the Commander in Chief in the case of a state of emergency. It also proposes and advises the President on the appointment of the

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Commander in Chief. The Council comprises 11 members, six of whom are serving military personnel or nominated by the military. 11. In all the cases described here, nominated personnel (except the vice-president) remain serving members of the Tatmadaw and, at least in theory, are subject to the line of command. B.

Domains of autonomous influence and control 12. The text of the constitution grants significant autonomy to the military in the conduct of its own affairs. This is confirmed in section 20(b), which vests the right to independently administer and adjudicate all affairs of the armed forces. The further effect of sections 337, 338 and 339 is to make all potential threats to stability affairs of the armed forces, whether they originate inside or outside Myanmar, and to give power to the Tatmadaw to address them. 13. A consequence of the right vested by section 20 of the constitution is that military justice operates separately to all other parts of the judiciary. Military personnel are subject to military laws, even if they may assume other positions within government (section 291). Decisions on matters of military law are ultimately for the Commander in Chief and his decision is final and binding: section 343. The legislature retains power to pass laws with respect to defence and the operation of the Tatmadaw (see section 96 and Schedule One, item 1(a)) but there would appear to be no way for such legislative regulation to be enforced. In effect, this means that there is very limited scope for the civilian branches of government to engage in a meaningful way with the Tatmadaw.

AREAS OF MODERNIZATION INVOLVING THE MILITARY

IN

CONSTITUTIONAL

TRANSITIONS

14. To achieve a traditional democratic system of governance, the goal of the transition must be to shift the constitutional conception of the military from an institution in and of itself – effectively a fourth and separate branch of government – to a body that exists as an integrated part of the state. It will not be above politics or any branch of government but rather it will form an integral element of the body politic. Experience with military transitions in other countries indicates that two key areas must be addressed to create a stable and effective relationship between civilian democratic institutions and the military. To explore these areas, I will draw on the developments in two countries that have successfully attempted a transition from military government. 15. Indonesia’s transition was triggered by the forced resignation of President Suharto in 1998 following protests and riots. The military withdrew the support it had previously and consistently provided to the president and forced the installation of a new president. The constitutional transition proceeded without any particular planning or design. The 1945 constitution was amended in four stages by an assembly chosen in direct popular elections. Between November 1999 and May 2000, two parliamentary committees conducted public and private hearings and study tours and prepared reports that were debated in stages between 2000 and 2002. The reform exercise used the existing constitution as a starting point but amended it to such a degree that only about 11 per cent of the original remains.

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16. In Spain, the death of General Francisco Franco in 1975 brought to power a king, Juan Carlos, who oversaw the process of total power transfer from the military to a civilian government between 1975 and 1982. General elections were held in 1977 to form a constituent assembly tasked with drafting a new constitution. The product was approved at a general referendum in 1978 and the first democratic elections under it were held in 1982. This new constitution, the first since the 1930s, remains in force with only two amendments.

THE MILITARY AND POLITICS 17. In Spain, this relied on a leader within the military who was committed to the gradual transfer of all political power persuading the military to relinquish all power and form an integral part of the body politic. The Spanish constitution had never guaranteed seats for the military in the parliament but in the first constituent assembly following the 1977 elections there was direct representation of the military and several parties sympathetic to its concerns. The military also had autonomy over the conduct of its own affairs, though there was no defence minister as such. The drafting of the 1978 constitution, which was led by civilians not aligned with the military, involved a gradual separation of the military and politics. It sought to do this, first, by distinguishing between the armed forces and forces of public order (such as the police or border guards) in the preliminary section of the new constitution. Amending existing phrases and drawing on historical language, the new text excluded forces of public order from the mission of being guarantors of the constitution. Secondly, the drafters ensured that provisions about the internal organisation of the military, and in particular its governing organs, were not established by or in the constitution. This was important for future developments: by leaving out such organs it enabled them to evolve, and eventually disband, without the need for constitutional amendment. 18. Indonesia had, since its constitution of 1945, allowed for representation in the main legislative body from the military and police. This representation was not constitutionally entrenched. Rather, the constitution delegated a power to appoint representations from phase “regional territories and groups as provided for by statutory regulations”. During the of constitutional reform that lasted from 1999-2002, several attempts were made to constitutionalise the practice that had developed of the military and the police holding seats in parliament. These did not succeed. The principal reason for the rejection of military representation was the lack of popular support. The body preparing amendments to the constitution was broadly representative of the people and conducted many public consultations across Indonesia. These features of the reform process offered a chance for public concern about any political role for the military or the police in the future constitutional system. As a result, the military and the police withdrew from politics without being forced to. 19. At present, Myanmar’s constitution guarantees a role for the military in politics. It does so through formal nominations and declarations. It legally separates public order forces (the police and border guards) from its military. However, the forces that are intended to oversee public order are informally connected with the Tatmadaw, reflected in the fact that the minister in charge of these forces is a serving member of the military. The lessons learned from other military transitions suggest that finding a way to disengage forces protecting public order – providing civilian oversight, establishing distinct identities – improve public confidence in government and provide greater stability during transition.

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This may be an important first step towards creating a closer and more meaningful engagement between civilian and military leaders.

MILITARY JUSTICE 20. It is not uncommon in developed democracies for the military to operate separate tribunals and a separate system of justice to adjudicate military law. A key feature, however, of military justice in democratic systems in the limited scope of the jurisdiction of military courts and the possibility of review on significant 21. A key success of Spain’s military transition was reform of military justice. At the start of and in the early phase of the transition, military courts exercised wide jurisdiction over soldiers and civilians alike and were used as political tools to stymie attempts to reform. There are documented instances of soldiers’ insubordination going unpunished when it was directed towards civilian government or initiatives to reform the military. The constitution adopted in 1978 stipulated (in art 117) that there would be a unitary system of justice, covering both civilian and military justice, and that this would be implemented through an organic law defining jurisdiction. Such a law was never fully implemented because of the confrontation that such legislation would have represented to the military. Instead, what proved much more powerful was a provision in the constitution that allowed for appeals from the highest court martial to the Spanish Supreme Court. This removed the autonomy of military courts and integrated them into the unified legal system of the state. It allowed a dialogue between military judges and civilian judges that was productive and stabilizing. 22. Indonesia has so far not succeeded in reforming its military justice system from the Suharto era. Though parliament and the executive in theory have the constitutional power to regulate and oversee military tribunals, in practice it has been politically unfeasible to do so. As a result, military tribunals operate with very little transparency or accountability.

CONCLUSIONS 23. Myanmar’s constitution preserves significant influence and control for the Tatmadaw in politics and government. To say that is not to criticize the Tatmadaw or the constitution but merely to note the characteristics of the current constitution. If – as public statements of actors on all sides of Myanmar’s transition suggest – a system of democratic governance is desired, gradual changes directed towards a more engaged relation between civilian structures and the military will need to emerge. Existing practice suggests that two areas that will require attention are the system of military justice and the separation of the military from politics and its reintegration as an integral part of the body politic.

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Beneficial Ownership: Tackling Hidden Company Ownership Through Myanmar's EITI Process

SEPTEMBER 2016

Cover image: The cement making facility used during the construction of the South East Asia Crude Oil Pipeline (SEAOP) operation center on Ma-De Island, Kyauk Phyu, in the state of Rakhine. Yu Yu Than for NRGI, July 2015.

© 2016 Natural Resource Governance Institute and Global Witness All rights reserved. No part of this publication may be modified without prior written permission of the Natural Resource Governance Institute and Global Witness. Any reproduction, distribution or transmission in any form or by any means should include proper credit to the Natural Resource Governance Institute and Global Witness, including a link to the original full text version. [For permission contact: [email protected]]

BENEFICIAL OWNERSHIP: TACKLING HIDDEN COMPANY OWNERSHIP THROUGH MYANMAR'S EITI PROCESS

Introduction

Myanmar is one of many countries where the oil, gas and mining industries have long been synonymous with secrecy and dirty dealing. Too often resource riches which could be used to lift populations out of poverty instead fall into the hands of corrupt elites. The Extractive Industries Transparency Initiative (EITI) is a global standard which aims to help change this dynamic by requiring member countries to open the management of their natural resources up to public scrutiny. Myanmar is in the process of implementing EITI, publishing its first report in January 2016; if the next steps are taken seriously, the initiative could help pave the way towards a natural resource sector which benefits the country’s people. This paper focuses on a new and ground-breaking provision of EITI: a requirement for the identities of the real owners – the ‘beneficial owners’ – of extractive industry companies to be made public. It makes recommendations about the information which needs to be collected and disclosed to make the most of EITI standards on beneficial ownership, and suggests steps to carry out this process successfully in Myanmar.

The paper seeks, in particular, to assist: •

The multi-stakeholder group of government, private sector and civil society representatives which oversees Myanmar’s EITI process, by suggesting how the beneficial ownership requirement can be implemented effectively;

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The individuals and bodies charged with collecting and publishing the required data, by providing them with practical options; and

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Myanmar’s international partners, by highlighting where technical and financial support should be directed to achieve a successful roll out of the EITI beneficial ownership requirement in the country.

This briefing reflects recommendations from the Natural Resource Governance Institute (NRGI) and Global Witness. It should not be construed as official guidance from EITI. A summary of suggested definitions and approaches for MEITI is on page 15 of this briefing. A list of additional materials providing further details and guidance is on page 16.

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Understanding ‘beneficial ownership’ in the extractive sector The “beneficial owners” of a company are the individuals who truly own and control the company. Publishing the beneficial owners of companies seeking or holding rights to oil, gas, mining and other resources allows people to see who is getting access to these resources and to ask questions about potential conflicts of interest and other corruption risks. Where a company has broken the law, beneficial ownership information can also help ensure that those responsible are brought to account.

There is a growing global push to put an end to anonymity in company ownership. In May 2016, the Anti-Corruption Summit held in London focused on the need for firm and collective action on beneficial ownership transparency, and an increasing number of countries are committing to public registers which detail the real owners of companies.1 The Extractive Industries Transparency Initiative (EITI) creates opportunities to address this corruption challenge, with new provisions requiring beneficial ownership disclosure.

Around the world, there are countless examples of how company structures are used to facilitate corruption in the natural resource sector. Anonymous companies allow powerful individuals to hide their identities and make secret deals for natural resources. These secret deals benefit and strengthen a small elite and cause immense harm to the wider population. What can be done?

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Addressing hidden company ownership in Myanmar The issue of beneficial ownership transparency was included in Myanmar’s 2014 EITI workplan.2 In the same year, 25 oil and gas companies disclosed beneficial ownership details, setting an important precedent in the country and globally. Myanmar now has the opportunity to build on this platform and open company ownership up more broadly. As Myanmar starts to prepare for the next stage of the EITI process, this briefing sets out seven steps the Myanmar EITI (MEITI) needs to take to achieve meaningful beneficial ownership transparency and make this process as effective as possible in increasing accountability and tackling corruption:

1 Set a strong beneficial ownership

definition. 2 Agree on identifying information for

beneficial owners. 3 Agree on scope of disclosure in the short

and long term. 4 Establish mechanisms and timeframes for

data collection. 5 Find a workable method for confirming

information. 6 Publish information in an open data

format. 7 Commit to improving extractive sector

governance.

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What does the 2016 EITI Standard say about beneficial ownership transparency? Section 2.53 states that:

a) It is recommended that implementing countries maintain a publicly available register of the beneficial owners of the corporate entity(ies) that bid for, operate or invest in extractive assets, including the identity(ies) of their beneficial owner(s), the level of ownership and details about how ownership or control is exerted. Where possible, beneficial ownership information should be incorporated in existing filings by companies to corporate regulators, stock exchanges or agencies regulating extractive industry licensing. Where this information is already publicly available, the EITI report should include guidance on how to access this information. b) It is required that: i. The EITI report documents the government’s policy and the multi-stakeholder group’s (MSG’s) discussion on disclosure of beneficial ownership. This should include details of the relevant legal provisions, actual disclosure practices and any reforms that are planned or underway related to beneficial ownership disclosure. ii. By 1 January 2017, the MSG publishes a roadmap for disclosing beneficial ownership information in accordance with clauses (c)-(f) below. The MSG will determine all milestones and deadlines in the roadmap, and the MSG will evaluate implementation of the roadmap as part of the MSG’s annual activity report. c) As of 1 January 2020, it is required that implementing countries request, and companies disclose, beneficial ownership information for inclusion in the EITI report. This applies to corporate entity(ies) that bid for, operate or invest in extractive assets and should include the identity(ies) of their beneficial owner(s), the level of ownership and details about how ownership or control is exerted. Any gaps or weaknesses in reporting on beneficial ownership information must be disclosed in the EITI report, including naming any entities that failed to submit all or parts of the beneficial ownership information. Where a country is facing constitutional or significant practical barriers to the implementation of this requirement by 1 January 2020, the country may seek adapted implementation in accordance with requirement 8.1. d) Information about the identity of the beneficial owner should include the name of the beneficial owner, the nationality, and the country of residence, as well as identifying any politically exposed persons. It is also recommended that the national identity number, date of birth, residential or service address, and means of contact are disclosed. e) The multi-stakeholder group should agree an approach for participating companies assuring the accuracy of the beneficial ownership information they provide. This could include requiring companies to attest the beneficial ownership declaration form through sign off by a member of the senior management team or senior legal counsel, or submit supporting documentation. f) Definition of beneficial ownership: i. A beneficial owner in respect to a company means the natural person(s) who directly or indirectly ultimately owns or controls the corporate entity. ii. The MSG should agree an appropriate definition of the term beneficial owner. The definition should be aligned with (f)(i) above and take international norms and relevant national laws into account, and should include ownership threshold(s). The definition should also specify reporting obligations for politically exposed persons. iii. Publicly listed companies, including wholly owned subsidiaries, are required to disclose the name of the stock exchange and include a link to the stock exchange filings where they are listed. iv. In the case of joint ventures, each entity within the venture should disclose its beneficial owner(s), unless it is publicly listed or is a wholly owned subsidiary of a publicly listed company. Each entity is responsible for the accuracy of the information provided. g) The EITI Report should also disclose the legal owners and share of ownership of such companies.

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Step 1 | Set a strong beneficial ownership definition. The MEITI should set its own definition for beneficial ownership disclosure through the EITI process in Myanmar. Under EITI, the definition needs to cover, at a minimum, individuals who ultimately own and/or control the company.

Ultimate natural owners Companies can have complicated ownership structures, with ownership shares held, directly or indirectly, by other companies, private trusts or through private agreements allowing one person to hold shares on behalf of another (for example, a wife holding shares on behalf of her husband). The definition of beneficial ownership should cover the real, live individual or individuals who are right at the very top of the chain—the person or persons who really stand behind the company. This means that the beneficial owners of a company can be different from legal shareholders listed in the company registry.

Control It is possible that an individual may not have an ownership share in a company, but still has a significant say in company decisionmaking (for example, they have the right to exercise control through private agreements with the official owners). The identity of any person who is able to influence company activities in this way should be disclosed. MEITI has the freedom to use a broader definition of control. This definition can highlight, for example, individuals who receive economic benefits. There can be situations where a person might have no official ownership stake in a company, but where he or she has an informal relationship or agreement to receive benefits such as a share of the company’s profits. A beneficial ownership definition that encompasses economic benefits would require disclosure of the identities of any person or persons benefiting from a company’s activities. The following definition, drawn from the United States’ action plan on transparent company ownership, includes economic benefit:

… a natural person who, directly or indirectly, exercises substantial control over a covered legal entity or has a substantial economic interest in, or receives substantial economic benefit from, such legal entity, subject to several exceptions.4

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MEITI should set clear boundaries on who is not a beneficial owner. Company registries in Myanmar and elsewhere contain some information on company ownership and control. The Myanmar registry contains names and identifying details of company officers (directors and secretaries). Previously, the names of legal shareholders were also published. It is important that such information remains available (and in the case of legal shareholders, that it is made public as it was before). However, the corporate information provided in existing registries does not actually identify the beneficial owners of companies. In particular, it is important to understand that the following are not beneficial owners:

Companies and trusts holding shares Only natural persons (that is, real, live human beings) can be beneficial owners. Other structures, such as private companies or trusts, cannot be beneficial owners. There is one exception, and that is companies which are listed on public stock exchanges, and which are not required to produce additional information on their ownership. 5

Directors and board members According to the EITI Standard and other accepted definitions of beneficial ownership, a person is not necessarily a “beneficial owner” because he or she is a director or board member of a company. Disclosing information on directors and board members is useful and should be encouraged. It may not be the same, however, as disclosing beneficial ownership information.

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Substitutes for a real owner If a person holds a stake in a company on behalf of another individual (i.e., acts as a proxy for the real owner), then the proxy is not the beneficial owner; the person on whose behalf the stake is held is the beneficial owner. For example, if a wife holds shares in a company in her name, but on behalf of her husband, then she is not the beneficial owner— the husband is.

MEITI should set a definition with either no threshold for disclosure (best) or a very low threshold. MEITI needs to decide whether all beneficial owners should declare their interest or if there should be a threshold (i.e., only the identities of individuals whose interests exceed a certain percentage would be disclosed). It is critical that decisions on threshold are made very carefully. In some oil-producing nations, for example, it is not uncommon for a beneficial owner to hold only a small interest—sometimes less than 1 percent of the total. For large extractives projects, even a 1 or 5 percent interest can be quite lucrative, generating millions of dollars in rents. There is a risk that any threshold could effectively become a set of instructions for those wishing to evade scrutiny on how they should set up their interests. A company could easily rearrange its structure so that the beneficial ownership stake of an individual who wants to keep his or her identity hidden is just below the threshold to keep his or her name out of public sight. In Moldova, for example, it has been reported that some companies have circumvented a disclosure rule which applies to shareholdings of 1% or more by employing


consortia of anonymous companies which each hold shareholdings of 0.99 percent or less.6 Given the high risk of corruption in Myanmar’s extractive sectors, the best approach could be to agree that all companies not publicly listed should disclose their beneficial owners in full. The alternative would be to agree a threshold. However, this should be kept as low as possible in order to make it more difficult for dubious beneficial owners to work around this threshold. If a threshold is agreed upon, it should be no more than 5 percent interest: the name of anyone holding or controlling 5 percent of interest in a project should be disclosed. It is important to note that long, complex chains of ownership can mask the full extent of a beneficial owner’s equity interest, especially when he or she has stakes in more than one entity in the chain. Thus, a successful disclosure program should count an individual’s full aggregated interest (i.e., the sum of all their interests). When striking a balance between ease of administration and completeness, countries should remember that shareholder equity is not a sure sign of who controls a company’s cash or decisions. Thus, a threshold should apply regardless of how ownership or control is exerted. For example, if there is a threshold of 5 percent, then this threshold should apply whether a person maintains ownership via 5 percent of shares (directly or indirectly through a chain of companies, proxies or otherwise) or if he/she maintains 5 percent control over the company (for example, through powers of attorney, contractual arrangements and relatives).

MEITI should decide how to cover information on politically exposed persons. To be effective, beneficial ownership disclosures should specifically cover politically exposed persons (PEPs). The United Nations Convention against Corruption (UNCAC), which Myanmar has ratified, defines PEPs as “individuals who are, or have been, entrusted with prominent public functions, and their family members and close associates.”7 This can include heads of government; senior politicians; senior government; judicial or military officials; senior executives of state-owned corporations; or important political party officials. Former officials can also be PEPs if they still have influential roles in the affairs of state. Covered family members can be related by blood, marriage or other forms of civil partnership, and can stretch beyond the immediate family. Associations can be both personal and professional.8 PEPs are one of the biggest corruption risks in the awarding of natural resource concessions: it is often all too easy for people to award natural resources to themselves (directly or via family members or close associates) with the sole aim of personally profiting from those deals. PEPs might also have access to public funds generated by natural resource extraction or close ties to officials who have access to such funds; the danger is that they help themselves. Consequently, there is a strong argument for companies to disclose any beneficial owner who is also a PEP, regardless of any threshold requirement set for disclosures by other beneficial owners.

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Step 2 | Agree on identifying information for beneficial owners. It is not enough to publish the names of beneficial owners of a company. It is also essential that there is sufficient accompanying information for the identity of each beneficial owner to be pinpointed, and for the nature of his or her interest in the company to be fully understood. Identification is particularly important in Myanmar given that many people share the same names. We recommend that companies disclose the following information:

Name of beneficial owner This means the full name(s) of each and every beneficial owner. In the Myanmar context, it is also important that any alternative name used by the beneficial owner is also provided.

Name and role of politically exposed persons (PEPs) The name of any PEP, no matter how small their beneficial ownership share in the company, together with details on why he or she is a PEP, should be disclosed. Again, in the Myanmar context, any alternative names used should also be provided.

Identifying details Extra details can narrow down a beneficial owner to one individual. In the Myanmar context,

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national registration card (NRC) numbers are typically used for this purpose in elections and corporate records. For any beneficial owner from Myanmar, the NRC number should be disclosed (and where a beneficial owner has more than one NRC number, all NRC numbers should be disclosed). The MEITI should also consider what other identifying details should be disclosed. Section 2.5 of the 2016 EITI Standard requires the disclosure of nationality and country of residence, and recommends disclosure of national identity number, date of birth, residential or service address and means of contact.

Means of control A description of how the beneficial owner exercises ownership and/or control of the company and/ or how the beneficial owner benefits from the company’s activities should be disclosed. If, for example, there is a chain of companies with a beneficial owner at the very end, the names of each of the intermediary companies should be provided. Similarly, if a wife holds shares on behalf of her husband, the husband should be declared as the beneficial owner. The name of the wife should be given to explain his means of control.

Signed statement of accuracy A member of the company’s senior management team or senior legal counsel acting for the company should sign a statement confirming that the beneficial ownership declaration is accurate and complete. Consideration should also be given to sanctions for companies failing to make declarations or making incomplete or inaccurate declarations.


Step 3 | Agree on scope of disclosure in the short and long terms. MEITI will need to decide which companies will be required to disclose beneficial ownership data through the EITI process. The requirement is broadly drafted and MEITI can choose to go beyond companies engaged in the extractive industries. At the same time, if MEITI is aiming for beneficial ownership disclosures by the next MEITI report, this may impose a near-term limit on how much can be done. One possible option is for MEITI to take a staggered approach, starting with disclosures of beneficial owners engaged in a confined number of areas. It could, for example, require disclosure from the most significant companies engaged in oil, gas, gems and mining projects in the first stage. This information could then be included in the 2017 MEITI report.

The disclosure process could then be broadened out for subsequent reports to encompass other areas agreed upon by MEITI. The 2016 EITI Standard requires countries to publish beneficial ownership details for companies bidding for extractive concessions (including unsuccessful bidders), or operating or investing in the extractives sector by 2020. Myanmar will need to disclose the beneficial owners of these companies by 2020 in order comply with the EITI Standard and therefore any disclosure plan by MEITI will need to take this requirement into account. There should also be consideration given to broadening beneficial ownership out so that it covers both upstream and downstream companies in the extractive sector such as for example commodity traders, and ultimately all companies operating in Myanmar (beyond the extractive sector altogether).

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Step 4 | Establish mechanisms and timeframes for data collection. Once MEITI has decided what beneficial ownership information should be reported and which companies should be required to report in the first stage (i.e., for the 2017 EITI report), the data collection process can begin. MEITI will need to agree to the format in which requests should be sent. One possibility is to set up an online form which companies can complete. However, if this approach is used, it is important that MEITI also consider what the workarounds should be for companies and/or beneficial owners who cannot access electronic forms easily. In the short term, this collection process can be folded into the terms of reference for the independent administrator appointed for the 2017 EITI report. It is important, however, that there is appropriate time and support in place for the collection process to be undertaken properly. Experience from a beneficial ownership project conducted in 2014 by Global Witness indicates that it is not enough simply to issue requests for information. Time and resources must also be allowed for follow-up and to assist companies as they complete declarations, including through written guidance, telephone calls and in-person meetings to ensure that:

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each request has actually reached and been seen by a company official with the authority to deal with it on behalf of their company

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the request is understood, and queries from the company are addressed promptly

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the deadline for provision of information is understood by the company, and where they cannot meet this deadline an appropriate extension is agreed

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there is time allowed for the declarations provided by companies to be reviewed, and where there are obvious gaps or misunderstandings there is an opportunity to go back to them so that they can correct and complete the declaration

This need not be a complicated process. It simply means thinking about these issues at the start, having a proper timetable in place and ensuring that there will be sufficient financial support and human resources to carry out the data collection. It might, for example, be helpful for the independent administrator to have a Myanmar-language speaker to assist with the follow-up process. It may also be helpful to prepare written guidance with input from technical experts on beneficial ownership, which can be provided to companies alongside the initial disclosure request. Having experts available to help address queries over disclosures could also be useful.


In terms of timing, it is essential that the first request is sent to companies as early as possible, both to allow time for effective follow up, and to ensure that any companies with complicated structures (typically a small number) have time to work out who their beneficial owners are. Ideally, in the longer term, the government will appoint a relevant agency to collect and publish beneficial ownership data when a company: •

first incorporates

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files annual reports

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applies to bid for extractives licenses or other public assets

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signs a significant extractives sector deal with the government—for example, purchasing a license or signing an operating agreement

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sees any change in beneficial ownership (note that the updated information would need to be filed and published within a reasonable timeframe after the change occurs, in addition to maintaining the historical information)

In Myanmar’s case, this agency is likely to be the Directorate of Investment and Company Administration (DICA) which currently manages the company registry. In due course, MEITI should check that there are no obstacles to DICA’s legal and political authority to request and collect beneficial ownership data. If this is not the case, amendments may need to be made to existing legislation to address such obstacles and give DICA the necessary rights. The current reform process offers opportunities to lay the legal groundwork for this longer term approach to beneficial ownership disclosure in Myanmar, especially as part of the finalization of the Mines Rules.

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Step 5 | Find a workable method for confirming information. It is unlikely that every company will be fully transparent about its beneficial owners. Some will not comply at all—especially where disclosure is voluntary.9 MEITI should explore ways to verify what companies declare, such as:

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Tasking data collectors with cross-checking submissions against readily available documents (local corporate filings, banking and law enforcement reports)

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Requiring that the company attach a signed, notarized attestation or affidavit to its submission

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Asking for backup documentation such as articles of association, powers of attorney, or copies of shareholder registers

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Where feasible, cross-checking ownership information provided against asset disclosures filed by politicians, to ensure companies flag their PEPs 10

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Tasking data collectors with performing deeper audits on a random selection of companies

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Where credible concerns are raised over the beneficial ownership declarations provided by a particular company, conducting a deeper audit of that company


Step 6 | Publish information in an open data format. The government should make the beneficial owenrship declarations coming out through the EITI process fully accessible to the public so that anyone looking into the extractives sector or a particular company’s activities can review and use them easily. MEITI should ensure that all data collected for the 2017 EITI report and in the longer term is: •

published online and available without users having to register

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available for free

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in open data form, which means that it cannot simply be uploaded as an image or pdf; instead, it needs to be in a machine-readable open database from which data can be extracted in bulk

The MEITI should also refer to the International Open Data Charter11 which brings together international best practice on the publication of data. MEITI also needs to consider how to make best use of the data in the longer term. The EITI Standard encourages countries to “mainstream” EITI disclosures directly into government and company systems. Myanmar should pursue this mainstreamed approach for its beneficial ownership disclosures.

As noted above, Myanmar has an online and public company registry managed by DICA. Also, the Ministry of Energy is establishing a cadaster for oil and gas companies, and a similar register or cadaster might be established for the mining sector in the future. These are the obvious starting points for anyone who is likely to look into the activities of extractives companies in Myanmar, MEITI should start to discuss with these bodies how EITI beneficial ownership declarations can be incorporated into these registers/cadasters. At the international level, a global beneficial ownership register (GBOR) is currently being established.12 As the name suggests, it will be a central platform onto which beneficial ownership data from across the world can be published. By combining data in this way, the GBOR should make it easier for anyone to look into company and control networks that span different countries and identify potential or actual conflicts of interest or corruption. The GBOR could also make it easier for companies to provide their beneficial ownership information, and for such information to be collated by authorities. MEITI should also consider how to link its beneficial ownership disclosure process to the GBOR.

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Step 7 | Commit to improving extractive sector governance. The Myanmar government, responsible companies and civil society could multiply the benefits of new beneficial ownership information by combining it with other public resources as they carry out investigations or due diligence.

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As the government formalizes beneficial ownership transparency in its laws and systems, for example, providing false beneficial ownership information could be treated as grounds for revoking a company’s corporate registration, license or contract, or for barring it from competing for contracts.13 Experienced investigators can map human, company and transactional relationships using online corporate registries; social networking sites; newspapers; trade periodicals; land and other property records; physical and IP address data; legal record and credit searches; government data from sources such as procurement websites, contract databases, sanctions lists; and EITI and civil society reports. This would make it easier to identify connections and potentially conflicts of interest, corruption or illegal activities, allowing more effective scrutiny and strengthened extractives sector governance.


Suggested definitions and approaches for MEITI Beneficial ownership definition

A beneficial owner is a natural person who, directly or indirectly, exercises substantial control over a covered legal entity or has a substantial economic interest in, or receives substantial economic benefit from, such legal entity.

Minimum ownership/ control disclosure threshold

Either no threshold (i.e., all beneficial owners are declared), or a very low threshold—no more than 5 percent at the very highest • Name of ultimate beneficial owner(s), including any alternative names used • Name and role of any PEP who owns and/or controls the company regardless of size of interest

Information disclosed

• Identifying details including date of birth, nationality, and national identity number (for Myanmar nationals, the NRC number) of the beneficial owner(s) • Brief description of the means of ownership or control • Signed statement of accuracy • Other information such as names of directors and legal shareholders

Politically exposed persons (PEPs) definition

Individuals who are, or have been, entrusted with prominent public functions, and their family members and close associates • Good: companies that bid for, operate, or invest in extractive sector

Scope of reporting

• Better: upstream and downstream companies in extractive sector • Best: all companies, including beyond extractive sector • Good: EITI report • Better: license register

Disclosure platform

• Best: corporate register and link to global beneficial ownership register. In all cases, the data should be available online, free, in open data form (that is, a fully machine-readable open database from which data can be extracted in bulk) and not password protected except when strictly necessary to address strong human rights concerns.

Agency to collect/ publish data

For the 2017 EITI report, the independent administrator, with data collection support from a Myanmar-language speaker, and technical support from beneficial ownership experts; in the longer term, to be decided When a company: • first incorporates

Times for data collection/ update

• files annual report • applies to bid for extractives licenses or other public assets • signs a significant extractives sector deal with the government • has any change in beneficial ownership (within a reasonable timeframe after it occurs) • Company must attach a statement signed by a senior management team official or senior legal counsel confirming that the declaration is accurate and complete

Data assurance mechanisms

• Task data collectors with cross-checking submissions against readily available documents (local corporate filings, banking and law enforcement reports, PEP asset disclosure filings) • Ask for backup documentation such as articles of association, powers of attorney, or copies of shareholder registers • Task data collectors with performing deeper audits on a random selection of companies, and on particular companies where credible concerns have been raised

False or incomplete submissions

• Basic EITI requirement: Flag in EITI report by naming the companies which have not disclosed their beneficial owners. • If legally formalized: Grounds for revoking a company’s registration, license or contract, or for barring it from competing for contracts

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Additional resources

For detailed recommendations on how to disclose beneficial ownership data for oil, gas and mining companies, see NRGI’s briefing, “Owning Up: Options for Disclosing the Identities of Beneficial Owners of Extractive Companies,” available at http://www.resourcegovernance.org/analysistools/publications/owning-options-disclosingidentities-beneficial-owners-extractive. For information on the pilot carried out in 2014 on beneficial ownership disclosure in Myanmar’s oil and gas sector, see Global Witness’ October 2014 report, “The Shell Starts to Crack?” available at https://www.globalwitness.org/en-gb/reports/ shell-starts-crack/. For further details of the EITI provisions on beneficial ownership disclosure, see the EITI International Secretariat beneficial ownership page, https://guide.eiti.org/en/topic/ beneficial-ownership. For information on the official EITI pilot carried out in Burkina Faso, the Democratic Republic of Congo, Honduras, the Kyrgyz Republic, Liberia, Niger, Nigeria, Tanzania, Togo and Zambia, see the EITI International Secretariat page, https://eiti. org/pilot-project-beneficial-ownership. For assessments of the official EITI pilot see:

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EITI board report, October 2015, Beneficial ownership pilot evaluation report, available at https://eiti.org/files/BP/board_paper_304-b_beneficial_ownership_pilot_-_ evaluation_report.pdf.

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Global Witness, March 2015, Assessment of EITI beneficial ownership pilots at https:// www.globalwitness.org/documents/18014/ Beneficial_Ownership_Report_March_24_ FINAL.pdf.

For further details on the role hidden ownership plays in enabling corruption and conflict around the world, see Global Witness’ Anonymous Companies site at https://www.globalwitness. org/en/campaigns/corruption-and-moneylaundering/anonymous-company-owners/. Resources include: •

Online map, 'The Great Rip Off: Anonymous Companies and Their Victims', which displays incidents around the world which involve the abuse of anonymous companies. This is available at http://greatripoffmap. globalwitness.org/#!/.

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December 2015 video, “How Exposing Anonymous Companies Could Cut Down on Crime,” available at https://www.youtube. com/watch?v=FyOVMqAIFw8.

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March 2014 report, “Poverty, Corruption and Anonymous Companies: How Hidden Company Ownership Fuels Corruption and Hinders the Fight Against Poverty,” at https://www.globalwitness.org/ sites/default/files/library/anonymous_ companies_03_2014.pdf.

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March 2014 video, The Grin, which helps to explain the problem of anonymous companies. This is available here: https://www.youtube. com/watch?v=N1O97HZev7A.

Notes

1. For further details of the approach to corruption agreed at the Anti-Corruption Summit held in London in May 2016, please see https://www.gov.uk/government/publications/anti-corruption-summit-communique. For further information on international progress to tackle hidden company ownership, see Global Witness, 'Anti-Corruption Summit sees bold moves on property and travel, but a glaring blind spot in the tax havens', 12 May 2016; available at https://www.globalwitness.org/en/press-releases/ anti-corruption-summit-sees-bold-moves-property-and-travel-glaring-blind-spot-tax-havens/. 2. In 2014, the MEITI multi-stakeholder group approved an official work plan which included as activity 1.2.12: “Carry out a study to map and identify levels of beneficial ownership in the extractives sector (if not effectively covered and/or included in scoping study.” 3. The full 2016 EITI Standard is available at https://eiti.org/files/english_eiti_standard_0.pdf. 4. White House, “United States G-8 Action Plan for Transparency of Company Ownership and Control,” 2013, available at: http://www. whitehouse.gov/the-press-office/2013/06/18/united-states-g-8-action-plan-transparency-company-ownership-and-control 5. Companies which are listed on a public stock exchange are already required to make details of their ownership public, and by definition, they have a very large number of owners who each only hold a small slice of the company. Consequently, listed companies are exempted from EITI beneficial ownership requirements. Subsidiaries of listed companies should still report on their beneficial owners (meaning that subsidiaries which are 100 percent owned by a listed company will report the listed company as their owner). In terms of best practice, where a single person holds a high percentage of a listed company’s shares, it is helpful for this to be declared. 6. Organized Crime and Corruuption Project, 'The Moldovan Banking Wars', 26 July 2016; available at https://www.occrp.org/en/ investigations/5494-the-moldovan-banking-wars. 7. United Nations Convention against Corruption (UNCAC), Article 52. 8. For an overview, see FATF, “Politically Exposed Persons (Recommendations 12 and 22), 2013, available at: http://www.fatf-gafi.org/ media/fatf/documents/recommendations/guidance-pep-rec12-22.pdf. 9. In a June 2014 survey of oil and gas firms in Myanmar, Global Witness found that only 13 out of 47 companies approached initially provided any data. However, when these poor results attracted media interest and companies became aware of reputational impacts of failing to engage in this exercise, more chose to participate. By October 2014, a total of 25 oil and gas companies had disclosed in full the beneficial ownership information requested from them, representing a majority of applicable private Myanmarregistered companies. See Global Witness, “The Shell Starts to Crack?” 2014, available at: https://www.globalwitness.org/en-gb/ reports/shell-starts-crack/. 10. For more on the use of official asset disclosures to find PEPs, see World Bank, “Using Asset Disclosure for Identifying Politically Exposed Persons,” 2012, available at: http://siteresources.worldbank.org/FINANCIALSECTOR/Resources/Using_AD_for_PEP_ identification.pdf 11. For further details of the International Open Data Charter, please see www.opendatacharter.net. 12. For further details on the Global Beneficial Ownership Register, please see Global Witness, ‘New global register sheds light on anonymous companies, a root cause of corrupt, illegal activities’, 4 April 2016; available at https://www.globalwitness.org/en/ press-releases/new-global-register-shine-light-anonymous-companies-root-cause-corrupt-illegal-activities/. 13. For an example of the former, see Article 27 of the 2012 amendments to the Kyrgyz Republic’s Subsoil Law.

The Natural Resource Governance Institute (NRGI) helps people to realize the benefits of their countries’ endowments of oil, gas and minerals. We do this through technical advice, advocacy, applied research, policy analysis, and capacity development. We work with innovative agents of change within government ministries, civil society, the media, legislatures, the private sector, and international institutions to promote accountable and effective governance in the extractive industries. www.resourcegovernance.org

Many of the world’s worst environmental and human rights abuses are driven by the exploitation of natural resources and corruption in the global political and economic system. Global Witness is campaigning to end this. We carry out hard-hitting investigations, expose the facts, and push for change. We are independent, not-for-profit, and work with partners around the world in our fight for justice. Global Witness is a company limited by guarantee and incorporated in England (Company No. 2871809). www.globalwitness.org

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Beneficial Ownership: Tackling Hidden Company Ownership Through Myanmar’s EITI Process

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Myanmar is one of many countries where the oil, gas and mining industries have long been synonymous with secrecy and dirty dealing. Too often resource riches which could be used to lift populations out of

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poverty instead fall into the hands of corrupt elites. The Extractive Industries Transparency Initiative (EITI) is a global standard which aims to help change this dynamic by requiring member countries to open the management of their natural resources up to public scrutiny. Myanmar is in the process of implementing EITI, publishing its first report in January 2016; if the next steps are taken seriously, the initiative could help pave the way towards a natural resource sector which benefits the country’s people. This paper focuses on a new and ground-breaking provision of EITI: a requirement for the identities of the real owners – the ‘beneficial owners’ – of extractive industry companies to be made public. It makes recommendations about the information which needs to be collected and disclosed to make the most of EITI standards on beneficial ownership, and suggests steps to carry out this process successfully in Myanmar.

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Civilian justice trumps military impunity in Myanmar AILEEN THOMSON 11 December 2014

The rare conviction of a soldier in civilian court shows how, case by case, the criminal justice system is slowly taking a stand against the country's still-powerful military.

Flickr/Totaloutnow. Some rights reserved.

In November, a civilian court in Myanmar’s Shan State did what few courts in the country have ever done–it sentenced a soldier in the https://www.opendemocracy.net/opensecurity/aileen-thomson/civilian-justice-trumps-military-impunity-in-myanmar

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Myanmar military to prison for a crime committed against a civilian. It did so after the military court overseeing the case, under intense pressure from local human rights groups and media, agreed to transfer the defendant to a civilian court. The Burmese law governing courts martial allows such a transfer to civilian courts when a soldier is accused of violating civilian criminal law, including sexual violence and murder. The victim in this case was a 14-year-old mentally handicapped girl of Kachin ethnicity. The perpetrator, Private Kaung Bo Bo, attacked her while she was on her way to the market, dragged her into some bushes, and raped her. The court found the soldier guilty of kidnapping and rape, and sentenced him to 13 years in prison. Before his civilian trial, a court martial had found him guilty of another crime, leaving his barracks without permission, and sentenced him to a year in prison. The case in question was particularly horrifying, but it sadly fits a well-documented pattern of sexual violence committed by soldiers against ethnic civilians. For many years, women’s groups and human rights organizations have documented the use of sexual violence as a weapon of war in areas of ethnic conflict in Myanmar. Sexual violence is used to terrorize ethnic civilian populations into submission and as punishment for their assumed support of ethnic armed groups. The Women’s League of Burma and its member organizations have gathered documentation showing that over 100 women have been raped by members of the Myanmar Army since the country started on its path to peace and democracy in 2010. Nearly half of the attacks were gang rapes. Most cases were linked to military offensives in Kachin and Northern Shan States. The push for civilian justice for military abuses is not limited to sexual violence. Torture and killings of ethnic civilians by the Myanmar military are also well-documented. While common in areas of ethnic https://www.opendemocracy.net/opensecurity/aileen-thomson/civilian-justice-trumps-military-impunity-in-myanmar

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conflict in Myanmar over the past decades, they have been more frequent in Kachin and northern Shan States in the past few years. Torture is used in and outside of detention. Villagers in areas of ethnic conflict report being tortured by members of the Myanmar military as punishment for their perceived support of armed groups, as revenge for a recent military defeat, or to instill fear. Villagers and displaced persons also face arbitrary arrest and detention because their ethnicity or place of residence puts them under suspicion of being members or supporters of an ethnic armed group. Almost none of these victims of sexual violence, torture and killings—and their families—will likely ever have their day in court. They face numerous obstacles to seeking justice in Myanmar’s criminal justice system. A primary challenge is Article 445 of the 2008 Constitution, which forbids legal action against members of past governments for actions undertaken by those governments. Although it is unspecific about who may be charged, and in what kinds of proceedings, it is widely interpreted as an amnesty provision guaranteeing impunity to members of the military and government for past and future violations. Yet, it has not completely barred judicial and non-judicial bodies from considering some violations. Another challenge is that military courts have jurisdiction over all Defense Services personnel, and the decision of the Commander in Chief on issues of military justice is final and conclusive. Myanmar’s military justice system is not open to the public, and civil society activists find it difficult, if not impossible, to obtain reliable information about pending or completed cases. Civilians, including victims and their advocates, have no right to be present at the trial or to obtain any information about the charges, findings, or sentence. A recent report by the Women’s League of Burma details the challenges in pursuing military justice, including the transfer of the https://www.opendemocracy.net/opensecurity/aileen-thomson/civilian-justice-trumps-military-impunity-in-myanmar

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accused to new jurisdictions, lack of transparency, and intimidation. Even when civilian courts gain jurisdiction over military personnel, victims’ rights are impeded by institutions that should support them. Police often cooperate with the military to pressure victims to stay silent, sometimes offering compensation in exchange for agreements not to press charges or inform the media. Human rights defenders face threats of retaliation and experience difficulty gaining access to victims. The rape conviction in Shan State demonstrates that it is possible, at least in some cases, to obtain justice for crimes committed against civilians. There are also reports that last year a soldier was sentenced by a criminal court to life in prison for the rape of a young girl, and other advocates have mentioned three to four other similar cases. The Myanmar National Human Rights Committee recently recommended that a civilian court take up another high-profile case of military abuse in a conflict area—the killing and alleged torture of journalist Par Gyi, who was allegedly killed while in military custody in Mon State’s Kyeikmayaw town. These cases represent some of the first efforts to deal with the past and obtain justice for victims of human rights violations in Myanmar. The work of civil society, politicians and media on these cases is admirable. However, the current ad hoc approach is not sustainable. Groups such as the Women’s League of Burma and its member organizations struggle to provide the necessary support for the growing number of victims who approach them for help in seeking justice. The military and government can take steps in the short term that would make a significant contribution. The military courts should authorize more transfers of cases of sexual violence, torture, and killings to civilian criminal courts when requested—starting with accepting the recommendations of the Myanmar https://www.opendemocracy.net/opensecurity/aileen-thomson/civilian-justice-trumps-military-impunity-in-myanmar

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National Human Rights Commission in the Par Gyi case and taking steps to ensure the trial is fair and effective. A policy that directs all military courts to transfer these cases automatically, or at the least on the request of the victim, should be adopted. In a recent interview with Voice of America, Commander in Chief Senior General Min Aung Hlaing confirmed that, although the military would decide in most cases, civilian justice is an option in some cases when soldiers are accused of human rights violations. Further, the military leadership should publicly affirm that violations against civilian populations, particularly rape and sexual assault, can never be excused or tolerated. Military training should be revised to ensure that human rights violations, particularly sexual violence, are no longer perpetrated, if they are, they must be thoroughly prosecuted. Establishing accountability for the security forces will not only increase their professionalism but ultimately demonstrate that they can and shall be devoted to the protection of civilians. These actions, to avoid recurrences, should pave the way to larger reforms aimed at introducing civilian oversight over the army The responsibility to provide a remedy for violations goes beyond criminal justice. The Myanmar government should take responsibility for the medical, psychosocial and other needs of survivors of sexual violence and torture, as well as the family members of victims of killings. The government should also reform its laws governing these crimes to meet international standards and undertake an investigation of institutional factors that enable or encourage systematic use of sexual violence, torture, and killings as weapons of war, with a view to recommending reforms to prevent their recurrence. International actors engaged in rule of law assistance also have an important role to play. In their work with the judiciary, police, and lawyers, they should help to build their capacity to handle cases of https://www.opendemocracy.net/opensecurity/aileen-thomson/civilian-justice-trumps-military-impunity-in-myanmar

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sexual violence, torture, killings and other serious violation of human rights. These courts must also be able to act independently, both from institutional pressure and from threats or bribes by the accused. At a time when building trust and reconciliation at all levels—from communities to leaders of armed groups—is a high priority for the Myanmar government, it is important to take steps to address the abuses that civilians have suffered in conflict. Without accountability for perpetrators, and without recognition or support from the government to remedy these violations, the survivors of sexual violence and torture and the families of victims killings cannot be expected to have any trust in reforms. Related Articles Myanmar: the human-rights story behind the spin OLOF BLOMQVIST and LAURA HAIGH

Daring to speak: militarism and women’s human rights in Burma JESSICA NHKUM and JENNIFER ALLSOPP

Myanmar’s 2010 elections: a human rights perspective BENJAMIN ZAWACKI

This article is published under a Creative Commons Attribution-NonCommercial 3.0 licence. If you have any queries about republishing please contact us. Please check individual images for licensing details.

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Institutionalising Military Rule in Burma/Myanmar: External and Internal Factors

Marco Bünte

Abstract Direct military rule has become rare in world politics. Today, most military regimes have either given way to some form of democracy or been transformed into another form of authoritarianism. This article formulates an analytical framework for the detachment of militaries from politics and identifies positive and negative factors for a withdrawal. It then applies this framework to the case of Burma/Myanmar, which is an example of deeply entrenched military rule. It is argued that the retreat from direct rule has brought with it a further institutionalization of military rule in politics, since the military was able to safeguard its interests and design the new electoral authoritarian regime according to its own purposes. The article identifies the internal dynamics within the military regime as a prime motive for a reform of the military regime. Although the external environment has completely changed over the last two decades, this had only a minor impact on military politics. The opposition could not profit from the regime’s factionalization and external sanctions and pressure have been undermined by Asian engagement.

Keywords: military regime, civilian control, external influences, internal influences, institutions, democratisation; Burma/Myanmar

Dr. Marco Bünte GIGA Institute of Asian Studies Rothenbaumchaussee 32 20148 Hamburg Germany [email protected]

1

1. Introduction 2. Military Regimes and Military Intervention in Politics 3. Conducive and Unfavourable Conditions for Military Withdrawal 4. The Military in Burmese Politics 1948–2010 5. From Direct Rule to Military Control: Burma’s Transition to “Disciplined Democracy” 6. Endogenous and Exogenous Factors in the Military’s Withdrawal (1988–2011) 7. Summary and Conclusion

1. Introduction Direct military rule has become rare in world politics. In March 2011 the Burmese military regime dissolved the ruling junta, the State Peace and Development Council (SPDC), and handed over power to a newly elected civilian government. Due to these circumstances, Burma can no longer be classified as a case of direct military rule. This process illustrates a gradual decline of military regimes worldwide in the last two decades. This phenomenon has been especially virulent in Asia, where in 1987 half of the continent’s countries still lived under military or military-backed rule. Since then, democracy has replaced many military or quasi-military regimes in Bangladesh, Indonesia, South Korea, Thailand and Pakistan.1 This, however, is by no means a linear process, as the military coups in Pakistan 1999 and in Thailand 2006 demonstrated. Moreover, recent studies have also shown that in many newly democratized nations the military enjoys considerable political prerogatives and a great deal of institutional autonomy (Alagappa 2001; Beeson and Bellamy 2006; Croissant et al. 2011a). Why do militaries withdraw from power? How can we assess the military’s role in a “civilian state”? Does the military still wield power behind the scenes, making direct rule unnecessary? This paper adds to the literature on civil military relations in several ways: First, it constructs a concept of military participation in politics that goes beyond the recent emphasis on coup politics. Traditionally, the detachment of military from politics and the establishment of civilian control has been defined as the lack of military coups and military rule (Nordlinger 1977). In contrast to this dichotomous perspective, I use a gradual concept of military involvement whose polar opposites are civilian supremacy/civilian control on one side and military control/military rule on the other. Second, I construct a framework that discusses various positive and negative factors for a detachment of the military from politics. This framework succeeds in overcoming the traditional limitations of the dominance of either internal or external factors found in the literature on civil–military relations. Third, this paper brings attention to the outlier Burma/Myanmar,2 which is an example of extreme persistence 1

Quasi-military regimes are military regimes with a civilian façade (such as a constitution, civilian president, semi-competitive elections). These regimes, however, are military in substance, since the military holds a political hegemony (Finer 1962). 2 The military regime changed the name of the country in July 1989 from Burma to Myanmar. At the same time, a number of other titles and places were changed in an attempt to remove any traces of the colonial era. In the subsequent years, the new name was accepted by the UN and other states and institutions. A number of countries and pro-democracy groups have, however, refused to acknowledge the new name as a protest against the human rights abuses of the military and its refusal to hand over power to an elected civilian government. Throughout this paper, “Burma” is employed in preference to “Myanmar”, though this is highly contested terrain. The name

2

of military rule and thus contradicts the overall diagnosis of extreme instability of military regimes found in the general literature on authoritarian regimes (Geddes 1999; Hadenius/Teorell 2007). Burma is generally regarded as the most durable military regime worldwide. Soon after independence from Great Britain in 1948, the military became the most powerful institution in the country with a huge impact on society and the economy. Confronted with a number of countrywide insurgencies after the departure of the British, the military initiated a rapid modernization of the armed forces that by far overtook the institutional development of the Burmese state. The consequence was a “military aggrandizement of resources, responsibilities and powers in traditional non-military realms” (Callahan 2003:18). After General Ne Win’s coup against the civilian government of U Nu in 1962, the country has oscillated between direct and indirect forms of military rule. General Ne Win and his Revolutionary Council ruled Burma directly until 1974, when the country was transformed into a military-backed, socialist one-party state under the leadership of Ne Win’s Burmese Socialist Programme Party (BSPP). The “Burmese Way to Socialism”, however, led to a severe economic crisis at the end of the 1980s. Confronted with massive pro-democracy demonstrations in the wake of the economic crisis, Ne Win decided to resign in July 1988. The military, however, managed to reconsolidate its power, after it cracked down on prodemocracy demonstrations in August 1988, killing several thousand protestors. The coup by the State Law and Order Restoration Council (SLORC) on 18 August 1988 re-established direct military rule, which continued for over 21 years until 30 March 2011, when the military dissolved the ruling body, the State Peace and Development Council (SPDC, the SLORC’s successor), and handed over power to the newly elected President Thein Sein. Military rule in Burma has been especially contested over the last two decades: After the military promised to hand over power to an elected government in 1988, it did not acknowledge the results of the elections in May 1990, which ended in a landslide victory for the oppositional National League for Democracy (NLD). Acting in the manner of a caretaker government, the military argued that the country lacked a constitution for transferring power to a new government. What followed was a decade of confrontations – on one side between the military, the NLD and the ethnic groups, and on the other side between the military and the Western countries, which supported the opposition’s call for an acknowledgment of the results of the 1990s elections. Finally, in September 2003, the military announced its roadmap to “disciplined democracy”, which promised to transfer power to an elected government again. After the military managed to write a new constitution and to hold multiparty elections, in which the playing field was heavily tilted toward the military-dominated party, it handed over power to the new civilian government in March 2011. In the following section, I give a definition of military regimes and discuss the various ways militaries can be involved in politics. I then go on to formulate a framework for discussing various preconditions and reasons for militaries to disengage from politics. Then I elucidate the evolution and state of military involvement in politics in Burma from 1948 till 2011 and discuss reasons for the military’s withdrawal from direct rule. In the last section, I offer some conclusions based on the case of Burma.

“Burma” is less obviously associated with the dominant ethnic group. For more on these issues see Dittmer (2008).

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2. Military Regimes and Military Intervention in Politics Military regimes, which can be defined as a “system of government by the military” (Perlmutter 1980:96), are a special form of authoritarian rule. As such, they have to be distinguished from both democracies and other forms of authoritarian rule. Following Dahl’s concept of polyarchy, scholars have adopted a “procedural minimum” definition of democracy that includes four key attributes: free, fair and competitive elections, full adult suffrage, broad protection of civil liberties (freedom of speech, press and association) and the absence of non-elected “tutelary authorities” that limit the governing power of elected officials (Dahl 1971; Diamond 1999:7-15).3 If militaries wield these “tutelary powers” or “reserved domains” but still accept the democratic game, a “tutelary democracy” evolves (Collier/Levitsky 1997; Merkel 2004). In these “democracies with adjectives” (Collier/Levitsky 1997), the problem of military involvement in politics and the establishment of “civilian control”4 become some of the main challenges of democratic consolidation, since liberal democracies require the civilian control of the armed forces as a necessary condition (Croissant et al. 2011b). At the other end of the political spectrum, we find closed authoritarian regimes, in which no channels exist for oppositional forces to legally contest for executive power (Levitsky/Way 2010:7; Snyder 2006). This type includes two subcategories: closed regimes, in which we find no democratic institutions, and hegemonic regimes, in which formal democratic institutions exist on paper but are nothing more than a façade (Schedler 2002). Military regimes, in which “military officers are major or predominant political actors by virtue of their actual or threatened use of force” (Nordlinger 1977:2), may fall into either category. We can distinguish between direct military regimes, in which the military forms the government, and quasi-civilian regimes, which are military regimes with a civilian window dressing (civilian president, constitution, semi-competitive elections). The latter are military regimes in substance in the sense that the military holds political hegemony (Finer 1962). Moreover, the armed forces may also be part of the regime coalition in other forms of closed authoritarian regimes such as monarchies, Sultanistic regimes (e.g. the Philippines under Ferdinand Marcos 1972–1986) and single-party regimes (North Korea). These different forms of regimes can frequently not be categorized accurately, although they “draw on different groups to staff government offices and different segments of society for support. They have different procedures for making decisions, different ways of handling their choice of leaders and succession, and different ways of responding to society and opponents” (Geddes 1999:121). Moreover, there are often amalgams or hybrids of these diverse regime types. In general, military regimes are considered the weakest form of authoritarianism. According to Barbara Geddes, who analysed the stability of 163 authoritarian regimes from 1945–1998, military regimes have an average lifespan of only seven years, while single-party regimes have an average lifespan of 35 years (Geddes 1999:121). Whereas in the 1970s and 1980s military regimes were the most common form of authoritarian government, they have increasingly been transformed into “limited multiparty systems” since then (Hadenius/Teorell 2007: 152). Despite these developments, the military often wields enormous influence behind the scenes of these regimes. The problem of “civil–military relations” and “civilian control” of the military has often been the focus of studies in post-authoritarian contexts, as civilian control has often been considered a necessary condition for democratic rule. For liberal 3

Other scholars, such as Przeworski, employ a more minimalist definition that centres on contested elections (Przeworski et al. 2000). 4 In civilian regimes, the armed forces are under the supremacy of the civilian government. In a democratic state, civilian control means that civilian authorities are responsible for making political decisions, and the military is responsible for implementing them.

4

democracies to persist, the armed forces must be subordinate to democratically elected civilian authorities (Diamond 1999; Croissant et al. 2011b). Earlier research on military rule has worked out various subtypes that draw on the social foundations of military rule, its class background and its role in economic development: The most important forms have been market-bureaucratic regimes, monarchic military, single party (often socialist) military regimes and oligarchic military regimes (Janowitz 1964; Huntington 1968; O’Donnell 1973; Perlmutter 1980; Remmer 1989). With the growing extinction of direct military regimes from the political scene, these concepts fall short of delineating the extent of military power in politics. According to Nordlinger, there are two factors that define the level of military intervention: the extent of power of the armed forces and their political and economic goals (Nordlinger 1977:22). Nordlinger distinguishes three ideal types of military rule: rulers, guardians and moderators. As rulers, militaries dominate the regime and attempt to control large segments of society and the economy. They “intend to bring basic changes in the distribution of power by eliminating all existing power centres” (Nordlinger 1977:22). In both other regime types, militaries aim to preserve the status quo. Guardians control the government from backstage; they have not taken over the government by themselves but control the government informally. Moderators leave the most important positions in the government to civilians, but the military maintains veto power over certain policies (Nordlinger 1977:22). The problem with Nordlinger’s theory is that some hidden forms of military rule cannot be separated clearly from civilian autocracies. It is, therefore, necessary to identify the exact relationship between civilian and military authorities in these regimes. Finer distinguishes three modes of military intervention in civil politics (Finer 1962): blackmailing, displacement and supplantment. First, the military pressures or blackmails civilian authorities. The military intervenes in decision-making by threatening to withdraw its support for the regime coalition or by supporting groups that agitate against the government. Second, the military attempts to displace members of the cabinet. The third mode of intervention is supplantment: either the military or factions within the military support rebel groups fighting against the government or threaten to stage a military coup. The problem with both Finer’s and Nordlinger’s theories is that they do not give exact criteria for delineating military intervention into politics. Recent innovative approaches have proposed conceptualizing military intervention in politics along a spectrum of military influence, military participation and military control of government (Welch/Smith 1974; Siaroff 2009; Croissant et al 2011b). Siaroff designed a continuum for measuring the degree of military intervention into the political and civilian affairs of the state. He accounted for eleven indicators that are used to categorize the military’s intervention. Siaroff envisions a continuum of civil–military relations that ranges from “civilian supremacy” and “civilian control”,5 across the middle categories of conditional subordination and military tutelage to military control and military rule. He uses several criteria such as influence on policy-making in certain fields, representation in government, right to intervention, accountability for past human rights violations and autonomy over resources and processes.6

5

In contrast to the first category, civilians lack expertise in military affairs, do not hold the military to account for past human rights violations, and cannot control its internal affairs. 6 Siaroff’s classification is based on a set of eleven indicators that are measured on a scale of 1 to 10. The higher the numerical score, the more comprehensive the civilian control.

5

Figure 1: Degree of Military Intervention Regime Type

Liberal Democracy

Degree of military Civilian intervention supremacy Siaroff 2009: 90.

Civilian control

Electoral Democracy

Autocracy

Conditional Military subordination tutelage

Military Military control rule

However, as Croissant et al. rightly argue, civilian control also exists in autocracies. Consequently, we see that regime type is not a good predictor of the type of civil–military relations (Croissant et al. 2011a: 194). Military officers play a decisive role in all regimes, since they are either part of the ruling coalition or heavily influence policy decisions in certain fields. Most of these regimes also depend on the military for their very survival. In some cases, they act as veto actors. Regime transitions within authoritarian regimes thus often lead to a different role for the military – it is shifted away “from the driver’s seat” to a more backseat role (Finer 1985:18). It is, therefore, always necessary to contextualize the military’s role in politics, along with its reasons for intervention, instruments and scope of power (Snyder 2006:220). It is also necessary to delineate conditions for a withdrawal of the military from politics, i.e. a change in the degree of military intervention. In order to do this, it is necessary to identify factors that explain the motives for military interventions. 3. Conducive and Unfavourable Conditions for Military Withdrawal In general, two theoretical schools can be identified within the research on civil–military relations (Kennedy/Louscher 1991; Nordlinger 1977: 1; Sundhaussen 1985: Croissant 2004). The first relies on internal military variables to explain various degrees of military intervention; the second points to external factors. However, neither approach is allencompassing (Sundhaussen 1985: 272; Croissant 2004). Sundhaussen, who attempts to explore factors that facilitate a withdrawal of militaries from office, suggests combining these different theorems. According to Sundhaussen, the degree of military intervention into politics is the outcome of several mutually interdependent endogenous and extraneous factors. Departing from Finer’s distinction of the military’s disposition to intervene and their social opportunity structures (“mood” vs. “motive”), Sundhaussen argues that a withdrawal from politics is the outcome of two interdependent concurrent factors: the dynamics within the internal organization of the military itself and the political, cultural, economic and international environment that influence the military’s actions (Sundhaussen 1985:271). The strategic options of the armed forces are therefore shaped by two structuralist factors: a) endogenous factors, which shape the disposition and ability of the military to intervene into or withdraw from politics and b) extraneous factors, which form conducive or unfavourable opportunity structures for the military’s intervention or withdrawal. Examples of extraneous factors include the inability of civilian governments to control political violence and attempts of political groups to draw the military into the political arena. Croissant argues that these two factors act as “pull factors” for the military by pulling the armed forces into the terrain of civil politics, while endogenous factors operate as “push factors” by affecting the cohesion, coherence, internal resources, moods and organizational motives of military action (Croissant 2004:360). Military regimes disengage from politics if the military’s cohesion is threatened by ideological polarization or if increased factionalism endangers the unity of the armed forces (Nordlinger 1977:144; Huntington 1968:252-260; Finer 1962: 1973-186): The withdrawal of the military from the political arena depends on the interplay of both endogenous and exogenous factors. These two sets of variables can be further broken down into eight variables: 1. personal interests of the military; 2. corporate interests of the military; 3. military 6

ideology; 4. military cohesion; 5. configuration of the civilian sphere (strength of parties and civil society); 6. economic development; 7. internal security (e.g. secessionist movements); and 8. external security (Albright 1980:575; Finer 1962: Sundhaussen 1985; Croissant 2004).

Figure 2: Determinants of Military Interventions ENDOGENOUS FACTORS 1. 2. 3. 4.

Personal interests Corporate interests Ideology Cohesion

EXOGENOUS FACTORS 1. 2. 3. 4.

Civilian sphere Internal security Economy External security

DEGREE OF MILITARY INTERVENTION (MILITARY RULE, MILITARY CONTROL, MILITARY TUTELAGE, CONDITIONAL SUBORDINATION, CIVILIAN CONTROL, CIVILIAN SUPREMACY)

Endogenous factors A retreat of the military from political power is facilitated by the belief that civilian governments will take into account the personal and corporate interests of the military. Leading military officers might fear being persecuted under the new regime and being held responsible for past human rights violations. Consequently, they may be reluctant to leave office. The military might also have some corporate interests: It might demand sufficient budget allocations from the (civilian) government to acquire adequate equipment and armaments and to pay satisfactory salaries and wages. When a government fails to care for the interests of the military, officers will be more inclined to intervene. Moreover, certain factions or influential leaders within the military might have economic interests in legal or illegal businesses such as drug trafficking or the arms trade. The armed forces therefore might attempt to safeguard these interests from civilian influence. The enforcement of civilian control is hampered when the military is engaged in entrepreneurial roles, as the civilian government might refrain from implementing policies that run counter to the interests of the military. Since the military is capable of supplanting the government, it is a far more dangerous political actor than other political groups. In post-authoritarian governments, the military often has institutional prerogatives, such as legislative seats or a high degree of representation in cabinets to lobby certain political groups to shield its corporate interests. Additionally, the military often has the ability to lobby certain criminal elements in order to stimulate unrest and to create a situation that might facilitate a return of the military into politics. Moreover, the ideological orientation of the military is an important factor. An ideologically coherent military that does not follow Huntington’s ideal of a non-political, “professional” military (Huntington 1957)7 but has instead expanded its role to a “new professionalism” 7

Huntington argued for what he called “objective civilian control”, focusing on a politically neutral, autonomous, professional officer corps. This autonomous professionalism is based on a special esprit de corps

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(Stepan 1976) is far less willing to withdraw from politics. These soldiers believe that regular political interventions are their moral duty as they often identify themselves with the national interest. On the other hand, a “democratic professionalism” of the armed forces (Fitch 1998) may facilitate the subordination to civilian authorities, since the armed forces accept the supremacy of the civilian government and the constitutional order. Additionally, military factionalism can influence the military’s decision to withdraw from politics. The decision to return to the barracks must be agreed upon by all military factions. An increased factionalism – which means the division of the armed forces along class interests or ethnic and/or religious loyalties – increases the likelihood of counter-coups and civil war in situations in which power is fragmented and dispersed. Exogenous factors It is often argued that military interventions in politics take place merely when the civilian government proves unable to govern the country effectively, when they are unable to solve internal conflicts and manage security threats peacefully. Intense political polarization and the lack of mature political institutions to solve political conflicts therefore have been the most important preconditions for the return of the military into the political arena. However, this hypothesis implies the existence of civilian governments. In cases where the military has ruled a country for decades, such civilian structures are often weak or non-existent. Strong civil societies based on social movements, political parties or middle classes seem to be more important to force the military out of power. In similar contexts, students often act as a vanguard to force the military out of office. Additionally, it is important for these different groups to form a consensus on common goals and future directions in order to negotiate the military’s retreat from power. In this context, it is important to offer the military certain incentives that draw them to their side. Moreover, attacks by guerrillas or secessionist movements might give the army the pretext to stay in power or pull the armed forces back into domestic politics. The opportunity structure for military intervention is favourable in situations where there is no consensus about the rule of the political game, where there is considerable uncertainty about the future of the state or where there are external threats to national security. However, an environment conducive to military disengagement prevails if the civilian government enjoys broad legitimacy due to its social and economic policies, as long as there is a general consensus on the rules of the political game and the role of the military therein. It must be emphasized that the prevalence of these points is not the same in all countries. They affect the dynamics in various regimes at different points in time and in various ways. However, it is the interplay of these internal and external factors that leads to the withdrawal of the military. 4. The Military in Burmese Politics 1948–2010 The Burmese military (Tatmadaw) has been deeply involved in politics since the country’s independence from Great Britain in 1948. As its formation in 1942 preceded the existence of an independent state and the officer corps was politicized as a liberating force during the struggle for national independence, the army could retrospectively assume the role of guardian of the Burmese state and bulwark of national independence. Although the 1947 Constitution established a democratic system of government and the military accepted civilian supremacy, the army was able to gradually expand its political role (Taylor 1985; Callahan 2001; Callahan 2003). Both external and internal factors explain the increasing assertiveness

and sense of distinct military corporateness, which prevents officers from interfering in politics (Huntington 1957).

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of the Burmese military: the outbreak of ethnic and communist rebellions8 after the departure of the British triggered the institutional modernization of the armed forces, which did not keep pace with the civilian government capacities of the national state. In the 1950s the military increasingly took over administrative and civilian functions and claimed a substantial part (one-third to one-half) of the national budget for internal security. However, unlike its Thai or Indonesian counterparts, the Burmese army did not develop its own business network at this point in time (Taylor 1985:28). In 1958, increasing factionalism within the ruling Anti-Fascist Peoples Freedom League (AFPFL) led to a split in the party and a growing instability in the parliamentary system. The officer corps feared that the split could also weaken the army’s unity. General Ne Win urged the civilian government of Prime Minister U Nu to temporarily transfer power to the armed forces (“Caretaker Government”, 1958–1960). During this period, the officer corps developed a praetorian ethos, which was grounded in the belief that it was more effective than its civilian counterparts. The military adopted a new ideology, which defined the role of the military in broad national security terms as being responsible for the defence of the national objectives of establishing “peace and the rule of law”, “democracy” and a “socialist economy” (Aung Myoe 2008: 16-44). This prepared the groundwork for the “new professionalism” of the Burmese military (Tin Maung Maung Tan 2001: 165f.): The military also expanded its business activities into the banking sector, construction industry and fishing, and it became the most powerful business organization in the country (Taylor 1985:32). Although the “Caretaker Government” handed back power in February 1960, General Ne Win staged a coup in March 1962, which brought army leaders into power and “eliminated their civilian counterparts once and for all” (Callahan 2001:422). U Nu’s decision to make Buddhism the state religion, along with the calls by ethnic groups for greater autonomy and secession from the union prepared the groundwork for the intervention of the military, which stepped in to save the country from disintegration. Since then, the military has prevented the emergence of any autonomous centres of influence. General Ne Win formed a Revolutionary Council, which ruled the country by fiat until 1974. It abolished the 1947 Constitution, dissolved parliament and banned all political parties. The military government nationalized the economy under the banner of the “Burmese Way to Socialism” and cut all ties to the outside world. It set up its own Leninist party, the Burmese Socialist Programme Party (BSPP), which ran the country unchallenged for over 25 years (Silverstein 1977). Apart from one short outbreak of student demonstrations in 1974,9 army and party leaders were able to control society. The military became the backbone of the socialist one-party state (19741988), in which General Ne Win was both party chairman and president. Based on his personal influence on the army and the party, he kept his subordinates divided and controlled all potential rivals through regular purges. Active and retired military officers dominated the cabinets and rubber stamp parliaments. In the closing years of the socialist period, the influence of the military waned, since the BSPP was transformed into a socialist mass party – a considerable percentage of the party leadership, however, remained in military hands (Taylor 2010:318-321). The military-backed, socialist one-party regime crumbled from within in 1987/88, when the country was facing a severe economic crisis. In 1987 the World Bank had given the country the status of Least Developed Country. Further economic mismanagement led to massive student demonstrations in 1988, which forced General Ne Win to resign as party chairman in 8

These rebellions were supported by foreign powers. The Kuomintang rebels (KMT) were supported by the CIA, while the rebellion of the communists was supported by the Chinese. 9 Workers and students in Rangoon protested against inflation and food shortages after the implementation of policies that favoured the rural economy. The military used force and at least 22 people were killed. Universities were closed. In December 1974, students and monks protested at the state’s funeral arrangements for former UN Secretary General U Than (Taylor 2010:36).

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July 1988. The protests escalated into a broad-based, countrywide democracy movement that continued until September 1988, when the military reorganized itself, staged a coup and brutally cracked down on the movement, killing thousands of demonstrators (Steinberg 2001:3-12; Lintner 1990). The coup of the State Law and Order Restoration Council (SLORC) re-established direct military rule on 18 August 1988. The military revoked the 1974 Constitution, dissolved parliament and concentrated executive, legislative and judicial powers in military hands. When seizing power, the junta under the leadership of Saw Maung promised to hand over power after holding fresh multiparty elections. However, the military council failed to acknowledge the results of the May 1990 elections, which ended in a landslide victory for the oppositional NLD.10 Acting in the manner of a caretaker government, the military argued that the country lacked a constitution for transferring power to a new government. Military rule has been heavily contested since then: The NLD and the ethnic political parties have called for a swift transfer of power and subsequently mobilized the international community to support their demands. As a consequence, the military found itself under heavy criticism from Western states, international NGOs and human rights advocates. The military instead attempted to safeguard its leading role in politics (see below). It tried to draft a new constitution and invited political parties for a National Convention, which started work in 1993 but came to a halt in 1996, when the NLD left the convention because of a lack of debate and undemocratic principles. Lacking electoral legitimacy, the military junta ruled with an iron fist, suppressing all avenues of dissent and controlling society: Members of the opposition – including NLD leader and Nobel Peace Prize laureate Aung San Suu Kyi and other leading figures of her party – had to spend long periods under house arrest or had to flee the country due to military persecution. The number of political prisoners has remained high over the last two decades. After 1990 the military embarked on a massive state-building programme, which has concentrated on modernizing the country’s weak infrastructure (construction of roads, bridges, hospitals, etc.) and negotiating a series of ceasefires with ethnic insurgent groups. The latter could substantially reduce the internal armed threat that it faced (see below). In 1997 the junta reorganized and renamed itself the State Peace and Development Council in order to signal a shift from restoring order to fostering peace and development. The modernization of the coercive apparatus has been at the heart of the state-building programme. This entailed an expansion of the armed forces from 186,000 to more than 370,000 soldiers (Callahan 2003; Selth 2002; Aung Myoe 2008). The military has subsequently enhanced its territorial representation in the country, which it deemed necessary for building roads and infrastructure. It has also increased its surveillance capacities. The military has allocated huge sums for defence expenditures throughout the 1990s (see Table 1). The military government spent more than 1 billion USD on 150 new combat aircrafts, 30 new naval vessels, 170 tanks, 2,500 armoured personnel carriers, as well as rocket-launching systems, infantry weapons and other hardware (Callahan 2001: 424). The military has also stirred up nationalism in order to achieve a rally-around-the-flag effect; moreover, it has been pointing out its historical role as builder of nation and state (Steinberg 2006:102-110; Taylor 2010).

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The National League for Democracy gained 59.87 per cent of the votes and 81 per cent of the seats in the elections. The successor party of the BSPP, which was close to the military, the National Unity Party (NUP) was heavily defeated, securing only 25.12 per cent of the votes. See Taylor 2010: 409.

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Table 1: Burma’s Defence Expenditure by Year (1988–2003)11 Year MMK (in billions) % of GDP 1988 1.6 2.1 1989 3.7 3 1990 5.2 3.4 1991 5.9 3.2 1992 8.4 3.4 1993 12.7 3.5 1994 16.7 3.5 1995 22.3 3.7 1996 27.7 3.5 1997 29.8 2.7 1998 37.3 2.3 1999 43.7 2.0 2000 58.9 2.3 2001 63.9 1.8 2002 73.1 1.3 2003 2.3 Source: SIPRI Military Expenditure Database, Stockholm; Note: from 2002–2010 no data available; data for 2002–2003 provided by Taylor 2010.

With regard to economic liberalization, the military formally embraced a market economy after 1990. However, the economy of the country has remained completely state-controlled over the last two decades.12 Moreover, after 1988 the military further expanded its business activities and economic bases. It built up the most important conglomerates in the country, the Union of Myanmar Economic Holdings Limited (UMEH) and the Myanmar Economic Cooperation (MEC), which were given licences in diverse businesses such as construction, hotels, tourism, transport, gem and jade extraction and agriculture. As a consequence, the military became the most important business actor in the country (Selth 2002:130). 5. From Direct Rule to Military Control: Burma’s Transition to “Disciplined Democracy” The military returned to civilian rule only after it succeeded in designing a political system that safeguarded its own core interests. The political changes fall short of a genuine democratic transition, since the military remains fully in control of the political system after having successfully manipulated the 2010 elections. Additionally, it has managed to orchestrate this transition process at every single stage. The military has continuously restricted political space so that oppositional forces have virtually no room to manoeuvre. Officially announced in late 2003 by General Khin Nyunt, the military’s roadmap to “disciplined democracy” envisioned the installation of a new political system in seven steps: The first step was the reconvening of the National Convention to finalize the Constitution’s basic principles, which were introduced at the 1993 National Convention. These codified the military’s leading role in the participation of the state.13 Like the first National Convention 11

The evaluation of the actual level of Burma’s annual defence expenditure is very difficult given the regime’s opaqueness and secrecy. The expenditures vary significantly between different sources. For a discussion of various estimations see Selth (2002: 131-145). 12 Burma was continuously ranked among the lowest in the Heritage Foundation’s Index of Economic Freedoms throughout the 1990s. In 2011, it was ranked 174th of 179 countries (Heritage 2011). 13 The main objectives as later laid down in the Constitution were a) non-disintegration of the Union, b) nondisintegration of national solidarity, c) perpetuation of sovereignty, d) flourishing of a genuine, disciplined multiparty democratic system, e) enhancement of the eternal principles of justice, liberty and equality in the Union, and f) enabling of the Defence Services to be able to participate in the national political leadership role of the state (Constitution of Myanmar, 2008).

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(1993–1996), the second was “marred by a lack of inclusiveness, heavy restrictions on public debate and little input by the participants into the final product” (Pederson 2011:50). The two main opposition parties, the NLD and the Shan National League for Democracy (SNLD) boycotted the National Convention. Although some ethnic parties participated, they ended up frustrated by their inability to influence the outcome. The drafting of the new constitution was finalized in February 2008, and in May 2008 it was formally approved in a nationwide referendum. The referendum was apparently manipulated, since the official results of 94.4 per cent in favour with a voter turnout of 98 per cent lacked any credibility (Pedersen 2011:51). The new constitution enshrines military control. Although it formally establishes a multiparty democracy with elections for national and regional assemblies, the military will maintain a dominant role in the years to come. Of all regional and national parliament seats, 25 per cent are reserved for the military, and security-related ministries are also promised to the military. Moreover, the military remains fully autonomous, since it is not subject to civilian control. The SPDC also managed to manipulate elections in November 2010 in a way that ensured military dominance. The junta fielded its own proxy party, the Union Solidarity and Development Party (USDP), which is an offshoot of the Union Solidarity and Development Association (USDA), a mass organization with approximately 12 million members established by SLORC in 1993 to support its political agenda. Shortly before the elections, many leading SPDC generals, ministers and members of the military discarded their uniforms to join the party, which was led by former Prime Minister Thein Sein. The USDP had the financial backing of the regime, while the opposition faced severe financial hurdles because parties were required to pay high registration fees. Altogether, the pre-election playing field was tilted heavily in favour of the USDP (Bünte 2010; ICG 2011; NDI 2010). The main opposition party, the NLD, split over the issue of running in the election. While Aung San Suu Kyi’s NLD boycotted the election, a splinter group, the National Democratic Force (NDF), ran in the elections and secured a few seats in the new parliament. The militarysponsored USDP won a huge majority of seats – 80 per cent in the lower house and 77 per cent in the upper house. The landslide victory of the USDP has arguably been the outcome of massive manipulations of the vote count (ICG 2011). The transition to “disciplined democracy” has been accompanied by a wave of privatization measures. 271 state-owned companies have reportedly been sold to Than Shwe’s closest cronies, such as Thay Zar, Zaw Zar and Chit Khaing (Myanmar Times, Govert. Property Auction nets K800b, 4 April 2011). While the military conglomerates have been weakened in this process, Than Shwe’s informal influence has been consolidated. Altogether, the influence of the military conglomerates in the economy remain considerable. Summing up, the generals’ transition ensured a return to civilian rule without relinquishing de facto military control of the government. The military still remains the arbiter of power in the country, though it has created new political institutions that might develop some autonomy of their own in the future. Currently, the military dominates all important state institutions: The cabinet announced in March 2011 includes 26 retired military officials or former junta ministers and only four civilians. The number of civilians included in the cabinet is not higher than it was in 1993, when the SLORC included four civilians in its cabinet. Moreover, of the 14 chief ministers at the division and state levels, six are former SPDC commanders, and three are former SPDC ministers. Moreover, the military also controls a quarter of both legislatures directly, which were filled with lower-ranking officers, ensuring that the military bloc remains cohesive and compliant with the wishes of the military superiors (ICG 2011:3). Since a quorum of 75 per cent is necessary to change the Constitution, the military effectively has a veto power over constitutional changes. Within the government, the new National Defence and Security Council is the most powerful institution, which is controlled by the commander-in-chief of the armed forces. In terms of civil–military relations, the military remains fully autonomous subject to neither executive nor judicial civilian authority. 12

However, other power centres might develop some autonomy of their own in the future: The parliament – although dominated by the USDP and the military at the moment – might contribute to greater openness by debating key bills and criticizing the government. Another power centre is the ruling party, the USDP, which controls over half of the seats in both houses of the legislature: Although packed with former military men and led by former SPDC General Shwe Mann, it might develop policy initiatives of their own in the future. Another important aspect of the military’s transition is the creation of regional governments, which are the seed of political decentralization. Although the local governments are headed by a chief minister appointed by the central government, the existence of elected regional legislatures allows a degree of ethnic autonomy within the ethnic states. This is especially important for those states where ethnic political parties have sizable minorities and whose representatives will be included as ministers in the local governments. However, the degree of military control over local autonomy will be considerable. All in all, one has to conclude that the military’s withdrawal from power does not mean a retreat into the barracks but rather a further institutionalization of military control. The military has managed to establish a competitive authoritarian regime, in which it remains the arbiter of power. 6. Endogenous and Exogenous Factors in the Military’s Withdrawal (1988–2011) To assess the internal reasons for the military’s withdrawal from the apex of power, one has to look at the changing dynamics within the military regime, the development of the military’s interests, ideology and coherence over time. The Tatmadaw’s leadership has always seen itself as the defender of national unity, and internal security has always been directed toward domestic politics. When the military-backed socialist regime was under the imminent threat of breakdown due to the student revolt in 1988, the military reorganized itself and embarked on a massive modernization programme. Harbouring a strong distrust of politicians and ethnic leaders, the armed forces conflated their own interests with those of the regime and government (Selth 2002; Aung Aung Myoe 2008; Tan 1998: 391). Apart from strong nationalistic feelings and a strong esprit de corps, the “persistent sense of vulnerability” (Selth 2002:43) of the regime seemed to have contributed to the modernization of both army and state. After 1988, the regime seemed to have feared cooperation between democracy activists and ethnic insurgents. Arguably, at various points in time, the government has felt there was a threat of a foreign-led invasion: During the student demonstrations, Burma’s state-owned media had reported about the presence of a US naval fleet in the country’s territorial waters. The regime was also concerned that foreign powers could help insurgents on the border to develop armed forces that would challenge the new regime in Rangoon. The top generals also may have feared an Iraq-like intervention by the US or a UN-led intervention like in East Timor. The relocation of the administrative capital from Rangoon to Naypyitaw in 2006 underscored the continuity of this point (Aung Myoe 2007). As a consequence, the military regime was “prepared to take whatever measures were required to recover and consolidate its grip on government” (Selth 2002:33). The regime formulated three broad “national causes”: 1. non-disintegration of the Union, 2. non-disintegration of national solidarity; and 3. perpetuation of national sovereignty, from which it derived its own “Defence Mission”. The third “cause” gave the army a leadership role in the management of the state (Selth 2002:30).14 The modernization of the armed forces has been a huge challenge for the military’s cohesion, since different factions of the armed forces developed different organizational and corporate 14

According to Maung Aung Myoe, Than Shwe made a secret speech to his senior military commanders in July 1997, in which he explained Burma’s defence policy for the first time (Maung Aung Myoe 2008 ). This policy, however, corresponds to earlier policies of the regime (Selth 2002:31).

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interests. Nevertheless, the military has managed to remain relatively coherent over the last two decades. It managed to avoid a split between the hardliners and “softliners” and a subsequent schism in the coercive apparatus (Stepan 1988:55), which in some Latin American and East Asian cases has led to a liberalization of the political systems through elite pacts between military “softliners” and oppositional moderates. Although the Burmese armed forces have not been free from factionalism and internal rifts, the military junta has eased these tensions through purges at the top level, routine reshuffles and institutional reorganizations. These measures have strengthened the unity of the military and the centralized command structure under the leadership of General Than Shwe, who himself became commander and chairman of the SLORC after a palace coup against junta chief Saw Maung in 1992. Patronage and increasing surveillance have also guaranteed the long-term, monolithic cohesion of the armed forces (Callahan 2001; Win Min 2008; Kyaw 2009). One set of intra-military tensions has resulted from factionalism at the top of the SPDC. In the early 1990s, SLORC was dominated by the triumvirate of Senior General Than Shwe, General Maung Aye and Major General Khin Nyunt. Khin Nyunt was the head of Military Intelligence (MI), an extremely powerful body that was deeply engaged in business activities, especially at regional levels, where it was colliding with the interests of regular army officers. General Khin Nyunt was often seen as a “moderate” because he was the architect of numerous ceasefire agreements with ethnic groups, negotiated with opposition leader Aung San Suu Kyi about possible reforms and represented the junta as the liaison to the international community. As he became too powerful for the other two leading generals Than Shwe and Maung Aye – supposedly “hardliners” – in September 2004 Khin Nyunt was purged and his intelligence apparatus was dismantled. The purge allegedly came after he refused to follow an order from Senior General Than Shwe to relinquish the intelligence apparatus and punish his corrupt intelligence officers (Win Min 2008). In the years following the purge, Senior General Than Shwe has regularly promoted his followers into top positions, thus centralizing the command structure and strengthening the unity of the armed forces. With this move, the hardliners within the SPDC have resoundingly defeated the “softliners” (Callahan 2007: 37; Kyaw 2009:288; Win Win 2008). Another set of intra-military tensions was put to rest in the mid-1990s: Tensions had mounted between the junta in Rangoon and powerful regional commanders, which were given powers in their respective regions to conduct their own administrative and military affairs. The power of these “warlords” was subsequently “re-centralized” by requiring regional commanders to serve as members of the junta and by regularly assigning regional commanders to positions in the War Office and the cabinet in Rangoon (Callahan 2007; Win Min 2008:1025). Whereas negative consequences of both factionalism at the top and central regional relations within the regime have been minimized through institutional reorganization and regular reshuffles, the issue of leadership change at the upper echelons remained a serious problem. The “transition to disciplined democracy” has solved these problems for both the junta chief and the top generals in the military hierarchy. It provided a “retirement plan” for Senior General Than Shwe, who has stepped down from the position of junta leader and commander in chief of the armed forces.15 General Maung Aye has also retired. Other top leaders and regional commanders have discarded their army uniforms, changed into party dresses and use their power, for instance, as chief ministers in the regions. These changes have eased generational pressures within the army, since a younger cohort of military leaders can now rise within the ranks without creating too much competition or risk of a military coup. Some elements in the armed forces did not support the loss of power and resisted the new civilian posts assigned to them by Senior General Than Shwe. In February, the SPDC reportedly 15

He is believed to use his personal influence through patronage and personal connections from behind the scenes (Wall Street Journal, 16. May 2011; ICG 2011).

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placed Lt. General Myint Aung under house arrest because he allegedly refused to be transferred to the less powerful position of defence minister (Mizzima News, 10 February 2011 “Myint Aung rejects defence minister job; reportedly under arrest”; Irrawaddy 10 February “Myint Aung Dismissed, Placed Under House Arrest”). To assess the external influences on the military’s withdrawal, one has to look at the configuration of civilian forces in the light of existing opportunity structures and the internal and external security environment during the last two decades.16 All in all, the SLORC/SPDC has managed to prevent any major organization from effectively toppling the military regime over the last two decades. The degree of repression has been constantly high, as the military banned assemblies of more than five people, censored the media and effectively controlled oppositional forces. Whereas the country has only a very small middle class and no strong labour organizations or mass organizations – except those of the regime-sponsored USDA – the main threats to the regime emanated from actions of the NLD, remnants of the 1988 student movement and Buddhist monks. When the military regime has been threatened, it has constantly used harsh measures to suppress these “destructive elements”. The NLD has come under intense pressure since the early 1990s, when it engaged in a confrontational policy to force the junta to convene parliament and transfer power. Leading members of the NLD have been under house arrest for most of the last 20 years,17 while local party cadres were often intimidated, harassed or jailed. Many of them also had to flee the country due to constant repression. Under constant pressure from the military regime, the NLD leadership lacked room to manoeuvre to build up its own strength and force the military out of office. Moreover, it subsequently “failed to come up with concrete strategies to deal with the military government” (Kyaw Yin Hlaing 2007:41; also Win Zin 2010). Apart from government repression, factional infighting and low social capital also weakened the strategic importance of the NLD, which was not able to profit from the factional struggles in the SPDC (Kyaw Yin Hlaing 2007: 17). On the contrary, after 20 years of repression the SPDC has managed to weaken the opposition even further, since it has managed effectively to split the opposition: While the NLD decided to boycott the general’s 2010 election18 and subsequently lost its status as an official party, a splinter group, the National Democratic Force (NDF), participated and managed to secure 12 seats in both houses of parliament altogether. Despite the general political failure of the NLD to bring about a transfer of power, however, the NLD was able to seriously undermine the military government’s legitimacy in the eyes of the international community. Many Western countries linked their Burma policy to the fate of opposition leader and Nobel Prize laureate Aung San Suu Kyi: After she began to call for sanctions in 1997, many Western states enacted targeted sanctions in order to protest Burma’s human rights abuses and its foot dragging in terms of moving toward democracy. Sanctions were even tightened after the attack on Aung San Suu Kyi in 2003 (see below). Another part of the opposition against the military has been the student movement, which has been sporadically active after 1988. For instance, in 1996 university students staged demonstrations in order to call for improvements in the education system. The military

16

The analysis does not look at the impact of economic factors due to the unreliability of the Burmese government’s official economic data. Burma’s economy is heavily dependent on the income generated by the export of natural resources (above all natural gas). Its economic performance is heavily contested. Since the country is not integrated into the world economy, the impact of external economic factors (e.g. the recent financial crisis) can be considered quite low (see McCarthy 2000; Turnell 2008). 17 Party leader Aung San Suu Kyi was put under house arrest for the first time in July 1989 for “endangering the state”. She was released in 1995, but was not allowed to travel outside of Rangoon. Altogether, she has spent 15 years under house arrest. The last house arrest lasted from 2003 till 2010. Shortly after the elections, she was again released. 18 The NLD boycotted the elections because the leadership considered the election laws unfair.

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reacted with repression: Over 100 students were arrested and jailed. Most university buildings were closed for years and later relocated to suburban areas to prevent further demonstrations. The most serious internal threat to military power, however, came from the demonstrations of Buddhist monks in September 2007, which ended in another brutal crackdown and the death of 31 Buddhist monks.19 Although these demonstrations have not threatened the cohesion within the ranks of the military, they have challenged its claim to traditional legitimacy as rulers of the devoutly Buddhist country (Hlaing 2009; Steinberg 2006: 94-97; McCarthy 2008: 312). Summing up, one can say that oppositional groups failed to bring about a regime change in the country. They have neither forced the military into dialogue nor helped to ease repression. They have, however, seriously undermined the legitimacy (international, traditional) of the military government, which might have accelerated the “transition to disciplined democracy”. With regard to internal security, the situation has completely changed since 1988. When the army took over power again in 1988, more than 20 substantial insurgent groups remained active with about 40,000 soldiers combined (Smith 1999, 2006; Taylor 2010:443). Some of these groups had full control over their territory, with self-administration in foreign relations, school and hospital management. Since the beginning of the 1990s the security situation has completely changed. During the 1990s and 2000s the military regime managed to negotiate ceasefire agreements with most ethnic groups. Today, there are only three numerically important groups fighting the government that no longer control substantial territory: the Karen National Union (KNU),20 with an estimated 2,000 combatants, the Karenni National Progressive Party (KNPP), with approximately 500–1,000 militia members, and the Shan State Army South with 3,000–4,000 soldiers.21 The government has officially signed ceasefire agreements with 17 ethnic groups, which allowed these groups a certain degree of autonomy, often including the concession to maintain their arms and control over their territory (Petersen 2008; South 2004; Smith 2006; Oo/Min 2007).22 While the overall security situation has improved markedly since the early 1990s, there is still ongoing violence and the risk of a renewed escalation of violence. Whether the transition to indirect rule will entail a new round of violence between the new government and the ethnic groups remains to be seen. 23 The international security situation has also completely changed since the early 1990s, and the military junta has been confronted with a new strategic environment. Most members of the international community have attempted to persuade the military government to change its behaviour vis-à-vis its own citizens. We can identify three approaches to achieving this goal: 1. The “hardliners”, led by the US, the UK and to a lesser extent the EU, have imposed economic sanctions, including an effective ban on financial assistance, travel restrictions and an arms embargo. In 2005, the US also succeeded in bringing the attention of the UN Security 19

The protests started in August 2007 with small-scale demonstrations of students and democracy activists against the sudden increase in (government-controlled) fuel prices. When several demonstrating Buddhist monks were mistreated by the security forces in Pakkoku in September 2007, the movement turned into a countrywide protest movement. The largely religious protest quickly gathered momentum as the All-Burma Monks Alliance. 20 The KNU entered into ceasefire talks with the military government. The “gentleman’s agreement”, however, broke down after the purge of General Khin Nyunt. 21 There is also a further dozen small splinter groups operating at the Indian-Burmese and Thai-Burmese borders. These groups have only a few hundred soldiers. 22 As Ashley South (2004) notes, the precise terms of these ceasefires are not known, but in general it is clear that the terms are not uniform across all groups with which the government has ceasefire agreements. 23 There are some indications that the transition to “disciplined democracy” has fuelled ethnic conflicts. The military government’s plan to transform the armies of the ethnic groups into border guards of the Tatmadaw has met with fierce resistance from certain ethnic groups. While smaller forces have agreed to integrate into the future system, stronger groups such as Shan State Army North, the New Mon State Party and the United Wa State Army (UWSA) have rejected this proposal. Another sign of ethnic conflicts is the breakdown of the ceasefire with the KIO in June 2011 (TNI 2011).

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Council to Burma, where the US declared the situation a threat to regional security. When the generals did not allow foreign aid to come into the country in the wake of the cyclone Nargis, some Western politicians also invoked the concept of “responsibility to protect” to further enhance the pressure on the junta (Bünte 2008, Haake 2008). In general, most states attempted to force the generals to accept the 1990s election results and return to the barracks. During the last decade, however, the approaches have softened and focused on the release of political prisoners, national reconciliation and human rights themes. However, implicit in this more nuanced approach is a “strong demand for regime change” (Selth 2008:287). These political and economic measures against Burma were denounced as interference in Burma’s own internal affairs and were thus firmly rejected. Senior spokesmen for the regime accused Western powers of neocolonialism and of trying to harm Burma’s economy and attempting to dictate domestic politics. 2. The second approach has been more pragmatic. In line with the charter of the Association of Southeast Asian Nations (ASEAN), of which Burma became a member in 1997, the ASEAN governments have attempted to engage Burma. The Asian way of avoiding direct criticism was believed to be more successful, as it would allow the junta to build up contacts to the outside world and to foster economic development. Continued economic growth would eventually lead to increasing spaces for civil society and acceptance of international norms. 3. The third group, led by China, Russia and India, has developed close ties to the junta. These countries attempt to promote greater stability in the country in order to further their own strategic interests (Selth 2008; Haake 2010, Holliday 2009). Given the unreliability of the Burmese economic data and the lack of access to Burma’s hardliner generals, it is difficult to say precisely what all these approaches have achieved over the past two decades. It is safe to say, however, that no economic sanction regime can work effectively when the sanctioned regime has access to finances, arms and diplomatic support. The pragmatists have been equally unsuccessful in encouraging far-reaching political reforms. One can conclude that “external factors have been largely incidental in this process” (Selth 2008: 288). Indeed, it can be said that despite all the measures taken against Burma over the last two decades, the regime has become stronger and the army could even tighten its grip over the country. 7. Summary and Conclusion The military’s withdrawal from the apex of power in March 2011 does not signal a full retreat from politics. The generals’ transition ensured a return to civilian rule without relinquishing de facto military control of the government. The military remains the arbiter of power in the country. It dominates all important state institutions. During its transition to “disciplined democracy”, it has succeeded in designing a new political system, in which it controls important state institutions. The military has institutionalized its “leading role” in the new competitive authoritarian system. There is some room for autonomy of civilian forces within the ruling party, which until now has been dominated by former generals. Due to the privatization drive in recent years, the role of the armed forces’ conglomerates in the economy has been diminished. However, the conglomerates still remain the most important business actors in the country, although the generals’ cronies have managed to secure some of the key state assets. Why did the military abandon the driver’s seat, and what accounts for the transition from military rule to military control? This paper proposes that the new situation can be attributed to a transformation in the internal and external factors that impact the military’s moods and motives as well as its disposition to intervene. Table 2 illustrates these factors and evaluates their positive or negative impact on military intervention.

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Table 2: Endogenous and Exogenous Factors of Military Intervention in Burma (1990–2011) Early 1990s

Early 2000s

End of 2000s

Endogenous Factors Supporters of new Supporters of new Supporters of new professionalism (-1) professionalism (-1) professionalism (younger generation might be more professional) (-1) Organizational cohesion High degree of Medium degree of Stable factionalization in military junta factionalization (-1) factionalization (0) (+1) (SLORC/SPDC) Personal interest Leadership vacuum, fear Consolidated leadership, Safe succession, fear of of personal persecution (- still fear of personal personal persecution 1) persecution (0) reduced (+1) Economic interests Economic interests Economic interests Economic interests outside military sphere (- outside military sphere (- outside military sphere (1) 1) 1) Ideological cohesion

Exogenous Factors Civilian forces

Internal security External security Economy Scale from -8 (unweighted)

to

No consensus on military role in politics / high degree of polarization (1) High rate of violent conflict (-1) Perceived external threats (-1) (0) 8 (-7)

No consensus on military No consensus on military role / high degree of role in politics / high polarization (-1) degree of polarization (-1) Medium rate of political conflict (-1) Perceived external threats (-1) (0) -5

Medium rate of political conflict (-1) Perceived external threats (-1) (0) -3

Key: +1 means conducive, 0 means neutral, -1 means negative. Some points stand out: In general, the conditions for a retreat of the military from politics on the whole are quite negative and have only slightly improved over the last two decades. The long endurance of military rule, the officers’ deeply entrenched self-perception as guardians of the unitary state, the deep mistrust of politicians, the ongoing armed conflict within the country (despite a much-improved situation since the mid-1990s), the constant fear of external intervention in various guises – all these conditions have remained more or less the same during the last two decades. Second, the retreat from direct rule and transition to military control can be attributed to several internal factors. The transition toward “disciplined democracy” has solved the problem of leadership change in the armed forces for both junta chief Than Shwe and top generals in the military hierarchy, who have either retired or discarded their uniforms. These changes have eased generational pressures within the army, since a younger cohort of military leaders can now rise within the ranks without creating too much competition and risks of a military coup. Since the old guard has managed to design a political system under military control, they can also resign without having to fear being persecuted or being held responsible for past human rights violations. Third, exogenous factors have hardly changed over the last two decades. Although many military regimes worldwide have been transformed due to changing external environments (Siaroff 2009; Croissant et al. 2011), the exogenous environment of military rule in Burma has remained more or less constant for the last two decades. The opportunity structures have hardly allowed the military to abdicate: The opposition has attempted to force the military to 18

accept the results of the 1990s election and transfer power. It has used a confrontational strategy to force leading generals to transfer power. Moreover, it has attempted to mobilize the international community to question the legitimacy of the ruling junta. These strategies had a huge impact on the international community, which in recent years has both strengthened its engagement (UN, ASEAN) and its sanction tools (US, UK). However, neither of these strategies has achieved the desired results. The military, which has managed to modernize its coercive and repressive tools in recent years, has curtailed the room to manoeuvre of the political and ethnic opposition. It has also managed to split the opposition into a more moderate group, which is now working within the military-dominated system, and a hardline group. However, it might have been the lacking “external” acceptance and growing “internal” pressures that led the military government to transfer power to a new civilian government and change from military rule to military control. Yet, the transition to “disciplined democracy” falls short of a genuine transition to democracy, since every single step of the generals’ transition has been carefully guarded and kept under control. The transition established a “competitive authoritarian regime”, in which the playing field was heavily tilted toward the party dominated by the military.24 These findings confirm the dictum of O’Donnell and Schmitter that “there is no transition whose beginning is not the consequence – direct or indirect – of important divisions within the authoritarian regime itself, principally along the fluctuating cleavages between hardliners and softliners” (O’Donnell/Schmitter 1985:19). If these divisions do not come to the fore in military regimes, or if hardliners prevail, the evolving transition might lead to another form of authoritarianism. The case of Burma illustrates that military dominance can be sustained even after the military formally retreats from power. The ongoing discussion in civil–military relations debates about the exact conceptualization of civilian control will shed further light on the diverse roles militaries play in diverse forms of authoritarian regimes.

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This, however, is hardly surprising, since the regional norm in Southeast Asia is – with some notable exceptions – electoral authoritarianism (Bünte/Croissant 2011).

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Callahan, Mary (2001): Soldiers as State Builders. Coercion and Governance. The Declining Political Role of the Military in Asia. Ed. by Muthiah Alagappa, Stanford University Press, pp. 413-433. Callahan, Mary (2003): Making Enemies. War and State Building in Burma, Cornell: Cornell University Press. Callahan, Mary (2007): Of Kyay-Zu and Kyet-Su: The Military in 2006, in: Monique Skidmore/ Trevor Wilson (ed): The State, Community and Environment, Canberra: ANU Press, 36-54. Collier, David/ Steven Levitsky (1997): Democracy with Adjectives: Conceptual Innovation in Comparative Research, World Politics, 430-451. Croissant, Aurel (2004): Riding the Tiger. Civilian Control and Democratic Consolidation in South Korea, Armed Forces and Society, Spring 2004, pp. 357-381. Croissant, Aurel, Paul Chambers, Philipp Völkel (2011a): Democracy, the Military and Security Sector Governance in Indonesia, the Philippines and Thailand, in: Marco Bünte/Aurel Croissant (ed): The Crisis of Democratic Governance in Southeast Asia, Basingstoke: Palgrave, pp. 190-209. Croissant, Aurel/ David Kühn, Paul Chambers, Siegfried Wolf (2011b): Conceptualising Civil-military relations in emerging democracies, European Political Science, 10, pp. 137-145. Dahl, Robert (1971): Polyarchy. Participation and Opposition, New Haven: Yale University Press. Diamond, Larry (1999): Developing Democracy. Towards Consolidation, Baltimore: Johns Hopkins University Press. Dittmer, Lowell (2008): Burma vs. Myanmar – What’s in a name, Asian Survey, 48:6, pp. 885-888. Finer, Samuel (1985): The Retreat to the Barracks: Notes on the Practice and the Theory of Military Withdrawal from the Seats of Power, Third World Quarterly, Vol. 7, No. 1, 16-30. Finer, Samuel E. (1962): The Man on Horseback. The Role of the Military in Politics. London: Pall Mall Press. Fitch, Samuel (1998): The Armed Forces and Democracy in Latin America, Baltimore: MD, Johns Hopkins University Press. Geddes, Barbara (1999): What do we know about democratization after 20 years, in Annual Review of Political Science, 2, 115-144. Haake, Jürgen (2008): ASEAN and Political Change in Myanmar: Towards a regional Initiative? Contemporary Southeast Asia, Vol. 30, no. 3, pp. 351-378. Haake, Jürgen (2010): China’s role in the pursuit of security by Myanmar’s State Peace and Development Council: Boon or Bane, Pacific Review, 23:1, pp. 113-137. Hadenius, Axel/ Jan Teorell (2007): Pathways from Authoritarianism, Journal of Democracy, Vol. 18, No. 1, pp. 143-157. Holliday, Ian (2009): Beijing and the Myanmar Problem, Pacific Review: 22:4, 479-500. Huntington, Samuel (1957): The Soldier and the State: The Theory and Politics of CivilMilitary Relations, New Haven. Huntington, Samuel (1968): Political Order in Changing Societies, New Haven: Yale University Press. ICG (2011): Myanmar’s Post-Election Landscape, Crisis Group Asia Briefing, No. 118, March 2011. Brussels. Janowitz, Morris (1964): The Military and Political Development of New Nations: Chicago: the University of Chicago Press, 1964.

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Kennedy, Charles F. / Louscher, David (1991): Civil Military Interaction: Data in Search of a Theory, in: Charles F. Kennedy and David J. Louscher (eds.): Civil-Military Interaction in Asia and Africa, Leiden: Brill. Kyaw Yin Hlaing (2009): Setting the rules for survival: Why the Burmese military regime survives in an age of democratization, Pacific Review, Vol. 22, No. 3, pp. 271-291. Kyaw, Yin Hlaing (2007): The State of the Pro.-Democracy Movement in Authoritarian Burma, East West Center Washington. Levitsky, Steven, Lucian Way (2010): Competitive Authoritarianism. Hybrid Regimes after the Cold War, Cambridge University Press. Lintner, Bertil (1990): Outrage. Burma’s struggle for democracy, Bangkok: White Lotus. McCarthy, Stephen (2000): Ten Years of Chaos in Burma: Foreign Investment and Economic Liberalization in under SLORC/SPDC 1988-1998, Pacific Affairs, Vol. 73, No. 2, 233-262. McCarthy, Stephen (2008): Overturning the Alms Bowl: The Price of Survival and the Consequences for political legitimacy in Burma, Australian Journal of International Affairs, 62:3, pp. 298-314. Merkel, Wolfgang (2004): Embedded and Defective Democracies, in: Democratization, Vol. 11, No. 5, pp. 33-58. NDI (National Democratic Institute) (2010): Burma’s 2010 Electoral Framework. Fundamentally Undemocratic, A legal and human rights analysis, August 2010, ndi.org, Nordlinger, Eric (1977): Soldiers and Politics. Military Coups and Governments, London: Prentice-Hall. O’Donnell, Guillermo/ Philippe C. Schmitter (1985): Transitions from Authoritarian Rule. Tentative Conclusions about Uncertain Democracies, Baltimore: Johns Hopkins University Press. O’Donnell, Guillermo (1973): Modernization and Bureaucratic Authoritarianism, Berkely: Univers. California. Remmer, Karen (1989): Military Rule in Latin America, Boston: Unwin. Pedersen, Morten B. (2008): Burma’s ethnic Minorities. Charting their own path to peace, Critical Asian Studies, Vol. 40:, No. 1, 45-66. Pedersen, Morton B. (2011): The Politics of Burma’s “Democratic” Transition, Prospects for Change and Options for Democrats”, Critical Asian Studies, 43:1, 49-68. Perlmutter, Amos (1980): The Comparative Analysis of Military Regimes, Formations, Aspirations, Achievements, World Politics, 33/1, pp. 96-120. Przeworski, Adam, Michael E. Alvarez, Jose Antonio Cheibub and Fernando Limongi (2000): Democracy and Development: Political Institutions and the Well Being of the World, 1950-1990, New York: Cambridge University Press. Schedler, Andreas (2002): The Menu of Manipulation, Journal of Democracy, 13:2, pp. 3650. Selth, Andrew (2002): Burma’s Armed Forces: Power Without Glory, New York: Eastbridge. Selth, Andrew (2008): Burma’s ‘Saffron Revolution’ and the limits of International Influence, in: Australian Journal of International Affairs, 62:3, pp. 281-297. Siaroff, Alan (2009): Comparing Political Regimes: A thematic introduction into comparative politics, Toronto. Silverstein, Josef (1977) Military Rule and Politics of Stagnation, Ithaca: Cornell University Press, 1977. Smith, Martin (1999): Insurgency and the Politics of ethnicity, 2nd London: Zed Books. Smith, Martin (2006): State of Strife: The Dynamics of Ethnic Conflict in Burma, Washtington: East West Center.

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Snyder, Richard (2006). Beyond Electoral Authoritarianism: The Spectrum of Nondemocratic Regimes, in: Andreas Schedler (ed): Electoral Authoritarianism: The Dynamics of Unfree Competition, Boulder, CO: Lynne Rienner Publishers, pp. 219-233. South, Ashley (2004): Political Transitions in Myanmar: A New Model for Democratization?, in: Contemporary Southeast Asia, Vol. 26, No. 4, pp. 233-255. Steinberg, David (2001): The State of Myanmar, Washington: Georgetown University Press. Steinberg, David (2006): Turmoil in Burma. Contested Legitimacies in Myanmar, East Bridge. Stepan, Alfred (1976): The New Professionalism of Internal Warfare and Military Role Expansion, in: Abraham Lowenthal (ed.): Armies and Politics in Latin Amiercia (New York: Holmes and Meier, pp. 244-260. Stepan, Alfred (1988): Rethinking Military Politics. Brazil and the Southern Cone, Princeton: Princeton University Press. Sundhaussen, Ulf (1985): The Durability of Military Regimes in Southeast Asia, in: Zakaria Haji Ahmad/Harold Crouch (Eds.): Military-Civilian Relations in Southeast Asia, Singapore: Oxford University Press, pp. 269-286. Taylor, Robert (1985): “Burma”, in: Zakaria Haji Ahmad/Harold Crouch (Eds.): MilitaryCivilian Relations in Southeast Asia, Oxford University Press: Oxford, pp. Taylor, Robert (2010): The State of Myanmar, Hawaii University Press. Tin Maung Maung Than (1998): Myanmar: Preoccupation with Regime Survival, National Unity and Stability, in: Muthiah Alagappa (ed.): Asian Security Practice: Material and Ideational Infuences, Palo Alto, pp. 390-416. Tin Maung Maung Than (2001): The “New Professionalism” of the Tatmadaw, in: Muthiah Alagappa: Military Professionalism in Asia. Conceptual and Empirical Perspectives, Honolulu: East West Center, pp. 163-179. Transnational Institute (2011): Burma’s New Government: Prospects for Governance and Peace in Ethnic States, Burma Policy Briefing Nr. 6, May 2011. TNI. Turnell, Sean (2008): Burma’s insatiable state, in: Asian Survey, Vol. 48, No. 6, pp. 58-976. Welch, Claude/ Arthur Smith (1974): Military Role and Rule, Perspectives on Civil-Military Relations, Belmont: Duxbury Press. Win Min (2008): Looking Inside the Burmese Military, in: Asian Survey, vol. 48, No. 6, pp.1018-1037. Win Zin (2010): Opposition Movements in Burma. The Question of Relevancy, in: Susan L Levenstein (Ed.): Finding Dollars, Sense, and Legitimacy in Burma, Washtington: Wodrow Wilson Centre, pp. 77-91. Zaw Oo and Win Min (2007): Assessing Burma’s Ceasefire Accords, East West Center Policy Studies 39, Washington.

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Myanmar president calls for reform of nation's military-drafted constitution

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Myanmar president calls for reform of nation's military-drafted constitution Robert Birsel

YANGON (Reuters) - Myanmar’s civilian president called in an Independence Day speech on Thursday for reform of a military-drafted constitution and for justice for all recognized minorities under a federal system, but made no mention of the treatment of its Rohingya Muslim people.

https://www.reuters.com/article/us-myanmar-independenceday/myanmar-president-calls-for-reform-of-nations-military-drafted-constitution-idUSKBN1E…

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Myanmar's President Htin Kyaw looks down as he leaves a joint press conference with Japan's Prime Minister Shinzo Abe (unseen) at the Prime Minister's official residence in Tokyo, Japan December 14, 2017. REUTERS/Franck Robichon/Pool

Amending the charter to remove a dominant political role for the military has been one of the most contentious issues facing Myanmar as it emerges from nearly half a century of strict army rule. The debate over constitutional reform, however, has been muted since the assassination in January last year of a lawyer advising government leader Aung San Suu Kyi’s ruling party on the issue. “As we build the Democratic Federal Republic, in accordance with the results of the political dialogues, we all need to work collectively for creating a suitable constitution,” President Htin Kyaw said in his speech marking the 70th anniversary of Myanmar’s independence from Britain. Htin Kyaw’s post is largely ceremonial but he is a close ally of Suu Kyi. He did not elaborate on what he meant by suitable or spell out why he was suggesting the 2008 constitution drawn up by the military was unsuitable. The constitution bars Suu Kyi from becoming president because it rules out candidates with a foreign spouse or child. Suu Kyi’s late husband was British as are her two sons. It also reserves for the military one quarter of the seats in parliament and several major cabinet posts, including defense, interior and border affairs, giving it an effective veto over constitutional change and control of security affairs. Myanmar began emerging from 49 years of military rule in 2011. Suu Kyi’s party swept a 2015 election and formed a government but concern is growing that the reform program is stalling https://www.reuters.com/article/us-myanmar-independenceday/myanmar-president-calls-for-reform-of-nations-military-drafted-constitution-idUSKBN1E…

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or even sliding back. This has been compounded by attacks on press freedom, including the detention of several journalists over the past year. On Dec. 12, the authorities arrested two Reuters reporters who had covered the army crackdown that has led to the mass flight of Rohingya residents of Rakhine State across the border into Bangladesh. Htin Kyaw called for respect for human rights but he did not refer to the crisis over the exodus of 655,000 Rohingya people, nor to the international condemnation it has generated. “We are working for the emergence of a democratic state based on the principles of freedom for all ethnic national races, justice, equality and right of self-determination,” he said. “National race” is a term used by Myanmar referring to what it categorizes as indigenous ethnic groups. The Rohingya, who have traditionally lived in Rakhine, have been denied inclusion as authorities regard them as illegal immigrants who have crossed over from Bangladesh.

END TO CONFLICT The Rohingya crisis erupted in late August after Rohingya insurgent attacks on security posts in Rakhine triggered a fierce military response that the United Nations denounced as ethnic cleansing. Myanmar denies ethnic cleansing saying its security forces have mounted legitimate clearance operations. Htin Kyaw called for an end to conflict with insurgents from various ethnic minorities who have been battling for autonomy for decades. Clashes have flared in recent weeks between the army and guerrillas in Kachin and Shan states in the north.


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Myanmar’s minorities have long demanded self-determination under a federal system. The army has traditionally seen itself as the only institution preventing the country’s disintegration and has favored a unitary state. Amending the constitution would not be easy. Changes require a 76 percent majority vote in a parliament dominated by military members and their allies. The killing of lawyer and constitutional expert Ko Ni last year has not been fully explained even though the gunman was caught at the scene. Many activists believe Ko Ni, who was Muslim, was targeted for his efforts to reduce the military’s political role. Editing by Simon Cameron-Moore

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New Myanmar constitution gives military leading role

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WORLD NEWS F E B RUA RY 2 0 , 2 0 0 8 / 1 2 : 2 5 A M / 1 0 Y E A R S AG O

New Myanmar constitution gives military leading role Reuters Staff

YANGON (Reuters) - Army-ruled Myanmar has finished writing a new constitution, to be put to a May referendum, which gives the military the “leading political role” in the future state, official media said on Tuesday.

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A view of the Parliament Building being built in Myanmar's new capital Nay Pyi Taw December 3, 2007. Armyruled Myanmar has finished writing a new constitution, to be put to a May referendum, which gives the military the "leading political role" in the future state, official media said on Tuesday. REUTERS/Aung Hla Tun

“I hereby declare that the draft of the state constitution has been approved by this commission,” Chief Justice Aung Toe, chairman of the military-appointed drafting commission, was quoted as saying on state-controlled MRTV. He said the commission had followed the basic principles adopted last year by a National Convention, also appointed by the military, which took more than 14 years to complete its work.

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“In drafting the constitution, the commission adhered strictly to the six objectives, including giving the Tatmadaw (the military) the leading political role in the future state,” he said. The armed forces have ruled the former Burma since 1962. He did not give more details of the charter, but previous state media reports suggest the army commander-in-chief will be the most powerful figure in the country, able to appoint key ministers and assume power “in times of emergency”.


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It also gives the military a quarter of seats in parliament and a veto over decisions made by legislators. Aung Toe urged the 54 commission members to campaign for the charter, the country’s third since it won independence from Britain in 1948. A firm date for the referendum has not been announced. The opposition National League for Democracy (NLD), which won a 1990 election only to be denied power by the military, said on Monday the charter “will worsen the political, economic and social crises being faced in the country”. The NLD boycotted the National Convention because of the continued house arrest of its leader, Nobel Peace laureate Aung San Suu Kyi, who has spent more than 12 of the past 18 years under some form of detention. The United States says the referendum will be a sham conducted in a “pervasive climate of fear”. Dissident groups are already campaigning for a “no” vote, saying the charter is an attempt to legitimize the generals’ grip on power after 46 years of military rule. The junta has accused pro-democracy and dissident groups of trying to tear the country apart, and urged the public to back its “road map to democracy”. Reporting by Aung Hla Tun; editing by Darren Schuettler and Andrew Roche


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Number 233 | September 24, 2013

Patterns of Military Behavior in Myanmar’s New Legislature BY RENAUD EGRETEAU

“Praetorian transition” is the term used to describe the transfer of direct military rule to a quasi-civilian government. Over a period of time, the military ratchets up or down the scale of praetorianism according to their ability and interests in seeking more—or less— control over policymaking. In modern politics, praetorianism refers to the unhealthy political influence of the military upon an emerging democratic civil society. Renaud Egreteau, Research Assistant Professor at the University of Hong Kong, explains that “All indications are that there is a long way to go before the Myanmar military fully returns to the barracks.”

The East-West Center promotes better relations and understanding among the people and nations of the United States, Asia, and the Pacific

In the case of Myanmar, the disbanding of the State Peace and Development Council (SPDC) in March 2011 has resulted in the armed forces (Tatmadaw) slowly moving down the spectrum of praetorian intervention. This started with an initial partial withdrawal from day-to-day politics in 2011. To date though the military has not fully disengaged from the highest structures of the post-SPDC state. The 2008 constitution, drafted by the military, has a number of legal instruments and institutions through which the Tatmadaw can still exert its influence and sway on Myanmar’s political life and society. Among the new state structures in Myanmar are a national parliament located in Naypyitaw and fourteen local assemblies around the country. In post-junta transitory regimes, the military commonly seeks to maintain some influence on the new evolving legislative process, which they once used to bypass by solely ruling by decrees. According to Myanmar’s constitution, army officers are to be commissioned to all new national and local lawmaking bodies. Today, military appointees represent a quarter of each chamber of the bicameral national parliament: 110 seats in the Lower House (Pyithu Hluttaw), and 56 seats in the Upper House (Amyotha Hluttaw). In the fourteen local assemblies the number of army delegates is equal to one-third of the number of elected representatives. All military appointees are nominated by the Commander-in-Chief of the army and can be removed at will, without any oversight from the civilian government. To many observers, the sole reason that military officers have a seat in parliament is to ensure that the Tatmadaw has a non-negotiable “veto” on any potential constitutional amendment. Safeguarding the new constitution is one of the major tasks assigned to the army as enshrined in Article 20f, and military delegates are there to ensure that all reform proposals put forward by civilians are formulated according to the basic principles already specified in the text. A vote by 75 percent of all legislators is required to pass any constitutional amendment, and with its 25 per cent seat reservation, the Tatmadaw can effectively reject any proposed legislation.

through cooperative study, research, and dialogue. Established by the US Congress in 1960, the Center serves as a resource for information and analysis on critical issues of common concern, bringing people together to exchange views, build expertise, and develop policy options.

The role of military appointees in Myanmar’s re-emerging parliamentary politics may grow more complex in coming years. Official army publications reveal that the Tatmadaw has long distrusted the civilian sphere. Discourse often centers on accusing politicians and parliamentarians of repeatedly dragging the country since independence in 1948 from one crisis to another. The Tatmadaw views itself as the sole cohesive and disciplined institution able to safeguard Myanmar’s national unity and bring about social stability,

Asia Pacific Bulletin | September 24, 2013

“Odds are therefore that the Tatmadaw will continue to serve in all of Myanmar’s legislative assemblies in the coming years as ‘moderator.’”

including now in legislative assemblies where factional rivalries and political infighting are persistent. In a recent interview this author conducted with Khin Aung Myint, who also happens to be a former two-star general and is now Speaker of the Upper House, he highlighted the role of “arbitrator” that the armed forces intend to play in parliament. The very presence of army officers in legislative bodies, he stressed, ensures that no single political party dominates the new parliamentary scene—whichever party this may be. In line with the image the Tatmadaw has always attempted to project of itself, the military now seeks to “moderate” Myanmar’s political and legislative debates, balance potential feuds between the executive and legislative branches, as well as between the two houses of the parliament, and remain politically “neutral” among centrifugal civilian forces. The political significance of army representatives in parliament has already evolved with increased numbers of higher ranking officers joining legislative assemblies after 2012. The new army chief General Min Aung Hlaing, unlike his predecessor Than Shwe, wants his senior army officers to project an image of responsibility and dedication to the public good by standing firm in civilian bodies, especially at this highly sensitive time of political transition. Interviews with civilian MPs reveal that most of their military colleagues have kept a relatively low profile ever since the first parliamentary session was convened in January 2011. However, even though no military appointee to date has drafted any legislative bill, many have asked questions and expressed their preferences in legislation under review. They have also strengthened their presence in all parliamentary committees where some military MPs have voting powers, while others just act as observers. Discussions between civilian and military MPs within the assemblies in Naypyitaw have appeared far more forthcoming than expected. As far as voting behavior is concerned, initial observations highlight intriguing patterns. Unless national security or the army’s vested interests were involved, military MPs have not always voted as a single bloc—including in local parliaments. They have approved proposals drafted by the traditional opposition, the National League for Democracy (NDL) of Aung San Suu Kyi or ethnic parties, and showed that they were even willing to vote against bills formulated by President Thein Sein’s cabinet. Interestingly, the latter is dominated by ex-army officers. It is worth noting that tensions between active duty officers and their erstwhile superiors-turned-politicians are commonly observed in transitions from military to civilian rule.

The Asia Pacific Bulletin (APB) series is produced by the East-West Center in Washington. APB Series Editor: Dr. Satu Limaye APB Series Coordinator: Damien Tomkins The views expressed in this publication are those of the author and do not necessarily reflect the policy or position of the EastWest Center or any organization with which the author is affiliated.

Odds are therefore that the Tatmadaw will continue to serve in all of Myanmar’s legislative assemblies in the coming years as “moderator,” a position that has been much criticized for going against the grain of a full transition to civilian democratic governance. Yet recent interviews have illustrated that an increasing number of civilian MPs seem reluctant to openly confront the army on this topic; indeed, unlike the NLD, many ethnic representatives do not consider a prompt disengagement of army delegates as a top priority. A fully functioning representative democracy cannot be consolidated without full-fledged civilian control over the military as outlined in the civil-military relations scholarship. In the case of Myanmar, civilian MPs are increasingly exposing during parliamentary debates the military’s misdeeds and abuse of power, especially at the local level. In doing so, they gradually craft a cautious oversight of the Tatmadaw’s activities. Yet, while President Thein Sein does not seem averse to the idea of a military withdrawal from the legislative institutions, he—and the army—have yet to give any hint of when this can be expected. All indications are that there is a long way to go before the Myanmar military fully returns to the barracks. Foreign diplomats and potential investors should take notice. Renaud Egreteau is Research Assistant Professor at the University of Hong Kong. His recent book, coauthored with Larry Jagan, Soldiers and Diplomacy in Burma: Understanding the Foreign Relations of the Burmese Praetorian State was published in 2013. He can be contacted via email at [email protected].

2/28/2018

Reassessing the Role of Myanmar’s Powerful Military

Commentary


https://www.irrawaddy.com/opinion/commentary/reassessing-role-myanmars-powerful-military.html

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Myanmar Army chief Snr-Gen Min Aung Hlaing (center) with President U Htin Kyaw, State Counselor Daw Aung San Suu Kyi, vice presidents and house speakers on Oct. 15, the day marking the second anniversary of the signing of Nationwide Ceasefire Agreement. / Snr-Gen Min Aung Hlaing / Facebook

By KYAW ZWA MOE

20 October 2017

Without the military’s collaboration, the democratic transition in Myanmar will go nowhere. Like it or not, it’s the realpolitik of the country and no one can discard that reality. Unlike most countries in the world, the military here is unavoidably at the epicenter of the country’s politics constitutionally, traditionally and historically. That’s a fact. Thus, not only domestic leaders but also international leaders must deal with its leadership to achieve their respective missions in the fragile state of Myanmar. Many people of Myanmar loathed the military dictatorship that oppressed them for decades. The international community punished the military with sanctions for its abuse of power against its own people; its grip on power that went against international norms. The Tatmadaw, however, is resilient in the political arena though it has faced continuous resistance throughout its rule. Sanctions from the West for 20 years didn’t make the military weak. To date, political transformation has not evolved beyond a framework designed by the ex-military regime. The past one and a half years since the first elected government led by the National League for Democracy took office has proven again that the military is still the most important stakeholder in the political arena. Twenty-nine years after a nationwide uprising stormed against the military dictatorship in 1988, the popular pro-democracy camp has failed in achieving its goal: to remove the military from the political arena after making it return to the barracks. And the mainstream opposition groups comprising Daw Aung San Suu Kyi’s NLD, dozens of other political parties, ethnic parties and political activist groups couldn’t make their own strategies beyond a political roadmap planned by the military regime.


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During that time, however, the military managed to have a constitution which guarantees it an important leadership role in the political arena. Today, as a result, the military is still at the epicenter of politics although it isn’t running the government. Constitutionally, the military’s commander-in-chief Snr-Gen Min Aung Hlaing is perhaps the most important power holder. He chooses the 25 percent of military appointees in all parliaments nationally and regionally. He nominates a vice president and three key ministerial positions—defense, home and border affairs. In addition, the military chief is the supreme commander in chief of all armed forces, from the military to the police to paramilitary groups. In other countries, this position is supposed to be for the president. Traditionally, the military had ruled the country for many decades from 1958 to 1960 as a caretaker government and from 1962 to 2011 as a military government. Besides, from 2011 to early 2016, the military-proxy party, known as the Union Solidarity and Development Party, ruled the country through a quasi-civilian government. Thus, the military and its political party had ruled the country for fifty-six out of the sixty-nine years since it gained independence from British colonial rule in 1948. Historically, the military was formed as the Burma Independence Army (BIA) in 1941 to fight for independence from the British. BIA was formed by patriotic politicians led by independence leader Gen. Aung San, father of Daw Aung San Suu Kyi. So, the consecutive military leaders hold a belief that the Myanmar military, known as the Tatmadaw, is patriotic with “a crucial duty to protect the State from internal and external threats and destructive elements which endanger its sovereignty.” With such roles in history and politics, the military has strengthened itself throughout history. It has become one of the strongest armed forces in Southeast Asia, with more than 450,000 troops. All of its leaders, especially after its takeover of the country in 1988, have never swayed from three causes of their motto: “The non-disintegration of the Union, nondisintegration of national solidarity and perpetuation of sovereignty.” The current leader of the military, Snr-Gen Min Aung Hlaing, is no different. Last Sunday, we could see once more the military’s power and its steadfast political stand when Snr-Gen Min Aung Hlaing made a speech at the ceremony of the 2nd anniversary of the Nationwide Ceasefire Agreement in Naypyitaw. The military chief was one of three leaders to make speeches together with the de facto leader Daw Aung San Suu Kyi representing the government and Saw Mutu Sae https://www.irrawaddy.com/opinion/commentary/reassessing-role-myanmars-powerful-military.html

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Poe, chairman of Karen National Union, representing a bloc of ethnic armed groups which have signed the Nationwide Ceasefire Agreement. The military chief is always among key leaders to make such a speech in important political ceremonies and also a key host to all foreign dignitaries, who request to meet the military chief when they want to discuss military or security matters. The head of the state and other cabinet ministers are not legitimately placed to answer such specific questions. Snr-Gen Min Aung Hlaing’s speech on Sunday was different from the other two leaders’ speeches. The State Counselor emphasized leaving a good legacy of peace for the next generation and appealed for collaboration from everyone for the peace process. The Karen leader called for autonomy and integrity for ethnic people in accordance with the Panglong agreement signed in 1947 between the then Prime Minister Aung San and ethnic leaders, making crucial suggestions for the current peace process. In contrast, the military chief not only touched on the peace process and the country’s stability but also about the multiparty system, the military’s tasks in laying out the foundation for the multiparty system, the definitions of democracy, different views on the rule of law, differences between revolution and building the country, and the military’s historic role in fighting for independence. Some critics might even have considered his speech a “political lecture” to the audience, from the head of the state to ethnic leaders to heads of foreign missions. It would be very unusual in other countries, but in Myanmar, the exclusive audience had to listen to his 15-minutes speech. And the commander-in-chief delivered the speech with the confidence and conviction needed when speaking to such an audience. The military chief said the military government carried out political, economic and social development undertakings from 1988 till 2010 by building the road for a multiparty system. He said, “Every person and every organization needs to understand the multiparty system. The military is carrying out to continue to walk on the policy of the multiparty system with steadfast and caution.” “As democracy is seen as a system, it can be assumed that it is as a task or ethic to achieve success if it is followed and respected by everyone.” The senior general said while legal scholars focus on stability to determine the rule of law, there are two factors of “accountability” and “no one above the law” according to political point of view.


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The military chief said more than one time in his speech, “No one is above the law.” He also added, “Any person or organization must respect the existing laws in carrying out any type of their duties. The law cannot be abused as a tool.” He was not referring to any specific person. Some people might ask whether he was referring to Daw Aung San Suu Kyi, who was sitting in the front row. Because right after the NLD government took office at the end of March 2016, the NLD-dominated Parliament proposed the “State Counsellor” bill, which the President U Htin Kyaw signed into law in early April. The military lawmakers said the bill was unconstitutional and all of them boycotted the proceedings by refusing to cast a ballot during the session. As for the NLD, the position was created out of political necessity: though Daw Aung San Suu Kyi’s party won the landslide in the election, she is barred from the presidency in the military-drafted Constitution. The military leadership might have seen that it was above the law as Daw Aung San Suu Kyi created a position “above the president.” Over the past one and half years in office, the NLD-government has found it difficult to rule the country as it planned to in important areas such as the peace process, amending some laws, planning to change the undemocratic Constitution and other issues, including tackling the urgent Rakhine conflict. For those sectors, the military is at the center among all key stakeholders. The military and the government are not going at the same pace in tackling all the issues. In all security measures, the military calls the shots—especially in fighting with ethnic armed groups and waging military operations against militant group the Arakan Rohingya Salvation Army, which launched orchestrated attacks on government security outposts in late August. It’s sheer unrealistic for someone to imagine that the country’s current political transition will advance without the role of the military or the military will leave the political arena to return to its barracks in the near future. In 2012, the then defence minister Lt-Gen Hla Min said at the security forum of the Shangri-La Dialogue in Singapore that the Tatmadaw “may play a lesser role in politics once the country is more developed and that when the time is appropriate, there would be changes and the 25 percent participation in the national legislature could be reduced.” Five years after, the military hasn’t changed that standing at all. Certainly, Myanmar’s politics and its democratic transition need the military’s collaboration. If the military fully collaborates, the transition will be swift. If the military hesitates, the transition will be sluggish. If the military has no collaboration at all, it will stall completely.


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Topics: Myanmar Army, National League for Democracy, Politics

Kyaw Zwa Moe

The Irrawaddy Kyaw Zwa Moe is the Editor of the English edition of The Irrawaddy.

Specials

TIMELINE: China-Myanmar Relations

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Myanmar State Counsellor Aung San Suu Kyi (L) shakes hands with Chinese President Xi Jinping during the welcome ceremony for the Belt and Road Forum, at the International Conference Center in Yanqi Lake, north of Beijing, May 15, 2017. / Reuters

By THE IRRAWADDY

25 November 2017

In 1949, Mao Zedong established the Peoples’ Republic of China, which was formally recognized by the freshly independent Myanmar government. Here is a chronology of the diplomatic relations in the 58 years that followed. 2017 Jan 28: The Yangon government organizes Chinese New Year Celebrations, said to be the grandest Chinese New Year celebrations in more than five decades. Yangon Region chief minister U Phyo Min Thein and National League for Democracy (NLD) Patron U Tin Oo both attend. https://www.irrawaddy.com/opinion/commentary/reassessing-role-myanmars-powerful-military.html

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Role of Myanmar Military Hangs Over Forum on Democratic Transition

ASIA

Role of Myanmar Military Hangs Over Forum on Democratic Transition August 11, 2017 7:47 AM Joe Freeman

NAYPYITAW, MYANMAR — The path to democracy is "not a bed of roses," Myanmar's de facto leader Aung San Suu Kyi said Friday at the start of a forum in which the role of the military in the transition to civilian rule looms large. Speaking in the capital Naypyitaw to open the three-day "Forum on Myanmar Democratic Transition," the Nobel laureate and State Counselor delivered her opening remarks more than 15 months after her party formally took power and amid widespread criticism over her administration's performance. "When we are trying to change, it is never easy," she said, according to a simultaneous translation. She added that Myanmar can learn from the experiences of other countries that have undergone similar transformations. "To be behind also has some advantages." Myanmar was ruled by military governments for almost five decades until allies of the former junta launched wide-ranging reforms in 2011, leading to elections in 2015 that Suu Kyi and her National League for Democracy (NLD) won by a landslide. Hanging over the whole process, however, is the still-powerful military, which continues to clash with armed ethnic groups. Aung San Suu Kyi has eschewed criticism while stressing national reconciliation. She returned to the theme in her remarks on Friday, saying that learning lessons from the past is better than dwelling in it. The military, known as the Tatmadaw in Burmese, retains significant power due to the 2008 constitution that it drafted. The document guarantees it 25 percent of parliamentary seats and three ministries. While a portion of the sessions on Friday were devoted to the transition from a military to civilian government, and many of the questions from the audience latched onto the issue, very few members of the armed forces were scheduled to speak.

https://www.voanews.com/a/role-of-myanmar-military-hangs-over-forum-democratic-transition/3981558.html

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Real-time events highlighted the tension, as local reports pointed to a possible troop build-up in Rakhine State, where the armed forces have carried out a crackdown on Rohingya Muslim militants since deadly attacks on a police outpost last year. The operations have resulted in numerous claims of human rights abuses. Historians, politicians, professors and ambassadors, among others, were all scheduled to speak at the forum. Experts who participated in the opening sessions discussed examples of other countries that emerged from outright military or authoritarian rule, including Indonesia, South Korea and, further afield, Spain. Some of the comments likely will disappoint organizations still seeking redress for years of su ering and hardship under the former Burmese junta, which imprisoned activists and crushed dissent. Aurel Croissant, a professor of political science at Heidelberg University, said in a talk that e orts in di erent societies to punish military regimes for past crimes did not end well. "There isn't a single historical case where this attempt did not lead to disaster," he said. "My advice would be, concluding from the historical evidence, that new democracies may be well advised not to engage under these circumstances in approaches or projects with retributive justice." Soeren Keil, an Associate Professor at Canterbury Christ Church University who is scheduled to give a talk on Sunday, said in an interview that Myanmar has made substantial progress in recent years, pointing to elections, an increasingly e ective parliament, mostly civilian cabinet members, the peace process and media freedoms. But he said there are still unanswered questions. "We know where the peace process is supposed to go toward," he said. "But when we look at democratization, I think the whole agenda becomes much more problematic. Because there I can't see a clear goal of saying, this is where we are moving to complete civilian control." Myanmar is scheduled to again hold elections in 2020, and Keil wondered whether the same constitutional elements keeping the military in power would still be in place.


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"That's kind of a date where I think also the NLD itself has to think about what kind of legacy it wants to have for the first five years of power," he said. "And I think that discussion needs to happen." Myanmar National Security Adviser Thaung Tun, who spoke at the forum, said in an interview on the sidelines that while "there has been a lot of cynicism expressed" regarding the military's role in the transition, "we are working together because we are partners on the same journey." One of the few members of the military who took part, Col. Aung Myint Oo, the head of the National and International A airs Department at the National Defense College of the Myanmar Armed Forces, said in a panel discussion that a civilian government may not be able to protect the country against what he described as various threats and problems. "The military should be a part of one of the organs of the government, and after that we have to negotiate," he said.


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The Military Will Still Control Myanmar After Aung San Suu Kyi's Victory | World Report | US News

NEWS

Democracy on a Leash Aung San Suu Kyi's victory may be historic, but Myanmar's military is still in charge. By Jared Genser , Opinion Contributor Nov. 12, 2015, at 4:47 p.m.

The victor, still barred from becoming president.

KHIN MAUNG WIN/AP

https://www.usnews.com/opinion/blogs/world-report/2015/11/12/the-military-will-still-control-myanmar-after-aung-san-suu-kyis-victory

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THE RETURNS FROM Myanmar's parliamentary election show

there will be an overwhelming victory for longtime democracy leader Aung San Suu Kyi and her National League for Democracy, enabling them to form the next government. But the oddest feature of the election is that Suu Kyi herself, who led her party to a landslide victory, cannot become president. This reality is just one visible symptom of the even more di cult struggle that lies ahead. It is very much a critical and open question if the military will feel compelled to cede any ground in light of the new government. The Myanmar military, or Tatmadow, is surely disappointed that it did not block Suu Kyi from obtaining the 67 percent vote that she needed to control a majority of the parliament. This result is required because under Myanmar's Constitution, 25 percent of the seats in the upper and lower House are appointed by the military. As a result Suu Kyi will control the parliament, which will appoint the new president. Yet the military anticipated and planned for this possibility years ago, including disqualifying constitutionally anyone whose spouse or children had bene ted from a foreign nationality from serving as president, a provision designed just for her. Even if she will be "above the president," no meaningful reform to restore a genuine democracy will be possible without the military's support. [ READ: Suu Kyi's party wins historic majority in Myanmar polls ]


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To understand the very unusual situation that Suu Kyi will nd herself in, one must look back on the country's recent history. As the military realized that its path, including an extraordinary economic reliance on China, was going to be unsustainable, it decided to manage the reform process to secure the soft landing it referred to as "disciplined democracy." But the military never intended for Myanmar to be a Western-style democracy. It wanted the government to have a civilian face but fully preserve its strong prerogatives.

In April 2008, the then-military junta of Myanmar released its long-awaited draft constitution. It was drafted with no input from the National League for Democracy or ethnic political parties. And on May 10, 2008, in the wake of Cyclone Nargis hitting the country, a referendum was held and the military claimed that 98 percent of eligible voters turned out https://www.usnews.com/opinion/blogs/world-report/2015/11/12/the-military-will-still-control-myanmar-after-aung-san-suu-kyis-victory

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and over 92 percent voted “yes.” That constitution set the framework for last Sunday's vote, ensuring that the best any political party could achieve, regardless of its electoral success, would be to enter into a power-sharing arrangement with the military. In fact, the 2008 constitution was written to ensure that Myanmar's civilian government would be, at best, democracy on a leash. Under the constitution, the Myanmar military is a fourth branch of government; it sets its own budget independent of the president and parliament; it appoints the defense, home and border affairs ministers; and it has the right to veto decisions of the executive, legislative and judicial branches of the government. In fact, the civilian government has no oversight over the military, which "has the right to independently administer and adjudicate all affairs of the armed forces." [ READ: The Cold War Is Back But Obama Doesn't Know It ]

It should be up to the Myanmar people to decide if national reconciliation requires justice and accountability for decades of human rights abuses perpetrated by the military, which included crimes against humanity, war crimes and ethnic cleansing. But the constitution provides permanent immunity for all members of prior military governments. In addition, and perhaps most disturbing, the constitution cannot be amended https://www.usnews.com/opinion/blogs/world-report/2015/11/12/the-military-will-still-control-myanmar-after-aung-san-suu-kyis-victory

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without a greater than 75 percent vote in both houses of parliament, which makes changing the constitution impossible without the support of the military.

Suu Kyi and the new National League for Democracy government will have substantial power to realign budgetary priorities to the needs of the people, appoint cabinet ministers, repeal repressive laws, sign treaties and represent the government around the world. But on the most central challenges facing the country, the military remains in control. And given that the judiciary in Myanmar was built by and is loyal to the military, there will be additional means for central reforms to be blocked. For example, Suu Kyi has spoken about the need for her new government to foster national reconciliation between the Burman, who comprise 68 percent of the population, and ethnic minority groups that suffered wide-ranging mass atrocities https://www.usnews.com/opinion/blogs/world-report/2015/11/12/the-military-will-still-control-myanmar-after-aung-san-suu-kyis-victory

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under the prior military junta. Yet ethnic groups have complained vociferously that the constitution empowers the central government to appoint the governors of the states and regions of the country. [ READ: 3 Ways to Honor a Veteran This Week ]

In addition, despite much of the natural resources of the country being in ethnic minority areas, the constitution says that all above and below land rights belong to the central government. Ethnic minorities want autonomy within a federal Myanmar to make decisions for themselves and revenuesharing on natural resource projects. But it is impossible for a National League for Democracy government to resolve these issues permanently in light of the constitution.

Furthermore, the military controls not only the army but the intelligence service and national police. It also controls the prisons and all matters relating to immigration. Thus, while https://www.usnews.com/opinion/blogs/world-report/2015/11/12/the-military-will-still-control-myanmar-after-aung-san-suu-kyis-victory

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theoretically the parliament and executive branch could reform the 1982 Citizenship Act, which denaturalized the Rohingya people, there is no legal route to compel the home minister to implement any adopted reforms. The military can also continue to commit human rights abuses against civilians, and neither Suu Kyi nor her government will have the power to stop such attacks. And, under the constitution, the military even has the right to declare a state of emergency, assume the responsibilities of the other branches of government and suspend any or all civil and political rights of the Myanmar people if it feels the new civilian government is threatening its role. In countries where the rule of law prevails, national militaries are subject to the control of civilian governments. But in Myanmar, the military can exercise virtually unlimited power, and it also has all of the weapons by which to enforce its control. While Suu Kyi's electoral victory is historic, particularly in light of the many years she fought the military junta and sacri ced so much under house arrest, it is premature to declare victory. There are many struggles that lie ahead.

Jared Genser , Opinion Contributor Jared Genser is an international human rights lawyer and a U.S. News contributor.


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The Military’s Role in Sub-National Institutions: An Obstacle to Federalism in Myanmar – Tea Circle

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The Military’s Role in SubNational Institutions: An Obstacle to Federalism in Myanmar BY JESSE HARTERY | JANUARY 25, 2018

Jesse Hartery outlines some of the institutional barriers to federalism in Myanmar. When international observers and media outlets discuss Myanmar’s constitutional structure, they largely focus on the military’s role in national institutions. While the 2008 Constitution (the “Constitution”) does leave an important place for military of cials in governing the Southeast Asian state at the federal level[1], it is important to recognize that the same document gives them an equally pervasive role in sub-national https://teacircleoxford.com/2018/01/25/the-militarys-role-in-sub-national-institutions-an-obstacle-to-federalism-in-myanmar/

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institutions. I am acutely aware that the constitutional structure imposed[2] in 2008 is not the only obstacle to federalism in Myanmar. That said, the following will shine a light on some of the very real barriers that exist from a strictly constitutional standpoint. Myanmar is divided into 21 areas at the sub-national level, including: seven Regions (Ayeyarwady, Bago, Magway, Mandalay, Sagaing, Tanintharyi, Yangon), seven States (Chin, Kachin, Kayah, Kayin, Mon, Rakhine, Shan), one union territory (the capital city of Nay Pyi Daw) and six self-administered zones or divisions (Danu, Kokang, Naga, Pa’O, Pa Laung, Wa). The governance models of these areas differ: Regions and States have legislatures (known as Hluttaws in Burmese), Nay Pyi Daw is under the direct administration of the President, but day-today functions are carried out on the President’s behalf by the Nay Pyi Daw Council, and self-administered zones are administered by a leading body that consists of at least ten members and includes State or Region Hluttaw members and nominated members from the military (sections 49-50 and 56 of the Constitution).[3] The ethnic Bamar are the majority in the seven Regions and the union territory, while the seven States and six selfadministered zones are primarily inhabited by ethnic minorities. For the purposes of this contribution, I will

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focus on the governance structure of the States and Regions. While the federal phenomenon comes in many shapes and sizes, there is nevertheless a list of indicators of federal status. Among the indicators of importance to the following analysis, we nd: (1) two sovereign orders of government, each of them acting directly on its citizens; and (2) a constitutional division of legislative and executive powers.[4] The following is only concerned with the participation of the military in the legislative and executive branches of government at the sub-national level. It does not discuss the division of legislative powers or the limits that should or should not be imposed on the exercise of legislative action through a supralegislative bill of rights. In that sense, I am only concerned with how the branches of government are conceived in a federal state. This discussion is important since Myanmar is transitioning to democracy and is looking to amend its Constitution to adopt one built on federal principles.[5] At the outset, it is important to emphasize that it is antithetical to democratic governance to have active military of cials serve at the helm of government departments and as unelected members of legislative https://teacircleoxford.com/2018/01/25/the-militarys-role-in-sub-national-institutions-an-obstacle-to-federalism-in-myanmar/

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bodies. Liberal democracy has at its core the principle of civilian control of the military – that is, institutions of government should be controlled and overseen by democratically elected of cials. In that sense, Myanmar’s institutional structure fails to meet some essential attributes of democracy (see namely section 20 of the Constitution).[6] These problems are compounded in Myanmar’s attempts at implementing a federal structure. Federalism entails giving control over certain subjects to local populations. It is a way to dilute the dangers of majoritarian rule found in unitary states by dividing power between the centre and the sub-national entities. It allows local populations to chart a course of their own on issues of a local or private nature. When the military plays a role in these sub-national legislatures and governments, it necessarily has centralizing effects and inhibits local autonomy. The military’s role in the legislative branch at the subnational level is identical to that found in the national legislature. It holds 25% of seats and therefore plays a role in the adoption of legislation. To be precise, section 161 of the Constitution of Myanmar provides that the Commander-in-Chief appoints military representatives equal to one-third of the elected members. As in the https://teacircleoxford.com/2018/01/25/the-militarys-role-in-sub-national-institutions-an-obstacle-to-federalism-in-myanmar/

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central legislature, this poses serious problems for a political party that obtains an absolute majority of elected seats in the legislature. In order to obtain an absolute majority in the legislature as a whole, a party must obtain at least 67% of the elected seats – a dif cult task in any democracy. If they fail to do so, they may have to negotiate with military of cials to get legislation passed. The military’s role in the executive branch is equally important. Firstly, the military is afforded one seat in each local cabinet of ministers. The Minister for Border and Security Affairs in each State and Region, who must be an active member of the military, is essentially appointed by the Commander-in-Chief (section 262 of the Constitution). This ensures the military’s constant presence at the cabinet table. Secondly, the federal Ministry of Home Affairs controls the public service of each State and Region through the General Administration Department (“GAD”), a structure that predated the 2008 Constitution (section 260 and paragraph 10(a) of the Union Legislative List of the Constitution).[7] This Ministry is one of the three departments in the federal Cabinet afforded to military members on appointment by the Commander-in-Chief. This means that while there may be local cabinet ministers, the administrative apparatus tasked with executing the laws https://teacircleoxford.com/2018/01/25/the-militarys-role-in-sub-national-institutions-an-obstacle-to-federalism-in-myanmar/

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of each State and Region is controlled by of cials from the central Ministry of Home Affairs. In that sense, the State and Region executives are not entirely sovereign as is generally expected in a federal state. There is no strict division of executive authority between the orders of government. To make things worse, the GAD not only staffs the of ce of the Chief Minister and the administrative state more broadly, but also offers support to the State and Region legislatures. At the top of this bureaucratic hierarchy, we nd the Executive Secretary of the State or Region, an individual who is ultimately accountable to the federal Ministry of Home Affairs. In essence, both the legislative and executive branches of the States and Regions depend on the GAD to function. This is simultaneously an affront to local autonomy and the separation of powers. The latter set up (the GAD staf ng the legislative branch) is arguably unconstitutional. Section 260 of the Constitution states that “the General Administration Department of the Region or State is the Of ce of the Region or State Government concerned.” In other words, the Constitution makes no mention of the GAD’s role in the legislative branch at the sub-national level. Rather than a constitutional change, ensuring a clear separation https://teacircleoxford.com/2018/01/25/the-militarys-role-in-sub-national-institutions-an-obstacle-to-federalism-in-myanmar/

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of powers will seemingly require a clari cation of the Constitution. Of course, a challenge before the Constitutional Tribunal would also be an acceptable route. However, the Tribunal has been particularly weak since the 2012 crisis when all its members resigned en masse, before facing formal impeachment for rendering a judgment in President v. Pyidaungsu Hluttaw with which the national legislature disagreed.[9] Whatever one’s position might be on the underlying legal issue in that case, the reaction to the decision and subsequent amendments to the 2010 Constitutional Tribunal Law have invariably weakened the Tribunal’s ability to act as a serious check on power. Finally, there are three types of emergencies outlined in the Constitution[10]: (1) when it is not possible to carry out administrative functions in certain areas (sections 40(a) and 410 of the Constitution); (2) when there is a situation that endangers “lives, shelter or property of the public” (sections 40(b), 412 and 413(a) of the Constitution); and (3) when there is a threat of disintegration of the union, national solidarity or loss of national sovereignty (sections 40(c) and 417 of the Constitution). In type-one emergencies, legislative and executive functions of the States and Regions are handed over to the President. In type-two emergencies, a military administrative order might be warranted, https://teacircleoxford.com/2018/01/25/the-militarys-role-in-sub-national-institutions-an-obstacle-to-federalism-in-myanmar/

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which transfers all administrative and judicial powers to the Commander-in-Chief. Type-three emergencies transfer all legislative, executive and judicial powers, at both the national and sub-national level, to the Commander-in-Chief. In addition, all legislative bodies are suspended. The rst two types of emergencies require the approval of the national legislature within 60 days (section 212 of the Constitution). Type-three emergencies are immediately submitted to the national legislature, but do not seem to require sustained legislative oversight considering these bodies are suspended (sections 417, 418 and 421 of the Constitution). Moreover, as legal scholar Melissa Crouch has noted, the constitutional text seems to suggest that the declaration of emergencies is not subject to judicial review, which is particularly worrying.[11] Evidently, type-two and -three emergencies leave an imposing role for the military at the sub-national level. The broad language of type-three emergencies, and the possible abuse it could generate, is particularly problematic. It is important to note, however, that these emergencies must be declared by the President of Myanmar after conferring with the National Defence and Security Council. This Council is composed of 11 members, a majority of which are military of cers (sections 201, 410, 412 and 417 of the Constitution). https://teacircleoxford.com/2018/01/25/the-militarys-role-in-sub-national-institutions-an-obstacle-to-federalism-in-myanmar/

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While there is some safety in the fact that a civilian President, currently a member of the NLD, ultimately bears responsibility for declaring an emergency, it does not remove the serious attack on sub-national autonomy that such a declaration entails and the sweeping control afforded to the military. All these issues, added to the fact that the Chief Minister of each State and Region is appointed by the central quasi-civilian government, demonstrate that the obstacles to federalism in Myanmar are signi cant. I have tried to shine a light on some of the constitutional problems that exist by demonstrating that the military continues to have a pervasive role at the sub-national level. As I mentioned at the beginning, the federal phenomenon comes in many shapes and sizes. India, for example, has traditionally been considered “quasifederal” because of its important centralizing features, namely through the existence of the All-India Services and the emergency powers provided to the central government, subject of course to legislative (composed of a second chamber with members indirectly elected by the elected members of State legislatures) and judicial oversight since the judgment in S.R. Bommai v. Union of India. In addition, India has historically had vocal Chief Ministers willing to push back against these centralizing features.[12] Other federations, like Canada, stick closely https://teacircleoxford.com/2018/01/25/the-militarys-role-in-sub-national-institutions-an-obstacle-to-federalism-in-myanmar/

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to a constitutional model that emphasizes mutual sovereignty. In Myanmar, however, when Phyo Min Thein, the Chief Minister of Yangon Region, dared criticize the military’s role in state institutions, his comments were swiftly labeled “reckless and confrontational”, and he was forced to apologize.[13] This is not the way to run a country respectful of local leadership. Ultimately, the Burmese people and their leaders will have to consider what model they prefer as constitutional discussions continue through the 21st century Panglong Conference. If Myanmar is truly committed to reconciliation with ethnic minorities and the spirit that brought Aung San to Panglong in 1947, it will need to meaningfully address these institutional barriers to local autonomy. As Harn Yawnghwe and B.K. Sen have previously explained, if Myanmar does ultimately fragment, the blame will lie solely on the shoulders of the military. Their failure to accept the spirit of Panglong and its emphasis on selfdetermination and democracy is the greatest threat to maintaining a uni ed Myanmar.[14]

Jesse Hartery is a law student at McGill University and a Research Assistant to Professor Johanne Poirier, the holder https://teacircleoxford.com/2018/01/25/the-militarys-role-in-sub-national-institutions-an-obstacle-to-federalism-in-myanmar/

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of the Peter MacKell Chair in Federalism. He is also a Judicial Law Clerk at the Superior Court of Québec. He has previously worked in the Crown Law Of ce at the Ministry of the Attorney General of the Province of Ontario (Canada). He holds an Honours B.A. in History and a Minor in Asian Studies from the University of Ottawa. [1] See my recent article where I discuss this at length: Jesse Hartery, “Stuck in Myanmar’s Constitutional Straitjacket”, McGill International Review, July 28, 2017, online: https://www.mironline.ca/stuck-myanmars-constitutionalstraitjacket/. [2] “Burma: Reject Constitutional Referendum”, Human Rights Watch, May 17, 2008, online: https://www.hrw.org/news/2008/05/17/burma-rejectconstitutional-referendum. [3] Yash Ghai, “The 2008 Myanmar Constitution: Analysis and Assessment”, (2008), online: http://www.burmalibrary.org/docs6/2008_Myanmar_constitution– analysis_and_assessment-Yash_Ghai.pdf. [4] Ronald Watts, Comparing Federal Systems, 3rd ed, Kingston: McGillQueen’s University Press, 2008, 83. [5] San Yamin Aung, “Myanmar President Reaffirms Commitment to Constitutional Reform”, The Irrawaddy, January 5, 2018, online: https://www.irrawaddy.com/news/myanmar-president-reaffirmscommitment-constitutional-reform.html. [6] Jamie Tarabay, “Myanmar’s military: The power Aung San Suu Kyi can’t control”, CNN, December 6, 2017, online: http://www.cnn.com/2017/09/21/asia/myanmar-military-the-realpower/index.html. [7] See also sections 2 and 61 of The Region or State Government Law, SPDC Law No. 16/2010;Kyi Pyar Chit Saw and Matthew Arnold, “Administering the State in Myanmar: An Overview of the General Administration Department”, The Asia Foundation, October 2014: https://asiafoundation.org/resources/pdfs/GADEnglish.pdf. [9] Htin Kyaw Aye, “How the NLD can improve Myanmar’s democracy”, Frontier Myanmar, September 8, 2017, online: https://frontiermyanmar.net/en/how-the-nld-can-improve-myanmarsdemocracy. [10] Ghai, The 2008 Myanmar Constitution: Analysis and Assessment, 21-39. https://teacircleoxford.com/2018/01/25/the-militarys-role-in-sub-national-institutions-an-obstacle-to-federalism-in-myanmar/

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[11] Melissa Crouch, “The Everyday Emergency: Between the Constitution and the Code of Criminal Procedure in Myanmar”, in Andrew Harding and Khin Khin Oo, eds, Constitutionalism and Legal Change in Myanmar, Oxford: Hart Publishing, 2017. [12] M.P. Singh and Rekha Saxena, “Intergovernmental Relations in India: From Centralization to Decentralization”, in Johanne Poirier, Cheryl Saunders and John Kincaid, eds, Intergovernmental Relations in Federal Systems: Comparative Structures and Dynamics, Don Mills: Oxford University Press, 2015, 251-252 and 254-255. [13] San Yamin Aung, “Yangon Chief Minister Apologizes to Military Chief”, The Irrawaddy, July 27, 2017, online: https://www.irrawaddy.com/news/burma/yangon-chief-ministerapologizes-military-chief.html. [14] Harn Yawnghwe and B.K. Sen, “Burma’s Ethnic Problem is Constitutional”, (2002) 11 L Issues on Burma J 51 at 54, online: http://www.ibiblio.org/obl/docs/LIOB-11.pdf.

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“Panglong Spirit” under the 2008 Constitution (Part II)

“Panglong Spirit” under the 2008 Constitution In "21st Century Panglong"

Editor’s Note: Today's post is a follow-up to a previous post, "'Panglong Spirit' under the 2008 Constitution," which was In "21st Century Panglong"

Democratisation of Myanmar by Nehginpao Kipgen, Routledge, New Delhi, 2016, 194 pages In "Book Review"

POSTED IN RESEARCH REPORT • TAGGED CONSTITUTIONAL REFORM, FEDERALISM, GAD, LAW, LEGAL REFORM, MILITARY https://teacircleoxford.com/2018/01/25/the-militarys-role-in-sub-national-institutions-an-obstacle-to-federalism-in-myanmar/

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Author: Jesse Hartery Jesse Hartery is currently completing a joint degree in common law (LL.B.) and civil law (B.C.L.) at McGill University. He is a Research Assistant to Professor Johanne Poirier (the holder of the Peter MacKell Chair in Federalism) and a Judicial Law Clerk at the Superior Court of Québec. He has previously worked in the Crown Law Of ce at the Ministry of the Attorney General of the Province of Ontario (Canada). He holds an Honours B.A. in History and a Minor in Asian Studies from the University of Ottawa. View all posts by Jesse Hartery

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RCAPS Working Paper Series “Dojo” RPD-13003

The Political Role of the Military in Myanmar January 17, 2014 HNIN YI Graduate School of Asia Pacific Studies Ritsumeikan Asia Pacific University Corresponding Author: HNIN YI E-mail: [email protected]

Ritsumeikan Center for Asia Pacific Studies (RCAPS) Ritsumeikan Asia Pacific University (APU) URL: http://www.apu.ac.jp/rcaps/

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The Political Role of the Military in Myanmar

By HNIN YI Graduate School of Asia Pacific Studies Ritsumeikan Asia Pacific University

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Introduction Myanmar’s Military, the Myanmar Armed Forces or Tatmadaw, has played an influential role in the national politics for nearly five decades. It has always perceived that national security is the key concern for decision making on domestic and foreign policy matters (Than, 1998; Haacke, 2010). The Tatmadaw has also believed that its role is essential in Myanmar’s domestic politics in order to protect national security and serve as the backbone behind the political regime since 1962. During the early years of the country’s independence, the Myanmar Armed Forces conducted counterinsurgency operations against communist rebels. Politically, Tatmadaw has aimed at building a unified state without armed struggles, with little regards to its tactics and strategies. Even with the end of the Cold War against communism, the military government has undertaken an ambitious expansion and modernization of the armed forces since 1989 (ICG, 2002 ; Nakanishi, 2013). In this way, Myanmar’s Tatmadaw has taken its role in national politics as the most powerful institution. Involvement of the military in Myanmar politics has oscillated between the praetorian orientation and the revolutionary orientation, together with the different types of developmental ideologies since 1962. Most significantly, the Revolutionary Council (RC) led by General Ne Win directly involved itself in politics till 1974. The RC government adopted the “Burmese Way to Socialism” focused on “the planned proportional development of all the national productive forces” (Von der Mehden, 1963). In 1974, the military backed the Burmese Socialist Programme Party (BSPP) regime, which failed to achieve socioeconomic development due to its mismanagement of the planned economy under the Burmese Way to Socialism (Myoe, n.d.). The nature of the military’s involvement apparently changed under the State Law and Restoration Council (SLORC) and the State Peace and Development Council (SPDC). In 1989, SLORC directly re-intervened in politics, abolished the 1974 constitution, and dissolved the parliament. Moreover, SLORC/SPDC relinquished socialism

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and opened a market economy, while seeking modernization and expansion of its armed forces. Since then, SLORC/SPDC had sought a managed transition by drafting a new constitution, which fully guaranteed its own role in politics. On 30 March 2011, the SPDC government transferred power to the newly elected President U Thein Sein, who was a former general and prime minister under the military government (Myoe, n.d. ; Bünte, 2011). The purpose of this study is to examine domestic political roles of the military and explain why it partially retreats from politics today. Firstly, this study will review theoretical frameworks for the roles of a military in politics. Secondly, it will explore the Myanmar military’s perspectives on national security. Thirdly, it will describe the Myanmar military interventions and performance in national politics. Fourthly, it is going to analyze the ongoing partial military withdrawal from Myanmar’s domestic politics during the current reform period. Finally, this study will draw conclusions on how the Myanmar military influences national politics and what the implications of its intervention are. Theoretical Frameworks Military always gets involved in national politics although there are differences among the states in regard to the degree of its influences. Thus, there is a wide range of interrelationship and interaction between the armed forces and the civil societies in which they coexist and cooperate (Myoe, n.d.). Welch and Smith (1974) point out that “the military’s political role is a question not of whether but of how much and what kind.” The involvement of the military in politics can range from having influence on policy making to running direct military rule (Myoe, n.d.). In order to understand the changing nature of military in politics, it is necessary to explore the categorical and typological conceptualizations of military intervention in politics, military performance in politics, and military withdrawal from politics.

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According to Finer (1962), there are four levels of military intervention: influence, blackmail, displacement of the civilian cabinet, and supplement to the civilian regime. Welch (1993) also classifies military intervention in politics into military influence in politics, military participation in politics, and military control of the government. In this context, both scholars constructed the categories of military intervention ranging from soft influence to strong influence in the political systems. While Finer and Welch’s categories are sufficient for making basic distinctions, they did not clearly sort out the scope of military influence to further account for the variations in military’s political roles. Lovell (1970) filled this requirement by making distinctions in terms of the scope of influence, in addition to the degree of influence. He categorized six types of military intervention based on the extensive and limited scopes of influence. According to his typologies, while ruling elite, politically dominant bloc, and praetorian army are categorized under the relatively extensive scope, ruling coalition, competitive political bloc, and palace guard are categorized under the relatively limited scope. The military’s political role has evolved in each country depending on the country’s particular historical factors. The military historian Liddell Hart proposed that “the nature of the armies is determined by the nature of civilization in which they exist” (Johnson, 1964). According to the nature and the level of political intervention, a military will undertake a number of responsibilities including consolidation of power, promotion of national integration, building mass support for the government, political institution-building and political brokerage. The performance of the military regime could be judged in these fields: “modernizing ideology and values; maintain political stability; developing technological bases and communication infrastructures; efficiency in administration; bringing economic growth and development; and a policy of social welfare and economic or income redistribution” (Myoe, n.d.).

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There are several types of military’s political role according to the degree of military influence on the power position of the civilian authorities. According to Janowitz (1964), there are five categories of military’s political role or civil-military relations: (1) authoritarian-personal control; (2) authoritarian-mass party control; (3) democraticcompetitive; (4) civil-military coalition; and (5) military oligarchy. In the first three categories, the military role in politics is not strong. But in the last two categories, the influence of the military is very strong in politics. Perlmutter (1980) argued that the modern military regimes can be regarded as military-civilian regimes instead of being purely military in composition because they depend on the support of technocratic, bureaucratic, and corporative elites. He also claimed five types of military regime. The first type is “corporative regime” in which “governmental authority resides in a tightly linked coalition of military and civilians.” This type of regime can promote economic modernization and industrialization. The second type, “the market-bureaucratic military regime” emphasizes “the state-capitalist type development.” Under this type, “the military has taken upon itself the political and administrative task of economic modernization within the framework of a capitalist market economy.” But, there is no significant role for political parties in this level. In the third type, “the socialist and oligarchic military regime,” the socialist regime emphasizes the role expansion and transformation of the state by adding the socialist ideologies while the oligarchic regime is allied with civilians. The fourth type is the army-party regime, which can be regarded as a relatively successful and stable regime. Finally, “the tyrannical military regime is an arbitrary government in which authority is secured and maintained by fear” (Perlmutter , 1980). In regard to military’s withdrawal from politics, Huntington (1996) explained four possible categories: the military returning power but restricting participation (as in Myanmar); the returning power and expanding participation (as in Thailand 1973); retaining

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power and restricting participation (as in Myanmar 1958-1960); and retaining power but expanding participation (as in Thailand in 1978-1971). He also argues that the future development of civil-military relations is going to depend on the actions of the civilian leadership in the new democracies. If the civilian government is successful and legitimate and the new democratic institutions and practices could promote economic development and the maintenance of law and order, there would no military intervention/involvement. Moreover, he supported that the Western model of civil-military relations largely based on the ‘old professionalism’ focuses on the separation of civilian and military institutions, nonintervention of the military in domestic politics, and subjection of the military to the civilian governments, thus encouraging the civilian domination of the military. The old professionalism basically makes response to the threat of external security, while its scope of action is limited with socialization of political neutrality and generally nonpolitical attitude. In contrast, Stepan (1974) pointed that the non-Western model based on the new professionalism emphasizes military involvement in domestic politics and role expansion. In this sense, role expansion means that the military shoulders civilian functions and penetrates into various institutional fields, such as economic enterprises, education and training of civilian manpower, fulfilling civilian administrative functions, and engaging in different forms of power politics. Maynard supported role expansion of military regime by quoting Indonesian General Nasution’s word, “The army must participate in deciding national policy because national policy is the mother of political policy, economic policy and military policy” (Perlmutter, 1980). While aforementioned frameworks focused on explaining military involvement in politics, Rebecca Schiff’s concordance theory of civil-military relations or partnership helps us analyze military withdrawal from the third world politics. The concordance theory illustrates a kind of civil-military relations, in which the military actively plays an influential role of political decision-making process and even participates in the

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governmental process by cooperating with civilian and guaranteeing democratic practices. This model encourages mutual cooperation and partnership among the military, the political elite, and the citizenry instead of either civilian domination or military domination (Schiff, 1995).

The Military’s Perspectives on Myanmar’s National Security The small group of ruling elites dominated by the military has essentially determined the conceptualization and scope of national security in Myanmar since independence in 1948. Myanmar security has been threatened by armed challenges from a number of ethnic and ideological insurgencies. Successive Myanmar governments have usually applied a state-centric national security approach with much emphasis on national sovereignty, territorial integrity, and national unity among all ethnic groups. At the same time, the military leaders have taken into accounts the external interference, because some neighbors such as China and Thailand had ideological and logistic contacts with internal insurgencies. Moreover, the Unite States and Western countries had called for regime change and tightened sanctions and arms embargoes to punish the military regime for the suppression of the democracy movement and violation of human rights (Than, 2010). The success of counterinsurgency operations paved the way for the Tatmadaw to involve itself politically based on the broad national security concerns. This led to adoption of national security doctrine known as the “National Ideology and the Role of Defense Services (NIRDS).” This doctrine is ideologically based on Tatmadaw’s political involvement and activism. It also provided the military for undertaking dual functions of internal security and economic development as professional tasks. This new professionalism has pushed Tatmadaw into a forefront of the national politics. As a result, the Tatmadaw has taken the dominant role in shaping the contours of Myanmar and has developed a praetorian

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ethos as “the most powerful and enduring institution in Myanmar” (Myoe, n.d.). Seeking for strengthening national security, the Tatmadaw is getting involved with might and main in Myanmar’s national politics. However, there are different forms of military involvement in Myanmar depending on the level of instability and crises in domestic affairs.

The Military Intervention and Performance on Myanmar’s Politics Myanmar history highlights that the military has deeply taken its political role since its establishment. Indeed, Myanmar Armed Forces was generated from the birth of the Burma Independence Army (BIA); formed by a group of nationalist politicians known as the Thirty Comrades. Myanmar Tatmadaw has rarely experienced indoctrination with the concept of military professionalism and civilian control. The meaning of professional soldier in Myanmar is mercenary soldier (Kyesar Sithar), with derogatory connotation. This view strongly supports Tatmadaw’s involvement in politics as the nationalist or patriotic institution (Myoe, n.d.). General Aung San, father of the present day Tatmadaw, contended that “our Tatmadaw is not a mercenary army and it is unlike the one formed by the British.”1 General Ne Win also presented in his speech that “the Tatmadaw was formed with hardcore politicians and it was not mercenary army but patriotic one.”2 The political orientation of Tatmadaw was reinforced not only by the social image of being patriotic soldiers and the lack of proper indoctrination of military professionalism and civilian control but also by the political situation at the time of independence. In 1946, the military was assigned to carry out the internal security such as counterinsurgency operations against communist insurrection. The civil war in the late 1940s and early 1950s had paved the way for the military to participate in civilian politics. The

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Aung San Speech on 31 January 1944 (Bamarkhit News Paper, 3 February 1944) cited in Sagaing Han Tin. Rare Speeches of Bogyoke Aung San (Yangon. Parabeik and Arts, 1985). 2 General Ne Win Speech on 30 July 1982 at the 3rd Central Committee Meeting of the War Veteran Organization, cited in Myoe, M. A. (n.d.). The Future of the Tatmadaw’s Political Role. Unpublished Manuscript.

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military got initially involved in politics as a caretaker government of 1958-1960 due to the invitation of Prime Minister U Nu, in order to restore peace and stability of the state (Than, 1997). The Tatmadaw had been assigned to involve persistently in Myanmar politics for the reasons of the long term stability and the unity of the military both as an institution and a government (Huang, 2012). Perceiving itself as being the most powerful governor or protector of the state with the historical credentials of anti-colonial and anti-Japanese, the military sought to become an active state builder (Callahan, 2003). It meant that Tatmadaw emphasized “its new professionalism” in which the military was assigned for not only carrying out the tasks of warfare and national defense but also involving in internal security and national politics (Huang, 2012). In 1962, the disunity among political elites, tension between the ruling party and the ethnic groups, and the quest for internal peace opened an opportunity for the military to intervene again in Myanmar politics (Than, 1997). At the same time, the Tatmadaw found the weak economic performance of the civilian government. The national development plan, commonly known as “Pyidawthar” plan, implemented by U Nu had failed. Besides, the civilian government was not able to initiate and implement the agricultural reforms and industrial development. With regard to national security, the military leadership and officer corps perceived the building of socialism as an embodiment of national security doctrine because they viewed that the abandonment of the socialist goal by Prime Minister U Nu could be a major threat to national security. Consequently, the military government under the name of the Revolutionary Council adopted the “Burmese Way to Socialism” as its nation building program, thus expecting not only to serve as a modernization agent but also to provide the type of bureaucratic efficiency for economic development. Moreover, the external factors were one of the causes of the military intervention in Myanmar politics. Despite applying neutralist foreign policy and maintaining good relations with all countries,

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Myanmar experienced foreign interference in domestic affairs, in particular in the case of insurgencies. The military government found the concrete evidence of American support to the Kuomintang (KMT) aggressors and Chinese support for the Burmese Communist Party (BCP) insurgents.3 Some insurgent organizations existing along the areas next to Thailand had been receiving assistance from a Southeast Asian Treaty Organization (SEATO) military alliance. The Tatmadaw leadership was seriously concerned with the secessionist movements and foreign interferences. From 1958 to 1960, the military directly ruled the government under the name of a caretaker government. Following the military coup of March 1962, the Tatmadaw in the name of the Revolutionary Council served the country till 1974 (Myoe, n.d.). The direct military rule and direct military regime had characterized in Myanmar politics. In 1971, the Revolutionary Council performed the dual role of the Tatmadaw as both government and institution. The retired twenty military senior officials became the civilian officers of the Burmese Socialist Program Party (BSPP) state (Huang, 2012). In 1974, the military government adopted a new constitution after abolishing 1947 the constitution and dissolving the parliament. Moreover, the government banned all parties in the country. The military government nationalized the entire economy under the banner of Burmese Way to Socialism and suspended all external relations. Then the Revolutionary Council was transformed into the Burmese Socialist Program Party (BSPP) (Bünte, 2011). BSPP operated the country without challenges for over 25 years, and the military and the party leaders effectively controlled the society. General Ne Win, serving as both president and party chairman, placed the military as the backbone of Socialist one-party state. His personal influence was exercised over the party and the military by dividing and controlling his subordinates not to allow

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The army suppressed the communists and Karen National Union( KNU)insurgencies as well as the remanant U.S. Central Intellengence Agency backed Chinese Nationalists (Kuomintang or KMT) in Shan States.(see in Myanmar: Beyond the politics) The Chinese communist Party provided the Burma Communist Party insurgencies for nearly three decades until Deng Xiopeng. (see in Tatmadaw and Myanmar’s Security Challenges by Thin Maung Maung Than).

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potential rivals to emerge (Taylor, 2010). The BSPP became the only legal party in Myanmar until its fall in 1988. The BSPP government sought to ensure the influence of the BSPP and the party leadership in Myanmar politics. The form of the political role of Tatmadaw transformed the military regime of the RC government into the military backed regime of the BSPP government as it served as the backbone of the BSPP. In fact, political indoctrination controlled the Tatmadaw throughout the time of the Revolutionary Council and BSPP. The Tatmadaw officially regarded itself as the Pyithu Tatmadaw” or People’s Armed Forces until 1988. The military regime performed quite well in maintaining political stability, except that a few overt threats to the regime in power remained. The Revolutionary Council not only started a meaningful nation building, but also engaged in extensive state-building exercises. The country was more stable and peaceful than the time between 1950 and 1960. The Tatmadaw relatively achieved the operations of counterinsurgency and by the end of 1970s. Thus the insurgency groups disappeared in the several parts of lower and central Myanmar that became “white area.” The Tatmadaw could win to hold the hearts and minds of local people in attacking the insurgency groups. Joining the Tatmadaw was attractive to many youths of Myanmar due to its prestige, image of being the freedom fighter and the defender of national sovereignty. Many young people joined the military services despite the voluntary military recruitment. The military expenditure during the time of the RC and BSPP was not too much, in terms of the percentage of total government expenditure. Personal expenditures were cut and the concept of austerity and self-sufficiency commenced in the military since the transformation of the “Pyithu Tatmadaw” in 1964. At that time, the Tatmadaw seemed to be free from major corporate interests, class interests, and personal interests. The military leadership was free from corruption, and the majority of them were inclined to socialism. The Tatmadaw’s businesses were nationalized in 1963. The Tatmadaw made a modest expansion

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as the size of the population grew from about 22 million in 1964 to about 40 million in 1988. Nevertheless, the Tatmadaw did not achieve the modernization process that promoted economic development and poverty reduction as this period showed the growth of bureaucracy and the failure of the state’s economic development. By the end of the 1980s, the economic isolationist policy and reliance on the military brought Myanmar into the ranks of least developed countries, once the most promising country in Asia in terms of economic development and modernization. The general population started questioning the legitimacy of the government and the performance of the military. However, it should be noted that Tatmadaw was mostly impartial to class interests but the largest groups (peasants and workers) were treated favorably. In accordance with the People’s Army concept, the Tatmadaw actively participated in annual “Shwe War Myay (golden land)” and “Mya Sein Yaung (green color)” operations in the agricultural production sector under the leadership of BSPP (Myoe, n.d.). In July 1988, the failure of state development and economic mismanagement of the military backed regime paved the way for a massive students’ movement which forced General Ne Win to resign from the party chairman. When the demonstrations spread countrywide as a democratic movement, the military cracked down on this movement, thus killing thousands of demonstrators, and staged a coup in September 1988. Following the coup, the military established the State Law and Restoration Council (SLORC) and placed under the direct military rule (Steinberg, 2001). The military abolished the 1974 constitution and dissolved the parliament and held the entire administrative power, such as legislative, executive and judicial powers. The military government under the leadership of General Saw Maung pledged to hand over the power after holding a multiparty national election. However, the military government did not acknowledge the result of the 1990 elections and refused to transfer power to the winning opposition party, the National

13

League for Democracy (NLD).4 The NLD and the ethnic political parties had demanded a swift transfer of power and subsequently mobilized the international community to provide support for their demands. The military was not ready to hand over the power to the new government, citing the lack of a new constitution. As a result, the military came under the heavy criticism from the Western states, international NGOs, and human rights advocates since then (Bünte, 2011). The Tatmadaw’s reputation was downgraded due to the 1988 heavy handed manner of the intervention in 1988 and the refusal of 1990 election results. However, the Tatmadaw addressed a wide range of activities in order to consolidate and expand its political position within the existing political structure and to prepare a managed political transition in Myanmar, thus leaving a long-term legacy for the future of civil-military relations and the role of the Tatmadaw in Myanmar politics. Indeed, the Tatmadaw started to view its role as a revolutionary force against the colonists and the insurgencies, leading a political transition in Myanmar. The SLORC made a decision for guiding a new draft constitution in order to secure the active participation of the Tatmadaw in the future national politics. In 1992, General Than Shwe replaced General Saw Maung’s position and he addressed a series of measures aiming at political transition in Myanmar. In October 1992, the National Convention Commission was established with 10 military officers and 8 civilians (Myoe, n.d.). In 1993, the SLORC government called a National Convention (NC) by inviting political parties in order to issue a draft constitution. But the NC came to halt in 1996 when NLD withdrew from the convention due to a lack of debate and undemocratic principles. As a de facto government, the military junta ruled the country by suppressing all ways of dissents and controlling the society. The NLD leader, Daw Aung San Suu Kyi and other leading figures of her party were put under house arrests. There were many political prisoners for the two decades. 4


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Following 1990, the military launched a wide range of state-building programs which focused on modernizing the weak infrastructure (constructions of roads, bridges, dams, hospitals, etc.) and negotiating a number of ceasefire agreements with ethnic insurgent groups. The Tatmadaw was able to reach peace agreements with some ethnic groups and reduced the internal armed threats. In 1997, the SLORC was rebranded as the State Peace and Development Council (SPDC) in order to change from restoring order to fostering peace and development (Bünte, 2011). In so doing, modernization and expansion of the army have become the heart of the state-building program. The size of the Tatmadaw increased from around 200,000 personnel in 1988 to 400,000 by 1999. This growth in manpower was accompanied by an army modernization (Nakanishi, 2013). The Tatmadaw has subsequently increased its territorial representation of the country. It also enhanced its surveillance capabilities. The Tatmadaw expended a huge amount of on defense throughout the 1990s. The military government purchased 150 new combat aircraft, 30 new vessels, 170 tanks, 2500 armored personnel carriers, as well as rocket launching infantry weapons and other hardware at an estimated cost of over US $ 1 billion (Callahan, 2001). The military had sought to inspire nationalism in order to achieve “a rally-around-the-flag effect” by pointing out its historical role as the nation and state builder (Bünte, 2011). In terms of economic performance under the leadership of SLORC/SPDC, the Tatmadaw formally opened a market oriented economy after 1990. However, the economy of the country has remained completely unchanged as the state-led economy over the last two decades. In addition, after 1988 the Tatmadaw further expanded its business activities and economic bases. It created the most important conglomerates in the country, the Union of Myanmar Economic Holdings Limited (UMEH) and the Myanmar Economic Cooperation (MEC), which were given licenses in different businesses such as

15

construction, hotels, tourism, transport, gem and jade extraction and agriculture. As a result, the Tatmadaw became the most important business actor in the country (Selth, 2002). At the same time, the Tatmadaw sought to build up the bases for its political influence. Firstly, the Tatmadaw established the Union Solidarity and Development Association (USDA) as the most important organization for gathering public support and keeping a grip on the society. Although the USDA is registered as a non-governmental organization, “with a set of proclaiming objectives of non-disintegration of the Union; nondisintegration of national unity; perpetuation of sovereignty; promotion and vitalization of normal pride; and the emergence of a prosperous, peaceful and modern union, it appeared to be the Tatmadaw’s strategy to institutionalize its dominance in Myanmar polity and society” (Myoe, n.d.). But, the principles of USDA did not allow its members to be a member of a political party at the same time. Most members were government servants and students, so as to limit the transformation of the organization into a political party because the existing laws did not allow the government servants to be a member of a political party (Myoe, n.d.). Nonetheless, the Tatmadaw later transformed USDA into USDP (Union Solidarity and Development Party) as a military backed and strongest party in Myanmar. The Tatmadaw initiated to implement a managed political transition to some types of a disciplined or guided democracy. In 2003, the Depayin incident cracked down by the government and the Union Solidarity and development Association (USDA) killed a few dozen of Aung San Suu Kyi’s supporters. Daw Aung San Suu Kyi and the rest of several others were also arrested. This Depayin incident outbreak made Myanmar’s domestic political situation worse. As a result, the United States and Western countries imposed tighter sanctions on Myanmar (Storey, 2011). ASEAN sought to pressure the Myanmar government to solve the political deadlock and make political reforms by undertaking an unusual diplomatic initiative. The US government and Western countries imposed tighter sanctions against Myanmar. This incident

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was greatly condemned by the international community and led to the hearing of the Myanmar case at the United Nation Security Council (UNSCR). On 30 August 2003, in order to head off international criticism, Myanmar newly appointed Prime Minister and Myanmar Intelligence, General Khin Nyunt, declared “the seven-step road map” to democracy and the reconvention of the National Convention that was halted in 1996. This seven-step road map is as follows; 1. “Reconvening of the National Convention that has been adjourned since 1996. 2. After the successful holding of the National Convention, step by step implementation of the process necessary for the emergence of a genuine and disciplined democratic system. 3. Drafting of a new constitution in accordance with the basic principles and detailed basic principles laid down by the National Convention. 4. Adoption of the constitution through national referendum. 5. Holding of free and fair elections for Pyithu Hluttaws (Legislative bodies) according to the new constitution. 6. Convening of Hluttaws attended by Hluttaw members in accordance with the new constitution 7. Building a modern, developed and democratic nation by the state leaders elected by the Hluttaw; and the government and other central organs formed by the Hluttaw” (The New Light of Myanmar, 2003). When the National Convention was restarted, the two main opposition parties, NLD and the United Nationalities Alliance (UNA- the coalition of ethnic nationality party) did not join in the NC (South, 2004). In 2007, the Saffron Revolution grew out of protest against the unannounced decision of the SPDC government to increase the prices of diesel

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and petrol. However, this movement was cruelly suppressed by the junta. Having cracked down demonstrations by Buddhist monks, the junta accomplished the first step of the roadmap to finalize the principles for new constitution in 2007. In the aftermath of Cyclone Nargis in 2008, the military government held the popular referendum for a new 194-page constitution. According to SPDC No. 12/2008 and the state owned Newspapers, the new constitution was supported by 92.48% of the whole country (The New Light of Myanmar, 2008). One of the basic principles of the constitution is that the military should “be able to participate in the national political leadership” (Pedersen, 2011; Dukalskis, 2009). According to Article 20 (b) of the Constitution (see Appendix I), the military holds absolute authority over the ministries of defense, interior and border affairs as it appoints all three ministers. In the same way, the military reserves 25 percent of parliamentary seats under Article 109 (b) and 141 (b). It is meant that the Tatmadaw is empowered with a veto over any attempt to amend the Constitution because 75% votes in the national parliament are needed for revision. The needs of Article 60 indicate that the military’s parliamentary presence virtually assures that the president or one of the vice-presidents is from the military. Furthermore, the Tatmadaw has in effect governed the new National Defense and Security Council (NDSC), formed as the most important and powerful executive body. According to Chapter XI of the Constitution, the NDSC is capable of imposing martial law, disbanding Parliament and ruling directly if a state of emergency is declared. Moreover, the president can provide the Commander in Chief of the Tatmadaw complete power over state resources. Actually, the Tatmadaw has established the system that embeds its independence, maintains its influence over the Cabinet and Parliament, and forms the legal channels for a reversal to direct military rule if desired. Hence, the Tatmadaw has become the veto player in the new polity apart from a political hegemony (MacDonald, 2013). In short, under Janowitz’s typologies of civilmilitary relations, the military of Myanmar falls into the fifth type, military oligarchy. But the

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effort of this military regime in Myanmar did not succeed in economic development. The post-1988 military regime falls into the second type of the military regime, the marketbureaucratic regime. Additionally, the post-1988 military of Myanmar has more favored the new professionalism than the RC and BSPP military regime. In this way, the Tatmadaw has retained the control over the presidency and the security matters, thus attaining its privileged position. The role of the Tatmadaw has legally been consolidated in Myanmar under the new political system with tightened by the Constitution. To shape the civil–military relations, the role of the Tatmadaw will be very critical in the future politics of Myanmar given the privileges guaranteed by the constitution. The Tatmadaw is going to play the dominant role in the future politics of Myanmar, while seeking democratic legitimacy. In fact, the SPDC has skillfully manipulated the planned transition in order to secure the role of the military in Myanmar politics. The Military Withdrawal from Myanmar’s Current Politics With the holding of general elections in 2010, Myanmar opened the new page of domestic politics. It was not surprising that the military backed Union Solidarity and Development Party (USDP) evolved from USDA won a landslide victory in the 2010 elections. The biggest opposition party NLD did not contest in the elections by boycotting the new constitution. The new government structure was led by the newly elected president, U Thein Sein, who was a former general and prime minister under the military government. It seems that the Tatmadaw may not introduce the true democracy. Myanmar’s political system is still loaded with the flaws and undemocratic practices. However, since the formation of the new leadership, a series of political, legislative and economic reforms have been carried out (Taylor, 2012). At the same time, there is a growing distribution of power within the system after the 2012 by-election. Additionally, new political actors are now participating in the system and the political multi-polarity is emerging. The so-called pro-

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democracy party or the National Democratic Front (NDF) and National Unity Party (NUPthe reincarnation of the former Burma Socialist Program Party) won some seats in the Parliament. The sixteen ethnic based parties also won 14.4 percent of the seats in the parliament (Than, 2011). Consequently, the Tatmadaw can no longer exist as the exclusive repository of power in Myanmar. There is a close connection between the USDP government and the military. Meanwhile, the military has withdrawn from the controlling every aspect of the political process. According to new Commander-in-Chief General Min Aung Hlaing speech at the military parade of 68th Anniversary Armed Forces Day, “Tatmadaw always safeguards the country while protecting the country from the outbreak of racial and political conflicts. It is Tatmadaw’s national politics” (The New Light of Myanmar, 2013). It means that the Tatmadaw’s national politics is only to protect the stability and security of the country but not interference in the civilian political system. Yet, the new constitution has protected the Tatmadaw as a separate and autonomous entity from the government. Besides, the Tatmadaw has attained the exemption from civilian oversight. However, the withdrawal of the Tatmadaw from the everyday administrative structure is a crucial aspect of the current reform period. Moreover, this has paved the way for multiple parties to enter the new political sphere of Myanmar with the biggest opposition party contested in the 2012 by-election winning the 43 out of 45 seats. The military backed USDP won only one seat in this election. In contrast, the retreat of the military from the political power of Myanmar does not constitute a full withdrawal from politics. There are still rooms for the Tatmadaw’s economic corporations as the most important business players in the country despite being diminished due to privatization (Bünte, 2011). In this context, there are three favorable circumstances that will contribute to the military’s retreat itself from the politics. The first one is the full-fledged economic development due to the Western sanctions. The Tatmadaw can no longer survive without the economic development. In order to achieve

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economic growth, the military has to transform the political system so that Myanmar will access the lift of the United States and Western sanctions and good relations with the United States and the West. The second one is the need for not only domestic public support and trust but also international recognition and support. The Tatmadaw’s prestige has been undermined by the lack of public admiration after 1988 uprising movement. At the same time, the country became a black sheep in the circle of regional and international community. The third one is the demand for mitigating over-reliance on China. The military government heavily relied on China for the sake of its regime survival and China’s back up from international criticism. The military regime is cautious about the long term risk of overreliance on China. Owing to political retreat, the Tatmadaw can take its legitimacy by the constitutional guaranteed position as well as expand further economic opportunities. Additionally, the Tatmadaw has many alternatives to mitigate Chinese influence through the diversified relations with the US, the EU, Japan and other powers.

Conclusion Since 1962, the Tatmadaw had been involved in Myanmar politics aiming at protection of national security and restoration of peace and stability of the country by conducting counter-insurgency operations. Under Finer and Welch’s typologies, the influence of the military in Myanmar has a higher degree than in other South East Asian countries such as Vietnam and Thailand. Under Lovell’s categories, the political intervention of the Myanmar military is relatively extensive in terms of the scope of its influence. According to interviewing with Maung Aung Myoe, the development agenda and security concerns have always coexisted in the Tatmadaw’s political involvement that initiated to embrace “new professionalism.”5

5

Interviewing with Maung Aung Myoe (Professor, International University of Japan) via Face book, December 2, 2013.

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Before 1988, the Tatmadaw as the People’s Armed Forces played an influential role in Myanmar politics with public support and admiration. At that time, the Tatmadaw was free from the corporate interests, class interests and personal interests as well as corruption. However, the involvement of the Tatmadaw in politics brought the country into the ranks of the least developed countries and the bad legacy of isolationism under the “Burmese Way to Socialism.” With regard to Perlmutter’s classification of the military performance, the military of Myanmar (Revolutionary Council and Burmese Socialist Program Party government) (1962-1988) can be regarded as the socialist and the oligarchic regime which greatly emphasizes the role expansion and transformation by adding the socialist ideologies (Perlmutter, 1980). Yet, as a socialist and oligarchic regime, the RC and the BSPP regime did not make efforts to expand the role of the military in the modernization process compared to SLORC/SPDC regime. Since 1988, the Tatmadaw attentively favored the new professionalism, thus taking its role in political activities and socioeconomic development. Within Perlmutter’s typologies, as a market-bureaucratic military regime, the SLORC/SPDC regime opened a market economy and promoted the country’s economic growth and poverty reduction. However, the regime's efforts for economic modernization had not reached full-fledged development due to tight economic sanctions by the Western countries. At the same time, the military has achieved domestic stability and security, economic dominance and political control. Finally, the Tatmadaw had well planned a managed political transition by implementing a new constitution, retaining its role in the future politics and corporate interests. Under the current reform period, the Tatmadaw has constitutionally retained its mandate power despite the current lack of its direct political involvement. In fact, both Western and Non-Western models of professionalism fail to explain the ongoing domestic transitions. Concurrently, it does not appear that Rebecca Schiff’s concordance theory can contribute to fully explaining the current retreat of the

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Tatmadaw from Myanmar’s politics. As a result, whether the involvement of the Tatmadaw will ascend in the future politics of Myanmar depends on the degree of challenges by the new political actors against the entrenched oligarchic interests.

7. References Bünte, M. (2011). “Burma's Transition to Disciplined Democracy: Abdication or Institutionalization of Military Rule?” GIGA Working Paper Series, 177. Callahan, M. (2001). “Burma: Soldiers as State Builders.” Coercion and Governance: The Declining Political Role of the Military. Stanford. Stanford University Press, 413–433. Callahan, M. (2003), Making Enemies: War and State Building in Burma, Cornell. Cornell University Press. Dukalskis, A. (2009). “Stateless problems or regime unification? Explaining obstacles to democratization in Burma/Myanmar.” Democratization, 16(5), 945-968 Finer, S. E. (1962). The Man on Horseback: The Role of the Military in Politics. London. Pall Mall Press. Haacke, J. (2010). “China’s Role in the Pursuit of Security by Myanmar’s State and Development Council: Boon and Bane?” The Pacific Review, 23 (1), 113-137. Hlaing, K. Y., Taylor, R.H., & Than, T. M.M. (Eds). (2005). Myanmar: beyond politics to societal imperatives. Institute of SEA Studies. Huang, R. L. (2013). “Re-thinking Myanmar's political regime: military rule in Myanmar and implications for current reforms.” Contemporary Politics, 1-15.

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Huntington, S. (1996). “Reforming Civil-Military Relations.” Civil-Military Relations and Democracy. Johns Hopkins University Press. International Crisis Group (2002). Myanmar: The Future of the Armed Forces. Retrieved 12. June.

2013

from

www.crisisgroup.org/.../burma-myanmar/Myanmar%20The%

20Future% Janowitz, M. (1964). The Military and Political Development of New Nations. Chicago. The University of Chicago Press. Johnson, J.J. (1964). The Military and Society in Latin America. Stanford University Press. Lovell, J. P. (1970). The Military and Politics in Five Developing Nations. Kensington. Center for Research in Social System. MacDonald, A. P. (2013). “The Tatmadaw’s new position in Myanmar’s politics.” East Asia Forum. Retrieved 15 June 2013 from http://www.eastasiaforum.org/2013/05/01/the tatmadaws-new-position-in- myanmar-politics/ Myoe, M. A. (n.d.). The Future of the Tatmadaw’s Political Role. Unpublished Manuscript. (By personal permission) Nakanishi, Y. (2013). “Post 1988 Civil-Military Relations in Myanmar”. IDE Discussion Papers, 397, 1-24. Chiba. IDE-JETRO. Pedersen, M. B. (2011). “The Politics of Burma’s Democratic Transition: Prospect for Change and Options for Democrats”. Critical Asian Studies, 43 (1), 49-68. Perlmutter, A. (1980). “The Comparative Analysis of Military Regimes: Formation, Aspiration and Achievements.” World Politics, 33(1), 96-120.

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Schiff, R. L. (1995). Civil-Military Relations Reconsidered: A Theory of Concordance. Armed Forces and Society, 22(1), 7-24. Selth, A. (2002). Burma’s Armed Forces: Power without Glory. New York. East Bridge. South, A. (2004). “Political transition in Myanmar: A New Model for Democratization”. Contemporary Southeast Asia, 26 (2), 233-255. Steinberg, D. (2001). The State of Myanmar. Washington. Georgetown University Press. Storey, I. (2011). Southeast Asia and the rise of China, the Search for security. London. Routledge. Taylor, R. (2010), The State in Myanmar. Honolulu. Hawaii University Press. Taylor, R. H. (2012). “Myanmar: from Army Rule to Constitutional Rule?” Asian Affairs, 43(2), 221. Than, M. M. T. (1997). “Myanmar Democratization: Punctuated Equilibrium or Retrograde Motion”. Democratization in Southeast and East. Singapore. Institute of Southeast Asian Studies. Than, M. M. T. (2010). “Tatmadaw and Myanmar’s Security Challenges”. Asia Pacific Counties’ Security Outlook and Its Implications for the Defence Sector. NIDS Joint Research Series, 5. Japan. Tokyo. Than, T. M. M. (2011). “Myanmar’s 2010 Election: Continuity and Changes.” Southeast Asian Affairs, 2011(1), 190-207. The New Light of Myanmar, 27 May 2008. Yangon. Ministry of Information. The New Light of Myanmar, 31 August 2003. Yangon. Ministry of Information.

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The New Light of Myanmar. 28 March. 2013. Yangon. Ministry of Information. Tin, H. Sagaing. (1985). Rare Speeches of Boyoke Aung San. Yangon. Parabeik Arts. Von der Mehden, F. R. (1963). “The Burmese Way to Socialism”. Asian Survey, 3(3), 129135. Welch, C. E., & Smith, A. K. (1974). Military role and rule: Perspectives on civil-military relations. North Scituate, Mass: Duxbury Press. Welch, C.E. (1993). “Changing Civil-Military Relations”. Global Transformation and the Third World. Colorado. Lynne Rienner Publishers.

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Appendix I Article (20) of 2008 Constitution (a) The Defence Services is the sole patriotic defence force which is strong, competent and modern. (b) The Defence Services has the right to independently administer and adjudicate all affairs of the armed forces. (c) The Commander-in-Chief of the Defence Services is the Supreme Commander of all armed forces. (d) The Defence Services has the right to administer for participation of the entire people in Union security and defence. (e) The Defence Services is mainly responsible for safeguarding the no disintegration of the Union, the non-disintegration of National solidarity and the perpetuation of sovereignty. (f) The Defence Services is mainly responsible for safeguarding the Constitution. Article (109) The Pyithu Hluttaw shall be formed with a maximum of 440 Hluttaw representatives as follows : (a) not more than 330 Pyithu Hluttaw representatives elected prescribing electorate in accord with law on the basis of township as well as population or combining with an appropriate township which is contagious to the newly-formed township if it is more than 330 townships; (b) not more than 110 Pyithu Hluttaw representatives who are the Defence Services personnel nominated by the Commander-in-Chief of the Defence Services in accord with the law. Article (141) 141. The Amyotha Hluttaw shall be formed with a maximum of 224 Hluttaw representatives as follows:

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(a) 168 Amyotha Hluttaw representatives elected in an equal number of 12 representatives from each Region or State inclusive of relevant Union territories and including one representative from each Self-Administered Division or Self-Administered Zone; (b) 56 Amyotha Hluttaw representatives who are the Defence Services personnel nominated by the Commander-in-Chief of the Defence Services in accord with the law, four representatives from each Region or State inclusive of relevant Union territories; (c) in forming the Amyotha Hluttaw as mentioned in Sub-Sections (a) and (b), the relevant Union Territory means the Union Territories, prescribed under the Constitution, or prescribed by law of the Pyidaungsu Hluttaw, which are inclusive in State or Division, Region or State for the purpose of electing the Amyotha Hluttaw representative. Article (60) (a) The President shall be elected by the Presidential Electoral College. (b) The Presidential Electoral College shall be formed with three groups of the Pyidaungsu Hluttaw representatives as follows: (i) group formed with elected Hluttaw representatives in the Hluttaw with an equal number of representatives elected from Regions and States; (ii) group formed with elected Hluttaw representatives in the Hluttaw elected on the basis of township and population; (iii) group formed with the Defence Services personnel Hluttaw representatives nominated by the Commander-in-Chief of the Defence Services for the said two Hluttaws. (c) Each group shall elect a Vice-President from among the Hluttaw representatives or from among persons who are not Hluttaw representatives. (d) The Pyidaungsu Hluttaw and a Body comprising the Heads and Deputy Heads of the two Hluttaws in the Pyidaungsu Hluttaw shall scrutinize whether or not the Vice-Presidents possess the qualifications prescribed for the President.

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(e) The Presidential Electoral College comprising all the Pyidaungsu Hluttaw representatives shall elect by vote one of the three Vice-Presidents who are Presidential candidates, as the President. (f) Necessary law shall be enacted for the election of President and Vice-Presidents.

THE POWER OF THE MYANMAR MILITARY UNDER THE 2008 CONSTITUTION The Tatmadaw (Myanmar Armed Forces) retain significant control of the government under the 2008 constitution. 25% of seats in the Parliament of Myanmar are reserved for serving military officers. The ministries of home, border affairs and defense have to be headed by a serving military officer.The military also appoints one of the country's two vice presidents.Hence, the country's civilian leaders have little influence over the security establishment. At present, Myanmar’s constitution guarantees a role for the military in politics. It does so through formal nominations and declarations. It legally separates public order forces (the police and border guards) from its military. However, the forces that are intended to oversee public order are informally connected with the Tatmadaw, reflected in the fact that the minister in charge of these forces is a serving member of the military. The lessons learned from other military transitions suggest that finding a way to disengage forces protecting public order – providing civilian oversight, establishing distinct identities – improve public confidence in government and provide greater stability during transition. 8 This may be an important first step towards creating a closer and more meaningful engagement between civilian and military leaders

Myanmar’s constitution preserves significant influence and control for the Tatmadaw in politics and government. To say that is not to criticize the Tatmadaw or the constitution but merely to note the characteristics of the current constitution. If – as public statements of actors on all sides of Myanmar’s transition suggest – a system of democratic governance is desired, gradual changes directed towards a more engaged relation between civilian structures and the military will need to emerge. Existing practice suggests that two areas that will require attention are the system of military justice and the separation of the military from politics and its reintegration as an integral part of the body politic. According to Myanmar’s constitution, army officers are to be commissioned to all new national and local lawmaking bodies. Today, military appointees represent a quarter of each chamber of the bicameral national parliament: 110 seats in the Lower House (Pyithu Hluttaw), and 56 seats in the Upper House (Amyotha Hluttaw). In the fourteen local assemblies the number of army delegates is equal to one-third of the number of elected representatives. All military appointees are nominated by the Commander-inChief of the army and can be removed at will, without any oversight from the civilian government. To many observers, the sole reason that military officers have a seat in parliament is to ensure that the Tatmadaw has a non-negotiable “veto” on any potential constitutional amendment. Safeguarding the new constitution is one of the major tasks assigned to the army as enshrined in Article 20f, and military delegates are there to ensure that all reform proposals put forward by civilians are formulated according to the basic principles already specified in the text. A vote by 75 percent of all legislators is required to pass any constitutional amendment, and with its 25 per cent seat reservation, the Tatmadaw can effectively reject any proposed legislation.

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2008 Constitution of Myanmar The Constitution of the Republic of the Union of Myanmar (2008) is the third Constitution of Myanmar after 1947 and 1974 constitutions which were aborted by military coups. It is part of the seven steps road map announced by then Prime Minister of State Peace and Development Council

2008 Constitution of Myanmar

government General Khin Nyunt on 30 August 2003. One of the seven steps include recalling of National Convention for the drafting of new constitution which was adjourned on 31 March 1996 by State Law and Order Restoration Council government.[1] The convention began on 17 May 2004 attended by 1076 of invited delegates and representatives from 25 ethnic ceasefire groups. After several sessions since 1993 the convention was concluded with the adoption of fundamental principles for constitution drafting commission with member of 54 which was later formed by SPDC. On 19 February 2008, The SPDC announced that the commission had finalised the drafted constitution and planned to approve through referendum in May 2008.[2] On 10 May 2008 (24 May 2008 in some townships) the Constitutional referendum was held in Myanmar and SPDC announced 93.82% of the voters favored it however there has been wide spread criticism of the process as the Cyclone Nargis hit Myanmar a few days before the referendum and free and fairness of the overall process.[3] The Tatmadaw (Myanmar Armed Forces) retain significant control of the government under the 2008 constitution. 25% of seats in the Parliament of Myanmar are reserved for serving military officers. The ministries of home, border affairs and defense have to be headed by a serving military officer.[4][5] The military also appoints one of the country's two vice presidents.[6] Hence, the country's civilian leaders have little influence over the security establishment.[7][8]

Page one of the original copy of the Constitution

Created 9 April 2008 Ratified 29 May 2008 Purpose To replace the

1974 Constitution of Burma

See also Constitution of Myanmar – contains significant information about the 2008 Constitution Myanmar constitutional referendum, 2015 – proposed amendments that did not proceed

References 1. "The National Convention" (http://www2.irrawaddy.com/research_show.php?art_id=3564). 2. "Chronology of Burma's constitutional Process" (https://www.hrw.org/sites/default/files/reports/burma0508chronolo gy.pdf) (PDF). https://en.wikipedia.org/wiki/2008_Constitution_of_Myanmar

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3. "A Preliminary Report on the referendum of May 10,2008" (http://anfrel.org/wp-content/uploads/2012/02/Prelimina ry-Report-on-the-Referendum-of-May-10-2008.pdf) (PDF). 4. http://www.bbc.com/news/av/world-asia-35457290/why-does-military-still-keep-25-of-the-seats-myanmarparliament 5. http://edition.cnn.com/2015/11/12/opinions/myanmar-aung-san-suu-kyi-military/index.html 6. https://www.mmtimes.com/national-news/19670-managing-the-defence-and-security-council.html 7. http://www.bbc.com/news/av/world-asia-35457290/why-does-military-still-keep-25-of-the-seats-myanmarparliament 8. http://edition.cnn.com/2015/11/12/opinions/myanmar-aung-san-suu-kyi-military/index.html Retrieved from "https://en.wikipedia.org/w/index.php?title=2008_Constitution_of_Myanmar&oldid=809291229"

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History & Current Events

1990-2010: Military Rule

Independence & General Aung San

In the years following the 1990 election, Burma’s

(/independence--general-aung-

leading generals focused on four objectives.

san.html) 1962 Coup & Ne Win Regime (/1962-

First, they sought to expand the size of the armed

coup--ne-win-regime.html)

forces, in order to be in a stronger position against

1988 Uprising & 1990 Election (/1988-

their opponents. The number of soldiers was

uprising--1990-elections.html)

increased from 180,000 in 1988 to about 300,000

1990 - 2010: Military Rule Continues

by the late 1990s. If mass protests were to break

(/1990-2010-military-rule-

out again, there would be enough troops to take

continues.html) Sa ron Revolution - 2007 (/sa ronrevolution.html) Cyclone Nargis - 2008 (/cyclonenargis.html) 2010 Elections (/2010-elections.html) E ect of the 2010 Elections (/e ectsof-the-2010-elections.html)

action.

(/uploads/9/1/8/4/9184764/4319713_orig.jpg) Burmese soldiers participating in a military parade in 2008 (Photo source: www.irrawaddy.org; Getty Images)

Foreign Investment (/foreign-

Second, the regime worked to break up the organizational structure of the pro-democracy movement,

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particularly the NLD. By keeping Aung San Suu Kyi under house arrest and the top party strategists in prison, they ensured that the party leadership was in disarray.

The Opposition Third, the regime tried to neutralize the ethnic armed resistance movements by making cease re Daw Aung San Suu Kyi (/assk.html)

agreements with many of the armed groups, such as the Wa and Kachin, on its borders. The Karen,

National League for Democracy

however, would not negotiate, and while the Burmese military - the Tatmadaw - nally captured the main

(/nld.html)

Karen base in the spring of 1995, there still has been no nal peace settlement. In 1996 Khun Sa, an armed opposition leader and opium warlord who nominally controlled parts of Shan State, made a deal with the

Important Issues

SLORC, who allowed him to make property and transportation investments near the Thai border. By 2000, only pockets of resistance remained.


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1990-2010 Military Rule Continues Ethnic Nationalities of Burma (/ethnic-

Fourth, the SLORC tried to improve the economy

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by opening up the country to trade and foreign

Refugees, IDPs & Ongoing Armed Con ict (/refugees--con ict.html) Political Prisoners (/politicalprisoners.html) Education in Burma (/education-inburma.html) Human Rights Issues (/human-

investment. However, the regime had no expertise in economic planning, and the generals were unwilling to delegate responsibility to trained economists. After an initial growth spurt in the early 1990s, Burma su ered from declining investment, a severed depletion of foreign reserves and rampant in ation.

(/uploads/9/1/8/4/9184764/5015875_o

rights.html)

Than Shwe (Photo source: www.irrawaddy.org; Getty Images)

The Than Shwe Years In 1992 the regime replaced General Saw Maung with Senior General Than Shwe, who would stay in power until the 2010 election, while General Ne Win still possibly exerted in uence behind the scenes. Than Shwe relaxed some of the restrictions on Aung San Suu Kyi's house arrest, nally releasing her in July 1995, although she was forbidden to leave Rangoon. Than Shwe also nally allowed a National Convention to meet in January 1993, to draft a new constitution, but insisted that the assembly preserve a major role for the military in any future government, and suspended the convention from time to time. The NLD, fed up with the interference, walked out in late 1995, and the Convention was nally dismissed in March 1996 without producing a constitution. After the failure of the National Convention to create a new constitution, tensions between the government and the NLD increased, resulting in two major crackdowns on the NLD in 1996 and 1997. The SLORC faced challenges as it struggled with a weakening economy and pressure form domestic political groups, foreign organizations and governments and in November 1997 renamed itself the State Peace and Development Council (SPDC). Lieutenant General Khin Nyunt, and General Maung Aye, who both had leading roles in policy making, used the occasion to strengthen their own positions by promoting younger, more loyal men to second-line leadership positions. Than Shwe also tried to woo the masses and secure his own base of support through the establishment of the Union solidarity and Development Association (USDA). Supposedly a social organization, the USDA was often used to defend the interests of the regime. The authorities also gave military training to some USDA youth and used them to intimidate and attack Aung San Suu Kyi and her supporters. Continuing reports of human rights violations in Burma led the US to intensify sanctions in 1997, and the EU followed suit in 2000. In September 2000 the SPDC again placed Aung San Suu Kyi under house arrest, after she and members of the NLD tried to travel from Rangoon to Mandalay. When she was released in May 2002, reconciliation talks were held but ended when Aung San Suu Kyi was once again put under house arrest in May 2003 after an ambush on her motorcade by a pro-military mob not far from Depayin town, an event known as the ‘Depayin massacre’. The junta also carried out another large-scale crackdown on the NLD, arresting many of its leaders and closing down most of its o ces. In an e ort to de ect attention from the Depayin Massacre, Kyin Nyunt announced a seven-step “Roadmap to Democracy (http://www.ibiblio.org/obl/docs/how10.htm)” in August 2003. No time-frame was provided, giving the regime the opportunity to speed up or draw out any steps of the process as they wished. In May 2004, the regime reconvened the National Convention for the rst time since March 1996 in an attempt to rewrite the Constitution. The NLD was invited but, since the regime refused to release Aung San Suu Kyi from house arrest, boycotted, as did many ethnic parties when it was clear that the regime would not remove the principle that the military must play the leading role in politics. The Convention was adjourned again in January 2006 without having written a constitution.


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The 2008 Constitution In mid-August 2007, the regime unexpectedly announced a large increase in fuel prices.

(/uploads/9/1/8/4/9184764/myanmar_constitution_2008_en.pdf)Transportation and food costs skyrocketed, with Myanmar Constitution 2008

devastating e ects on the poor. This led to large-

Download File scale anti-government protests, later known as the ‘Sa ron Revolution’ because they were led by (/uploads/9/1/8/4/9184764/myanmar_constitution_2008_en.pdf) Naypyidaw. The new capital cost an estimated $4-5 billion to (/uploads/9/1/8/4/9184764/david-build. Meanwhile, the regime spent less than half US$1 per williams-briefer-on-powerperson on healthcare. (Photo of-burmes-military-undersource: BBC) the-2008-constitution1.pdf) Analysis of the 2008 Constitution

thousands of Buddhist monks wearing sa ron colored robes, which were viciously crushed by the military.

In November 2005 the junta moved the capital from Rangoon to a formerly underdeveloped area in Central

Download File Burma. The o cial reason was because of concerns about a potential US invasion, but more likely the move (/uploads/9/1/8/4/9184764/davidwas to avoid a repetition of 1988, since demonstrations in Rangoon would no longer directly threaten the williams-briefer-on-power-of-regime’s security. The new capital was named Naypyidaw, which means ‘royal abode’, and cost $4-5 billion to build. Meanwhile, in 2004/05, the regime spent only 458 Burmese Kyat (less than half US$1) per person burmes-military-under-the-2008on healthcare. constitution1.pdf)

After the Sa ron Revolution the regime moved quickly ahead with the Roadmap to Democracy. It closed the National Convention and set up a committee to write the Constitution, which was nalized in February 2008. The regime then announced it would hold a referendum on the Constitution in May 2008, saying that ‘To approve the state Constitution is a national duty of the entire people today.’ Copies of the Constitution were, however, hard to nd, especially outside Rangoon, and the regime made almost no e ort to educate people about its contents. Anyone campaigning for people to vote 'No' could be sentenced to three years’ imprisonment, and the domestic media were not allowed to cover the 'Vote No' campaign. The Constitution allows a degree of civilian participation in politics, as there will be an elected national parliament and state/regional legislatures. However, 25% of the seats in each legislative body are reserved for the military and the president must have a military background. The Tatmadaw has the right to manage military a airs without any civilian interference and the military can take power if they believe that national security is threatened. Moreover, Chapter VII, Article 4 states: “The Tatmadaw must play a leading role in safeguarding the Union of Myanmar against all internal and external dangers.” Also, citizens who are married to foreigners may not be President, and persons who have served a prison sentence or have been convicted in court may not be elected to Parliament. This is clearly to prevent Aung San Suu Kyi and other political prisoners from taking part in politics. *Update: The 2010 Political Parties Registration Law, which prevented any group with members who had been imprisoned from operating as a political party, was revised by Thein Sein in November 2011 in order to allow the National League for Democracy (NLD) - Aung San Suu Kyi's party - and other parties to participate in politics. In December 2011 the NLD o cially registered as a political party and its candidates, including Daw Suu, won all 43 seats they contested in the April 1st 2012 by-elections. Despite a huge victory in the by-elections, a testament to the immense popularity still enjoyed by Aung San Suu Kyi and her party, the NLD controls only 43 out of 664 seats in Parliament, of which 25% are reserved for the military. Consequently the NLD's real in uence will probably be marginal, and it may be di cult for the party to really in uence the country's politics.

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ANALYSIS OF THE 2008 SPDC CONSTITUTION FOR BURMA David C. Williams, Executive Director, Center for Constitutional Democracy

THE POWER OF THE BURMESE MILITARY UNDER THE 2008 SPDC CONSTITUTION

Burma’s ruling junta, the SPDC, has decided to hold elections in 2010 to choose a civilian government under the 2008 constitution, which was adopted by force and fraud. Even if those elections are free and fair, however, they won’t bring about civilian rule because the constitution does not provide for it--a partially civilian government, yes, but civilian rule, no. On casual reading, the constitution seems to provide for a transition to civilian rule, but closer reading reveals a blueprint for continued military rule. The constitution allows the Tatmadaw to keep however much control it likes. International attention has focused most on the constitution’s mandate that the Tatmadaw will appoint 25% of the various legislative bodies. But there’s a much bigger problem: under the constitution, the Tatmadaw is not subject to civilian government, and it writes its own portfolio. It can do whatever it wants. The Constitution guarantees the power of the Tatmadaw in its section on “Basic Principles”—a clear sign that the framers thought the role of the Defence Services to be fundamental. Article 20(b) provides that the military will run its own show without being answerable to anyone: “The Defence Services has [sic] the right to independently administer and adjudicate all affairs of the armed forces.” The constitution defines the “affairs of the armed forces” so broadly as to encompass anything that the Tatmadaw might want to do. Article 6(f) provides that among the “Union’s consistent objectives” is “enabling the Defence Services to participate in the National political leadership role of the State.” Article 20(e) further assigns the Tatmadaw primary responsibility for “safeguarding the non-disintegration of the Union, the non-disintegration of National solidarity and the perpetuation of sovereignty.” This regime has frequently found a threat to “National solidarity” when people merely disagree with it; it is prepared to slaughter peacefully protesting monks. There is no reason to think that after 2010, the Tatmadaw will think differently. Because the Tatmadaw’s responsibilities are so broadly and vaguely defined, the question of who will have the power to interpret their scope is critical. The constitution answers that question clearly: the Tatmadaw will have the power to determine the powers of the Tatmadaw. Article 20(f) assigns the Tatmadaw primary responsibility “for safeguarding the Constitution.” But if the military is the principal protector of the constitution, then

Page 2 of 5 the military will presumably have the final authority to determine its meaning, so as to know what to protect. And indeed, Article 46 implicitly confirms this conclusion: it gives the Constitutional Tribunal power to declare legislative and executive actions unconstitutional, but it conspicuously omits the power to declare military actions unconstitutional. In other words, the Tatmadaw has the final authority to interpret the scope of its own constitutional responsibilities. Most first year law students have read a famous portion of Bishop Hoadly’s Sermon, preached before the King in 1717: “Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the lawgiver, to all intents and purposes, and not the person who first spoke or wrote them.”1 And under the Burmese constitution, the Tatmadaw will be “truly the lawgiver,” not the people elected in 2010. The Constitution further ensures that the Tatmadaw will have the power to control the citizenry on a day-to-day basis. Under Article 232(b)(ii), the Commander-in-Chief will appoint the Ministers for Defence, Home Affairs, and Border Affairs. The military’s control over home affairs is especially ominous because it gives the Defence Services broad power over the lives of ordinary citizens in their daily lives. The military’s control over Home Affairs (as well as Defence and Border Affairs) will constitute a military fiefdom, not part of the civilian government in any meaningful sense. The Commander-in-Chief will have power to name the ministers without interference from any civilian official. The President may not reject the Commander-inChief’s names; he must submit the list to the legislature. See Article 232(c). The legislature may reject those names only if they do not meet the formal qualifications for being a minister, such as age and residence. See Article 232(d). Theoretically, the legislature could impeach those ministers under Article 233, but the Commander-in-Chief would merely re-appoint a new minister acceptable to him. In addition, these ministers will continue to serve in the military, so they will be under orders from the Commander-in-Chief, not from the President. See Article 232(j)(ii). In other words, the Commander-in-Chief will be administering home affairs, immune from interference by the civilian government. Theoretically—again—the legislature might try to pass statutes controlling the Tatmadaw, but recall—again—that under Article 20(b), the Tatmadaw has the “right to independently administer and adjudicate all affairs of the armed forces.” The independent power of the Tatmadaw over ordinary citizens includes the power to impose military discipline on the entire population. Article 20 provides: “The Defence Services has the right to administer for participation of the entire people in Union security and defence.” In other words, the military may forcibly enlist the whole citizenry into a militia so as to maintain internal “security.” And, again, the civilian government has no control over the military’s operations. After the elections, Burma will be a military dictatorship just as much as now.

1

See Choper, Fallon, Kamisar, and Shiffrin, Constitutional Law: Cases—Comments—Questions, page 1 (Ninth Edition 2001).

Page 3 of 5 In short, during normal times, the Tatmadaw has constitutional power to do anything it wants without interference from the civilian government. But if it ever tires of the civilian government, it can declare a state of emergency and send everyone else home. On this subject, the constitution uses a bait and switch approach: in one section, it creates a process for declaring a state of emergency in which the civilian government will have a role; but in another section, it specifies that the military may re-take power entirely on its own initiative. Thus, in Chapter XI, the constitution provides for the declaration of a state of emergency in which the military would assume all powers of government, see Article 419, but it would require presidential agreement before the fact, see Article 417, as well as legislative ratification afterwards, see Article 421. But in Chapter I on Basic Principles, Article 40(c) provides for a very different, alternative process in which the Commander-in-Chief can act at his own discretion: “If there arises a state of emergency that could cause disintegration of the Union, disintegration of national solidarity and loss of sovereign power or attempts therefore by wrongful forcible means such as insurgency or violence, the Commander-in-Chief of the Defence Services has the right to take over and exercise State sovereign power in accord with the provisions of this Constitution.” (emphasis supplied). To be sure, the Tatmadaw may seize power only if “national solidarity” is threatened, but as already shown, the military has unreviewable authority to decide whether such a threat exists. In other words, the Tatmadaw can seize control just as it did in 1962, and this time it will be legal. The whole constitution is based on a “wait and see” strategy: if the civilian government does what the Tatmadaw wants, then it will be allowed to rule; if not, then not. This constitution is not a good faith gesture toward democracy; it’s a cynical attempt to buy off international pressure.

THE TREATMENT OF BURMESE ETHNIC MINORITIES UNDER THE 2008 SPDC CONSTITUTION Burma’s troubles began in a constitutional crisis rooted in ethnic conflict. Before the British occupied the area now within the boundaries of Burma, it had never been a single, unified country. Upon independence, many ethnic minority people wanted independence from the Burmese government because they feared that the majority ethnic group, the Burmans, would try to dominate them as the Burman king had traditionally sought to do. Other ethnic minority people agreed to become part of the new country, but only because Aung San indicated that they could have substantial self-determination. In the event, the minorities received neither independence from Burma nor meaningful self-determination within Burma. The civil war began when the Karen took up arms to struggle for control of their homeland, and eventually every major ethnic group formed its own resistance army. The military took control of Burma because it claimed that only the army could save the country from chaos. The army is committing daily atrocities against the civilian population in the ethnic areas. In other words, the war began with

Page 4 of 5 ethnic conflict, and even once it becomes democratic, it will likely revert to war and military rule unless the constitution addresses the underlying reasons for the ethnic conflict. The new constitution does not address those underlying reasons, and overwhelmingly the ethnic minorities have rejected it. Their objections are many, but three are particularly important. First, they want federalism. Burma’s ethnic minorities are concentrated in seven states lying on the country’s borders. Devolution of power to these state governments will therefore entail devolution to the minorities. Federalism will get the minorities what they want, however, only if the minorities themselves are in control of the state governments and if those governments have power over those issues that are especially important to the minorities. The 2008 constitution provides for neither. The most powerful official in the state governments will be the Chief Minister, who will be entirely controlled by the President of the Union. The President has the power to name the Chief Minister. See Article 261(b). The state legislature has the power to reject the president’s nominee but only if the nominee lacks the constitutional qualifications to serve as Chief Minister, see 261(d), such as age and residency, see Articles 261(a) and 120.. In addition, “[t]he Chief Minister of the Region or State shall be responsible to the President,” Article 262(l)(i), so the President may presumably remove him at will. In short, the Chief Minister will not be answerable to the citizens of the state; he will instead be a local agent of the central government. In addition, the state governments will be very weak. The Constitution gives power over some matters to the Union government and over others to the states. The balance is utterly lop-sided in favor of central power. Schedule One of the Constitution lists the powers of the Union legislature; Schedule Two lists the powers of the state legislatures. It is not possible concisely to summarize these two lists because they are detailed. Some facts may, however, give a sense of the imbalance. In the official English version, the list of Union powers goes on for seven pages; the list of state powers for only three. The Constitution’s division of power over the gem industry provides a useful focused example of the imbalance. On the one hand, Schedule One gives the Union broad power over “[m]inerals, mines, safety of mine workers, and environmental conservation and restoration,” Schedule One, Article 6(c), as well as “[g]ems,” id. at Article 6(d). By contrast, Schedule Two gives the states power over “[c]utting and polishing of gemstones within the . . . State.” Schedule Two, Article 4(c). In addition, the Constitution gives the Union legislature residual legislative power: all powers not specifically enumerated in the Schedules belong to the Union. See Article 98. Finally, whenever legislation passed by a state legislature conflicts with legislation passed by the Union, the latter shall prevail. See Article 198(b). In other words, the central government has the power to void state law. Second, the minorities want a super-proportional share of power in at least one major decision-making body in the central government so that they can protect themselves. In

Page 5 of 5 particular, they desire that representation in the upper house of the legislature should be structured in the same way as the United States Senate: each state, regardless of population, would send the same number of representatives. Because the minorities tend to live in the less populated states, they would have super-proportional power. This sort of arrangement is not anomalous in Burma: the 1947 Constitution provided for a Chamber of Nationalities in which the ethnic minorities received super-proportional power. Indeed, even the SPDC’s 2008 Constitution provides that the seven states shall send equal numbers of representatives to the upper house. But the Constitution also provides that Burma’s seven Regions—which are dominated by Burmans—will also send the same number of representatives. See Article 141(a). In addition, the military government has resettled large numbers of Burmans to the “minority” states, so it is quite unlikely that the minorities will actually control the election of all the representatives from those states. Finally, the military will appoint twenty-five percent of all the members of the upper house, even those coming from minority states. As a result, it is extremely unlikely that the minorities will have enough power in the upper house to have meaningful influence over legislation. Third, the minorities want plausible guarantees that the military will not resume attacks on them. The 2008 Constitution promises the opposite. Article 20(b) provides that the civilian government shall have no power over the military within its domain: “The Defence Services has [sic] the right to independently administer and adjudicate all affairs of the armed forces.” The affairs of the armed forces include “safeguarding the nondisintegration of the Union, the non-disintegration of National solidarity and the perpetuation of sovereignty.” Article 20(e). This phrase has a history: the junta has long claimed that the ethnic minorities want to disintegrate the union and that only armed force can stop them. For that reason, the military has long cast itself as the only thing that can keep the country together. These provisions are therefore code: they mean that the army can do anything it wants to the minorities, just as it has been doing. The run-up to the elections has already brought increased violence. The SPDC has demanded that the ethnic resistance armies, even those with ceasefire agreements, must become border guard units in the Tatmadaw, commanded by Burmese army officers. Overwhelmingly, the ceasefire groups have rejected those demands, and the SPDC has attacked some of the smaller groups, resulting in yet another refugee crisis on Burma’s borders. The conflict will escalate exponentially if the regime attacks the larger groups such as the United Wa State Army and the Kachin Independence Army.

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How Does Myanmar’s Constitution Affect Investors? The Constitution and the Military

While the 2008 Constitution is certainly a step in the right direction on many fronts, one of its main issues is that it enshrines military rule by stipulating that 25% of the seats in both assemblies be occupied by personnel from the military. So how does the fact that the military is strongly represented in the legislature affect the business interests of foreign investors? The first thing that we have to acknowledge is that every country needs a military to protect its national interests (unless it’s Costa Rica!) and Myanmar will always have some semblance of a military presence. In fact, strong militaries that don’t intervene in economic activity or violate human http://www.investinmyanmar.com/myanmar-constitution-investors/

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rights are generally seen as beneficial by investors because they offer stability. The Myanmar military, however, is a special case because of its history of human rights abuses and intolerance. What most investors want to see is the military step back and become a stabilizing body that promotes peace and allows basic freedoms. In an encouraging sign, the military has done almost exactly that since the first session of Parliament in 2011. Soldiers in Parliament have been relatively quiet – they are rarely interviewed by the press about legislative issues and have kept a low profile. We have seen very little economic interference by the military in the past year. While some investors have expressed worry over the 25% allocation, it is important to note that the NLD and other opposition parties combined now have an approximately equal number of seats as the military. As Myanmar continues to mature politically we expect the number of opposition party candidates to increase, and many are hopeful that changes to the Constitution in regards to the allocation of seats for the military will occur in the future. Investors should remember that President Thein Sein, one of the most pragmatic people in the new government, is a former military man.

The Constitution as it Relates to Business

Although several laws coming out of the new Parliament have a more direct impact on business, the Constitution contains several articles that businessmen should understand. Articles 35 and 36 of the Constitution spell out the basic economic system for Myanmar. Article 35 states http://www.investinmyanmar.com/myanmar-constitution-investors/

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explicitly that Myanmar will engage in a market economy, and article 36 explains that the government will not: • Nationalize economic enterprises • Demonetize the currency Article 36 also states that the government will take measures to prevent monopolization and ensure fair competition. It goes on to state that the government will promote the development of investments in Myanmar. These two articles of the Constitution are important for businessmen because they mean that as long as the Constitution is respected, a foreign business will not be taken over by the government. The stipulation about monopolization is also important because there are near-monopolies in Myanmar today, which can perhaps be challenged by foreign firms in the future. Article 37 of the Constitution is also important for business. We’ve included this article in its entirety here: 37. The Union : (a) is the ultimate owner of all lands and all natural resources above and below the ground, above and beneath the water and in the atmosphere in the Union; (b) shall enact necessary law to supervise extraction and utilization of State owned natural resources by economic forces; (c) shall permit citizens right of private property, right of inheritance, right of private initiative and patent in accord with the law. http://www.investinmyanmar.com/myanmar-constitution-investors/

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As you can see from article 37, all land in Myanmar is owned by the State. The State allows individuals to use the land, but that does not mean that they actually own it. We’ll address this issue in more depth in the legal chapter, but understand that under current law, individuals do not actually own physical land in Myanmar. You may think 37(c) stipulates that citizens can own property (meaning land), but after a careful reading of the Myanmar language version of this article, property in this case actually just means things- like cars or houses- not actual land. Article 37 (c) is also important because it provides patent protection. Patent and copyright laws are not strictly enforced in Myanmar at present, but foreign firms now have the Constitution as a legal precedent in this area. A similar article in the Constitution is Number 372: 372. The Union guarantees the right to ownership, the use of property and the right to private invention and patent in the conducting of business if it is not contrary to the provisions of this Constitution and the existing laws. This article helps to clarify article 37 in some ways because it states ‘the use of property’ which is exactly the right that people have in Myanmar – the right to use land, not to own land. Foreign investors worried about the nationalization of their assets in Myanmar should have some of their fears alleviated by the articles in the Constitution we’ve highlighted above. We’ve seen many people across the country taking the Constitution very seriously, so we expect that it will http://www.investinmyanmar.com/myanmar-constitution-investors/

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become a hallowed document in the future and that its articles will be protected by the legislature. Although the parliament can always amend the Constitution, it is extremely unlikely that they would strip out legal protections for private enterprises. Filed Under: Articles, Investment Procedures, Laws

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Impunity Prolonged: Burma and its 2008 Constitution September 2009



September 2009



ICTJ New York 5 Hanover Square, 24th Floor New York, NY 10004 Tel + 1 917 637 3800 Fax + 1 917 637 3900

Acknowledgement ICTJ thanks the Netherlands Ministry for Development Cooperation, Embassy of the Kingdom of the Netherlands in Bangkok for making this publication possible. About ICTJ The International Center for Transitional Justice assists countries pursuing accountability for past mass atrocity or human rights abuse. ICTJ works in societies emerging from repressive rule or armed conflict, as well as in established democracies where historical injustices or systemic abuse remain unresolved. The use of geographical names in this report should not be interpreted as implying an ICTJ position on the political status of the mentioned locations.

A Burmese edition of this report is available at www.itcj.org ISBN: 978-1-936064-02-1 ISBN: 978-1-936064-03-8 Burmese © International Center for Transitional Justice 2009. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without full attribution.



Contents

Executive Summary............................................................................................................................................................................................................................................................................................................... 3 1. Recent Historical Context: The Roadmap to Democracy................................................................................................................................................................ 7 2. Burma’s Culture of Impunity for the Military. .................................................................................................................................................................................................... 10 Impunity for Sexual Violence ............................................................................................................................................................................................................................................................................ 11 The Nature of Sexual Violence in Burma ..................................................................................................................................................................................................................... 11 The Junta’s Response to the Allegations ............................................................................................................................................................................................................................ 15 Impunity for Forced Labor ...................................................................................................................................................................................................................................................................................... 18 The Nature of Forced Labor in Burma ............................................................................................................................................................................................................................... 18 The Junta’s Response to the Allegations: Pressure from the International Labor Organization ......................... 20 Impunity for the Recruitment and Use of Child Soldiers ......................................................................................................................................................................... 24 The Nature of Recruiting and Using Child Soldiers in Burma ......................................................................................................................................... 24 The Junta’s Response to the Allegations: Security Council Resolution 1612 ......................................................................................... 26 Patterns and Analysis in the Record of Impunity ....................................................................................................................................................................................................... 27 Impunity Is Related to Armed Conflict . ......................................................................................................................................................................................................................... 27 Impunity Is Reinforced by Attacking Those Who Complain ............................................................................................................................................... 28 Complaints Mechanisms Are Too Limited ................................................................................................................................................................................................................ 28 Are There Indications of Progress? . ............................................................................................................................................................................................................................................ 29 3. The 2008 Constitution: Entrenching Impunity ................................................................................................................................................................................................ 31 The Flawed Constitutional Process ......................................................................................................................................................................................................................................................... 32 Reinforcing Substantive and Structural Impunity .................................................................................................................................................................................................... 32 The Immunity Clause ......................................................................................................................................................................................................................................................................................... 32 The Legislature: Making the Law ................................................................................................................................................................................................................................................. 34 The Judiciary: Enforcing and Interpreting the Law . ................................................................................................................................................................................ 34 Amending the Constitution ................................................................................................................................................................................................................................................................... 35 4. Transitional Justice in the Current Context ............................................................................................................................................................................................................ 36 International Options for Justice .................................................................................................................................................................................................................................................. 36 National Preparations .......................................................................................................................................................................................................................................................................................... 38 5. Recommendations ............................................................................................................................................................................................................................................................................................................ 39

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Executive Summary Burma (also known as Myanmar) has been under military rule since 1962 when General Ne Win took power from the democratically elected government. Following nationwide protests in 1988, another coup marked the commencement of the current regime (initially called the State Law and Order Restoration Council, or SLORC, and now called the State Peace and Development Council, or SPDC). The new regime promised to usher in democracy and elections were held in 1990. However the military rulers refused to allow the winning National League for Democracy (NLD) to form a new government. Instead, they convened a National Convention to draft a new constitution, handpicking most of the initial 702 delegates and inviting only 106 of the elected Members of Parliament to participate. After many delays, the convention completed the draft on September 3, 2007. The convention ended just after a sudden rise in fuel costs caused the prices of commodities to increase considerably, prompting Buddhist monks to lead mass demonstrations calling for economic reform and national reconciliation. The military responded with ferocious force, raiding monasteries and firing on crowds of peaceful protestors. Many of the protesters were detained and reportedly tortured, and some were sentenced to long prison terms. In response to international criticism over the crackdown, the SPDC announced that a national referendum on a new constitution would take place on May 10, 2008, and elections would follow two years later. One week before the referendum, Cyclone Nargis hit Burma, and more than 130,000 people either died or were missing. Still, the military rulers insisted on proceeding with the referendum; they later claimed that, despite the death and mass destruction, more than 92 percent of eligible voters had approved the new constitution. An analysis of the constitution’s provisions suggests that instead of being a true catalyst for lasting change, it further entrenches the military within the government and the associated culture of impunity. In addition to providing amnesty to the ruling regime for any crimes committed, the constitution creates a governing structure that gives the military the ability to dominate the government and protect its interests in perpetuity. It reserves 25 percent of the seats in both houses of parliament for members of the security forces who undoubtedly will obey the instructions of their commanding officers. A substantial number of the remaining 75 percent of MPs will probably be ex-military and civil service officials who support the SPDC. To reinforce the structural guarantee that the regime retains its control, the constitution further requires that a number of the most important ministries be led by military personnel. As a result, military interests will dominate the government and parliament. The constitution declares that any amendment must be supported by more than 75 percent of parliament. So any changes would require that all nonmilitary MPs (including those who had formerly been in the www.ictj.org

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military) and at least one member of the armed forces vote for a proposed amendment to limit military dominance. The result is a carefully planned strategy in which a functioning democracy is impossible under the 2008 constitution, and altering its fundamentally undemocratic provisions is virtually impossible. Although human rights organizations are unable to operate freely inside Burma, people have been able to gather reports of violations, often at great risk, and smuggle them out of the country. These reports indicate that members of the military continue to be responsible for widespread, systematic human rights violations committed against anyone perceived to oppose the regime. Those responsible for such violations do so with almost total impunity. Although the range of reported violations is broad, including mass killings of civilians, this report focuses on three categories as a means of analyzing the manner in which impunity persists in Burma: sexual violence, forced labor, and the recruitment and use of child soldiers (often referred to as child soldiering). Each of these categories is the subject of international conventions that Burma has ratified, therefore raising obligations that the Burmese government must fulfill under international law. Such conventions include the 1979 Convention on the Elimination of All Forms of Discrimination against Women, ratified by Burma in 1997; the 1930 Forced Labour Convention, ratified by Burma in 1955; and the 1989 Convention on the Rights of the Child, with Burma’s accession in 1991. Sexual Violations The record of sexual violations, drawn from investigations carried out by UN special rapporteurs and Burmese women’s groups, demonstrates that rape is not a violation committed by rogue elements in the military, but rather appears to be a strategy of the SPDC. The perpetrators have a level of impunity that indicates institutional support for these practices. In general, the response of the military to international accusations of sexual violations has been consistent obfuscation. Burmese officials have said that national laws and remedies exist for these crimes and allegations that sexual violence by military forces is systematic are false. More recently, however, the SPDC has begun to accept that some members of the security forces are guilty of rape, and perpetrators have been forced to pay some compensation to their victims. Although the manner and degree of this punishment is far from appropriate for such horrific crimes, it signifies a relatively minor degree of willingness to acknowledge them. Still, this level of progress pales in significance compared with the magnitude of the problem of sexual violations in Burma. Forced Labor The SPDC has been implicated in widespread practices of forced labor. Some people are required to carry heavy loads for the military; if they move too slowly or collapse during the process, they are treated poorly and savagely beaten. Others are forced to work on construction and public works programs, on farms cultivating subsistence crops, and on development projects paid for by foreign companies, such as gas pipelines or hydroelectric plants. It appears that international action over the past decade—and the threat thereof—has made the SPDC take some action on forced labor as well as the related violation of child soldiering. However, it is less clear whether this pressure has prompted limited, yet meaningful change or merely created superficial steps designed to avert international scrutiny and sanctions. The International Labour Organization (ILO) established a Commission of Inquiry in 1998 and decided two years later to impose sanctions. In response, the SPDC allowed the ILO to open an office in Rangoon. The liaison officer there reported that impunity rendered the existing national complaints system relatively meaningless. Although a new complaints mechanism has been established through the ILO, it

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handles a small number of cases given the widespread nature of the practice. Significantly, several people who filed complaints have been prosecuted for doing so. Child Soldiers Battalion commanders in the Burmese army must recruit a specific number of new recruits each year, or risk losing their commands. One method of insuring that the quota is filled is through recruiting children—a widespread practice well documented by the UN, international NGOs, and local human rights organizations over the last decade. As in the case of forced labor, the Burmese government has reacted in a very limited fashion to international attention to the problem. During the months before the passage of UN Security Council Resolution 1612—requiring the UN Secretary General to provide the Security Council with a list of parties that recruit and use child soldiers—the SPDC began to develop a plan to deal with the issue. It established a committee to demobilize child soldiers and reintegrate them into society, as well as to raise the country’s awareness of the illegal practice and punish those responsible for it. Only a small number of child soldiers have been discharged so far. Impunity for recruitment and use of child soldiers remains strong. Impunity Whenever a country’s military is charged with taking strong action in the interests of national unity, sovereignty, and security, members of the armed forces often severely abuse civilians. Armed with guns and the knowledge that they are not likely to be held accountable for their abuses, members of the military often resort to inhumane behavior. Rape is tolerated and is seen not as a crime but rather as a necessary strategy to punish individuals, families, and communities that may oppose the government. This illusion validates and encourages more violations. Civilians are snatched from their homes and forced to provide free labor to support the military’s endeavors against opposition forces. Given the high rates of attrition in the armed forces, the expanding size of the army, the numbers of volunteers decreasing, and deserters increasing, recruiters have turned to children to meet their quotas. While all of these activities are illegal under Burmese and international law, they persist because of the country’s culture of impunity. As a result, Burma presents one of the most difficult challenges in the world in relation to making progress toward combating impunity, uncovering the truth, seeking to assist victims, and reforming institutions responsible for mass violations of human rights. The government severely restricts civil society’s ability to safely promote respect for human rights, and the constitution reinforces military dominance, including constitutional guarantees of impunity. In such a context, Burmese civil society and international actors can focus strategies on moderate shortterm goals to build the foundations for long-term change and mechanisms of accountability. One step these groups can take now is to strengthen the ability of activists in Burma and its border regions to objectively gather and use information and reports about human rights violations. In many post-conflict settings, the loss or decay of evidence, or improper methodology for collecting it has severely hampered progress on transitional justice issues. However, since recent history indicates that eventually some form of reckoning will come to those who have committed crimes in Burma, a coordinated, well-informed approach to documenting the violations can produce data that helps international actors formulate policy in response to the situation and preserves evidence for any potential prosecutions, truth-seeking mechanisms, or other measures to deal with the legacy of impunity. Recently Burmese activists have been considering the potential value in calling for a UN Commission of Inquiry into international crimes in Burma and/or calling for a referral of the situation to the International Criminal Court (ICC). Although the court’s jurisdiction generally applies to crimes committed in territories or by nationals of countries that ratified the Rome Statute, the UN Security Council has the

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power to refer a situation in a country that has not done so if it presents a threat to international peace and security. This happened with Sudan in 2005, where the subsequent investigation led the ICC to indict President Omar al-Bashir and issue an arrest warrant for him. However, referral requires Security Council agreement, and the unique factors that led to the Sudan referral are distinct from the current political dynamics in relation to Burma. Regardless of the likelihood of any possible referral to the ICC, establishing a Commission of Inquiry is a measure that the international community has supported in a range of situations in which more information is needed to decide if further action is necessary. Given the difficulties of getting thorough information from Burma, a commission could help assess the nature and extent of serious human rights violations. Many groups are either considering or supporting various other strategies. These include advocating a global embargo on supplying arms to the SPDC, bringing cases for mass crimes committed in Burma under the universal jurisdiction legislation in other countries, and bringing civil claims in the United States under the Alien Tort Claims Act, which allows victims to sue perpetrators of international torts or crimes even if the crime does not involve a U.S. citizen and is committed outside U.S. borders. Other recent experiences in Argentina, Peru, and Cambodia provide examples of national leaders who were tried in courts decades after they committed mass atrocities. Although the level of impunity in Burma may now appear intractable, it is no more so than the situations that existed during the reigns of the Argentine junta, Peru’s President Alberto Fujimori, or the Khmer Rouge in Cambodia. It is now clear that no leader who allows such violations to take place on their watch, no individual responsible for them, can be certain that they will never be held accountable. Burma is no exception. The Burmese continue to be forced to live with mass violations, impunity that encourages more crime, a constitution that entrenches the military’s power, and a blanket of terror over political opposition. While this context does not dictate that nothing can be done toward fulfilling the right to justice, truth, and reparations, any strategic approach needs to focus on catalyzing change, preparing for future accountability measures, preserving and organizing evidence, and effectively using available international mechanisms.

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1. Recent Historical Context: The Roadmap to Democracy The SLORC emerged in 1988 after 26 years of military rule under General Ne Win, who had staged a coup against the democratic government in 1962. In 1988, weary from dictatorship and disgruntled about the increasingly disastrous state of the economy, students in Rangoon began leading protests calling for democracy. The demonstrations spread to cities and towns throughout the country, culminating in a major nationwide protest on August 8, 1988 (now commonly referred to as “8-8-88”). Soldiers fired on the protestors, but then retreated and left ordinary citizens to take charge of maintaining daily order. Six weeks later the army, led by Army Chief Saw Maung, staged a coup. Saw Maung then announced the formation of the SLORC as a transitional regime and promised multiparty elections.1 Burma held parliamentary elections in 1990. The NLD won more than 80 percent, or 392 of the total 485 seats. The SLORC quickly nullified the elections by issuing Declaration 1/90, announcing that they had actually been held to choose delegates who would draft a new constitution at a National Convention.2 Many of those protesting these events were arrested, including newly elected MPs, and others fled the country. The convention met in January 1993. Elected representatives filled only 106 out of 702 delegate seats.3 According to the junta, one of the convention’s key objectives was “the participation of the [armed forces] in the national political leadership role of the State in the future.”4 The junta ordered the delegates to create “basic principles” for a new constitution, and throughout the process, it rejected proposals from representatives of various ethnic groups.5 Due to the flawed mandate and restrictions on open debate and discussion, the NLD delegates walked out in November 1995. Several months later, the convention adjourned and did not reconvene until 2004. During the interim, the government passed a law prohibiting any criticism of the convention; lawbreakers faced up to 20 years in prison.6 1 2 3 4 5

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F or a thorough review of the events of 1988, see Bertil Lintner, Outrage: Burma’s Struggle for Democracy (Bangkok: White Lotus, 1990). SLORC Declaration 1/90, July 27, 1990. Human Rights Watch, Vote to Nowhere: The May 2008 Constitutional Referendum in Burma, May 2008. The number of delegates increased over time. SLORC Order 13/02, “The Formation of the Commission for Holding the National Convention,” Oct. 2, 1992. “Burmese armed forces” is Tatmadaw, the English transcription of the Burmese word for “armed forces.” The regime rejected an August 1993 proposal from 13 ceasefire groups for a decentralized federal union and ignored a 19-point proposal from the Kachin Independence Organization in August 2007. The lack of genuine discussion prompted the New Mon State Party to downgrade its delegates’ involvement in the National Convention from participants to observers in December 2005. SLORC Law No. 5/96, The Law Protecting the Peaceful and Systematic Transfer of State Responsibility and the Successful Performance of the Functions of the National Convention against Disturbances and Oppositions, June 7, 2006. See http://www.blc-burma.org/html/Myanmar%20Law/lr_e_ml96_05.html.

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Burma’s political scene gradually opened in 2002. The government permitted the ILO to establish an office in Rangoon and released NLD leader Daw Aung San Suu Kyi from house arrest. She began drawing large, enthusiastic crowds while visiting various parts of the country. However, this increased level of freedom was short-lived. In May 2003, Aung San Suu Kyi’s convoy was attacked outside of Depayin in central Burma, and many of the people in her convoy were killed or injured. She returned to house arrest where she remained until May 2009 when she was detained for allegedly violating the terms of her house arrest. One year later, in a move that many analysts saw as an attempt to deflect international criticism for Aung San Suu Kyi’s treatment, Prime Minister Khin Nyunt announced the “roadmap to democracy” which consisted of the following seven steps: 1) Reconvene the National Convention. 2) Take the steps necessary to implement a genuine, disciplined democratic system. 3) Draft a new constitution in accordance with the basic principles established by the National Convention. 4) Adopt the constitution through a national referendum. 5) Hold free and fair elections for Pyithu Hluttaws (legislative bodies) according to the new constitution. 6) Convene Hluttaws in accordance with the new constitution. 7) Build a modern, developed, and democratic nation composed of state leaders elected by the Hluttaw, in addition to government and central organs formed by the Hluttaw.7 The National Convention reconvened in May 2004 and seemed likely to drag on, as it had since it first convened in 1993. However, once again dramatic events unfolded to push the process forward. Following a fuel price hike on August 15, 2007, the cost of commodities soared. Protesters gathered on the streets, with demonstrators demanding improvements in the economic situation. As the size of the demonstrations grew, the authorities once again resorted to force. They arrested protest leaders, including prominent former students who had been involved in the 8-8-88 movement. In the midst of this tumultuous period, the government—then called the SPDC—concluded the convention on September 3, 2007. As the month progressed, with most former student leaders detained or in hiding, Buddhist monks began leading the demonstrations, drawing tens of thousands of people into the streets. Demands broadened from economic reforms to national reconciliation and dialogue. The authorities began a final crackdown on September 25. Dozens of people were killed, and thousands were detained.8 International attention to the horrific events in Burma and the SPDC’s lack of democratic reforms prompted the regime to move quickly through the next steps of the roadmap. The SPDC announced that a national referendum on a new constitution would take place on May 10, 2008, and elections would be held in 2010.9 The week before the referendum, Cyclone Nargis slammed Burma. It was the country’s worst natural disaster on record. More than 130,000 people were either killed or listed as missing, and millions lost their homes.10 In the wake of this humanitarian disaster, many people, including the UN SecretaryGeneral, and civil society groups urged the regime to postpone the referendum so the country could concentrate on disaster relief.

7 8 9 10

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Speech by Khin Nyunt, New Light of Myanmar, Aug. 31, 2003. Human Rights Watch, Crackdown: Repression of the 2007 Popular Protests in Burma, December 2007. Human Rights Watch, Vote to Nowhere: The May 2008 Constitutional Referendum in Burma, May 2008. Office of the Coordination of Humanitarian Affairs (OCHA), Myanmar Cyclone Nargis OCHA Situation Update No. 37, July 3, 2008.

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Ignoring these requests and the plight of the Burmese people, the SPDC held the referendum. Officials claimed that 92.4 percent of voters approved of the new constitution and that, despite the humanitarian emergency, 26 million out of 27 million eligible voters cast ballots. Because these figures were so far outside the realm of possibility, international commentators unanimously dismissed the entire process as a sham.

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2. Burma’s Culture of Impunity for the Military During the course of the SPDC’s two decades as a transitional regime, human rights organizations and the United Nations have documented a wide array of human rights violations committed by the ruling junta and its predecessor, the SLORC. This section examines three categories of these allegations, specifically the military’s responsibility for acts of sexual violence, forced labor, and the recruitment and use of child soldiers, as well as the general lack of accountability for these violations. This report focuses on these particular categories because the Burmese government has clear international obligations to investigate and address them, having signed the 1979 Convention on the Elimination of All Forms of Discrimination against Women (ratified 1997), the 1930 Forced Labour Convention (ratified 1955), and the 1989 Convention on the Rights of the Child (accession 1991). The following section analyzes patterns in this record of impunity, drawing together common themes. It also highlights some areas where progress is being made, suggesting strategies that could potentially lead to reforms in Burma.

Burmese troops watch as women leave a Buddhist temple near Myitkyina in Kachin State, 1998. Photo by Nic Dunlop/Panos Pictures.

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Impunity for Sexual Violence The use of sexual violence as a strategy of war, as well as a reward for soldiers, continues to be a serious problem in Burma. In 1993, Yozo Yokota, the UN special rapporteur on the situation of human rights in Myanmar, reported that, “In the context of military operations, forced relocation, portering and forced labour, the practices allegedly involve… rape, burning, and mutilation before execution.”11 In response, the Burmese military stated that the allegations related to arbitrary executions “are totally false and unfounded…. The Tatmadaw [the Burmese military] has never, at any time committed such atrocities nor will it ever do so in the future…. Atrocities such as…rape of rural women, forced conscription and mass execution of villagers are being committed only by the insurgents time and again.”12 Fifteen years later, the SPDC refuses to acknowledge the widespread problem of sexual violence, despite a growing record that details how officers and troops systematically use rape and other forms of sexual abuse as a strategy of war. The Burmese government has not made any meaningful official investigations into specific incidents or wider patterns of sexual violence. Occasionally the military has made unofficial payments to victims as compensation for assaults by officers. Such payments suggest at least a recognition that the violations occurred and were wrong. However, on the rare occasion that a victim gets compensated, no other significant measures are made to hold the perpetrators accountable. In Special Rapporteur Yozo Yokota’s 1994 report, he responded to the SPDC’s continued denials with a specific recommendation: “Given the magnitude of the abuses, official condemnation should be made by the Government of all acts by authorities involving human rights violations. Such acts, including all acts of intimidation, threat or reprisal, should not benefit from the present system of complete denial by, and impunity under, the Government.”13 The recommendation, or one like it, has been made by the special rapporteurs nearly every year since.14 The Nature of Sexual Violence in Burma The record of violations, developed from investigations by the UN special rapporteurs as well as Burmese women’s groups, demonstrates that rape is not a violation committed by “rogue elements” in the military; instead it appears to be a strategy of the regime.15 The list of incidents in the box below—highlighting one per year since 1993—provides a brief anecdotal record of rapes military officers or soldiers have committed in various locations in Burma.

11 12 13 14

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N General Assembly, Situation of human rights in Myanmar, Nov. 16, 1993, sec.II. “Memorandum of Allegations to U the Government of Myanmar,” sub-sec. B. “Torture, cruel, inhuman or degrading treatment,” par. 10, (A/48/578). UN General Assembly, Situation of human rights in Myanmar, Nov. 16, 1993, sec.IV. “Response by the Government of Myanmar to the Memorandum of the Special Rapporteur,” par. 9, (A/48/578). UN Commission on Human Rights, Report on the situation of human rights in Myanmar, by the Special Rapporteur, par. 74(g), Feb. 16, 1994 (E/CN.4/1994/57). See for example UN General Assembly, Interim Report of the Special Rapporteur on the situation of human rights in Myanmar, Oct. 8, 1996 (A/51/466); UN Commission on Human Rights, Report of the Special Rapporteur on the situation of human rights in Myanmar, Jan. 15, 1998 (E/CN.4/1998/70); UN General Assembly, Report of the Special Rapporteur of the Commission on Human Rights on the situation of human rights in Myanmar, Sept. 10, 1998, (A/53/364); UN Commission on Human Rights, Report of the Special Rapporteur on the situation of human rights in Myanmar, Jan. 22, 1999 (E/CN.4/1999/35); UN General Assembly, Report by the Special Rapporteur on the situation of human rights in Myanmar, Oct. 4, 1999, (A/54/440); UN General Assembly, Situation of human rights in Myanmar—Interim Report of the Special Rapporteur, Aug. 22, 2000, (A/55/359); UN Commission on Human Rights, The situation of human rights in Myanmar: Report submitted by the Special Rapporteur, Dec. 27, 2002 (E/CN.4/2003/41); UN General Assembly, Situation of human rights in Myanmar, Aug. 30, 2004 (A/59/311); UN Commission on Human Rights, Report of Paulo Sérgio Pinheiro, Special Rapporteur on the situation of human rights in Myanmar, Dec. 2, 2004 (E/CN.4/2005/36); UN General Assembly, Interim report of Paulo Sérgio Pinheiro, Special Rapporteur of the Commission on Human Rights on the situation of human rights in Myanmar, Aug. 12, 2005 (A/60/221); UN General Assembly, Report of the Special Rapporteur on the situation of human rights in Myanmar, Paulo Sérgio Pinheiro, Sept. 21, 2006 (A/61/369); UN Human Rights Council, Report of the Special Rapporteur on the situation of human rights in Myanmar, Paulo Sérgio Pinheiro, Feb. 12, 2007 (A/HRC/4/14); UN Human Rights Council, Report of the Special Rapporteur on the situation of human rights in Myanmar, Paulo Sérgio Pinheiro, March 7, 2008 (A/HRC/7/18). Women’s League of Burma, System of Impunity: Nationwide Patterns of Sexual Violence by the Military Regime’s Army and Authorities in Burma, September 2004, 1.

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A sample of reported incidents of rape, 1993-2008

On August 2, 1993, soldiers from Infantry Battalion 64 arrested 12 women in southern Shan State, ages 15 to 30 years, and took them to a nearby farm and gang-raped them. (UN General Assembly, Interim Report on the situation of human rights in Myanmar, Special Rapporteur, October 28, 1994, A/49/594, sec. III, par. 15.) In February 1994, a 33-year-old Karen widow and mother of three children was interrogated by a SLORC officer about her village’s contact with the Karen National Liberation Army (KNLA) and accused of working for the rebels. The officer raped her three times the night she was interrogated. (Karen Women’s Organization, Shattering Silences: Karen women speak out about the Burmese Military Regime’s use of Rape as a Strategy of War in Karen State, Case 12, April 2004.) On January 1, 1995, Light Infantry Battalion 410 abducted a group of women in Mon State and took them to Paukpinkwin Village in order to rape them. (UN General Assembly, Interim Report on the situation of human rights in Myanmar, Special Rapporteur, October 16, 1995, A/50/568, sec. III, par. 22(e).) In 1996, a 15-year-old girl from Kywe Thone Nyi Ma was raped so many times by soldiers at a railway worksite that she bled to death. (UN General Assembly, Interim Report on the situation of human rights in Myanmar, Special Rapporteur, October 8, 1996, A/51/466, par. 51.) On July 1, 1997, soldiers raped many women in the Kaeng Lom area as they ransacked the village, eventually killing 96 villagers. (UN General Assembly, Interim Report on the situation of human rights in Myanmar, Special Rapporteur, October 16, 1997, A/52/484, par. 108.) On May 11, 1998, Maj. Myint Than, protected by 85 to 90 of his troops, raped a girl repeatedly for a day near Lai-Kha before burning her in her hut. (UN General Assembly, Interim Report on the situation of human rights in Myanmar, Special Rapporteur, September 10, 1998, A/53/364, par. 51.) In July 1999, soldiers from Infantry Battalion 101, led by Lt. Col. Soe Win, gang-raped a 19-yearold, causing her death. (UN General Assembly, Interim Report on the situation of human rights in Myanmar, Special Rapporteur, October 4, 1999, A/54/440, par. 34.) In May 2000, Capt. Tun Aung of Light Infantry Battalion 515 raped a 19-year-old for three and a half hours. When she and her family went to the military camp to identify him, he was not in the lineup. The young woman, her family, and the headman of her village were fined and threatened with 10-year prison sentences if they could not pay. (Shan Human Rights Foundation and Shan Women’s Action Network, License to Rape: The Burmese military regime’s use of sexual violence in the ongoing war in Shan State, Case 112.) In mid-2001, soldiers from Infantry Battalion 244 raped a 14-year-old girl near Wan Kad village in Shan State, resulting in her death. They left her naked body by the river. (Women’s League of Burma, System of Impunity: Nationwide Patterns of Sexual Violence by the Military Regime’s Army and Authorities in Burma, September 2004, Case 40.) In October 2002, a lance corporal and a private from Light Infantry Battalion 309 in Chin State raped and murdered a ninth-grade student. She had to pass through the military camp every day on her way to and from school, and the soldiers attacked her one evening. (Women’s League of Chinland, Unsafe State: State-sanctioned sexual violence against Chin women in Burma, March 2007, Case 22.)

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In February 2003, a 15-year-old Lahu girl was gang-raped and murdered by SPDC troops patrolling in the Mong Pyark area of Shan State. (Women’s League of Burma, System of Impunity: Nationwide Patterns of Sexual Violence by the Military Regime’s Army and Authorities in Burma, September 2004, Case 1.) In January 2004, a 20-year-old Mon woman went to negotiate the release of her father, who had been detained after he was accused of having contact with Mon rebels. Capt. Hla Khaing of Light Infantry Battalion 586 took her into a house, kicked out the homeowner, and raped the woman repeatedly for two days. (Women’s League of Burma, System of Impunity: Nationwide Patterns of Sexual Violence by the Military Regime’s Army and Authorities in Burma, September 2004, Case 5.) In April 2005, Corp. Zaw Min of Light Infantry Battalion in Shan State took the 6–year-old daughter of a fellow officer to “buy sweets.” She did not come back. When her body was found, she had been brutally raped and killed. (Women of Burma, In the Shadow of the Junta: CEDAW Shadow Report, 2008, 63-64, citing report from Shan Herald Agency for News and confirmed by a source inside Burma.) In June 2006, two women, 28 and 24 years old, were traveling through Sagaing Division on their way home from Mizoram, India. Passing near an army camp, they were stopped by soldiers from Light Infantry Battalion 268 who checked their identity cards and demanded they sleep a night in the village. That night, five of the soldiers raped the women. (Women’s League of Chinland, Unsafe State: State-sanctioned sexual violence against Chin women in Burma, March 2007, Cases 2 and 3.) In February 2007, seven soldiers from Infantry Battalion 138 in Kachin State raped four girls, ages 14 to 16. Recognizing that the rapes had taken place, the army later paid the girls about $230 in compensation, but their families requested more money. When the incident was reported in the exile media, the girls were arrested and imprisoned. (The Irrawaddy, February 15, 2007, and Human Rights Watch’s World Report 2008, 249.) In July 2008, soldiers from Light Infantry Battalion 437 raped and killed a 15-year-old girl in Kachin State. Her body was found three days later, 200 feet from the army camp. Her body had been stabbed seven times, and her face was badly mutilated. (Women of Burma, In the Shadow of the Junta: CEDAW Shadow Report, 2008, 65-66, citing Kachin News Group, “Teenage Kachin schoolgirl gang raped and killed by sadistic Burmese soldiers,” August 9, 2008.)

In the 2006 report Unsafe State, the Women’s League of Chinland maps the incidents of rape it has documented, showing that rapes are committed by troops from at least 11 battalions throughout Chin State and in close proximity to military camps.16 The UN Committee on Human Rights (now the Human Rights Council) and the General Assembly have acknowledged that the problem of rape in Burma entails more than a few isolated incidents. Following the publication of License to Rape in 2002, the UN Committee on Human Rights passed a resolution deploring the state’s systematic violations of human rights, including rape.17 The General Assembly also passed resolutions expressing grave concern and calling for an end to systematic human rights violations, including rape.18

16 17 18

Women’s League of Chinland, Unsafe State: State-sanctioned sexual violence against Chin women in Burma, March 2007, 2. United Nations Commission on Human Rights Resolution 2002/67, April 25, 2002, par. 5(a) E/2002/23—E/CN.4/2002/200. United Nations General Assembly Resolution 59/263, Situation of human rights in Myanmar, March 17, 2005, par. 2 and 3, A/RES/59/263.

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Table: Documentation of Rape and Sexual Violence19202122 Name of Report

License to Rape

Shattering Silences

System of Impunity

Catwalk to the Barracks

Unsafe State

Release Date

May 2002

April 2004

September 2004

July 2005

March 2007

Focus Area

Shan State

Karen State

All ethnic states and central Burma21

Mon State

Chin State

Period Covered

1996–2001

1988–2004

2002–2004

1995–2004

1989–2006

Number of Cases

173

125

26

37

38

399

Number of Women and Girls

625

127

34

50

39

875

Number of Girls (younger than 18)

77

20

15

11

5

12822

Remark

High-ranking military officers (commander— corporal) committed 83 percent of cases, 61 percent were gang rapes, and 25 percent resulted in death. Perpetrator punished by commanding officer in only one case.

Half of the incidents were committed by high-ranking officers; 40 percent were gang rapes. In 28 percent of cases women were killed after being raped.

Seventeen cases were gang rapes by senior military officers, authorities, or with their complicity.

Scores of “comfort women” forced to work by day and be sex slaves at night; 30 young women, including schoolgirls, made to stay at military base and take part in a military “fashion and beauty show.” More than half the cases committed by military officers, often in front of or together with their troops.

Women and girls as young as 12 are being raped in their homes and on farms, while traveling outside their villages and when conscripted as forced labor

Total Cases Cited20

19 20 21

Adapted from Women of Burma, In the Shadow of the Junta: CEDAW Shadow Report, 2008. Total number is sum total of all reports with no cases repeated among the reports Burma’s seven states are Kachin, Karen (Kayin), Karenni (Kayah), Chin, Mon, Arakan (Rakhine), and Shan. It also has seven divisions: Sagaing, Tenasserim (Tanintharyi), Pegu (Bago), Magway, Mandalay, Rangoon (Yangon), and Irrawaddy (Ayeyawady). In 1989, the SLORC changed the English language names of the country and several states, divisions, towns, etc., from what it perceived to be colonial era names. The revised names are in parentheses. 22 In the Shadow of the Junta mistakenly gives a total of 161.

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From 2002 to 2007, women’s organizations from Burma documented nearly 400 incidents of rape and other forms of sexual violence that Burmese military personnel committed between 1988 and 2006. They identified 875 victims, 128 of whom were younger than 18. Several factors suggest that the number of incidents detailed in these reports is a fraction of those that actually occurred. While some communities sympathize with and support rape victims, the social stigma connected with sexual violence leads many women to remain silent about what they have experienced or even to leave their communities. In its 2005 report, Catwalk to the Barracks, the Women and Child Rights Project (Southern Burma) reports that three women interviewed for the report “decided to flee from their villages after the incidents because they felt ‘blamed and despised’ by local villagers.”23 Another woman reported feeling too ashamed to call for help while she was being sexually assaulted. We can assume that, along with the social stigma, the isolation of many rural villages in Burma, the presence of military checkpoints, and the physical dangers of armed conflict also lead to an underreporting of incidents of sexual violence. A pattern connecting increased armed conflict with rape emerges from a close reading of the records. The 2008 shadow report the Women’s League of Burma (WLB) prepared for the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) committee found that the “majority of incidents…take place in the ethnic states which have been most impacted by the regime’s policies of military expansion. Sexual violence is being used by the regime as an integral part of its strategy to subjugate the ethnic peoples.”24 When rape is used in this way, it is a criminal act under international law.25 The Junta’s Response to the Allegations The SPDC responded to rape allegations by identifying the Defense Services Act, Defense Services Rules, the Myanmar Penal Code, and the Civil and Criminal Procedures as domestic laws against rape; breaking these laws can be punishable by death.26 However, the existence of laws that prohibit sexual offenses and provide strong punishments does not mean they are enforced. Through the 1990s, the military junta generally denied that its troops were perpetrating sexual violence and consistently claimed no reliable evidence existed. In response to a 1994 charge of gang rape in Shan State’s Laikha Township, the junta told the UN, “No reports from civil or military have been received and no information about the alleged incidence has been received from the local populace. Here again, no proof has been provided.”27 The junta’s response, however, did make vague references to some members of the army who break laws and said, “Actions have been taken against them.”28

23 24 25

26

27 28

Women and Child Rights Project (Southern Burma), Catwalk to the Barracks. July 2005. Women of Burma, In the Shadow of the Junta: CEDAW Shadow Report, 2008. Shadow reports are a method for civil society groups to supplement or present alternative information to the periodic government reports that state parties submit under treaties. The record of international tribunals holding people accountable for committing rape has improved in the last decade. A 1997 decision at the International Criminal Tribunal for the former Yugoslavia found Duško Tadi guilty of crimes against humanity for acts that included crimes of sexual violence. The court’s decision marked a shift away from the traditional approach of viewing sexual violence as a crime against honor to viewing it as a weapon of war. This view gained prominence when the 1998 Rome Statute of the ICC defined rape committed as part of a widespread or systematic attack against civilians as a crime against humanity. The ICC used this definition when it indicted Germain Katanga and Mathieu Ngudjolo Chui of the Democratic Republic of Congo, Joseph Kony of Uganda, and Jean-Pierre Bemba Gombo of the Central African Republic. The Special Court for Sierra Leone and the International Criminal Tribunal for Rwanda also found people guilty of crimes against humanity for acts of rape. Article 375 of the Myanmar Penal Code prohibits rape, and Article 376 allows the courts to sentence convicted rapists to life in prison. In U Win Mra’s statement responding to the 1997 U.N. General Assembly Resolution on the Situation of Human Rights in Myanmar, the permanent representative and alternate chairman of Myanmar’s UN delegation said, “Any member of the Armed Forces convicted of murder or rape can be sentenced to the maximum punishment of death penalty.” See www.burmalibrary.org/reg.burma/archives/199803/msg00043.html. UN General Assembly, Addendum to the Report on the situation of human rights in Myanmar, Special Rapporteur, Oct. 28, 1994, A/49/594/Add.1, Observations and rebuttals on the summary of allegations, par. 23. Ibid.

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The special rapporteurs have increasingly expressed concern about the junta’s mechanisms of impunity in their annual reports to the Committee on Human Rights and the General Assembly. Given the magnitude of abuses, the Government should subject all officials committing human rights abuses and violations to strict disciplinary control and punishment and put an end to the culture of impunity that prevails in the public and military sectors.29 The Special Rapporteur is deeply concerned about the serious human rights violations that continue to be committed by the armed forces in the ethnic minority areas. The violations include extrajudicial and arbitrary executions (not sparing women and children), rape, torture, inhuman treatment, forced labour and denial of freedom of movement. These violations have been so numerous and consistent over the past years as to suggest that they are not simply isolated or the acts of individual misbehaviour by middle- and lower-rank officers but are rather the result of policy at the highest level, entailing political and legal responsibility.30 Following the 2002 publication of License to Rape by the Shan Human Rights Foundation and the Shan Women’s Action Network (SWAN), the SPDC came under much greater international pressure to address the issue of sexual violence, particularly in Shan State.31 The official response consisted of denials, accusations that those making the allegations were politically motivated and therefore unreliable, and cosmetic investigations. All of these responses have permitted the regime to prolong impunity. During a press conference held on July 12, 2002, Labor Minister U Tin Winn called the allegations “false and groundless.” U Thaung Tun, director-general of the Ministry of Foreign Affairs’ Political Affairs Department said the charges were “fabrications of the insurgents” and claimed that the “gentle and calm” nature of Burmese Buddhists made such atrocities unacceptable, pointing out that “it is generally believed that guilty-conscience [sic] of a rapist is more severe than legal punishment.”32 During a meeting on women’s affairs later that month, Khin Nyunt called the allegations “a conspiracy of the expatriate groups opposing Myanmar, insurgent groups and news agencies.”33 However, in an apparent bow to growing international pressure, he proposed the development of an official investigation, adding, “If there are offenders who have really committed the said crime, severe action will be taken against them. Thus special duties will have to be assigned to set up the enquiry.”34 The junta later reported to the special rapporteur that three investigations were carried out. These investigations found: • “Almost all of the allegations were highly exaggerated and their main purpose was to hurt the prestige of Myanmar and the Myanmar Armed Forces.” • There was no proof supporting the “allegation of the SURA [Shan United Revolutionary Army] narco-terrorists.” • “It is clear that the accusations are unfounded,” and there were “no rape cases committed by military personnel between 1996 and 1999 and in 2002,” but there were “three cases in 2000 and

29

33 34

N General Assembly, Report on the situation of human rights in Myanmar, Special Rapporteur, Oct. 16, 1997, U A/52/484, par. 152(r). UN General Assembly, Report on the situation of human rights in Myanmar, Special Rapporteur, Sept. 10, 1998, A/53/364, par. 59. As outlined in the chart above, the groundbreaking report identified 173 incidents of rape or other forms of sexual violence the Burmese military carried out against 625 women and girls; 83 percent of the perpetrators were high-ranking officials. “(4) Report saying Myanmar Government suppressing Shan nationals and Tatmadawmen raping Shan women totally untrue,” New Light of Myanmar, July 13, 2002. “1. Secretary-1 attends special meeting on women’s affairs,” The New Light of Myanmar, Aug. 1, 2002. Ibid.

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2001” in which the perpetrators were sentenced to five to ten years in prison.35 Military personnel, including Dr. Daw Khin Win Shwe, Khin Nyunt’s wife, carried out the investigations. SWAN tracked them and found that the investigators traveled in a 12-truck military convoy with armed soldiers. Village heads were warned ahead of time to be sure that villagers who met the investigators did not mention any incidents of rape. The investigating teams had prepared statements that villagers were told to sign confirming that there had been no incidents of rape by military personnel. The statements were in Burmese, and the meetings were held in Burmese,36 a language that many, if not most, villagers could not understand. The SPDC did not release details related to the three incidents it claimed to have discovered.37 The special rapporteur concurred generally with SWAN’s analysis, stating that “having been undertaken by military and other SPDC personnel, the investigations lacked the independence required to be convincing and credible.”38 He suggested that the SPDC explore a set of alternatives, including an independent assessment under his mandate, an international Commission of Inquiry with a new UN mandate, or a balanced national inquiry involving the SPDC and possibly the NLD with technical assistance from the UN.39 The SPDC did not take any of those suggestions. The reports that followed the Shan report covered incidents in Karen, Mon, and Chin states, and a comprehensive account by the Women League of Burma’s (WLB) documented incidents in all seven states as well as some of the divisions in central Burma. As mapped out in the Chin account, all the reports identified a significant link between increased armed conflict and sexual violence. In reports since 2002, the special rapporteurs continued to identify sexual violence as a systematic violation of human rights. This characterization echoes the findings of the women’s organizations’ reports that identified sexual violence as a political and military strategy, including its use as punishment for allegedly supporting opposition armies. Throughout these reports, generally the Burmese government did nothing about the incidents. In some cases, victims and their families were threatened and told not to speak of the incidents to others; some were imprisoned. Many survivors of rape who provided testimony to the women’s groups said fear and the stigma of sexual violence were major barriers in combating impunity. Victims of sexual violence in Burma cannot submit complaints to the CEDAW Committee because the SPDC has not signed the optional protocol that allows people to take advantage of that procedure. However, because Burma is a party to CEDAW, the junta is obliged to report regularly to the committee on measures it has taken to end all forms of discrimination against women. In the most recent session, the committee affirmed the findings of the Burmese women’s organizations. The Committee expresses its deep concern at the high prevalence of sexual and other forms of violence, including rape, perpetrated by members of the armed forces against rural ethnic women, including, inter alia, the Shan, Mon, Karen, Palaung, and Chin. The Committee is also concerned at the apparent impunity of the perpetrators of such violence, although a few cases have been prosecuted, and at reports of threats, intimidation and punishment of the victims. The Committee regrets the lack of information on mechanisms and remedies available to victims of sexual violence as well as measures to bring perpetrators to justice.40 35

nited Nations Commission on Human Rights, Report on the situation of human rights in Myanmar, Special Rapporteur, Dec. 27, U 2002, E/CN.4/2003/41, par. 40. 36 SWAN, A Mockery of Justice: The State Peace and Development Council’s Investigation into the ‘License to Rape’ Report, Sept. 24, 2002. 37 Ibid. 38 United Nations Commission on Human Rights, Report on the situation of human rights in Myanmar, Special Rapporteur, Dec. 27, 2002, E/CN.4/2003/41, par. 42. 39 Ibid., par. 43. 40 Committee on the Elimination of Discrimination against Women, Forty-second session, Oct. 20 to Nov. 7, 2008, Concluding observations of the Committee on the Elimination of Discrimination against Women, Myanmar CEDAW/C/MMR/CO/3.

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The intimidation of victims has made genuine inquiries about sexual violence difficult and dangerous. The junta’s response violates the right to truth, justice, and a guarantee of non-recurrence that are integral parts of combating impunity. This pattern too often leaves victims without recourse and at times punishes them for the violence they have suffered. A similar pattern of response emerges from the analysis of forced labor and child soldiering in Burma.


Impunity for Forced Labor Forced labor is one of the most widespread human rights violations perpetrated in Burma. It is also the area in which some of the most intensive pressure has been applied to combat impunity. The violation features in nearly every special rapporteur’s report on the situation of human rights in Myanmar since 1993 and throughout dozens of reports by local and international human rights organizations.41 Forced labor was legalized under British colonial rule through the Towns Act (1907) and the Village Act (1908). The government finally amended the laws in 1999 to conform to Section 374 of the penal code outlawing the practice.42 Yet the authorities apply Section 374 selectively, and the military continues to use forced labor to support basic functions. The Nature of Forced Labor in Burma The practice of forced labor in Burma falls generally into four main categories: • Military operations, i.e. carrying goods and supplies for troops, with loads weighing from 16 and 33 kilograms (35 to 73 pounds). The work is dangerous, entailing extensive walking without rest, being used as human minesweepers, and being subjected to beatings and killings if one slows down or collapses. • Construction and maintenance of infrastructure, including roads and military facilities. 41

42

18

E xamples include U.S. State Department, Country Reports on Human Rights Practices 2007; Karen Human Rights Group, Forced Labour and extortion in Pa’an District, Aug. 8, 2008, KHRG #2008-F11 (among dozens of other reports the group has written on forced labor in Burma); Human Rights Documentation Unit, Human Rights Yearbook 2008 (and its other annual reports); and Amnesty International, Crimes against humanity in eastern Myanmar, June 2008 (ASA 16/022/2008). International law prohibits forced labor also. See the ILO section below.

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• Cultivation of subsistence and cash crops. • Construction of development projects, including gas pipelines and hydroelectric dams.43 The first two are the most closely connected to military abuse, but considering the junta’s needs for food and energy, the third and fourth categories are also areas related to military impunity. The following account, drawn from the Network for Human Rights Documentation— Burma (ND-Burma) database, is typical.44 This account is based on testimony given on May 10, 2006, to a fieldworker from the Human Rights Foundation of Monland (HURFOM), an ND-Burma member organization. The speaker is a 26-year-old male farmer from Mon State. I don’t remember the date of the first time I was used as a porter by the army. But it was in 2004, I think. At that time, they gathered all porters, about 20 people from my village. The troops took us to Kone Pae village, which is about 2 miles from my home, Mu Hae village. They ordered us to carry bullets, rations, and shells. How heavy was it? Oh, I am not sure how to measure it in kilograms, but I think it was about 28 to 30 viss (45 to 48 kilograms, or 99 to 106 pounds). They forced us to walk faster and faster. I was kicked from behind by a soldier several times because I was walking too slowly. The distance was so very far because it took a whole day’s walk; we started in the morning, and we didn’t set up camp until the evening. My body was so seriously sore, but I dared not tell them. Each time, the portering has taken about 20 to 35 days. The sixth time I went was in February 2005. It was for about 45 days, and I had to carry soldiers’ rations. At that time, I was seriously sick, but the only medical assistance I received was Burmese traditional medicine. It did not help make me well again. I thought I would die. Finally I could not walk, so they left me. Fortunately, I met a hunter from the nearby village, and he took me to his hut and cared for me. After five days, I went back to my village. Since then, whenever I have been called to serve as a porter I have paid the army about 5,000 to 8,000 kyat (U.S. $5 to $8). This was the same amount that would be paid to recruit another porter. I owed a lot of money for that. My wife was very depressed. My son was suffering from malnutrition, and he was slowly starving because there was not enough income to feed him. I felt so very sad. Life is very hard living in my village. Most of the villagers are faced with poverty; we were not allowed to work on our farms, which were situated outside the village. Most of the underage children are facing starvation because their parents can’t earn money. Including the last time, I have been forced to serve as porter seven times by the Burmese army. Each time I served was when they launched offensives against the Mon armed rebel group near my village. On the April 21, 2006, one of the troops from the Burmese army came and called villagers from each household to gather at the square in the middle of village. Then they announced that each household must send one man to serve as a porter with the army. They divided the village into four parts; each part contained 30 households which had to rotate porter duty.

43 Human Rights Documentation Unit, Human Rights Yearbook 2007. 44 ND-Burma is a network of 12 Burmese organizations that use a shared database of human rights violations.

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My house was from one of the first parts that had to go. I explained that I was the one who paid for porter fees very often and they must exempt me from the duty. But the sergeant denied my request, and he ordered me to pay another 8,000 kyat (about U.S. $8) if I did not want to serve as a porter. I told my wife, and my wife said that there was no more money to pay them. So we decided to leave my village. We left secretly with three other households. We traveled for a day before we met a group of traders, and we traveled with them the following day. Finally we reached this place, the Loh-Loe Refugee Camp, near the Burma-Thai border. Forced labor goes on in almost every state and division. As the testimony above demonstrates, it correlates closely with increased armed conflict in which battalions must follow a “self-reliance policy,” conscripting forced laborers because the government does not provide adequate support.45 When the military orders people to work for them, those who are unable or unwilling to go must send replacements or pay a fine.46 When villagers are taken for forced labor, they are also at risk of becoming victims of other human rights violations, including extrajudicial killings, rape, torture, ill treatment, and forced relocation. The 1998 ILO Commission of Inquiry noted in its concluding observations: [T]he impunity with which government officials, in particular the military, treat the civilian population as an unlimited pool of unpaid forced labourers and servants at their disposal is part of a political system built on the use of force and intimidation to deny the people of Myanmar democracy and the rule of law. The experience of the past years tends to prove that the establishment of a government freely chosen by the people and the submission of all public authorities to the rule of law are, in practice, indispensable prerequisites for the suppression of forced labour in Myanmar.47 The Junta’s Response to the Allegations: Pressure from the International Labor Organization The Burmese government became a member of the ILO in 1948 and has ratified 19 ILO conventions, including the Forced Labour Convention No. 29 (1930) that it ratified in March 1955. The ILO’s unique form of membership, comprised of governments, employers, and workers, has allowed it to pressure the Burmese junta to address impunity in ways that other UN agencies have not.48 The International Confederation of Free Trade Unions (ICFTU) has taken the lead within the ILO in documenting the junta’s noncompliance with the Forced Labour Convention and calling for action. The 1998 Commission of Inquiry then issued an exhaustive report finding forced labor to be widespread and systematic in Burma.49 The report’s recommendations called for the SPDC to investigate complaints of forced labor and to prosecute and punish those responsible. It noted that the “power to impose compulsory labour will not cease to be taken for granted unless those used to exercising it are actually brought to face criminal responsibility.”50

45 46 47

50

UN General Assembly, Report on the situation of human rights in Myanmar, Special Rapporteur, Sept. 21, 2006, A/61/369, par. 33. National Coalition Government of the Union of Burma, Human Rights Documentation Unit, Burma Yearbook 2007, 187. ILO, Forced labour in Myanmar (Burma): Report of the Commission of Inquiry appointed under article 26 of the Constitution of the International Labour Organization to examine the observance by Myanmar of the Forced Labour Convention, 1930 (No. 29), GB.273/5, par. 542, July 2, 1998. The ILO organizes an annual conference to adopt conventions and recommendations with two government delegates, one employer delegate, and one worker delegate from each member state. The ILO’s executive body is called the Governing Body. ILO, Forced labour in Myanmar (Burma): Report of the Commission of Inquiry appointed under article 26 of the Constitution of the International Labour Organization to examine the observance by Myanmar of the Forced Labour Convention, 1930 (No. 29), GB.273/5, par. 275, July 2, 1998. Ibid., par. 539(b).

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Following the report, the ILO increased pressure. In 2000, the organization barred the SPDC from receiving any technical cooperation or attending ILO meetings, symposia, or seminars except in cases where the sole purpose was securing compliance with the commission’s recommendations.51 The ILO also requested that all members review their relations with the regime and “take appropriate measures” to ensure that those relations did not perpetuate the system of forced labor.52 These measures related to foreign direct investment in the country and relations with state- and military-owned enterprises that contributed to forced labor.53 The SPDC yielded to the pressure. The junta allowed a “High-Level Team” in the country in 2001 to assess the forced labor situation—a significant development given that the members of the 1998 Commission of Inquiry had not been allowed to visit Burma. The team found that although the laws had been updated to prevent the practice of forced labor, victims did not trust the police and the judicial system to operate independently of the regime.54 The team recommended that the ILO establish a presence in Burma to create a “facilitator mechanism” as recourse for victims.55 In 2002, the ILO opened an office in Rangoon and appointed a liaison officer. The ILO sought to establish a formal Plan of Action with the SPDC to address the ILO’s concerns about forced labor and the need for a mechanism that victims of forced labor could use to lodge complaints. The liaison officer traveled to various parts of Burma and referred cases of forced labor to the authorities. In the negotiations regarding the Plan of Action, a consistent tension emerged between the authorities’ stated commitments to eradicate forced labor, and reality, which suggested that they were merely giving lip service to the issue. During this time, the liaison officer began monitoring the courts and the Convention 29 Implementation Committee, an administrative body developed as a national supervisory mechanism for monitoring compliance with the Forced Labour Convention that the SPDC created after the 1998 Commission of Inquiry report. The ILO director-general observed that, based on the liaison officer’s reports, “Specific complaints of forced labour brought to the attention of the Convention 29 Implementation Committee are systematically denied, and cases brought directly before the courts are rejected.”56 In 2004 the committee reviewed 38 cases; it issued a response in 18 of those and rejected the charges in each of those. Individuals brought six cases directly to the courts; three were dismissed and three were ongoing at the end of 2004. In two of the rejected cases, the alleged victims were prosecuted for defamation and imprisoned for six months.57 This aggressive action against people filing complaints sent a warning to others considering similar legal action. The Burmese press, generally viewed as a mouthpiece of the government, issued statements denouncing the ILO and its acceptance of “one-sided” information from the ICFTU. This media attention was ac51

esolution concerning the measures recommended by the Governing Body under article 33 of the ILO Constitution on the R subject of Myanmar, adopted by the International Labour Conference at its 88th Session (Geneva, June 2000). 52 Ibid. 53 International Labour Office, Governing Body, Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29), Further action taken pursuant to the resolution adopted in 2000 by the International Labour Conference, Geneva, GB.294/6/2, November 2005. 54 Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29) Report of the High-Level Team, par. 68, GB.282/4, Geneva, November 2001. 55 Ibid., par.80-81. 56 International Labour Office, Governing Body, Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29), Report of the Director-General, par. 13, GB.291/5/2, Geneva, November 2004. 57 International Labour Office, Governing Body, Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29), Report of the Liaison Officer a.i., par. 13, GB.291/5/1, Geneva, November 2004. A similar situation occurred in 2006 with people from Aunglan Township. International Labour Office, Governing Body, Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29), par. 12 (Geneva, March 2006) (GB.295/7).

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companied by legal action against victims and their representatives. The media attacks drew a connection between the ILO and what the press called “terrorist” organizations providing information on forced labor.58 The ILO liaison officer faced increasing restrictions; additionally he and another ILO representative endured a campaign of orchestrated death threats. Government-affiliated organizations held mass rallies and began calling for the SPDC to consider withdrawing from the ILO.59 In light of these developments, the liaison officer stopped referring cases of forced labor to the authorities because he had no assurances that anyone who filed complaints would be safe from retaliation. Late in 2005, the SPDC rejected the concept of setting up a more formal complaints mechanism that would involve the ILO. Burma’s political climate was changing significantly during this time. Putting NLD leader Daw Aung San Suu Kyi under house arrest again in 2003 cost the SPDC some of the credibility it gained in working with the ILO. At the end of 2004, Prime Minster Khin Nyunt was removed from his post. This was a blow for the ILO because he had been one of its key interlocutors within the Burmese government. Other important ILO contacts, including the Minister of Labor, also lost their jobs.60 Despite continued tension between the SPDC and the international community, in early 2005 the junta told the ILO that the first prosecutions of local officials for imposing forced labor were completed. Three people received eight-month prison sentences, and another person got 16 months in jail. Since all four were civilians, the ILO reported that it was vital to take similar actions with military personnel.61 The ILO also began negotiations again with the SPDC on establishing a formal complaints mechanism. As these discussions progressed, the sticking point remained the SPDC’s insistence that it be able to take legal action against anyone who made false allegations. The Burmese officials said this was necessary because the NLD and other opposition forces, including those in exile, were bent on undermining the regime; therefore any complaints lodged by anyone with ties to the NLD or the opposition were spurious.62 Such a view meant that cases should be considered based primarily on who brought them rather than on their merits. The ILO argued that the best deterrent to the political manipulation of a complaints process “would precisely be the establishment of an objective, impartial mechanism involving persons of unimpeachable integrity that would have the required credibility in dismissing such false complaints.”63 In light of this stalemate, the International Labour Conference decided to review potential actions it could take against Burma for breaching the Forced Labour Convention.64 In addition, the ILO’s Governing Body was scheduled to meet in November 2006 to evaluate the SPDC’s progress in carrying out

58 “Big nations of west bloc use ILO as political forum to put pressure on Myanmar in order to install their puppet government in power,” New Light of Myanmar, March 16, 2005. 59 International Labour Office, Governing Body, Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29), par. 4, GB.294/6/2, Geneva, November 2005. 60 International Labour Conference, Provisional Record, 95th Session, Geneva, 2006, Additional agenda item, Review of further action that could be taken by the ILO in accordance with its Constitution in order to: (i) effectively secure Myanmar’s compliance with the recommendations of the Commission of Inquiry; and (ii) ensure that no action is taken against complainants or their representatives, par. 17. 61 International Labour Office, Governing Body, Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29), Report of the Liaison Officer a.i., par. 13, Geneva, March 2005. 62 The minister of Labor explained this view during a meeting in 2006 with the ILO liaison officer; “As regards the question of prosecutions, the Minister strongly insisted that the situation in Myanmar was different from that of other countries in view of the fact that political forces were taking full advantage of issues such as forced labour to politicize the situation and tarnish the reputation of the Myanmar authorities. This is why the authorities were determined to use the relevant provisions of the Penal Code 8 to deter such political manipulation. The Minister indicated that it was of the view of the authorities that a distinction had to be made between genuine complaints, which they could accept, and politically motivated allegations, which they could not.” International Labour Office, Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29), par. 22, GB.295/7, Geneva, March 2006. 63 International Labour Office, Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29), par. 21, GB.295/7, Geneva, March 2006. 64 International Labour Conference, Provisional Record, 95th Session, Additional Agenda Item, Appendix I, Geneva, 2006.

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the recommendations of the Commission of Inquiry (particularly the establishment of a complaints mechanism). Based on that evaluation, the Governing Body would be authorized to decide on a course of action. The document the ILO prepared for that meeting explained various legal remedies that the Governing Body could implement if it was not satisfied with the SPDC’s progress, including an analysis of forced labor as a crime against humanity.65 This document suggested a process for future action that included a path to access international justice for forced labor and explained that the ILO could request a ruling from the International Court of Justice for a breach of the Forced Labour Convention (1930). Based on that ruling, a strategy could be developed for bringing a case, through a UN Security Council referral, to the ICC.66 In May 2006, the SPDC announced a six-month moratorium on taking legal action against people filing complaints of forced labor and promised to continue discussing with the ILO liaison officer how to create a complaints process.67 Then, with the November 2006 Governing Body meeting looming and consideration of punitive action against the SPDC on the agenda, the junta went a step further. On September 20, 2006, the SPDC acquitted three people of making false complaints of forced labor. By this time, the ILO and the SPDC had negotiated the terms of a complaints mechanism to formalize the de facto process that had already been operating, with the liaison officer receiving complaints. The agreement, known as the Supplementary Understanding, included guarantees against retaliatory action against those who filed complaints. However, talks reached an impasse over a seemingly minor issue of adding more staff to the ILO’s office. According to the ILO report on the meeting, the impasse was difficult to understand since the SPDC had seemed ready to accept, in principle, the increase.68 When the ILO Governing Body met in November 2006, it acknowledged the release of the people who had been prosecuted for making “false allegations,” as well as the moratorium on prosecuting similar cases. The decision it then had to make is one often at the heart of the question of impunity in Burma: Was the progress enough to be applauded, or was it a cosmetic act obscuring the more basic system of impunity for forced labor, designed to remove the threat of punitive action? The Governing Body decided not to accept either of the SPDC’s actions as acceptable progress and placed on the agenda of the March 2007 session an item allowing it to consider the options outlined in the ILO “legal remedies” document. The SPDC took notice. Just before the March session, Burmese officials and the ILO signed the Supplementary Understanding on February 26, 2007, effectively establishing a formal complaints mechanism for forced labor through the liaison officer. According to the agreement, the officer (or someone he or she appoints) would conduct an initial, confidential examination of the complaints and assess whether they constituted forced labor. The officer would then refer relevant cases to a working group, established by the SPDC,

65 66 67 68

rticle 7 of the Rome Statute of the ICC (2002) defines crimes against humanity as any in a series of acts, which includes A enslavement or severe deprivation of liberty, “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack International Labour Office, Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29), Legal aspects arising out of the 95th Session of the International Labour Conference, par. 9, GB.297/8/2, Geneva, November 2006, citing the UN Charter, Article 94(2). International Labour Conference, Provisional Record, 95th Session, Part Three: Observations and Information Concerning Particular Countries, Special sitting to examine developments concerning the question of observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29), Geneva, 2006. International Labour Office, Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29), par. 18, GB.297/8/1, Geneva, November 2006. One explanation is that the SPDC was throwing up a last-minute obstacle on purpose so that during the Governing Body’s meeting in November, the liaison officer would report that they were close to getting an agreement, but needed more time.

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to be investigated by “the most competent civilian or military authority concerned, as appropriate.”69 When the Governing Body met the next month, it deferred the question of potential legal remedies, but noted that “the necessary question or questions would continue to be studied and prepared by the Office…to be available at any time that might be necessary.”70 The Supplementary Understanding was effective for a year. It was renewed for an additional year in February 2008 and again in February 2009. At the end of 2008, the liaison officer reported that since the previous February, the office had received 121 complaints of forced labor, including recruitment of child soldiers, and it had forwarded 70 to the SPDC.71 Of those 70 cases, the liaison officer considered 50 of the SPDC’s responses satisfactory. In most cases the response was a reprimand, but in some instances authorities paid compensation to victims, established an activity to educate communities or local authorities about the illegality of forced labor, issued new instructions, dismissed the village chairman, or stopped the violations.72 These outcomes were light on punitive measures and, although they show progress in that they upheld the right to truth and compensation, the absence of justice measures in most cases points to a pattern of ongoing impunity.

Impunity for the Recruitment and Use of Child Soldiers In his December 2007 report to the Security Council on children and armed conflict, the UN SecretaryGeneral said there were reliable reports that the Burmese army and other armed groups in the country were recruiting child soldiers.73 Other UN reports, as well as studies done by international NGOs and local human rights organizations, confirm this finding.74 While estimates on the number of child soldiers in Burma vary and are nearly impossible to confirm, the Coalition to Stop the Use of Child Soldiers says thousands of children are used.75 The Nature of Recruiting and Using Child Soldiers in Burma

A child soldier, conscripted at 15 years old, who escaped in April 2009 from a Burmese army battalion in Papun District of Karen State. Photo provided by the Free Burma Rangers, which provides media free of charge to help the people of Burma.

Battalions deploy recruiters to train stations and other public places to find potential recruits. Children are often compelled to join out of poverty or are physically threatened into joining the army. At the recruitment centers, officers rarely attempt to verify ages, and a recruiter can easily bribe an officer if any question is raised.

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ccording to the International Labour Office’s November 2006 report, the working group comprised the deputy minister of A Labor as chairman, together with the deputy attorney general, the director-general of the Office of the Chief Justice, the directorgeneral of Labor, the director-general of the General Administration Department (Home Affairs) and the deputy director-general of the International Organizations and Economic Department (Foreign Affairs). International Labour Office, Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29), Status report on decisions regarding Myanmar, par. 12, GB.303/8/1, Geneva, November 2008, citing GB.298/5. The complaints mechanism covers cases of forced labor and child soldiering. Of the 70 reported cases, 39 involved child soldiering and 31, forced labor. The issue of child soldiers is taken up in the following section of this report. The cases that did not fall within the definition involved other issues, such as land, pensions, and wage disputes. International Labour Office Governing Body, Developments concerning the question of the observance by the Government of Myanmar of the Forced Labour Convention, 1930 (No. 29), Report of the Liaison Officer a.i., GB.303/8/2, Geneva, November 2008. This document refers to “village chairman” but this position is more often referred to as a headman. Report of the Secretary-General on Children and Armed Conflict A/62/609-S/2007/757 Dec. 21, 2007, 15-17. The 2006 report names four groups: the Burma Army, United Wa State Army (UWSA), Karen National Liberation Army (KNLA, the armed wing of the Karen National Union, or KNU), and the Karenni Army (KA). The following groups were added to that list in the 2007 report: KNU– KNLA Peace Council (a breakaway from the KNU-KNLA), Democratic Karen Buddhist Army, Kachin Independence Army, Karenni Nationalities People’s Liberation Front, Myanmar National Democratic Alliance Army (Kokang), and Shan State Army—South. The most significant of these are: Images Asia, No Childhood at All, 1996; Human Rights Watch, My Gun Was As Tall As Me, 2002; UNICEF, Adult Wars, Child Soldiers: Voices of Children Involved in Armed Conflict in the East Asia and Pacific Region, 2002; Human Rights Education Institute of Burma, Despite Promises: Child Soldiers in Burma’s Armed Forces, 2006; and Human Rights Watch, Sold to Be Soldiers: The Recruitment and Use of Child Soldiers in Burma, October 2007. Coalition to Stop the Use of Child Soldiers, Child Soldiers Global Report, 2008.

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New recruits are treated severely during training, especially if they try to escape or disobey rules. Once they are deployed to battalions, they may be forced to carry out human rights violations alongside the other soldiers. This account is based on testimony given to a fieldworker from EarthRights International (ERI)), an ND-Burma member organization, in 2005. The speaker is a 24-year-old male villager from Pegu Division, Burma. I arrived here a few days ago after I escaped from the Burmese army. I came with two other friends as well. We spent one night in the jungle before we met Karen National Union (opposition force) soldiers. We were treated well by the soldiers here and not like how the officers used to order us. We were always told that if we were ever captured by Karen soldiers that they would just kill us. I have six brothers and two sisters back home. I am the third child. Our family business was selling items, and it was not so bad because we were able to survive. I joined the military for about seven years since I was about 17 years old. I was forced to join the military and become a soldier. I was picked up by one man, who I had never met, and he sent me to the police station. When I arrived at the police station, they forced me to join the military. That same night I was sent to Rangoon with four other people for military training. All of them were my friends. Two of them are younger than I am, and the other friend is the same age as me. We were accompanied by one sergeant, and he led us to the train. The next day we arrived in Rangoon at the Da Nyn Gone recruitment center. While at the recruitment center, I was thinking of trying to escape, but it was too late because they already cut our hair in a military style, so it was hard to run away. I was also shy and scared of escaping. Again because of the military haircut they could easily find and recapture us. While we were at the recruitment center, we were asked to state the reason we joined the army. If we didn’t respond that we joined by ourselves on our decision, they threatened to lock us up. So I was forced to say that I willingly joined the military by myself. This occurred in July 1998. We were held at the recruitment center for a month before being sent to the training center. In August 1998, I was sent to Cho Pyu training camp in Tike Gyi town. I had to attend the training for four and half months. During this training we were given food that was not good such as rice that was not well cooked, chili or fish paste that was not fresh. Some people tried to escape during 1144 the training, but some were recaptured and were severely punished. When I was in the training camp and also in the training recruitment center, I never wrote to my parents because it was so difficult. In addition, whenever I thought of writing to them I wanted to cry. Again when I saw my friends’ parents visit them, 557 they were crying so I didn’t want my parents to cry. The worst thing that happened was even though I wrote to my parents, the letters never arrived to my parents, because most of the time the officers in charge of the mail never sent out the 233 letters, and they didn’t deliver the letters that were sent to us. I hardly came through the training, and after that training I was sent to artillery training for another two and half months at Mit Htee La. After that I was sent to Artillery Battalion 324 based in Tavoy. It was early 1999 when I arrived to Ta Bay Chang in Tavoy where the battalion was based. When I arrived to the base there are about 55 soldiers in the camp. The Burmese government is obligated under the Convention on the Rights of the Child, which it signed in 1991, not to allow children younger than 15 to be soldiers. Under Burma’s own domestic law, that

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standard is raised to the age of 18.76 Burma has further obligations under customary international law torestrict the recruitment and use of child soldiers, despite having not yet signed many of the specifically relevant individual agreements.77 The Junta’s Response to the Allegations: Security Council Resolution 1612 The recruitment and use of child soldiers is generally treated as a separate category of human rights violation. However, because it is also a form of forced labor, monitoring child soldiering has fallen to the ILO. The incidents of child soldiering understandably have increased in combat areas. Because the ILO’s mechanisms to address forced labor include child soldiering, the previous discussion of the junta’s response to the ILO on issues of forced labor are relevant here as well. However, some interactions related specifically to child soldiering deserve some additional discussion. While the ILO and SPDC were negotiating mechanisms to prosecute forced labor, the UN began to increase pressure on the SPDC for child soldiering. The UN Security Council has passed several resolutions that directly address children and armed conflict, and UN Security Council Resolution 1612 established a monitoring and reporting mechanism on the use of child soldiers.78 Resolution 1612 and the previous resolutions called on the UN Secretary General to report to the Security Council a list of parties that recruit and use child soldiers. The resolutions also called on those parties to develop an action plan to address conflict-related violations against children.79 Before Resolution 1612 passed in July 2005, the SPDC began developing a plan to address child soldiering. In 2004, it established the Committee for the Prevention of Military Recruitment of Underage Children. That committee’s Plan of Action outlines five activities to carry out: demobilization and reintegration of child soldiers, raising public awareness about the problem, cooperation with international agencies on ending the practice of child soldiering, and, most significantly with regard to impunity, punishment for recruitment. In a 2005 press statement, the SPDC claimed it discharged 213 child soldiers between 2002 and February 2005.80 By Human Right Watch estimates, demobilization actually took place between 2002 and 2006 at an average rate of 41 child soldiers per year, a very small percentage of the likely total of child soldiers in Burma.81 The Secretary-General’s Special Representative for Children and Armed Conflict visited Burma in June 2007. During her visit, she recommended that: A transparent complaints procedure for incidents of recruitment of underage children be instituted and disciplinary action be taken against responsible parties (both military agents and local…officials

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ccording to correspondence sent to Human Rights Watch from the Permanent Mission of the Union of Myanmar to the A United Nations, Burma’s “Regulation for the Persons Subject to the Defense Services” sets 18 as the minimum age for military recruitment. See Human Rights Watch, Sold to be Soldiers, October 2007. These include Optional Protocols I and II to the Geneva Conventions, the Worst Forms of Child Labour Convention (No. 182), and the Rome Statute. In the summary of decision on Preliminary Motion on Lack of Jurisdiction (Child Recruitment), Prosecutor v. Samuel Hinga Norman, May 31, 2004, Case Number SCSL-2003-14-AR72 (E), the Appeals Chamber of the Special Court for Sierra Leone affirmed that recruiting child soldiers, as defined by the Rome Statute, was part of customary international law as early as 1996. United Nations Security Council, Resolution 1612, July 16, 2005. S/RES/1612 (2005). The relevant UNSC resolutions are 1261 (1991), 1314 (2000), 1379 (2001), 1460 (2003), and 1539 (2004). A helpful summary and analysis of legal obligations can be found in the Human Rights Education Institute of Burma’s Forgotten Future: Children Affected by Armed Conflict in Burma (2008). “Alleged forced recruitment of soldiers especially child conscriptions are based on false information,” Information Committee of the State Peace and Development Council, Rangoon, March 16, 2005. Human Rights Watch, Sold to be Soldiers, October 2007.

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or other parties aiding and abetting underage recruitment) and information shared with the monitoring and reporting mechanism.82 The special representative found that the complaints mechanism established to prevent recruitment of child soldiers did not meet international standards, and she encouraged the SPDC to work with the UN Country Team to update the action plan and its implementation. Regarding accountability measures, she said the UN Country Team should be “more closely informed of any actions in this regard.”83 The UN Security Council has a mandate under Resolution 1612 to consider imposing “graduated measures, such as, inter alia, a ban on the export and supply of small arms and light weapons, other military equipment, and on military assistance.”84 Under the weight of this mandate, the SPDC agreed, in principle, to a complaints mechanism, to a disciplinary procedure for parties responsible for aiding and abetting recruitment of child soldiers, and to cooperation with UNICEF on reintegrating former child soldiers.85 That agreement has been largely included in the framework of the forced labor complaints mechanism. According to Burmese government reports, 68 children in military training schools were released to their parents and guardians in 2008. While the Secretary General noted that the Government Working Group for the elimination of forced labor dealt with these complaints expeditiously, he also acknowledged that they “represent only a portion of the actual cases.”86 Impunity for recruiting child soldiers remains a problem, although the SPDC has taken some positive steps. The government claimed that it has discharged nine military recruitment officers, and the ILO verified that three members of the military received administrative penalties (such as demotion or loss of salary) in relation to child recruitment violations in 2008. However, the government does not appear to have applied the penal code of military regulations in any child soldiering cases, which could have resulted in imprisonment.87

Patterns and Analysis in the Record of Impunity A review and analysis of impunity for violations related to sexual violence, forced labor, and child soldiering highlights several patterns. The first is that impunity for the abuses committed by the military appears to be most prevalent when the abuses are related to activities surrounding ongoing armed conflict. The second is that the government actively discourages complaints regarding military abuses by retaliating against anyone who speaks up through punishments and smear campaigns. Third, the complaints mechanisms are too limited in scope and capacity to address the vast number of abuses taking place. The Burmese government has attempted to provide some semblance of justice. While the recognition that abuses are wrong may be interpreted as an important first step in what is often a long, slow process of transition toward broader accountability, this progress must be seen as being mitigated by larger political and military priorities that undermine those very efforts. Impunity Is Related to Armed Conflict The human rights violations outlined in this report have occurred throughout Burma, but are most severe 82 83 84 85 86 87

eport of the Visit to Myanmar of the Special Representative of the Secretary-General for Children and Armed Conflict, R June 25-29, 2007. Ibid. UN Security Council Resolution 1612, par. 9, July 26, 2005 (S/RES/1612 (2005)). Report of the Secretary-General on Children and Armed Conflict A/62/609-S/2007/757, Dec. 21, 2007, 15-17. UN General Assembly, Children and armed conflict: report of the Secretary-General, March 26, 2009. A/63/785–S/2009/158, para. 72 (available at www.un-casa.org/bulletinboard/Default.aspx?g=posts&t=205). Ibid.

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in rural ethnic areas. They are directly related to the military’s attacks on the people it sees as supporting armed opposition. The scale of reported violations, and the associated tolerance and impunity for them, indicates the SPDC’s acceptance of sexual violence as a legitimate part of the strategy to intimidate people in areas of armed conflict or potential resistance, and to punish communities for appearing to support the government’s opposition. Forced labor and child soldiering are also associated with areas of continuing armed conflict. The military has grown from 180,000 soldiers in 1988 to an estimated 300,000 in 2007.88 This expansion has forced commanders to rely on local communities to supply labor for building infrastructure and for portering. The pressure to fill recruitment quotas has led to a situation in which the Burmese armed forces are believed to include the highest numbers of child soldiers in the world. Impunity Is Reinforced by Attacking Those Who Complain The authorities maintain a culture of impunity not only by restricting access to complaints mechanisms, but by harassing and taking legal action against those who bring complaints against the military. As noted above, rape victims have been imprisoned after making formal complaints or bringing their story to the press. The ILO has also developed a detailed record of this tactic in relation to forced labor. Considerable progress has been made in relation to this issue, especially through the ILO’s formal complaints mechanism for forced labor. Yet it is clear that the fear of retribution is deeply rooted in the minds of Burmese victims. Human Rights Watch gives one example of this fear, familiar to any activist or researcher who has talked with victims of human rights violations in Burma. A researcher for the organization asked a community leader whether parents report their children’s forced conscription into the army. The man responded that it was too dangerous because local authorities would punish the parents, and the ILO and the UN would be powerless to protect them.89 The regime reinforces this fear by using the press and other propaganda techniques to smear victims, based on their political or ethnic affiliations. Accusations that insurgents made up the allegations in the Shan License to Rape report were echoed in the mass rallies in 2005 calling for a withdrawal from the ILO because of the organization’s connection with alleged “terrorist”elements. Similarly, the SPDC denied conscripting child soldiers and dismissed allegations as the fabrications of neo-colonialists supported by “alien-reliant national traitors at home and abroad.”90 Press attacks on the people or organizations involved in the complaints mechanisms have also strengthened perpetrators’ sense of impunity.91 Complaints Mechanisms Are Too Limited The existing complaints mechanisms are too limited in scope and capacity to deal with the vast number of abuses taking place. As of November 6, 2008, 121 complaints of forced labor had been filed under the ILO’s complaints mechanism, and the ILO determined that 70 of them met the requirements. Thirty-nine of those cases involved child soldiering.92 Because Burmese authorities handle cases of sexual violence, including rape, in an ad-hoc way, official numbers are unavailable.

88

hristina Fink, “Militarization in Burma’s ethnic states: causes and consequences,” Contemporary Politics, 14:4, 2008, 450, citing C Mary Callahan, Political authority in Burma’s ethnic minority states: devolution, occupation, and coexistence (Washington, DC: EastWest Center, 2007), 7. 89 Human Rights Watch, Sold to be Soldiers, October 2007. 90 Ibid., citing Information Sheet N0. D-3936(I) Feb. 2, 2007, Myanmar Information Committee, Rangoon; “Myanmar still facing unjust accusations of child soldiers as only slanders and falsehood reach UN.” 91 UN General Assembly, Report on the situation of human rights in Myanmar, Special Rapporteur, Sept. 21, 2006, A/61/369, par. 31. 92 Report of the Liaison Officer, ILO Governing Body 303rd Session, November 2008. (GB.303/8/2). Recent statistics from the SPDC’s Committee for the Prevention of Military Recruitment of Underage Children are unavailable, and the ILO mechanism is handling most of the child soldiering cases.

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The number of complaints pales in comparison to the actual number of violations. Thousands, if not tens of thousands, of child soldiers are believed to be serving in the army.93 The number of cases of forced labor is likely to be at least that high. Burmese women’s organizations have documented 875 cases of rape from 1988 to 2006 and believe that number is a mere fraction of the total number because of the difficulty in accessing communities under SPDC control and the fear and stigma that keeps women and girls from reporting rape. The complaints mechanisms are not sufficient to address the breadth of the abuses. According to a 2007 report on eastern Burma by Amnesty International, the ILO did not receive any official complaints of forced labor in Karen State where local organizations have documented some of the most severe cases of human rights violations linked to forced labor. The ILO attributed this gap to fear, a lack of awareness about the complaints mechanism, and difficulty getting to Rangoon to file a complaint in the ILO’s office.94 Are There Indications of Progress? Moves Toward Accountability In a context where impunity and lack of accountability dominate, change may require relatively small advances that could stimulate broader institutional improvement. The Burmese regime has taken steps that should be recognized as important moves away from total impunity. Recognizing that members of the security forces have committed some serious crimes and that the perpetrators deserve punishment are steps in the right direction, even though the manner in which the perpetrators and victims have been handled has been highly inadequate. An example of such recognition is the compensation that the military has made to victims of sexual violence and their families. Although these payments are not consistent, sufficient, or the most appropriate means of redress, they do suggest that the military may recognize that sexual violence is wrong and should be redressed. Similarly, creating the ILO’s complaints mechanism for forced labor also is at least a rhetorical recognition that the practice, as well as child soldiering, is wrong.95 The military’s recognition of these crimes is a necessary precondition for it to take steps to avoid or address such violations in the future. These small steps taken to date reflect an inconsistent approach to crimes and victims that is often determined by the real or perceived political views of the victim (i.e. whether or not they are supportive of the regime). Hence, they are grossly inadequate and inappropriate when considering the gravity of the victims’ suffering. However, considering that the Burmese government before was in a state of total denial about any wrongdoing, the steps may indicate a growing openness to accountability. Many transitions move in fits and starts, and they may be influenced considerably by both internal and external pressures. But experience shows that progress in transition often happens through such slow cultural, structural, and institutional changes. 93

94 95

uman Rights Watch’s My Gun Was As Tall As Me gave a rough estimate of 70,000 and cited a 1996 UN study on children in H armed conflict that put the number at more than 50,000. The Coalition to Stop the Use of Child Soldiers said thousands were involved in its 2008 Global Report on Child Soldiers. Human Rights Watch’s Sold to be Soldiers does not offer an estimate, but relates credible eyewitness accounts of at least 30 percent of soldiers in recruiting centers being underage. Amnesty International, Crimes against humanity in eastern Myanmar, June 2008 (ASA 16/011/2008). Attention to the issue, however, needs to remain in the context of the larger reality of ongoing widespread and systematic forced labor, especially in highly militarized zones. The army continues to impose forced labor for portering, military operations, and other military and infrastructure-related projects. See United Nations Human Rights Council, Report of the Special Rapporteur on the situation of human rights in Myanmar, March 7, 2008 (A/HRC/7/18), par. 33. According to Human Rights Education Institute of Burma’s Forgotten Future: Children and Armed Conflict in Burma (November 2008), recruiting child soldiers is still common. According to Human Rights Watch’s World Report 2007, the ongoing military offensive in northern Karen State and eastern Pegu Division has led to massive human rights abuses, including forced labor and use of child soldiers. Because of the offensive, the military has used forced laborers and convicts to build at least 43 new army bases.

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Responsiveness to the Imminent Threat of International Punishment Analysis of the limited progress suggests that the Burmese regime responds to threats from the international community. After considerable negotiations, the regime agreed to the ILO mechanism to address forced labor and child soldiers. (Yet no effective mechanisms exist to address other violations, such as rape, torture, arbitrary arrests, and detention.) As noted in the case of forced labor, 10 days before the ILO Governing Body was due to consider the legal remedies it could take before the International Court of Justice, the UN Security Council, and the ICC, Burma concluded the Supplementary Agreement with the ILO. The UN has monitoring mechanisms and agencies that address the wide range of human rights that the Burmese people have suffered, including violations of the right to food, internal displacement, freedom of religion and belief, and extrajudicial, summary, and arbitrary executions. However, the SPDC has not allowed UN personnel who report on these issues into the country.96 Why then has the regime been willing to work with the UN’s special representative on Children and Armed Conflict? The representative was allowed to visit Burma in June 2007, as she was preparing a report for the secretary-general so he could brief the UN Security Council’s Working Group on Children and Armed Conflict later that year. During her visit, the SPDC made commitments to revise the Plan of Action, to improve the complaints mechanism, and to ensure that the disciplinary procedures for child soldiering complied with UN Resolution 1612. If the Security Council found that Burmese officials were not complying with the resolution, it could impose measures such as bans on supplying arms, military equipment, and military assistance to the junta.97 The working group submitted its conclusions to the Security Council the following July. They reflected relative weaknesses in the special representative’s language and did not include any concrete recommendations that would prompt the SPDC to take concrete actions. In Human Rights Watch’s comments on the conclusions, the group explained that the “Security Council’s failure—in large part due to efforts by China to block a more principled response—was particularly glaring given its previous pledges to seriously consider arms embargoes and other targeted measures against parties that repeatedly recruit and use child soldiers.”98 So while the threat of sanctions prompted a small step in the right direction—consenting to the special representative’s visit—neither the working group nor Security Council members capitalized on that step.

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Amnesty International, Crimes against humanity in eastern Myanmar, June 2008, 40-41. UN Security Council Resolution 1612, par. 9, July 26, 2005 (S/RES/1612 [2005]). Human Rights Watch, World Report 2009 (Events of 2008).

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3. The 2008 Constitution: Entrenching Impunity The most recent step along the Burmese regime’s “roadmap to democracy” has been the passage of the new constitution through referendum in May 2008. The Burmese constitution’s “basic principles,” as outlined in its first chapter, state that among the country’s objectives is the “flourishing of a genuine, disciplined multi-party democratic system.”99 Experience in other transitional regimes has proven that passing a constitution is an important step in the long process toward democratic reform. To cite just one example from the region, after Indonesia’s military dictator General Suharto fell in 1998, that country’s constitution was amended to include a comprehensive “bill of rights.” Despite the ongoing challenges of massive corruption, impunity, and lack of accountability, the constitution is one of the most powerful tools available to human rights advocates in Indonesia.

The 2008 Burma Constitution

Indonesia’s example is particularly applicable to Burma. One of the fundamental reasons Indonesia has been able to move forward in its transition from military dictatorship to democracy is that the previous guarantee that 30 percent of seats in parliament go to military officers was not entrenched in the constitution. Therefore, those laws could be amended. The quota gradually decreased over seven years and now no longer applies. Supporters of the Burmese constitution argue that it makes significant advances toward a democratic state by declaring new norms and advancing certain democratic reforms. However, the constitution was passed without genuine consultation with any sector of society except the military elite or true democratic participation or acceptance. This suggests that the document is based on the junta’s interests, not those of the people. Such concerns are buttressed by the fact that the constitution includes objectionable elements that reinforce the existing culture of impunity for those who commit human rights violations. One such element is a substantive immunity clause, which appears to provide blanket amnesties for human rights abuses committed by junta members. Another element is the structural entrenchment of the military in the government by giving its members perpetual and disproportionate influence in the legislature and the ability to single-handedly veto any constitutional amendments. And the third element is the complete separation of the military from civilian justice, which permits members of the military to be tried for violations against civilians in military courts with separate rules. 99

2008 Constitution, Article 6(d).

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The Flawed Constitutional Process The manner in which the 2008 constitution was drafted and adopted was fundamentally flawed. Professor Yash Ghai, a constitutional expert from Kenya, notes that the process of writing a constitution is as important as the outcome and, in fact, determines the outcome. He also says that constitutions drafted in conflict or post-conflict situations should be the result of negotiations if they are to succeed in fostering reconciliation or building trust.100 The Burmese government’s resistance to any initiatives not prescribed by the SPDC demonstrated a lack of commitment to basic democratic processes and foreshadowed potential difficulties in amending the constitution. The influence that the military authorities exerted over the National Convention means that the constitution may not provide a stable foundation for further democratic transition. Rather, the flawed drafting process may actually increase short-term conflict as opponents question its legitimacy. A similar issue arises in relation to the adoption of the constitution during the May 10, 2008, constitutional referendum. The draft constitution became available to the public only five weeks before the scheduled referendum. It was published only in Burmese, which many ethnic minorities could not read, and was only available in Rangoon bookstores for 1,000 Kyat (about U.S. $1).101 As a result, most people did not know what it said. The few people who had been able to study the contents were barred from commenting critically about the draft in public, publishing articles that carried any criticisms, or bringing people together to discuss it.102 Significant portions of the population were prohibited from voting on the referendum, including 500,000 Buddhist monks and over a million people who were out of the country without the government’s permission. There were no official policies on what would happen if voters rejected the draft constitution and no independent monitoring of the voting. A week before the referendum, Cyclone Nargis hit Burma, killing thousands and causing thousands more to lose their homes. Despite the urgent need to direct resources and attention to disaster relief, the SPDC went ahead with the constitutional referendum in all but the 47 townships most severely affected by the cyclone. When the final tallies were announced, the regime claimed that 92.4 percent of the voters approved the new constitution and that 26 million out of 27 million eligible voters (96 percent) had turned out to vote. It is unlikely that a new constitution in any country would garner this level of support. And given the recent widespread anti-government protests, the various ongoing conflicts, and the chaos and devastation caused by the cyclone, these numbers appear to bear little resemblance to the truth.

Reinforcing Substantive and Structural Impunity Despite the regime’s claims that the constitution supports democratic transition in Burma, several substantive elements within the document reinforce and entrench impunity for the junta’s past and present human rights violations. The Immunity Clause The final article in the constitution’s chapter on transitory provisions effectively provides amnesty for the 100 Yash Ghai, “The 2008 Myanmar Constitution: Analysis and Assessment,” unpublished. 101 Since the average Burmese worker earns less than $200 a year, buying a copy of the constitution would cost two days’ wages. The constitution was later published in both Burmese and English. 102 National Convention Law (No. 5/96).

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conduct of the SPDC and its predecessor. Article 445 in Chapter 14 (herewith “immunity clause”) states, “All policy guidelines, laws, rules, regulations, notifications and declarations of the State Law and Order Restoration Council and the State Peace and Development Council or actions, rights and responsibilities of the State Law and Order Restoration Council and the State Peace and Development Council shall devolve on the Republic of the Union of Myanmar. No proceeding shall be instituted against the said Councils or any member thereof or any member of the Government, in respect to any act done in the execution of their respective duties.” The clause does not specify which acts would be covered by the amnesty. It only holds that it applies to “any act done in the execution of their respective duties.” This language could be interpreted widely to encompass administrative, civil, and criminal activities. Alternatively, it may be interpreted more restrictively, for example holding that any act done in violation of national or international law must, by definition, have been outside the scope of “their respective duties.” Such a restrictive interpretation of this immunity clause would permit criminal liability for severe human rights abuses. It is not clear whether the amnesty is intended to apply only to past actions or present and future actions. How these ambiguities are interpreted will likely depend on the new judiciary, discussed below. The scope of this immunity clause may also be limited by international law and Burma’s international treaty obligations. There is a general consensus under international law that national laws or constitutions cannot provide amnesties for genocide, crimes against humanity, or other serious violations of international humanitarian law.103 Burma is also party to the Convention on the Prevention and Punishment of the Crime of Genocide (ratified on March 14, 1956) and the Geneva Conventions (ratified on August 25, 1992), both of which require parties to punish perpetrators of genocide and grave breaches of the Geneva Conventions in national courts or tribunals, regardless of the perpetrators’ political affiliation or military status.104 If Burma’s national courts decide to uphold this amnesty provision in relation to serious crimes, they may be violating the country’s international obligations. Moreover, such an amnesty probably would not affect possible international prosecutions against the Burmese regime for genocide, crimes against humanity, or serious violations of international humanitarian law. There is growing international consensus that countries have an obligation to investigate gross human rights violations, hold those most responsible legally accountable, and provide victims with an effective remedy. These principles have emerged out of a range of treaties that have been almost universally ratified, as well as (nonbinding) UN declarations and resolutions, and dozens of decisions by treaty-monitoring

103 S ee, e.g., the Secretary–General, Report of the Secretary–General on the Establishment of a Special Court for Sierra Leone, par. 22, U.N. Doc. S/2000/915 (noting that “the United Nations has consistently maintained the position that amnesty cannot be granted in respect of international crimes, such as genocide, crimes against humanity or other serious violations of international humanitarian law.”) See also Decision of the Inter-American Court of Human Rights, Case of Almonacid-Arellano et al v. Chile, Judgment Sept. 26, 2006. Series C No. 154, par. 114 (holding that “States cannot neglect their duty to investigate, identify, and punish those persons responsible for crimes against humanity by enforcing amnesty laws or any other similar domestic provisions. Consequently, crimes against humanity are crimes which cannot be susceptible of amnesty.”); Decision of the Inter-American Court of Human Rights, Case of Barrios Altos v. Peru. Judgment March 14, 2001. Series C No. 75, par. 41 (www.corteidh.or.cr/docs/casos/articulos/seriec_75_ing.pdf), which states that Peru had violated the American Convention on Human Rights by enacting Amnesty Law No. 26479 because “the establishment of measures designed to eliminate responsibility are inadmissible because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture, extrajudicial, summary or arbitrary execution and forced disappearance, all of them prohibited because they violate non-derogable rights recognized by international human rights law.”). 104 See Convention on the Prevention and Punishment of the Crime of Genocide, Articles 1, 4, and 6; Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, Aug. 12, 1949, Articles 49-50; Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva, Aug. 12,1949, Articles 50-51; Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949, Articles 129-30; Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, Aug. 12, 1949, Articles 146-47. While grave breaches only relate to international armed conflicts, Burma’s constitutional clause makes no distinction regarding the context in which the acts are committed.

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bodies and supranational tribunals.105 Such broad recognition may mean that these principles could be customary international law,106 and therefore they are binding on Burma’s regime. The Legislature: Making the Law The constitution creates seven regions (composed of what are now the seven divisions, consisting largely of ethnic Burmans), seven states, several self-administered areas within regions or states, and a Union territory.107 It creates a bicameral legislature at the top-most “Union” level, composed of an upper and lower house.108 In each one, the commander-in-chief of the military designates 25 percent of the membership (56 of 224 in the upper house and 110 of 440 in the lower house). At the state, region, and self-administered areas levels, the legislature has one chamber, and the commander-in-chief designates 25 percent of the membership of these bodies as well. Since all military representatives remain members of the armed forces, they are compelled to act on the instructions of the commander-in-chief. This arrangement gives the military a perpetual voting block with significant control over the legislature and the numbers to obstruct any legislation that could threaten the military’s power. While the new constitution requires the military to work with other “elected officials” to pass laws, it is very likely that a large contingency of former military and ex-government officials will become civilians and be elected through political parties. The Judiciary: Enforcing and Interpreting the Law The structure of the judiciary consists of ordinary courts, the courts-martial (military courts), and a constitutional tribunal. Within the ordinary courts, the Supreme Court is the highest and the only one at the national level, with a high court in each state and region, and courts at the levels of self-administered area, district, and township.109 While the various judges are appointed by the president with the approval of the legislature, the constitution attempts to assert the independence of judiciary by requiring that all judges be free from political affiliation.110 Yet the constitution’s provisions relating to the judiciary probably will not affect the culture of impunity that permeates the military because all cases against the military must be adjudicated in the courtsmartial. The constitution includes just two articles on those courts. Article 20(b) in Chapter 1 states, 105 See Diane Orentlicher, Report of the independent expert to update the Set of Principles to combat impunity, UN Doc. E/CN.4/2005/102/Add.1 (Feb. 18, 2005), 7. This notes every state’s obligation to “to investigate violations; to take appropriate measures in respect of the perpetrators, particularly in the area of justice, by ensuring that those suspected of criminal responsibility are prosecuted, tried and duly punished; to provide victims with effective remedies and to ensure that they receive reparation for the injuries suffered; to ensure the inalienable right to know the truth about violations; and to take other necessary steps to prevent a recurrence of violations.” See also Article 18 of the UN Draft Declaration on the Protection of All Persons from Enforced Disappearances ( “[P]ersons who have or are alleged to have committed [disappearances]...shall not benefit from any special amnesty law or similar measures that might have the effect of exempting them from any criminal proceedings or sanction,”) and Article 19 of the UN Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions (“In no circumstances, including a state of war, siege or other public emergency, shall blanket immunity from prosecution be granted to any person allegedly involved in extra-legal, arbitrary or summary executions.”) Other relevant, albeit nonbinding, declarations include the following: UN General Assembly Resolutions 1583 (Dec. 15, 1969), 2712 (Dec. 15, 1970), 2840 (Dec. 18, 1971), and 3074 (Dec. 3, 1973). See also ECOSOC Res. 1989/65, Principle 19.2: “In no circumstances, including a state of war, siege, or other public emergency, shall blanket immunity from prosecution be granted to any person allegedly involved in extra-legal, arbitrary or summary executions.” 106 For something to be considered customary international law, it must meet two criteria: state practice and opinio juris. Whether or not these principles truly meet the threshold required to become customary international law is the subject of legal debate that is outside the scope of this report. 107 According to Articles 49, 50, and 56, the states are Kachin, Kayah, Kayin, Chin, Mon, Rakhine, and Shan. The regions are Sagaing, Taninthayi, Bago, Magway, Mandalay, Yangon, and Ayeyawady; the capital, Nay Pyi Taw, is a union territory. Self-administered zones will be created for Naga, Danu, Pa-O, Pa Laung, and Kokang areas, and a self-administered division will be created for the Wa area. 108 The collective legislature is called the Pyindaungsu Hluttaw. The upper house is the Amyotha Hluttaw, and the lower house is the Pyithu Hluttaw. 109 Articles 293 and 294. 110 Articles 300(a), 301(f), 309(a), 310(f), 330(c), and 333(e).

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“The Defense Services has the right to independently administer and adjudicate all affairs of the armed forces.” How this is handled is clarified in Article 319: “The Courts-Martial shall be constituted in accord with the constitution and the other law and shall adjudicate Defense Services personnel.” Under this formulation, major human rights violations including rape, forced labor, and recruiting child soldiers appear to fall under the jurisdiction of the courts-martial, with the commander-in-chief having the final say.111 Given the history of impunity outlined above and the lack of trust in the armed forces, it is not clear that the military courts can be trusted to provide justice for human rights violations. Ghai puts this in proper perspective, asserting that the trend internationally is to recognize that military personnel are entitled to the same sort of guarantees of a fair trial as civilians and that members of the military charged with human rights violations should be tried in ordinary courts, citing a ruling by the Constitutional Court of Colombia that gross human rights violations are not service-related acts.112 The constitutional tribunal has sole authority to interpret the constitution. While it is impossible to know how the tribunal might address immunity issues, the fact that it will be made up of nine members—three chosen by the president and three chosen by both houses in the legislature—who cannot belong to a political party suggests at least a move in the right direction.113 As noted above, the immunity clause in the 2008 constitution is ambiguous and may be open to interpretation by Burma’s courts. The clause could also be challenged in various serious criminal cases because amnesty for such crimes would either violate international law or contravene Burma’s treaty obligations. Amending the Constitution Perhaps the most concerning element of the new constitution in relation to its effect on impunity is that it gives the military veto power over any prospective amendments. The procedure for amending the constitution is outlined in Articles 433 to 436. Ratifying any constitutional amendment requires a vote of more than 75 percent in the parliament, effectively giving the military a veto over any proposed amendment since it controls 25 percent of the seats. The quota, combined with the facts that those who fill it will be bound to comply with orders from their superiors and that pro-military factions in other parties will win seats in parliament, render Burma’s government virtually impossible to change. The military’s entrenched power calls into question the regime’s rhetoric of supporting a true democratic transition.

111 Article 343(b). 112 Yash Ghai, “The 2008 Myanmar Constitution: Analysis and Assessment,” unpublished, 30. 113 Article 333(e).

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4. Transitional Justice in the Current Context Real transition does not exist in Burma. The changes that the SPDC has proposed are cosmetic and have made actual transition to democracy even more difficult to achieve. In situations where impunity is so entrenched, achieving advances in terms of truth, justice, and victims’ rights requires a great deal of strategically aligned work to bring slow, hard-fought, incremental change. The examples cited earlier in this report demonstrate clearly that widespread, systematic human rights violations continue to occur in Burma and those who commit them generally are exempt from punishment. The military’s dominance is likely to continue because of the new constitution and changes in the government’s structure. Despite these difficulties, the plight of past and future victims dictates that transitional justice advocates consider what actions can be taken to move their agenda forward. On a more local level, even in a sustained culture of impunity, important preparations can be undertaken so that when the opportunity for justice arrives—however far in the future that may be—the necessary records are available to appropriately recognize victims and their families, and to hold those most responsible accountable.

International Options for Justice Given the SPDC’s continued support for giving the military impunity for severe human rights violations, significant accountability on the national level probably will not occur any time soon. The prospect of justice for anyone responsible for mass violations depends on international prosecutions or pressure from the international community. Potential avenues include an international commission of inquiry and a UN Security Council referral of the situation to the ICC, and national jurisdictions that recognize universal jurisdiction for such crimes. The evidence of the serious abuses against civilians within Burma suggests that the crimes are widespread and systematic; therefore they may constitute crimes against humanity. In Special Rapporteur Paulo Sérgio Pinheiro’s 2006 report to the UN General Assembly, he described sexual violence, forced labor, and child soldiering as “widespread and systematic over the last decade [so] as to suggest they are not simply isolated acts of individual misconduct of middle or low rank officers but rather the result of the upholding of a system under which individuals and groups have been allowed to breach the law and violate human rights without being held to account.”114 These crimes would fall under the ICC’s jurisdiction if such jurisdiction could be triggered in the absence of Burma’s ratification of the ICC Statute. In such an event, 114 UN General Assembly, Report on the situation of human rights in Myanmar, Special Rapporteur, Sept.21, 2006, A/61/369, par. 32.

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Burma’s history of impunity and the new constitution’s immunity clause would help meet the ICC’s criteria for admitting a case, namely that a country is unwilling or unable to prosecute such crimes itself.115 Since Burma has not ratified the Rome Statute, the ICC’s jurisdiction could be triggered if the UN Security Council referred the situation to the ICC. In order to do so, the Security Council would need to determine that the situation constituted a threat to international peace and to exercise its powers under Chapter VII of the UN Charter to act to restore international peace and security. The Security Council demonstrated it is willing to exercise this power when it referred the situation in Darfur to the ICC in 2005. Monitors of the Security Council’s internal workings indicate that Burma’s case may be significantly more challenging. While the political realities of the Security Council referring Burma to the ICC are beyond this report’s scope, there is certainly room for continued exploration of what may be possible on this front.116 If the Security Council does make such a referral and subsequent investigations lead the court to issue an arrest warrant, the Burmese leaders’ ability to flee the country would be limited because they could be arrested in ICC member states. Leaders who cannot travel outside their country become increasingly susceptible to challenge from political opponents who may argue that this limitation weakens their ability to govern effectively. Though this tactic runs the risk of further isolating an already reclusive regime, it may also provide political pressure that has helped combat the junta’s culture of impunity in the past.117 One of the primary principles behind the establishment of the ICC is that its jurisdiction is intended to complement those of national courts, which have the primary responsibility to prosecute perpetrators of mass crimes. Even if the UN Security Council does not refer the situation in Burma to the ICC, could the threat and accompanying international advocacy create enough pressure on the SPDC to take action on a national level? History has shown that the Burmese junta is sensitive to the possibility of imminent international sanctions, especially when backed by the UN Security Council. The serious prospect of the UN Security Council referring the situation to the ICC, implicating members of its government or military, may be enough pressure to spur the regime to stop committing violations and/or to prosecute members of the military for mass human rights abuses. In such a situation, those accused could argue that the constitution’s new immunity clause gives them immunity in national courts. As mentioned previously, the immunity clause covers acts “done in execution of their respective duties.” It appears to be up to the national courts to decide that these serious crimes could not, by definition, have been part of an individual’s official duties because such acts violated Burma’s national laws, treaty obligations, or international law. Such a position appears unlikely, however, in the current context in which the Burmese courts function as an extension of military rule. While a Security Council referral of the situation in Burma to the ICC may seem politically unviable at present, the UN could push for an assessment of the human rights situation. A UN commission of inquiry could be mandated to determine whether or not international crimes, including crimes against humanity, have been committed in Burma, to identify perpetrators, and to make recommendations on addressing those crimes. The UN Security Council should be prepared to carry out the recommendations of any such inquiry, including the declaration that the situation in Burma constitutes a threat to the peace and warrants further action and monitoring. In addition to pursuing international justice with the UN and the ICC, it may be worthwhile to pursue the possibility of trying Burmese leaders in a country claiming universal jurisdiction. The doctrine of 115 However, the complaints mechanism for forced labor cases may preclude cases based on crimes of forced labor. 116 Various initiatives aimed at bringing a Burmese case before the ICC are under way, including a campaign led by the Burma Lawyers’ Council. 117 See section above on forced labor and the ILO.

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universal jurisdiction is based on the theory that certain crimes may be tried by any country’s court, regardless of where the crimes occurred or the nationalities of the victims or perpetrators, because the crime is considered to have affected the international community as a whole. Since World War II, universal jurisdiction has focused mainly on issues of war crimes, crimes against humanity, and genocide, and more than a dozen countries have relied on universal jurisdiction to investigate or prosecute people suspected of such crimes.118 The specifics of how each country addresses such cases depend on the legal framework and domestic criminal system. Continued advocacy toward initiating a criminal investigation against Burmese leaders in any country claiming universal jurisdiction, especially a country with a connection to any potential perpetrators or victims, could help challenge Burma’s culture of impunity.

National Preparations Despite some indications that Burma may be moving toward a more democratic future, the culture of impunity seems entrenched enough to continue for some time and threatens to pull the country back from a genuine transition. While history has shown that situations can change over time, such change is not inevitable and must be achieved through the proactive defense of human rights and concerted advocacy for measures to combat impunity. Countries with similar histories of abuse and repression demonstrate that authoritarian conditions generally have trouble sustaining themselves and that people eventually seek to recognize the suffering of victims and bring major perpetrators to justice, whether in national, international, or hybrid institutions. These outcomes result from the hard work of human rights advocates, other civil society actors, and at times progressive government officials. Societies may take years, even decades, to change significantly enough to begin addressing a legacy of human rights violations. During that time, valuable evidence may be lost, and witnesses, victims, and perpetrators may die or forget many important facts. Experience working in transitional justice institutions, including courts, truth commissions, reparations schemes, and vetting programs around the world has taught the importance of careful documentation during times of conflict or oppression. Too often crucial evidence has been lost because of insufficient methods of documentation, particularly when those involved in gathering information do not understand the requirements of future prosecutions, truth commissions, and other mechanisms. For example, statements from victims need to be taken objectively in a consistent format that includes all relevant details. If such statements from various sources are recorded in a single format or form, they can be put into a common database. The database then provides a powerful, more accurate picture of the violations that is useful for advocacy, informs international policy, and assists future transitional justice mechanisms. In addition, if those involved in the risky activity of gathering such information understand such concepts as “widespread or systematic,” they can include them in their methodologies, resulting in more relevant evidence to support investigations and prosecutions. As Burmese activist Khin Maung Shwe noted in 2007, “We can’t predict when our transition will come, but whatever follows this long era of military oppression, it will be vital to be organized in advance—not only to steer the process in the right direction, but also to be ready with a historical record that can be used to secure justice for victims.”119

118 T hese countries include Australia, Austria, Belgium, Canada, Denmark, Finland, France, Germany, Israel, Netherlands, Norway, Senegal, Spain, the United Kingdom, and the United States. Others, such as Mexico, have extradited people to countries for prosecution based on universal jurisdiction. For more information on universal jurisdiction, see ICTJ, “Universal Jurisdiction: The War on Terror,” April 17, 2009, available at www.ictj.org/en/news/features/2532.html. 119 ICTJ, Annual Report 2006/2007, 9.

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5. Recommendations In Pinheiro’s 2008 report to the UN Human Rights Council, the special rapporteur found impunity in Burma was “deeply entrenched and cannot be attributed to lack of institutional capacity alone.”120 He asserted that the culture of impunity was the main obstacle to securing respect for human rights, and he brought the Human Rights Council’s attention to the reports of widespread and systematic violations, including summary executions, torture, forced labor, sexual violence, and the recruitment of child soldiers that have not been investigated, prosecuted, or remedied.121 His findings were consistent with his reports from the previous seven years as well as with those by Amnesty International, Human Rights Watch, and a host of local human rights organizations. The following recommendations address that pattern of impunity that continues to be the main obstacle to developing a culture that respects human rights in Burma, a key component for a transition to genuine democracy.

To the State Peace and Development Council • Recognize the results of the 1990 general election and carry out the following recommendations with the guidance of the elected members of parliament. • Adhere to the three conditions paraphrased below as enumerated in the NLD’s April 29, 2009, “Shwegondaing Declaration.”122 In this declaration, the NLD stated it would participate in new elections only after “gravely considering” the elections as a special case and studying the Party Registration Act once it is published and the laws related to the elections. (1) Unconditionally release all political prisoners, including the leaders of the NLD. (2) Amend the provisions of the 2008 constitution that are not in accord with democratic principles. (3) Allow international supervision of all-inclusive free, fair elections. • Conduct a review of the constitution through an inclusive consultation process involving all political parties. • Through that review, remove the provisions in the 2008 constitution that maintain impunity for human rights violations, particularly the immunity clause and the various articles that could exclude people from exercising their rights to fundamental freedoms. 120 U N Human Rights Council, Report of the Special Rapporteur on the situation of human rights in Myanmar, March 7, 2008 (A/HRC/7/18), par. 42. 121 Ibid., par. 58. 122 Go to http://euro-burma.eu/doc/NLD%20Statement%20-%20Shwegondaing%20Declaration%20-%2029.04.09.pdf.

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• Remove from the constitution the requirement that 25 percent of MPs be military officials, and allow the general population to elect MPs. • Give the courts under the Supervision of the High Court of the Region or the High Court of the State the jurisdiction to hear and decide on criminal cases against members of the military if a civilian is filing the complaint. • Conduct a new referendum for the updated constitution, permitting international observers to monitor the voting process. • Work with the international community to establish an independent Commission of Inquiry into serious human rights violations, including sexual violence, the recruitment and use of child soldiers, and forced labor.

To the International Community • Withhold support for and recognition of the 2010 elections until a review of the constitution is conducted through an inclusive process that involves all political parties. • Work with the Burmese government to establish an independent Commission of Inquiry into serious human rights violations, including sexual violence, the recruitment and use of child soldiers, and forced labor. • Strengthen the application of mechanisms in place through Security Council Resolution 1612 and the Forced Labour Convention to address the government policy of imposing widespread, systematic human rights violations, including forced labor and child soldiering. • Declare that the situation in Burma is one of grave international concern and that it constitutes a threat to international peace and security. • Pursue possible avenues to hold Burmese human rights violators accountable in countries whose courts recognize universal jurisdiction. • Take action to strengthen local capacity to conduct systematic collection and documentation of information on human rights violations in Burma in a fashion that could be useful to courts, truth commissions, reparation schemes, and vetting programs that may exist in the future. Insure that such training takes into account safety precautions for the interviewers and those they interview.

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CHAPTER 4 Myanmar Security Outlook: Tatmadaw under Stress? Tin Maung Maung Than Introduction Myanmar entered 2014, the penultimate year before the 2015 elections, with high hopes for peace through a nationwide ceasefire agreement (NCA) with all the major ethnic armed groups (EAGs) from among the many non-state armed groups (NSAGs) seen by the ruling establishment as the most serious hard security threat of the day. The protracted armed conflict between the EAGs and Tatmadaw (Myanmar armed forces) under successive governments, since independence in 1948, have resulted in material and financial losses, stunted development of affected regions, hardship and misery to the population, and countless casualties not only of combatants but also innocent civilians. At present, as the NCA remains elusive, the unresolved conflict is challenging the legitimacy of the government and the 2008 Constitution as well as the territorial integrity of the Myanmar state formally known as the Republic of the Union of Myanmar.

Tatmadaw and Myanmar’s national security: internal and external challenges The major internal security challenge which has been the concern of Tatmadaw leaders has been the insurgency problem all along. Realizing that a military solution is neither possible nor desirable in this era of democratic transition, the current leadership of the Tatmadaw has supported the peace process while keeping the option for employing force of arms when deemed necessary. Moreover, it holds on to its role of safeguarding peace, security and stability of the Myanmar state by containing communal violence, upholding the 2008 Constitution and participating in ‘national politics’ as a balancing force against polarizing tendencies of ‘party politics.’ On the other hand, the traditional challenge of foreign aggression remains an improbable potential threat which is being addressed through regional cooperation, defence diplomacy, continuing force modernization, and military professionalization


Insurgency: the military dimension Counter-insurgency remains the primary focus of Tatmadaw’s role in protecting national security and preserving the territorial integrity of the republic. It still has to contend with nearly 100,000 armed personnel affiliated with a multitude of NSAGs, the majority of whom belong to non-Bamar EAGs1. Only a small number of EAG have joined the Border Guard Force (BGF) units under Tatmadaw command and control while the majority has maintained their order of battle and many of the socalled ceasefire groups (CFGs) have flouted the rules forbidding recruitment and weapon acquisition. Even among the 23 BGF battalions thirteen “formed with the former Democratic Kayin Buddhist Army [DKBA, now known as Democratic Kayin Benevolent Army] are more or less outside of the control of the Tatmadaw2.” There are also dozens of NSAG co-opted as local militia totalling hundreds of troops that are loosely controlled by the territorial commands in the Kachin and Shan states. In dealing with the threat posed by the yet to be resolved insurgency, the Tatmadaw pursued a containment strategy towards EAGs who had not made ceasefires while refraining from launching offensive operations against them in line with the President’s directive (in December 2011) to take defensive actions only3. In fact, despite continued hostilities, the Kachin Independent Army (KIA; a major nonCFG) had joined the ceasefire negotiations conducted between the government team and the team representing the majority of CFGs (see section on peace process below). As for the CFGs, Tatmadaw leaders engaged them more or less bilaterally4 to maintain confidence and to nudge toward participation in the eventual signing of

1 See, Maung Aung Myoe, “The soldier and the state: the Tatmadaw and political liberalization in Myanmar since 2011,” Southeast Research 22, no. 2 (2014), p. 246. 2 Ibid. For details on the BGF setup, see Tin Maung Maung Than, “Myanmar’s Post-Election Security Challenges” in Security Outlook of the Asia-Pacific Countries and Its Implications for the Defense Sector, NIDS Joint Research Series No. 6 (Tokyo: National Institute for Defense Studies, 2011), pp. 77-79. 3 See, e.g., Danielle Bernstein, “Burma’s President Orders Ceasefire in Kachin State,” VOA News, 13 December 2011, available at http://www.voanews.com/content/burmas-president-orders-ceasefire-in-kachinstate-135582003/168275.html; and Ba Kaung, “Stop Offensive President’s Ceasefire Order Fails to Stop Offensive,” Irrawaddy online, 28 December 2011, available at http://www.irrawaddy.org/print_article.php? art_ id+22741. However, EAGs had, all along, argued that since then fighting had erupted time and again due to Tatmadaw’s aggressive actions and offensive operations. 4 See, e.g., Nyein Nyein, “Burma Army Chief Meets Armed Group Leaders in Shan State,” Irrawaddy online, 7 April 2014, available at http://www.irrawaddy.org/burma/burma-army-chief-meets-armed-group-leaders-shanstate.html; and Saw Yan Naing, “Army chief meets KNU, says he supports stalled ceasefire process,” Irrawaddy online, 1 December 2014, available at http://www.irrawaddy.org/burma/burma-army-chief-meets-knu-sayssupports-stalled-ceasefire-process.html


the NCA which has been under negotiations since 20135. Meanwhile, short sharp clashes between the Tatmadaw and EAGs occurred throughout 2014 in Kachin State (northern Myanmar) and Shan State (eastern Myanmar), whose territories include borders with China and Thailand respectively. In fact, according to monthly reports from ALTSEAN-Burma (a Thai-based confederation of NGOs) sporadic fighting broke out every month during the year6. In Kachin State, the clashes were mainly with units of the Kachin Independence Army (KIA, with a strength of nearly 10,000 fighters, the armed wing of the KIO or Kachin Independence Organization; a former CFG, but hostilities broke out in mid-2011)7. The most serious fighting among the many skirmishes which negatively affected the peace negotiations, occurred on 19 November 2014 when a “warning shot of large-calibre weapon” fell on a cadet school in Laiza (KIA headquarters), leaving 23 trainees dead and some twenty wounded8. KIA troops were also involved in fighting in the Shan State where it had joined forces with the TNLA (Ta’ang National Liberation Army, a non-CFG Palaung armed organization numbering in the hundreds) and the breakaway group (several hundred strong) from MNDAA (Myanmar National Democratic Alliance Army (MNDAA, a Kokang CFG) in a loose alliance9. Other clashes in the Shan State were between the army and the SSPP/SSA (Shan State Progressive Party/Shan State Army; popularly known as SSA-North; a CFG that has roots in the original Shan resistance movement of the 1960s with an estimated strength of more than a thousand soldiers)10.

5 See, e.g., Aung Naing Oo, “Nationwide Ceasefire Agreement: Myanmar’s road to peace,” Myanmar Times online, 31 October 2013, available at http://www.mmtimes.com/index.php/national-news/8643-nationwideceasefire-agreement-myanmar-s-road-to-peace.html. 6 See “Burma Bulletin” by ALTSEAN-Burma (Alternative ASEAN Network on Burma), available at http://www. altsean.org/Reports.php. 7 See, e.g., Tin Maung Maung Than, “Myanmar’s Security Outlook and Myanmar Defence Services” in Security Outlook of the Asia-Pacific Countries and Its Implications for the Defense Sector, NIDS Joint Research Series No. 7 (Tokyo: National Institute for Defense Studies, 2012), p. 97; and Global New Light of Myanmar (hereafter GNLM), 25 November 2014, p. 2. 8 GNLM, 21 November 2014, p. 1; “the military explained that it was a response to multiple attacks by KIA troops against army personnel engaging in “normal activities” (ibid.). It was believed to be a 105 mm artillery round and was seen by KIA and its allies as an uncalled for provocation; see, e.g., Sai Wansai, Kachin Cadet School Shelling: Trust-building at its lowest ebb,” Shan Herald Agency for News, 24 November 2014, available at http://english.panglong.org/category/c115-opinions/. 9 See, e.g., Lawi Wong, “Fighting escalates between government, rebel alliance in Shan State,” Irrawaddy, 17 October 2014, available at http://www.irrawaddy.org/burma/fighting-escalates-govt-rebel-alliance-shan-state. html. 10 See, e.g., S.H.A.N., “Peace process in limbo, when ceasefire is a joke,” Shan Herald Agency for News, 20 October 2014, available at http://english.panglong.org/category/c115-opinions/page/5/.


On the other hand, fighting in the Kayin State was less frequent and occurred only in September and November involving two different Kayin CFGs. They are the KNDO (Karen National Defence Organization, a brigade-level faction of the KNLA (Karen National Liberation Army) and DKBA11. Tatmadaw faced another hard security challenge when it was announced, on 14 October 2014, that the Kawthoolei Armed Forces (KAF) was established with KNDO, DKBA, a tactical command of the KNU/KNLA-PC (also known as Karen Peace Council, or KPC, another KNLA splinter CFG) and some units of KNLA12. Though not yet an integrated force, with each member maintaining its formation, uniform and insignia, KAF’s nominal strength of over 5,000 personnel poses a credible potential military threat13. That announcement, not only created some confusion and consternation among friends and foes but also revealed fissures and tensions within the KNU top leadership some of whom had distanced themselves from the act14. Ceasefire negotiations and peace process15 Those who expected the peace process which invited all EAGs to peace negotiations and was initiated by President Thein Sein on 18 August 2011, to reach a conclusion in 2014 through the signing of the NCA, were disappointed. Negotiations for a single text draft agreement remained deadlocked after several rounds of formal and informal meetings in Myanmar and Thailand between the Union Peace-making Work Committee (UPWC) and the Ceasefire Coordination Team (NCCT)—

KNLA is the several-thousand strong armed wing of the KNU (Karen National Union) which is the main Kayin political organization that has led the armed resistance for more than six decades. DKBA is a Buddhist Kayin EAG formerly known as Democratic Karen Buddhist Army when it split from the Christian-dominated KNU in 1994. For reports on fighting, see, e.g., “Karen Soldier Killed in Latest Fighting, KNU Claims Government Troops Attacked First,” Karen News, 30 September 2014, available at http://karennews.org/2014/09/karen-soldier-killedin-latest-fighting-knu-claims-government-troops-attacked-first.html/; and “DKBA and Burma Army Fighting Spreads Throughout Karen State,” Karen News, 10 October 2014, available at http://karennews.org/2014/10/dkbaand-burma-army-fighting-spreads-throughout-karen-state.html/. 12 The announcement was signed by “General Baw Kyaw Heh, the KNLA’s Vice-Chief of Staff, General Ner Dah Mya, Chief of KNDO, General Saw Lah Pwe, DKBA’s Chief of Staff and Colonel Saw Tiger, Tactical Commander for KNU/KNLA – PC’s border security and development tactical command.” (“Karen Armed Groups to Form United ‘Kawthoolei Armed Forces,’ but Questions Remain,” Karen News, 16 October 2014, available at http:// karennews.org/2014/10/karen-armed-groups-to-form-united-kawthoolei-armed-forces-but-questions-remain. html/). 13 See, e.g., Saw Yan Naing, “Karen Rebel Groups Plan Military Cooperation,” Irrawaddy, 14 October 2014, available at http://www.irrawaddy.org/burma/karen-rebel-groups-plan-military-cooperation.html 14 See, e.g., Saw Yan Naing & Lawi Weng, “Karen Leadership Puts Problems on Hold,” Irrawaddy. 29 October, 2014, www.irrawaddy.org/burma/karen-leadership-puts-problems-hold.html. 15 For a comprehensive account of the peace process up to early 2014, see Burma News International (BNI), Deciphering Myanmar’s Peace Process: A Reference Guide 2014 (BNI: Chiang Mai, 2014); available at http:// mmpeacemonitor.org/images/pdf/deciphering_myanmar_peace_process_2014.pdf. 11


representing most of the EAGs endorsed by the United Nationalities Federal Council (UNFC)16. The latest (sixth) round of talks between the UPWC led by its vice chair and President Office Minister U Aung Min and NCCT led by Naing Han Tha (Nai Hong Sa of the New Mon State Party) agreed on a fourth working draft of the NCA but had yet to finalize the elusive single text agreement. The five-day meeting in Yangon, which included senior military officers and began on 22 September worked with a 104-point draft of which five points remained unresolved17. The next round of negotiations scheduled for October was postponed, but teams from both sides continued meeting to lay the groundwork for the seventh round of negotiations, tentatively scheduled for late November. After another round of coordination meetings in December, however, it was again re-scheduled to mid-January 201518. Meanwhile, the first UNFC Congress held from 25 August to 3 September saw some discord within its ranks as the Karen National Union (KNU) delegation left the meeting stating that the KNU was suspending its membership for the time being, citing its objection to the “UNFC holding decision-making authority over its members19.” However, the KNU reaffirmed its commitment to both NCCT and the peace process, and the UNFC had left vacant seats reserved for the KNU in the newly-elected UNFC Council. The KAF announcement in October, and more significantly the Laiza shelling on 19 November, complicated the AEOs effort to take a unified approach in peace negotiations, to say the least. Moreover, the many skirmishes between the Myanmar military and Kachin, Palaung Shan and Kayin forces (see previous section) that

The NCCT was formed on 2 November 2013 with 16 armed ethnic organizations (all except KIO had signed bilateral ceasefire agreements). It had appointed 13 individuals from the member organizations to negotiate with the government. The UNFC is an umbrella group formed on 16 February 2011 and based in Chiang Mai, Thailand. It has 11 member organizations and is dedicated to establishing a federal system of government in Myanmar state. It is currently chaired by the KIO vice chairman. 17 See e.g., Paul Keenan, “Struggling for Peace,” Analysis Paper No.8, Burma Centre for Ethnic Studies; and “Deadlock or the last hurdle for peace-making,” Mizzima News, 12 November 2014. The Wa and Mongla CFGs (former Burma Communist Party NSAGs with territories bordering China) were also engaged by another group of government representatives led by U Thein Zaw, Vice Chairman of UPWC (see, e.g., GNLM, 23 October 2014, pp. 1, 9). 18 See “UPWC-NCCT talks to fix opportune time for nationwide truce,” Eleven Media, 7 November 2014. The UPWC technical team consisted of experts and advisors from the Myanmar Peace Centre (MPC) a think-tank cum facilitator sponsored by the government and mainly supported by funds from the European Union (EU) and Nordic states. See, also, the joint communique (in Myanmar) produced by the UPWC and NCCT on 23 December 2014 and published in Myanma Alin, 24 December 2014, pp. 5, 24. 19 Keenan op. cit., p. 5. This reflected KNU’s dissatisfaction with its diminished role in the organization seemingly dominated by its Kachin and Mon members as well as the power struggle within the KNU leadership (ibid., pp. 4-5). 16


occurred throughout the year had impaired trust and confidence between the AEGs and the government, and prompted the UNFC to state that “doubt has been growing within us to ask whether it [Myanmar military] really desires to have peace in the country.” On the other hand, in the next paragraph of the same statement it would “continue to find means and ways” towards a successful peace process20. The Tatmadaw Commander-in-Chief (C-in-C) Senior General Min Aung Hlaing had also reiterated that the military is dedicated to bring peace in a lawful manner, and had exercised great restraint when confronted with attacks by EAGs21. Meanwhile, a serious challenge to Tatmadaw’s structural integrity emerged in the ceasefire negotiations in the form of a demand by the EAGs to establish a “Federal Army” as a component of a federal political system 22. The proposed “Federal Union,” the main objective of the UNFC would allow a high level of authority and autonomy for the ethnic states in a “Union” of equal states, each with their own government and legislature, as well as an ill-defined Union Army which EAGs could join without losing their identity and control of their troops. To that end, the UNFC announced it had taken steps to form a “Federal Union Army” or FUA with troops from its 12 member organizations23. The UNFC’s concept of the Federal Army is unacceptable to the government and Tatmadaw leaders, who also pointed out that the Tatmadaw already has a federal character in its multi-ethnic composition of officers and other ranks24. Moreover, the Constitution does not allow the existence of any other armed force apart from the Tatmadaw and the FUA would be an unacceptable anomaly25. Coping with communal violence The communal violence between Buddhist and Muslim communities that originated in 2012 in both urban and rural areas of Myanmar’s western Rakhine State bordering “Statement of the UNFC Council First Meeting of UNFC First Congress,” dated 22 October 2014 (document in possession) See, e.g., transcript of VOA (Burmese) exclusive interview with Senior General Min Aung Hlaing, 23 November 2014, available at http://burmese.voanews.com/content/voa-burmese-exclusive-interviews-with-seniorgeneral-min-aung-hlaing-/2530688.html. 22 See, e.g., Kyaw San Wai, “Myanmar’s Nationwide Ceasefire Agreement: Second Chance at Peace?” RSIS Commentary No. 175, 8 September 2014; available at http://www.rsis.edu.sg/wp-content/uploads/2014/09/ CO14175.pdf. 23 See, e.g., Saw Yan Naing, “Ethnic Alliance Ponders Future Federalism, Creates ‘Federal Union Army’,” Irrawaddy, 9 December 2014, available at http://www.irrawaddy.org/burma/ethnic-alliance-ponders-futurefederalism-creates-federal-union-army.html. 24 See Hein Ko Soe, “Govt rejects ethnic group bid for a federal force,” Mizzima, 10 December 2014, available at http://www.mizzima.com/mizzima-news/myanmar/item/15710-govt-rejects-ethnic-group-bid-for-a-federal-force/ 15710-govt-rejects-ethnic-group-bid-for-a-federal-force. 25 See Myanma Alin, 6 December 2014, p. 9. 20

21


Bangladesh26 unexpectedly broke out again on 1 July 2014 in Mandalay, a city steeped in Myanmar/Buddhist culture and monastic tradition, after rumours about the rape of a Buddhist woman by two Muslim men spread. Further aggravated by the dissemination of the unsubstantiated news via Facebook, angry mobs rampaged for 4 days with two fatalities. Curfew was imposed and the President himself issued a warning against using media freedom to “endanger state security27.” This violence in Myanmar’s heartland where a substantial Muslim community had existed since its founding, and whose members were supposed to have been integrated with the majority Buddhists, was an indication of the enduring strength of religious intolerance and volatility of communal relations. Although these violent conflicts could be seen as a law enforcement problem to be tackled by the police and regional authorities, their potential for contagion effect that could threaten national security especially when it become internationalized and this is not lost upon the Tatmadaw leaders. Theatre commanders (Lt. Generals) and regional commanders (Maj. Generals) as well as the Union Minister of border affairs (Lt. General) and regional/State security ministers (colonels) have to be involved in coordinating, overseeing, and executing security measures not only to deter and control violent conflict but also to stabilize and normalize the post-conflict situation. In that context, the Tatmadaw is expected to play a crucial non-traditional security role in ensuring communal peace and stability throughout the country. Conundrum of the political role of Tatmadaw As mandated by the 2008 Constitution, Tatmadaw plays an important role in politics. Representatives nominated by the C-in-C have been serving, since the beginning of the current government’s term in March 2011 in the government, as minister and deputy ministers, and in the parliaments, with 25% of the total number of seats, at both the Union and national level (upper and lower house) and the region/state level28.

The initial conflict in Rakhine broke out between native Rakhine people and resident Muslims who identified themselves as Rohingya claiming to be a distinct ethnic group with right of citizenship. However, most of the Muslim population claiming to be Rohingya are undocumented and ‘stateless’ and are regarded by both the government and the Buddhist polity as illegal migrants not indigenous to Myanmar. See, e.g. International Crisis Group, “Myanmar: The Politics of Rakhine State,” Asia Report No. 261, 22 October 2014, Brussels. 27 Burma Bulletin, July 2014, p. 3. Those killed were bystanders. Later it turned out that the rape allegation was false. See also Olivia Cable, “Sectarian conflict in Mandalay,” New Mandala, 18 July 2014, at http://asiapacific. anu.edu.au/newmandala/2014/07/18/sectarian-conflict-in-mandalay/. 28 For details see Maung Aung Myoe, op. cit., pp. 238-39. 26


Recently, liberal democratic forces led by NLD (National League for Democracy) leader Daw Aung San Suu Kyi have been attempting, both inside and outside the legislative assemblies (parliament), to amend the Constitution and some of the major amendments proposed by them had to do with reducing or even removing the military’s political role and its institutional autonomy. On the other hand, Tatmadaw is not averse to the idea of lawfully changing the Constitution as indicated by the C-in-C Senior General Min Aung Hlaing in his address on 27 March 2014 at the military parade commemorating the Armed Forces Day: … according to the constitution, the Tatmadaw—the Armed Forces—is mainly responsible for safeguarding the constitution, which can only be amended in accordance with chapter 1229.

However, as evident in his speech on 5 December 2014 at the graduation ceremony of the 56th intake of the Defence Services Academy (DSA) in Pyin Oo Lwin, it is worth noting that the C-in-C had insisted that Tatmadaw would welcome changes that would not harm the state’s stability, peace and national ethnic solidarity, and carried out in accordance with law. He reminded the audience that it was the 2008 Constitution that had mainly facilitated the country to steadily set off along the democratic path. He also pointed out that the Constitution was systematically formulated by a combined effort of ethnic representatives, intelligentsia and experts, and not a copy of other countries’ democracy30. The aforementioned discourse seems to indicate that military leaders do not wish to make major changes that would harm peace and stability, destroy national unity or deprive Tatmadaw of the prerogatives provided by the 2008 Constitution. On the other hand, some military representatives in the parliament had expressed views tantamount to keeping the Constitution unchanged and others reportedly tabled amendments that would expand the military’s role in decision-making31. As pointed out by a knowledgeable observer of Myanmar’s military affairs: Tatmadaw is not yet prepared to tolerate any structural changes that might undermine its national political role, the basic principles for national unity and solidarity set out in the 2008 Constitution … or its institutional autonomy32.” See speech in New Light of Myanmar (hereafter NLM), 28 March 2014. See speech in Myanmar language reported in Myanma Alin, 6 December 2014, p. 9. See Kyaw Kha, “Military MPs Object to Constitution al Change,” Irrawaddy, 17 November 2014, available at http://www.irrawaddy.org/burma/military-mps-object-constitutional-change.html. 32 Maung Aung Myoe, op. cit., p. 234. 29 30 31


Regional cooperation and defence diplomacy: minimizing external threats There appears to be no external security threat on the horizon, and Myanmar is at peace with its neighbours and regional powers such as India and China. As a member of ASEAN (Association of Southeast Asian Nations) since 1997 Myanmar, enjoys the safeguards provided by its charter and treaties (like the Treaty of Amity and Cooperation) against regional insecurity and interference in internal affairs at the regional and, to a certain extent, the international level as well. Since the advent of the reformist new government of President Thein Sein, Myanmar had steadily improved relations with the West in general and the United States in particular, especially under President’s Obama’ watch33. All Western sanctions except arms embargoes, the United States (U.S.) restriction on importing jade and rubies and the U.S. Treasury Department’s SDN (specially designated nationals, including individuals and entities, popularly known as the blacklist, whom U.S. persons/ companies are not allowed to do business with) had been removed34. In this new era of democratic transition, Myanmar’s vastly improved relations with the international community, and enhanced friendly relations with regional states, mean that there is no credible external threat warranting attention by the Tatmadaw as a security problem. The potential of border insecurity involving NSAGs ensconced in remote border regions that could lead to countermeasures by foreign military/security forces is always there but has, thus far, not manifested and appears well managed through personal diplomacy by government leaders and defence diplomacy35. Senior General Min Aung Hlaing travelled extensively in 2014 to engage in personal diplomacy with military and government leaders, not only to Southeast Asian states such as Indonesia (February), Laos (February), Philippines (July), and Thailand (July) but also to Northeast Asia, visiting Japan (September) and the Republic of Korea (September), and even further afield to Belarus (November) and Russia (November). Since Myanmar was the ASEAN Chair for 2014, Tatmadaw leaders

See, e.g., Matthews Pennington, “US sends mixed messages to Burma military,” The Associated Press, 12 December 2014, in BurmaNet News, 12 December 2014. 34 See US Department of Treasury, “Burma Sanctions Program,” 29 January 2014, available at http://www. treasury.gov/resource-center/sanctions/Documents/burma.pdf. 35 See, e.g., Bertil Lintner, “The Forgotten Frontier,” Irrawaddy magazine (November 2014), pp. 24-26; “C-in-C meets Minister of National Defence of PRC”, 20 May 2014, available at http://www.asiapacificms.com/articles/ pdf/irrawaddy-2014-indiaborder.pdf; Nirmal Ghosh, “Thailand and Myanmar: Traditional rivals now brothers in arms,” The Straits Times, 14 July 2014, available at http://www.straitstimes.com/st/print/2610933; and “Senior General Min Aung Hlaing meets Bangladesh chief of naval staff,” GNLM, 27 November 2014, p. 9. 33


were able to seize the rare opportunity of hosting a multitude of defence and security meetings under the ASEAN ambit and managed to renew military ties with leaders of the ASEAN armed forces. In the case of ADMM-Plus (ASEAN Defence Minister’s Meeting expanded to include eight dialogue partners) and ARF (ASEAN Regional Forum; ASEAN 10 plus 17 dialogue partners) the engagement involved high-level representatives from international partners as well36. Myanmar’s participation in Shangri-La Dialogue, the premier non-governmental regional security forum, in Singapore continued with the deputy defence minister representing the country. Myanmar also joined the joint US-Thai annual Cobra Gold exercise, in February 2014, as an observer on the invitation of host Thailand37. On 1 December 2014 Myanmar’s deputy foreign minister presented the instrument of ratification to the BWC (Biological Weapon Convention, which it had signed in 1972 but did not ratify), thereby fulfilling its international obligation on the “Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction38.” Non-traditional security threats Sources of non-traditional security (NTS) threats could be internal or external (cross-border or international contagion). Under the current presidential system of government guided by the 2008 Constitution, Tatmadaw is not responsible for first-line defence against security challenges in the NTS domain such as terrorism, piracy, trafficking in persons, arms and narcotic and psychotropic substances, natural disasters and vector-borne health hazards. However, Tatmadaw representatives are usually present in various committees and task forces assigned to deal with such threats and the Tatmadaw is likely to be called upon to assist in national emergencies

These included ADSOM (Asean Defence Senior Officials Meeting), ACDFIM (Asean Chiefs of Defence Forces Informal Meeting), AMIIM (Asean Military Intelligence Informal Meeting), AMOIM (Asean Military Operation Informal Meeting), ARFDOD (Asean Regional Forum Defence Officials Dialogue), ASPC (Asean Security Policy Conference), AACC (Asean Air Chiefs Conference), and ACAMM (Asean Chiefs of Army Multilateral Meeting). The “Plus” countries for the ADMM-Plus are Australia, China, India, Japan, New Zealand, ROK, Russian Federation, and the United States. Non-ASEAN members of ARF are the 10 ASEAN dialogue partners (Australia, Canada, China, the EU, India, Japan, New Zealand, ROK, Russia and the United States), one ASEAN observer (PNG) as well as the DPRK, Mongolia, Pakistan, Timor-Leste, Bangladesh and Sri Lanka. 37 See Teri Moon Cronk, “Exercise Cobra Gold 2014 Kicks Off in Thailand,” American Forces Press Service, 12 February 2014, available at http://iipdigital.usembassy.gov/st/english/article/2014/02/20140212292843. html#axzz3P5qfdjn3. 38 GNLM, 3 December 2014, p. 9; for details see Andrew Selth, “Burma and the Biological Weapons Convention,” Lowy Interpreter, 15 October 2014, available at http://www.lowyinterpreter.org/post/ 2014/10/15/Burma-BWConvention.aspx?COLLCC=3787972304&. 36


and crisis situations precipitated by events and actions relating to NTS issues. In fact, the C-in-C had exhorted armed forces personnel make efforts “from the nationalist” perspective “to deter possible threats of religious extremism and illegal immigrants and prevent the trafficking of land and water resources39.” Moreover, since the ministers of ministries such as home affairs and border affairs, which are directly involved in tackling NTS problems, are serving officers (Lt. Generals) nominated by the C-in-C the role of Tatmadaw in countering such threats remains fairly significant40. Force modernization and embracing professionalism Force modernization is an ongoing process in Myanmar since the early 1990s when the military junta began to acquire modern weapon systems from China, North Korea, Russia and Eastern Europe and to reformulate doctrines in a bid to develop Tatmadaw’s capability for conventional warfare. Despite the Western arms embargo and limited financial resources, especially in foreign currencies, the infantry heavy COIN (counter-insurgency) posture of the Tatmadaw has been gradually transforming into a somewhat more balanced tri-service posture with the navy and the air force deploying modern weapon systems like fast corvettes, frigates, supersonic jet fighters, helicopter gunships41. It appears that “the creation of a professional and domestically and internationally respected armed forces amounts to a … major concern of the military leadership42.” Due to the aforementioned constraints in sourcing and finance, as well as human resources, Tatmadaw leaders have emphasized self-reliance and developing indigenous technological capability to that affect, as reflected in Senior General Min Aung Hlaing’s exhortation to the graduation class of DSTA (Defence Services Technological Academy) cadets on 12 December 201443:

“Senior General Min Aung Hlaing says armed forces endowed with significant characteristics throughout history,” GNLM, 29 December 2014, p. 3. 40 Tatmadaw units are known to have assisted in interdicting drug and arms trafficking as well as destroying poppy fields and even in curbing illegal logging. The navy is also vigilant against illegal fishing, human trafficking, seaborne illicit commerce and illegal migration. 41 For detailed accounts, see, e.g., Maung Aung Myoe, Building the Tatmadaw: Myanmar Armed Forces Since 1948 (Singapore: Institute of Southeast Asian Studies, 2009); and Jacob Sommer, “Myanmar’s military: Money and guns,” New Mandala, 6 December 2013, available at http://asiapacific.anu/ newmandala/2013/12/06/ myanmars-military-money-and-guns/. 42 Robert H. Taylor, The Armed Forces in Myanmar Politics: A Terminating Role? Trends in Southeast Asia TRS2/15 (Singapore: Institute of Southeast Asian Studies, 2015), p. 15. 43 “Senior General Min Aung Hlaing attends graduation ceremony of DSTA,” GNLM, 13 December 2014, p. 3. 39

44 Security Outlook of the Asia Pacific Countries and Its Implications for the Defense Sector … Constantly study modern technologies to build a modern army and to produce and maintain weapons, warplanes, and warships locally without relying on other countries by conducting research and development …

Hundreds of military personnel sent to Russia for technical training during the last decade have been deployed in Tatmadaw-run arms industries, air bases and naval shipyards, together with thousands of officers graduating from DSTA. One example of indigenous technological capability is the indigenously built missile-armed stealth frigate F14 commissioned in March 201444. Though Myanmar’s economy has grown at a fast pace under the new government, the defence ministry’s budget share is still the highest among all ministries, and the grossly overvalued exchanged rate (by nearly a hundred-and-fifty times) was corrected in 2012 by introducing the managed float system under Myanmar Central Bank’s supervision, Tatmadaw still lacks adequate funds for rapid modernization. Under pressure by the parliamentarians, activists and the international community to reduce the share of the defence budget in the government budget, it had fallen from over 19 per cent in 2012 to over 12 percent in 2014. It was reported that the defence budget for fiscal year (April to March) 2013/14 was over 2.2 billion USD (converted from local currency at market rate) and the proposed budget for fiscal year 2014/15 was over 2.3 billion USD, only a 5.4 per cent increase in local currency45. Though the share of government budget is high when compared to other ministries and most neighbouring countries Myanmar’s defence budget for 2014 in value terms was relatively small vis a vis other in Southeast Asia46. For a military with a nominal strength of nearly 400,000 personnel and practically on a war footing (against numerous NSAGs0, the allocated amount is apparently inadequate to procure costly modern weapon systems in its modernization effort. See “Myanmar Navy commissions frigate,” NLM, 1 April 2014, p. 3. It is the second indigenous stealth frigate commissioned; see “New Stealth Frigate for Myanmar Navy,” Pakistan Defence, 31 March 2014, available at http://defence.pk/threads/new-stealth-frigate-for-myanmar-navy.307055/#post-5470957. 45 See “Myanmar military handed $2.4 billion budget,” Agence France-Presse, 6 March, 2013, available at http:// www.globalpost.com/dispatch/news/afp/130306/myanmar-military-handed-24-billion-budget; Ei Ei Toe Lwin, “Military spending still dwarfs education and health.” Myanmar Times, 30 March 2014, available at http:// www.mmtimes.com/index.php/national-news/10000-military-spending-still-dwarfs-education-and-health.html. Another source stated the share as 14 per cent (IHS Jane’s 360, 15 January 2014, available at http://defence482. rssing.com/chan-19811087/all_p49.html#item977); and “7 Day Daily and Mizzima Newspapers Misreport Defense Budget for Military Operation in 2013-2014 Fiscal Years,” Eleven Media, 28 October 2014, available at http://www.elevenmyanmar.com/index.php?option=com_content&view=article&id=7961:7-day-dailyand-mizzima-newspapers-misreport-defense-budget-for-military-operation-in-2013-2014-fiscal-years&catid=44:national&Itemid=384. 46 I wish to thank Professor Robert Taylor for pointing out this fact. 44


Having consolidated his position as C-in-C Senior General Min Aung Hlaing made a major reshuffle of the top Tatmadaw command and staff leadership (see Table 1) in late 2014. A new Adjutant General (previously commander of Yangon Regional Command), and a Quartermaster General (previously commander of Central Regional Command) were appointed. The military intelligence (officially called the Military Affairs Security or MAS) chief was posted to the powerful position of Army Chief of Staff while concurrently taking up a theatre commander post (officially known as Chief, Bureau of Special Operations or BSO). His predecessor Lt. General Mya Tun Oo (known as a rising star and the youngest among the top brass) was given the MAS post and chief of BSO No.6 which was vacant. Since it is unusual to have an officer concurrently holding both command and intelligence appointments, there has been speculation that Lt. General Mya Tun Oo is being groomed for higher duties in the near future47. Table 1: Generational Change in Army Leadership Position C-in-C

September 1988 Gen. Saw Maung (OTS 6)

November 1997 Snr.Gen. Than Shwe (OTS 6)

December 2014 Snr.Gen. Min Aung Hlaing (DSA 19)

Dy. C-in-C Lt.G. Than Shwe (OTS 9)

Gen. Maung Aye (DSA 1)

V.Snr.Gen. Soe Win (DSA 22)

JCS

n.a.

Gen. Hla Htay Win (DSA 20)

n.a.

AG

B.G. Aung Ye Kyaw (OTS 6)

Lt.G. Win Myint (OTS 28)

M.G. Hsan Oo (DSA 24)

QMG

M.G. Phone Myint (OTS 9)

Lt.G. Tin Hla (DSA 3)

Lt.G. Nyo Saw (DSA 23)

BSO 1

M.G. Sein Aung (OTS 10)

Lt.G. Tin Oo* (OTS 22)

Lt.G. Myint Soe (OTS 61)

BSO 2

M.G. Chit Swe (OTS 8)

--

Lt.G. Aung Than Htut (DSA 20)

BSO 3

n.a.

n.a.

Lt.G. Hla Min (DSA 22)

BSO 4

n.a.

n.a.

Lt.G. Khin Zaw Oo (OTS 56)

BSO 5

n.a.

n.a.

Lt.G. Kyaw Swe (DSA 22) concurrently Army Chief of Staff Lt..G. Mya Tun Oo (DSA 25)

BSO 6

n.a.

n.a.

CMAS

B.G. Khin Nyunt (OTS 25)

Lt.G. Khin Nyunt (OTS 25)** Lt..G. Mya Tun Oo (DSA 25)

Notes: n.a. = not applicable; -- = vacant; Snr.= Senior; V.Snr. = Vice Senior; Gen. = General; Lt.G. = Lieutenant General; M.G. = Major General; B.G. = Brigadier General; C-in-C = Commander-in-Chief; Dy. = Deputy; JCS = Joint Chief of Staff; AG = Adjutant General; QMG = Quartermaster General; BSO = Bureau of Special Operations (Chief); CMAS = Chief of Military Affairs Security (intelligence); OTS = Officer Training School (for graduates); DSA = Defence Services Academy (for high school leavers); *Lt. G. Tin Oo was killed in a helicopter crash in 2001. **(Then) Gen. Khin Nyunt was removed and arrested in October 2004. Sources: Maung Aung Myo. Building the Tatmadaw: Myanmar Armed Forces Since 1948 (Singapore: Institute of Southeast Asian Studies, 2009); media reports; and personal communications

Personal communications. See, also, Ei Ei Toe Lwin “Military shuffles generals,” Myanmar Times, 12 September 2014, available at http://www.mmtimes.com/index.php/national-news/11605-major-reshufflesin-tatmadaw-ranks.html. 47


Live-firing exercises and multi-formation maneuvers are an integral part of professional armies in peace time, although they are expensive and logistically taxing. Nevertheless, Tatmadaw conducted two major war games in 2014. The first, code named Anwarahtar, was conducted in early March near the garrison town of Meiktila in central Myanmar. The combined arms exercise involved artillery, armour, infantry and aircraft which provided close air support. The show of massive firepower and agility of ground forces was witnessed by Senior General Min Aung Hlaing and the military top brass and widely publicized on state-owned (broadcast and print) media48. The second exercise was a naval exercise in the open sea in late March, again witnessed by the C-in-C and top generals. Exercise Sea Shield 2014 involved all major naval assets (some 20 surface combatants) and there were livefirings of weapons such as SAM (surface-to-air missile), AAM (surface-to-surface missile), anti-submarine ordnance and large-calibre naval guns49.

Allegations of human rights violations: Tatmadaw under pressure With a significantly vocal local private media pushing the boundaries of press freedom, and rapidly expanding social media in combination with the public, that has shed its ‘freedom from fear,’ allegations against and complaints about human rights violations committed by soldiers and units abound in Myanmar. Tatmadaw appears to have been generally ill-prepared to respond effectively. However, in the case of ‘child soldiers,’ the military had cooperated with UN agencies like UNICEF since 2012. Initiatives resulted in the discharging of 553 underage boys up to November 2014, of whom 376 were released in 201450. However, President Obama had announced in September that Myanmar would not be granted a waiver from sanctions under the Child Soldier Prevention Act that prohibits US military assistance and commercial military sales51.

48 See, e.g., Anthony Davis, “Wardrums in Myanmar’s Wa hills,” Asia Times, 23 April 2014, available at http:// www.atimes.com/atimes/Southeast_Asia/SEA-01-230414.html. 49 See, e.g., “Exercise Sea Shield 2014: Myanmar Naval Exercise in Bay of Bengal,” Pakistan Defence, 1 April 2014, available at http://defence.pk/threads/exercise-sea-shield-2014-myanmar-naval-exercise-in-bay-ofbengal.307112/. 50 See “376 Children Released from Armed Forces in Myanmar in 2014,” UNICEF press release, 26 November 2014; “Myanmar Military Speeds Up Release of Children,” UNICEF Media Centre, 25 September 2014. 51 See Obama keeps Myanmar on child soldier sanctions list,” AFP, 1 October 2014, available at http:// www.mizzima.com/mizzima-news/myanmar/item/13308-obama-keeps-myanmar-on-child-soldier-sanctionslist/13308-obama-keeps-myanmar-on-child-soldier-sanctions-list.


As for concerns regarding the use of land mines, Myanmar has yet to sign the Ottawa Mine Ban Treaty of 1997 (The Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction), and allegations of producing and deploying anti-personnel mines continued in 201452. Other allegations by victims and human rights lobbies against Tatmadaw which were widely publicized in the Western press included the blocking of aid to Kachin IDPs (internally displaced persons), rape as a weapon, torture, arbitrary detention, and abuses during military operations53. The most serious allegation that manifested in 2014 was the report by the Harvard University Human Rights Clinic accusing three generals of command responsibility for war crimes and crimes against humanity during military operations in the eastern Karen State during the period 2005 to 2008. It claimed to have enough evidence to involve the international Criminal Court54. Tatmadaw’s response to all such allegations and complaints was rejection and refutation of all reports on abuses and attending to complaints deemed legitimate, often cooperating with Myanmar National Human Rights Commission for individual cases. Senior General Min Aung Hlaing had also appointed three generals as contact persons for the media.55 He also conceded in an exclusive interview with VOA (Burmese) programme that there might be individual violations, but indicated that they were a very small minority and strongly insisted he had instituted harsh punishment for transgressions of rules and regulations that prohibit all kinds of abuse and deterrent measures are in place to prevent further violations of human rights by Tatmadaw personnel. Colin Hinshelwood, “Landmine victims down but Burma still produces: ICBL,” DVB News, 5 December 2014, available at https://www.dvb.no/news/landmine-victims-down-but-burma-still-produces-icbl-myanmar/46338. 53 See, e.g., Yen Snaing and Nang Seng Nom, “Government blocking aid to Kachin IDP camp: KIO,” Irrawaddy, 5 December 2015, in BurmaNet News, 5 December 2014; Kate Hodal, “Burma’s army uses rape to demoralize ethnic minorities, report says,” The Guardian, 25 November 2014, in BurmaNet News, 25 November 2014; and Phyu Phyu Zin, “Shan rights group claims government troops abuse during offensive,” Mizzima, 23 October 2014, in BurmaNet News, 23 October 2014. There have been numerous op-eds, news reports and articles in British and American magazines and prominent newspapers such as the South China Morning Post, Washington Post, New York Times, The Guardian, The Independent, Bangkok Post, The Nation, and European newspapers on abuses by the Tatmadaw; much of them originating from wire services and freelance writers. Similarly postings on websites, blogs, Facebook and other social media platforms also contain many allegations of abuses by Tatmadaw members. 54 See Andrew D Kasper, “Myanmar needs to talk about how to deal with its past,” Irrawaddy, 29 November 2014, available at http://www.irrawaddy.org/interview/myanmar-needs-talk-deal-past.html. 55 See Htet Naing Zaw, “Burma military appoints point men for media relations,” Irrawaddy, 15 October 2014, available at http://www.irrawaddy.org/burma/burmas-military-appoints-point-men-media-relations.html 52


Concluding remarks 2014 was a taxing year for the Tatmadaw. As the year drew to a close, the Tatmadaw appeared to be under stress as it juggled its role in enforcing state security and contributing to peace-making in ceasefire negotiations while adjusting to the newfound openness in public discourse and expected behavioural norms informed by democratic practice and pluralism. It found itself having to defend its political role enshrined in the 2008 Constitution against socio-political forces demanding constitutional amendments that could considerably reduce its autonomy and influence in Myanmar politics. Measures to enhance professionalism and increase military capability through force modernization and large scale exercise were undertaken, while preparations for leadership renewal appeared to be taking shape as the incumbent top leaders approached the retirement age of 60.

Bingham Centre Myanmar Project: Constitutional Transitions and the Role of the Military Bingham Centre for the Rule of Law November 2014

www.binghamcentre.biicl.org

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Andrew McLeod, Research Fellow, University of Oxford INTRODUCTION 1. It is now common to isolate two separate phases of large-scale constitutional and political reforms whose ultimate goal is the establishment of a stable system of democracy. The first phase – the transition – is said to be complete when: a. agreement about political procedures produces an elected government; b. a government assumes power as a direct result of a free and popular elections; c. the government so elected has actual – and not merely legal – authority to generate new policies; and d. the executive, legislative and judicial power established by the new democracy as a matter of law does not have to share power with other bodies. The second phase – the consolidation – relies on politicians and citizens applying the new rules to other issues and thereby adjust the democratic structure. 2. In this paper, I focus on the role constitutions and constitutional reform can play in transitions to democracy which involve the military. I aim to explore the experiences of selected other countries who have undergone transitions to democracy and to offer some insights for Myanmar’s current phase of reform. There is no doubt that Myanmar is in the transition phase of its reforms. When that transition began is debatable – it can be placed anywhere between the grant of local governance through the Government of Burma Act 1935 and the announcement in March 2013 of the formation of a parliamentary committee to review the constitution – but ultimately a point of scholarly and historical rather than practical interest. I do not seek to make recommendations here or to interfere in what is and must remain a domestic process. Rather, I hope to assist Myanmar’s leaders and its citizens to make informed choices. I feel able to do so because I note from the public statements of the government, the ruling Union Development and Solidarity Party, the Tatmadaw, the major political parties and many of the ethnic nationalities groups that a stable democratic system is a shared goal, though the precise shape of that system is still under discussion.

THE NATURE OF TRANSITIONS AND THE ROLE OF CONSTITUTIONS 3. Past experience and careful study of transitions has indicated some recurrent themes. Small groups of leaders play a disproportionately large role in the decision-making process leading to the completion of the transition. A widespread fear that civil war or other forms of internal strife are likely makes gradual changes appear more attractive than radical and rapid ones. Political consensus – an act of explicit agreement in which

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political leaders accept the existence of diversity in unity and consent to forming the basic structures and procedures of a democracy – is essential to make serious progress. 4. While there is now a rich body of scholarship on democratic transitions there has been relatively little study of transitions involving the military. There is even less that focuses on the role of constitutions and constitutional reform in such cases. This is despite many countries completing democratic transitions where militaries have previously held sovereign power or played a significant political role. Such countries are not limited to particular regions or cultures and (to take a random sample from the past 50 years or so) include Algeria, Turkey, Pakistan, Portugal, Egypt, Spain, Chile, Indonesia, South Korea, Nigeria, Ghana and Venezuela. 5. Some initial remarks are therefore warranted to provide context to the role of constitutional reform in these transitions. Some of the points that follow apply to all constitutional transitions but they are particularly apt for transitions in which the military plays an outsize role. First, there is a tendency to misunderstand the nature and potential impact of constitutional change on its own. Constitutions often come to be seen as the solution (or at least part of the solution) for every issue or conflict that arises in relation to the transition. This overplays their resolutive power and underplays the importance of other forms of law (statutes passed by parliaments, decisions issued by judges). From a legal perspective, successful transitions to a new constitutional order are achieved through a combination of constitutional alterations, new laws and a judiciary whose decisions command public confidence. 6. Secondly, constitutional reform is often mistakenly viewed as a purely technical and legal process. The mistake lies in considering that alterations to the text of a constitution by themselves can achieve lasting progress. Politics and political agreements are as important, and sometimes more important, than perfecting the text of a constitution. Meaningful constitutional renewal relies on three propositions: a. All political stakeholders consider the new constitution to be the highest law according to which power will be wielded. The text of the constitution cannot be a sham: its terms and its practice must be to the same effect. b. Building a culture of constitutionalism – the recognition across all major facets of society that the constitution ought to be followed and interpreted in accordance with its spirit and that political actors should be held to account where they do not – is a process that must operate in tandem with drafting constitutional amendments. c. The constitution is a facultative instrument that sets basic parameters and minimum standards but leaves room for change and informal arrangements. Offering too great a degree of specification – and here Zimbabwe’s current constitution, adopted in 2013, is a good example – ensures that the first two propositions will be broken. This will do serious long-term damage, as it will undermine any trust or confidence that political actors and the public at large may place in a constitution or constitution making. Agreeing a set of minimum standards for the most important aspects of political governance with an understanding that other changes may be agreed without being reflected immediately in the written constitution can be a helpful tool towards compromise. 7. Finally, there are two significant risks for the long-term stability of constitutional transitions where a significant portion of governmental power is held by military. The first is that, at the conclusion of the transition, the military retains reserve domains of policymaking or protective powers to intervene in the affairs of state for the safeguarding of some higher

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purpose. An example of the former is found is Chile, where the military directly controls the national copper industry and retains 10 per cent of its revenue. The Portuguese Constitution adopted in 1976 offers an example of the latter: it established a non-elected Revolutionary Council, controlled by the military and separate from the executive and the legislature, with the power to veto legislation and oversee the armed forces. The second is that civilian politicians prioritise negative consolidation (the removal of existing powers or privileges possessed by the military) at the expense of positive consolidation (the incorporation of the military into the goals and institutions of the new democratic system). Both are equally important. A failure to plan and undertake meaningful positive consolidation through successful constitutional design will reduce the likelihood of stable constitutional government.

THE RELEVANT PARTS OF MYANMAR’S CONSTITUTION 8. Myanmar’s current constitution reflects the fact it represents a transition from a system of government led by the military. The Tatmadaw is guaranteed a role in national political leadership of the country by section 6(f) and section 20 makes it the principal safeguarding force for the constitution. These features and others are common to constitutions developed during the course of transitions involving the military. In describing these provisions, I pass no comment on their merits and legitimacy. I intend simply to state how the current constitution distributes power with respect to Tatmadaw personnel. A. Nominations and positions of significance 9. The constitution guarantees, in section 17(a) and (b) of the Basic Principles, that military personnel will play a significant role in the operation of both the executive and legislative branches of government at the Union and sub-Union levels. This is reflected across several provisions. The nomination of one quarter of all positions in all legislatures – at both Union and state or regional level – is vested in the Commander in Chief (sections 74, 109, 141, 276(i)). In addition to the legislative influence this grants, the bloc provides an effective veto-power to military personnel on any proposed changes to the constitution (section 436). The Commander in Chief is also given the power to nominate the ministers of defence, home affairs and border affairs (section 232(b)(ii) and (iii)). The nomination is entirely discretionary and cannot be refused: sections 232(d), (j)(ii), 234(b), 235(c)(ii). The ministry of home affairs is particularly important: the Head of the General Administration Department for a region or state, who ultimately reports to the minister of home affairs, is deemed to be secretary of the region or state government (section 260). As a result, the minister for home affairs, and through him the military, has a significant role in state and regional government administration in addition to the powers granted to appoint state and region ministers (sections 262(a)(ii), (n)(ii), 276(d)(ii)). The military have representation on the Nay Pyi Taw Council (section 285(b)(iii) and (f)) and the military personnel who serve in the Union legislature are, in effect, granted the nomination of one of the vice-presidents by section 60(b)(iii). 10. Chapter V of the constitution creates the executive of the Union and establishes as part of the executive the National Defence and Security Council (section 201). The full powers or scope of responsibilities of this council are not specified in the constitution. However, the Council has the authority to abolish the three branches of government and transfer sovereign power for up to two years to the Commander in Chief in the case of a state of emergency. It also proposes and advises the President on the appointment of the

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Commander in Chief. The Council comprises 11 members, six of whom are serving military personnel or nominated by the military. 11. In all the cases described here, nominated personnel (except the vice-president) remain serving members of the Tatmadaw and, at least in theory, are subject to the line of command. B.

Domains of autonomous influence and control 12. The text of the constitution grants significant autonomy to the military in the conduct of its own affairs. This is confirmed in section 20(b), which vests the right to independently administer and adjudicate all affairs of the armed forces. The further effect of sections 337, 338 and 339 is to make all potential threats to stability affairs of the armed forces, whether they originate inside or outside Myanmar, and to give power to the Tatmadaw to address them. 13. A consequence of the right vested by section 20 of the constitution is that military justice operates separately to all other parts of the judiciary. Military personnel are subject to military laws, even if they may assume other positions within government (section 291). Decisions on matters of military law are ultimately for the Commander in Chief and his decision is final and binding: section 343. The legislature retains power to pass laws with respect to defence and the operation of the Tatmadaw (see section 96 and Schedule One, item 1(a)) but there would appear to be no way for such legislative regulation to be enforced. In effect, this means that there is very limited scope for the civilian branches of government to engage in a meaningful way with the Tatmadaw.

AREAS OF MODERNIZATION INVOLVING THE MILITARY

IN

CONSTITUTIONAL

TRANSITIONS

14. To achieve a traditional democratic system of governance, the goal of the transition must be to shift the constitutional conception of the military from an institution in and of itself – effectively a fourth and separate branch of government – to a body that exists as an integrated part of the state. It will not be above politics or any branch of government but rather it will form an integral element of the body politic. Experience with military transitions in other countries indicates that two key areas must be addressed to create a stable and effective relationship between civilian democratic institutions and the military. To explore these areas, I will draw on the developments in two countries that have successfully attempted a transition from military government. 15. Indonesia’s transition was triggered by the forced resignation of President Suharto in 1998 following protests and riots. The military withdrew the support it had previously and consistently provided to the president and forced the installation of a new president. The constitutional transition proceeded without any particular planning or design. The 1945 constitution was amended in four stages by an assembly chosen in direct popular elections. Between November 1999 and May 2000, two parliamentary committees conducted public and private hearings and study tours and prepared reports that were debated in stages between 2000 and 2002. The reform exercise used the existing constitution as a starting point but amended it to such a degree that only about 11 per cent of the original remains.

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16. In Spain, the death of General Francisco Franco in 1975 brought to power a king, Juan Carlos, who oversaw the process of total power transfer from the military to a civilian government between 1975 and 1982. General elections were held in 1977 to form a constituent assembly tasked with drafting a new constitution. The product was approved at a general referendum in 1978 and the first democratic elections under it were held in 1982. This new constitution, the first since the 1930s, remains in force with only two amendments.

THE MILITARY AND POLITICS 17. In Spain, this relied on a leader within the military who was committed to the gradual transfer of all political power persuading the military to relinquish all power and form an integral part of the body politic. The Spanish constitution had never guaranteed seats for the military in the parliament but in the first constituent assembly following the 1977 elections there was direct representation of the military and several parties sympathetic to its concerns. The military also had autonomy over the conduct of its own affairs, though there was no defence minister as such. The drafting of the 1978 constitution, which was led by civilians not aligned with the military, involved a gradual separation of the military and politics. It sought to do this, first, by distinguishing between the armed forces and forces of public order (such as the police or border guards) in the preliminary section of the new constitution. Amending existing phrases and drawing on historical language, the new text excluded forces of public order from the mission of being guarantors of the constitution. Secondly, the drafters ensured that provisions about the internal organisation of the military, and in particular its governing organs, were not established by or in the constitution. This was important for future developments: by leaving out such organs it enabled them to evolve, and eventually disband, without the need for constitutional amendment. 18. Indonesia had, since its constitution of 1945, allowed for representation in the main legislative body from the military and police. This representation was not constitutionally entrenched. Rather, the constitution delegated a power to appoint representations from phase “regional territories and groups as provided for by statutory regulations”. During the of constitutional reform that lasted from 1999-2002, several attempts were made to constitutionalise the practice that had developed of the military and the police holding seats in parliament. These did not succeed. The principal reason for the rejection of military representation was the lack of popular support. The body preparing amendments to the constitution was broadly representative of the people and conducted many public consultations across Indonesia. These features of the reform process offered a chance for public concern about any political role for the military or the police in the future constitutional system. As a result, the military and the police withdrew from politics without being forced to. 19. At present, Myanmar’s constitution guarantees a role for the military in politics. It does so through formal nominations and declarations. It legally separates public order forces (the police and border guards) from its military. However, the forces that are intended to oversee public order are informally connected with the Tatmadaw, reflected in the fact that the minister in charge of these forces is a serving member of the military. The lessons learned from other military transitions suggest that finding a way to disengage forces protecting public order – providing civilian oversight, establishing distinct identities – improve public confidence in government and provide greater stability during transition.

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This may be an important first step towards creating a closer and more meaningful engagement between civilian and military leaders.

MILITARY JUSTICE 20. It is not uncommon in developed democracies for the military to operate separate tribunals and a separate system of justice to adjudicate military law. A key feature, however, of military justice in democratic systems in the limited scope of the jurisdiction of military courts and the possibility of review on significant 21. A key success of Spain’s military transition was reform of military justice. At the start of and in the early phase of the transition, military courts exercised wide jurisdiction over soldiers and civilians alike and were used as political tools to stymie attempts to reform. There are documented instances of soldiers’ insubordination going unpunished when it was directed towards civilian government or initiatives to reform the military. The constitution adopted in 1978 stipulated (in art 117) that there would be a unitary system of justice, covering both civilian and military justice, and that this would be implemented through an organic law defining jurisdiction. Such a law was never fully implemented because of the confrontation that such legislation would have represented to the military. Instead, what proved much more powerful was a provision in the constitution that allowed for appeals from the highest court martial to the Spanish Supreme Court. This removed the autonomy of military courts and integrated them into the unified legal system of the state. It allowed a dialogue between military judges and civilian judges that was productive and stabilizing. 22. Indonesia has so far not succeeded in reforming its military justice system from the Suharto era. Though parliament and the executive in theory have the constitutional power to regulate and oversee military tribunals, in practice it has been politically unfeasible to do so. As a result, military tribunals operate with very little transparency or accountability.

CONCLUSIONS 23. Myanmar’s constitution preserves significant influence and control for the Tatmadaw in politics and government. To say that is not to criticize the Tatmadaw or the constitution but merely to note the characteristics of the current constitution. If – as public statements of actors on all sides of Myanmar’s transition suggest – a system of democratic governance is desired, gradual changes directed towards a more engaged relation between civilian structures and the military will need to emerge. Existing practice suggests that two areas that will require attention are the system of military justice and the separation of the military from politics and its reintegration as an integral part of the body politic.

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Beneficial Ownership: Tackling Hidden Company Ownership Through Myanmar's EITI Process

SEPTEMBER 2016

Cover image: The cement making facility used during the construction of the South East Asia Crude Oil Pipeline (SEAOP) operation center on Ma-De Island, Kyauk Phyu, in the state of Rakhine. Yu Yu Than for NRGI, July 2015.

© 2016 Natural Resource Governance Institute and Global Witness All rights reserved. No part of this publication may be modified without prior written permission of the Natural Resource Governance Institute and Global Witness. Any reproduction, distribution or transmission in any form or by any means should include proper credit to the Natural Resource Governance Institute and Global Witness, including a link to the original full text version. [For permission contact: [email protected]]


Introduction

Myanmar is one of many countries where the oil, gas and mining industries have long been synonymous with secrecy and dirty dealing. Too often resource riches which could be used to lift populations out of poverty instead fall into the hands of corrupt elites. The Extractive Industries Transparency Initiative (EITI) is a global standard which aims to help change this dynamic by requiring member countries to open the management of their natural resources up to public scrutiny. Myanmar is in the process of implementing EITI, publishing its first report in January 2016; if the next steps are taken seriously, the initiative could help pave the way towards a natural resource sector which benefits the country’s people. This paper focuses on a new and ground-breaking provision of EITI: a requirement for the identities of the real owners – the ‘beneficial owners’ – of extractive industry companies to be made public. It makes recommendations about the information which needs to be collected and disclosed to make the most of EITI standards on beneficial ownership, and suggests steps to carry out this process successfully in Myanmar.

The paper seeks, in particular, to assist: •

The multi-stakeholder group of government, private sector and civil society representatives which oversees Myanmar’s EITI process, by suggesting how the beneficial ownership requirement can be implemented effectively;

•

The individuals and bodies charged with collecting and publishing the required data, by providing them with practical options; and

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Myanmar’s international partners, by highlighting where technical and financial support should be directed to achieve a successful roll out of the EITI beneficial ownership requirement in the country.

This briefing reflects recommendations from the Natural Resource Governance Institute (NRGI) and Global Witness. It should not be construed as official guidance from EITI. A summary of suggested definitions and approaches for MEITI is on page 15 of this briefing. A list of additional materials providing further details and guidance is on page 16.

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Understanding ‘beneficial ownership’ in the extractive sector The “beneficial owners” of a company are the individuals who truly own and control the company. Publishing the beneficial owners of companies seeking or holding rights to oil, gas, mining and other resources allows people to see who is getting access to these resources and to ask questions about potential conflicts of interest and other corruption risks. Where a company has broken the law, beneficial ownership information can also help ensure that those responsible are brought to account.

There is a growing global push to put an end to anonymity in company ownership. In May 2016, the Anti-Corruption Summit held in London focused on the need for firm and collective action on beneficial ownership transparency, and an increasing number of countries are committing to public registers which detail the real owners of companies.1 The Extractive Industries Transparency Initiative (EITI) creates opportunities to address this corruption challenge, with new provisions requiring beneficial ownership disclosure.

Around the world, there are countless examples of how company structures are used to facilitate corruption in the natural resource sector. Anonymous companies allow powerful individuals to hide their identities and make secret deals for natural resources. These secret deals benefit and strengthen a small elite and cause immense harm to the wider population. What can be done?

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Addressing hidden company ownership in Myanmar The issue of beneficial ownership transparency was included in Myanmar’s 2014 EITI workplan.2 In the same year, 25 oil and gas companies disclosed beneficial ownership details, setting an important precedent in the country and globally. Myanmar now has the opportunity to build on this platform and open company ownership up more broadly. As Myanmar starts to prepare for the next stage of the EITI process, this briefing sets out seven steps the Myanmar EITI (MEITI) needs to take to achieve meaningful beneficial ownership transparency and make this process as effective as possible in increasing accountability and tackling corruption:

1 Set a strong beneficial ownership

definition. 2 Agree on identifying information for

beneficial owners. 3 Agree on scope of disclosure in the short

and long term. 4 Establish mechanisms and timeframes for

data collection. 5 Find a workable method for confirming

information. 6 Publish information in an open data

format. 7 Commit to improving extractive sector

governance.

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What does the 2016 EITI Standard say about beneficial ownership transparency? Section 2.53 states that:

a) It is recommended that implementing countries maintain a publicly available register of the beneficial owners of the corporate entity(ies) that bid for, operate or invest in extractive assets, including the identity(ies) of their beneficial owner(s), the level of ownership and details about how ownership or control is exerted. Where possible, beneficial ownership information should be incorporated in existing filings by companies to corporate regulators, stock exchanges or agencies regulating extractive industry licensing. Where this information is already publicly available, the EITI report should include guidance on how to access this information. b) It is required that: i. The EITI report documents the government’s policy and the multi-stakeholder group’s (MSG’s) discussion on disclosure of beneficial ownership. This should include details of the relevant legal provisions, actual disclosure practices and any reforms that are planned or underway related to beneficial ownership disclosure. ii. By 1 January 2017, the MSG publishes a roadmap for disclosing beneficial ownership information in accordance with clauses (c)-(f) below. The MSG will determine all milestones and deadlines in the roadmap, and the MSG will evaluate implementation of the roadmap as part of the MSG’s annual activity report. c) As of 1 January 2020, it is required that implementing countries request, and companies disclose, beneficial ownership information for inclusion in the EITI report. This applies to corporate entity(ies) that bid for, operate or invest in extractive assets and should include the identity(ies) of their beneficial owner(s), the level of ownership and details about how ownership or control is exerted. Any gaps or weaknesses in reporting on beneficial ownership information must be disclosed in the EITI report, including naming any entities that failed to submit all or parts of the beneficial ownership information. Where a country is facing constitutional or significant practical barriers to the implementation of this requirement by 1 January 2020, the country may seek adapted implementation in accordance with requirement 8.1. d) Information about the identity of the beneficial owner should include the name of the beneficial owner, the nationality, and the country of residence, as well as identifying any politically exposed persons. It is also recommended that the national identity number, date of birth, residential or service address, and means of contact are disclosed. e) The multi-stakeholder group should agree an approach for participating companies assuring the accuracy of the beneficial ownership information they provide. This could include requiring companies to attest the beneficial ownership declaration form through sign off by a member of the senior management team or senior legal counsel, or submit supporting documentation. f) Definition of beneficial ownership: i. A beneficial owner in respect to a company means the natural person(s) who directly or indirectly ultimately owns or controls the corporate entity. ii. The MSG should agree an appropriate definition of the term beneficial owner. The definition should be aligned with (f)(i) above and take international norms and relevant national laws into account, and should include ownership threshold(s). The definition should also specify reporting obligations for politically exposed persons. iii. Publicly listed companies, including wholly owned subsidiaries, are required to disclose the name of the stock exchange and include a link to the stock exchange filings where they are listed. iv. In the case of joint ventures, each entity within the venture should disclose its beneficial owner(s), unless it is publicly listed or is a wholly owned subsidiary of a publicly listed company. Each entity is responsible for the accuracy of the information provided. g) The EITI Report should also disclose the legal owners and share of ownership of such companies.

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Step 1 | Set a strong beneficial ownership definition. The MEITI should set its own definition for beneficial ownership disclosure through the EITI process in Myanmar. Under EITI, the definition needs to cover, at a minimum, individuals who ultimately own and/or control the company.

Ultimate natural owners Companies can have complicated ownership structures, with ownership shares held, directly or indirectly, by other companies, private trusts or through private agreements allowing one person to hold shares on behalf of another (for example, a wife holding shares on behalf of her husband). The definition of beneficial ownership should cover the real, live individual or individuals who are right at the very top of the chain—the person or persons who really stand behind the company. This means that the beneficial owners of a company can be different from legal shareholders listed in the company registry.

Control It is possible that an individual may not have an ownership share in a company, but still has a significant say in company decisionmaking (for example, they have the right to exercise control through private agreements with the official owners). The identity of any person who is able to influence company activities in this way should be disclosed. MEITI has the freedom to use a broader definition of control. This definition can highlight, for example, individuals who receive economic benefits. There can be situations where a person might have no official ownership stake in a company, but where he or she has an informal relationship or agreement to receive benefits such as a share of the company’s profits. A beneficial ownership definition that encompasses economic benefits would require disclosure of the identities of any person or persons benefiting from a company’s activities. The following definition, drawn from the United States’ action plan on transparent company ownership, includes economic benefit:

… a natural person who, directly or indirectly, exercises substantial control over a covered legal entity or has a substantial economic interest in, or receives substantial economic benefit from, such legal entity, subject to several exceptions.4

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MEITI should set clear boundaries on who is not a beneficial owner. Company registries in Myanmar and elsewhere contain some information on company ownership and control. The Myanmar registry contains names and identifying details of company officers (directors and secretaries). Previously, the names of legal shareholders were also published. It is important that such information remains available (and in the case of legal shareholders, that it is made public as it was before). However, the corporate information provided in existing registries does not actually identify the beneficial owners of companies. In particular, it is important to understand that the following are not beneficial owners:

Companies and trusts holding shares Only natural persons (that is, real, live human beings) can be beneficial owners. Other structures, such as private companies or trusts, cannot be beneficial owners. There is one exception, and that is companies which are listed on public stock exchanges, and which are not required to produce additional information on their ownership. 5

Directors and board members According to the EITI Standard and other accepted definitions of beneficial ownership, a person is not necessarily a “beneficial owner” because he or she is a director or board member of a company. Disclosing information on directors and board members is useful and should be encouraged. It may not be the same, however, as disclosing beneficial ownership information.

6

Substitutes for a real owner If a person holds a stake in a company on behalf of another individual (i.e., acts as a proxy for the real owner), then the proxy is not the beneficial owner; the person on whose behalf the stake is held is the beneficial owner. For example, if a wife holds shares in a company in her name, but on behalf of her husband, then she is not the beneficial owner— the husband is.

MEITI should set a definition with either no threshold for disclosure (best) or a very low threshold. MEITI needs to decide whether all beneficial owners should declare their interest or if there should be a threshold (i.e., only the identities of individuals whose interests exceed a certain percentage would be disclosed). It is critical that decisions on threshold are made very carefully. In some oil-producing nations, for example, it is not uncommon for a beneficial owner to hold only a small interest—sometimes less than 1 percent of the total. For large extractives projects, even a 1 or 5 percent interest can be quite lucrative, generating millions of dollars in rents. There is a risk that any threshold could effectively become a set of instructions for those wishing to evade scrutiny on how they should set up their interests. A company could easily rearrange its structure so that the beneficial ownership stake of an individual who wants to keep his or her identity hidden is just below the threshold to keep his or her name out of public sight. In Moldova, for example, it has been reported that some companies have circumvented a disclosure rule which applies to shareholdings of 1% or more by employing


consortia of anonymous companies which each hold shareholdings of 0.99 percent or less.6 Given the high risk of corruption in Myanmar’s extractive sectors, the best approach could be to agree that all companies not publicly listed should disclose their beneficial owners in full. The alternative would be to agree a threshold. However, this should be kept as low as possible in order to make it more difficult for dubious beneficial owners to work around this threshold. If a threshold is agreed upon, it should be no more than 5 percent interest: the name of anyone holding or controlling 5 percent of interest in a project should be disclosed. It is important to note that long, complex chains of ownership can mask the full extent of a beneficial owner’s equity interest, especially when he or she has stakes in more than one entity in the chain. Thus, a successful disclosure program should count an individual’s full aggregated interest (i.e., the sum of all their interests). When striking a balance between ease of administration and completeness, countries should remember that shareholder equity is not a sure sign of who controls a company’s cash or decisions. Thus, a threshold should apply regardless of how ownership or control is exerted. For example, if there is a threshold of 5 percent, then this threshold should apply whether a person maintains ownership via 5 percent of shares (directly or indirectly through a chain of companies, proxies or otherwise) or if he/she maintains 5 percent control over the company (for example, through powers of attorney, contractual arrangements and relatives).

MEITI should decide how to cover information on politically exposed persons. To be effective, beneficial ownership disclosures should specifically cover politically exposed persons (PEPs). The United Nations Convention against Corruption (UNCAC), which Myanmar has ratified, defines PEPs as “individuals who are, or have been, entrusted with prominent public functions, and their family members and close associates.”7 This can include heads of government; senior politicians; senior government; judicial or military officials; senior executives of state-owned corporations; or important political party officials. Former officials can also be PEPs if they still have influential roles in the affairs of state. Covered family members can be related by blood, marriage or other forms of civil partnership, and can stretch beyond the immediate family. Associations can be both personal and professional.8 PEPs are one of the biggest corruption risks in the awarding of natural resource concessions: it is often all too easy for people to award natural resources to themselves (directly or via family members or close associates) with the sole aim of personally profiting from those deals. PEPs might also have access to public funds generated by natural resource extraction or close ties to officials who have access to such funds; the danger is that they help themselves. Consequently, there is a strong argument for companies to disclose any beneficial owner who is also a PEP, regardless of any threshold requirement set for disclosures by other beneficial owners.

7


Step 2 | Agree on identifying information for beneficial owners. It is not enough to publish the names of beneficial owners of a company. It is also essential that there is sufficient accompanying information for the identity of each beneficial owner to be pinpointed, and for the nature of his or her interest in the company to be fully understood. Identification is particularly important in Myanmar given that many people share the same names. We recommend that companies disclose the following information:

Name of beneficial owner This means the full name(s) of each and every beneficial owner. In the Myanmar context, it is also important that any alternative name used by the beneficial owner is also provided.

Name and role of politically exposed persons (PEPs) The name of any PEP, no matter how small their beneficial ownership share in the company, together with details on why he or she is a PEP, should be disclosed. Again, in the Myanmar context, any alternative names used should also be provided.

Identifying details Extra details can narrow down a beneficial owner to one individual. In the Myanmar context,

8

national registration card (NRC) numbers are typically used for this purpose in elections and corporate records. For any beneficial owner from Myanmar, the NRC number should be disclosed (and where a beneficial owner has more than one NRC number, all NRC numbers should be disclosed). The MEITI should also consider what other identifying details should be disclosed. Section 2.5 of the 2016 EITI Standard requires the disclosure of nationality and country of residence, and recommends disclosure of national identity number, date of birth, residential or service address and means of contact.

Means of control A description of how the beneficial owner exercises ownership and/or control of the company and/ or how the beneficial owner benefits from the company’s activities should be disclosed. If, for example, there is a chain of companies with a beneficial owner at the very end, the names of each of the intermediary companies should be provided. Similarly, if a wife holds shares on behalf of her husband, the husband should be declared as the beneficial owner. The name of the wife should be given to explain his means of control.

Signed statement of accuracy A member of the company’s senior management team or senior legal counsel acting for the company should sign a statement confirming that the beneficial ownership declaration is accurate and complete. Consideration should also be given to sanctions for companies failing to make declarations or making incomplete or inaccurate declarations.


Step 3 | Agree on scope of disclosure in the short and long terms. MEITI will need to decide which companies will be required to disclose beneficial ownership data through the EITI process. The requirement is broadly drafted and MEITI can choose to go beyond companies engaged in the extractive industries. At the same time, if MEITI is aiming for beneficial ownership disclosures by the next MEITI report, this may impose a near-term limit on how much can be done. One possible option is for MEITI to take a staggered approach, starting with disclosures of beneficial owners engaged in a confined number of areas. It could, for example, require disclosure from the most significant companies engaged in oil, gas, gems and mining projects in the first stage. This information could then be included in the 2017 MEITI report.

The disclosure process could then be broadened out for subsequent reports to encompass other areas agreed upon by MEITI. The 2016 EITI Standard requires countries to publish beneficial ownership details for companies bidding for extractive concessions (including unsuccessful bidders), or operating or investing in the extractives sector by 2020. Myanmar will need to disclose the beneficial owners of these companies by 2020 in order comply with the EITI Standard and therefore any disclosure plan by MEITI will need to take this requirement into account. There should also be consideration given to broadening beneficial ownership out so that it covers both upstream and downstream companies in the extractive sector such as for example commodity traders, and ultimately all companies operating in Myanmar (beyond the extractive sector altogether).

9


Step 4 | Establish mechanisms and timeframes for data collection. Once MEITI has decided what beneficial ownership information should be reported and which companies should be required to report in the first stage (i.e., for the 2017 EITI report), the data collection process can begin. MEITI will need to agree to the format in which requests should be sent. One possibility is to set up an online form which companies can complete. However, if this approach is used, it is important that MEITI also consider what the workarounds should be for companies and/or beneficial owners who cannot access electronic forms easily. In the short term, this collection process can be folded into the terms of reference for the independent administrator appointed for the 2017 EITI report. It is important, however, that there is appropriate time and support in place for the collection process to be undertaken properly. Experience from a beneficial ownership project conducted in 2014 by Global Witness indicates that it is not enough simply to issue requests for information. Time and resources must also be allowed for follow-up and to assist companies as they complete declarations, including through written guidance, telephone calls and in-person meetings to ensure that:

10

•

each request has actually reached and been seen by a company official with the authority to deal with it on behalf of their company

•

the request is understood, and queries from the company are addressed promptly

•

the deadline for provision of information is understood by the company, and where they cannot meet this deadline an appropriate extension is agreed

•

there is time allowed for the declarations provided by companies to be reviewed, and where there are obvious gaps or misunderstandings there is an opportunity to go back to them so that they can correct and complete the declaration

This need not be a complicated process. It simply means thinking about these issues at the start, having a proper timetable in place and ensuring that there will be sufficient financial support and human resources to carry out the data collection. It might, for example, be helpful for the independent administrator to have a Myanmar-language speaker to assist with the follow-up process. It may also be helpful to prepare written guidance with input from technical experts on beneficial ownership, which can be provided to companies alongside the initial disclosure request. Having experts available to help address queries over disclosures could also be useful.


In terms of timing, it is essential that the first request is sent to companies as early as possible, both to allow time for effective follow up, and to ensure that any companies with complicated structures (typically a small number) have time to work out who their beneficial owners are. Ideally, in the longer term, the government will appoint a relevant agency to collect and publish beneficial ownership data when a company: •

first incorporates

•

files annual reports

•

applies to bid for extractives licenses or other public assets

•

signs a significant extractives sector deal with the government—for example, purchasing a license or signing an operating agreement

•

sees any change in beneficial ownership (note that the updated information would need to be filed and published within a reasonable timeframe after the change occurs, in addition to maintaining the historical information)

In Myanmar’s case, this agency is likely to be the Directorate of Investment and Company Administration (DICA) which currently manages the company registry. In due course, MEITI should check that there are no obstacles to DICA’s legal and political authority to request and collect beneficial ownership data. If this is not the case, amendments may need to be made to existing legislation to address such obstacles and give DICA the necessary rights. The current reform process offers opportunities to lay the legal groundwork for this longer term approach to beneficial ownership disclosure in Myanmar, especially as part of the finalization of the Mines Rules.

11


Step 5 | Find a workable method for confirming information. It is unlikely that every company will be fully transparent about its beneficial owners. Some will not comply at all—especially where disclosure is voluntary.9 MEITI should explore ways to verify what companies declare, such as:

12

•

Tasking data collectors with cross-checking submissions against readily available documents (local corporate filings, banking and law enforcement reports)

•

Requiring that the company attach a signed, notarized attestation or affidavit to its submission

•

Asking for backup documentation such as articles of association, powers of attorney, or copies of shareholder registers

•

Where feasible, cross-checking ownership information provided against asset disclosures filed by politicians, to ensure companies flag their PEPs 10

•

Tasking data collectors with performing deeper audits on a random selection of companies

•

Where credible concerns are raised over the beneficial ownership declarations provided by a particular company, conducting a deeper audit of that company


Step 6 | Publish information in an open data format. The government should make the beneficial owenrship declarations coming out through the EITI process fully accessible to the public so that anyone looking into the extractives sector or a particular company’s activities can review and use them easily. MEITI should ensure that all data collected for the 2017 EITI report and in the longer term is: •

published online and available without users having to register

•

available for free

•

in open data form, which means that it cannot simply be uploaded as an image or pdf; instead, it needs to be in a machine-readable open database from which data can be extracted in bulk

The MEITI should also refer to the International Open Data Charter11 which brings together international best practice on the publication of data. MEITI also needs to consider how to make best use of the data in the longer term. The EITI Standard encourages countries to “mainstream” EITI disclosures directly into government and company systems. Myanmar should pursue this mainstreamed approach for its beneficial ownership disclosures.

As noted above, Myanmar has an online and public company registry managed by DICA. Also, the Ministry of Energy is establishing a cadaster for oil and gas companies, and a similar register or cadaster might be established for the mining sector in the future. These are the obvious starting points for anyone who is likely to look into the activities of extractives companies in Myanmar, MEITI should start to discuss with these bodies how EITI beneficial ownership declarations can be incorporated into these registers/cadasters. At the international level, a global beneficial ownership register (GBOR) is currently being established.12 As the name suggests, it will be a central platform onto which beneficial ownership data from across the world can be published. By combining data in this way, the GBOR should make it easier for anyone to look into company and control networks that span different countries and identify potential or actual conflicts of interest or corruption. The GBOR could also make it easier for companies to provide their beneficial ownership information, and for such information to be collated by authorities. MEITI should also consider how to link its beneficial ownership disclosure process to the GBOR.

13


Step 7 | Commit to improving extractive sector governance. The Myanmar government, responsible companies and civil society could multiply the benefits of new beneficial ownership information by combining it with other public resources as they carry out investigations or due diligence.

14

As the government formalizes beneficial ownership transparency in its laws and systems, for example, providing false beneficial ownership information could be treated as grounds for revoking a company’s corporate registration, license or contract, or for barring it from competing for contracts.13 Experienced investigators can map human, company and transactional relationships using online corporate registries; social networking sites; newspapers; trade periodicals; land and other property records; physical and IP address data; legal record and credit searches; government data from sources such as procurement websites, contract databases, sanctions lists; and EITI and civil society reports. This would make it easier to identify connections and potentially conflicts of interest, corruption or illegal activities, allowing more effective scrutiny and strengthened extractives sector governance.


Suggested definitions and approaches for MEITI Beneficial ownership definition

A beneficial owner is a natural person who, directly or indirectly, exercises substantial control over a covered legal entity or has a substantial economic interest in, or receives substantial economic benefit from, such legal entity.

Minimum ownership/ control disclosure threshold

Either no threshold (i.e., all beneficial owners are declared), or a very low threshold—no more than 5 percent at the very highest • Name of ultimate beneficial owner(s), including any alternative names used • Name and role of any PEP who owns and/or controls the company regardless of size of interest

Information disclosed

• Identifying details including date of birth, nationality, and national identity number (for Myanmar nationals, the NRC number) of the beneficial owner(s) • Brief description of the means of ownership or control • Signed statement of accuracy • Other information such as names of directors and legal shareholders

Politically exposed persons (PEPs) definition

Individuals who are, or have been, entrusted with prominent public functions, and their family members and close associates • Good: companies that bid for, operate, or invest in extractive sector

Scope of reporting

• Better: upstream and downstream companies in extractive sector • Best: all companies, including beyond extractive sector • Good: EITI report • Better: license register

Disclosure platform

• Best: corporate register and link to global beneficial ownership register. In all cases, the data should be available online, free, in open data form (that is, a fully machine-readable open database from which data can be extracted in bulk) and not password protected except when strictly necessary to address strong human rights concerns.

Agency to collect/ publish data

For the 2017 EITI report, the independent administrator, with data collection support from a Myanmar-language speaker, and technical support from beneficial ownership experts; in the longer term, to be decided When a company: • first incorporates

Times for data collection/ update

• files annual report • applies to bid for extractives licenses or other public assets • signs a significant extractives sector deal with the government • has any change in beneficial ownership (within a reasonable timeframe after it occurs) • Company must attach a statement signed by a senior management team official or senior legal counsel confirming that the declaration is accurate and complete

Data assurance mechanisms

• Task data collectors with cross-checking submissions against readily available documents (local corporate filings, banking and law enforcement reports, PEP asset disclosure filings) • Ask for backup documentation such as articles of association, powers of attorney, or copies of shareholder registers • Task data collectors with performing deeper audits on a random selection of companies, and on particular companies where credible concerns have been raised

False or incomplete submissions

• Basic EITI requirement: Flag in EITI report by naming the companies which have not disclosed their beneficial owners. • If legally formalized: Grounds for revoking a company’s registration, license or contract, or for barring it from competing for contracts

15


Additional resources

For detailed recommendations on how to disclose beneficial ownership data for oil, gas and mining companies, see NRGI’s briefing, “Owning Up: Options for Disclosing the Identities of Beneficial Owners of Extractive Companies,” available at http://www.resourcegovernance.org/analysistools/publications/owning-options-disclosingidentities-beneficial-owners-extractive. For information on the pilot carried out in 2014 on beneficial ownership disclosure in Myanmar’s oil and gas sector, see Global Witness’ October 2014 report, “The Shell Starts to Crack?” available at https://www.globalwitness.org/en-gb/reports/ shell-starts-crack/. For further details of the EITI provisions on beneficial ownership disclosure, see the EITI International Secretariat beneficial ownership page, https://guide.eiti.org/en/topic/ beneficial-ownership. For information on the official EITI pilot carried out in Burkina Faso, the Democratic Republic of Congo, Honduras, the Kyrgyz Republic, Liberia, Niger, Nigeria, Tanzania, Togo and Zambia, see the EITI International Secretariat page, https://eiti. org/pilot-project-beneficial-ownership. For assessments of the official EITI pilot see:

16

•

EITI board report, October 2015, Beneficial ownership pilot evaluation report, available at https://eiti.org/files/BP/board_paper_304-b_beneficial_ownership_pilot_-_ evaluation_report.pdf.

•

Global Witness, March 2015, Assessment of EITI beneficial ownership pilots at https:// www.globalwitness.org/documents/18014/ Beneficial_Ownership_Report_March_24_ FINAL.pdf.

For further details on the role hidden ownership plays in enabling corruption and conflict around the world, see Global Witness’ Anonymous Companies site at https://www.globalwitness. org/en/campaigns/corruption-and-moneylaundering/anonymous-company-owners/. Resources include: •

Online map, 'The Great Rip Off: Anonymous Companies and Their Victims', which displays incidents around the world which involve the abuse of anonymous companies. This is available at http://greatripoffmap. globalwitness.org/#!/.

•

December 2015 video, “How Exposing Anonymous Companies Could Cut Down on Crime,” available at https://www.youtube. com/watch?v=FyOVMqAIFw8.

•

March 2014 report, “Poverty, Corruption and Anonymous Companies: How Hidden Company Ownership Fuels Corruption and Hinders the Fight Against Poverty,” at https://www.globalwitness.org/ sites/default/files/library/anonymous_ companies_03_2014.pdf.

•

March 2014 video, The Grin, which helps to explain the problem of anonymous companies. This is available here: https://www.youtube. com/watch?v=N1O97HZev7A.

Notes

1. For further details of the approach to corruption agreed at the Anti-Corruption Summit held in London in May 2016, please see https://www.gov.uk/government/publications/anti-corruption-summit-communique. For further information on international progress to tackle hidden company ownership, see Global Witness, 'Anti-Corruption Summit sees bold moves on property and travel, but a glaring blind spot in the tax havens', 12 May 2016; available at https://www.globalwitness.org/en/press-releases/ anti-corruption-summit-sees-bold-moves-property-and-travel-glaring-blind-spot-tax-havens/. 2. In 2014, the MEITI multi-stakeholder group approved an official work plan which included as activity 1.2.12: “Carry out a study to map and identify levels of beneficial ownership in the extractives sector (if not effectively covered and/or included in scoping study.” 3. The full 2016 EITI Standard is available at https://eiti.org/files/english_eiti_standard_0.pdf. 4. White House, “United States G-8 Action Plan for Transparency of Company Ownership and Control,” 2013, available at: http://www. whitehouse.gov/the-press-office/2013/06/18/united-states-g-8-action-plan-transparency-company-ownership-and-control 5. Companies which are listed on a public stock exchange are already required to make details of their ownership public, and by definition, they have a very large number of owners who each only hold a small slice of the company. Consequently, listed companies are exempted from EITI beneficial ownership requirements. Subsidiaries of listed companies should still report on their beneficial owners (meaning that subsidiaries which are 100 percent owned by a listed company will report the listed company as their owner). In terms of best practice, where a single person holds a high percentage of a listed company’s shares, it is helpful for this to be declared. 6. Organized Crime and Corruuption Project, 'The Moldovan Banking Wars', 26 July 2016; available at https://www.occrp.org/en/ investigations/5494-the-moldovan-banking-wars. 7. United Nations Convention against Corruption (UNCAC), Article 52. 8. For an overview, see FATF, “Politically Exposed Persons (Recommendations 12 and 22), 2013, available at: http://www.fatf-gafi.org/ media/fatf/documents/recommendations/guidance-pep-rec12-22.pdf. 9. In a June 2014 survey of oil and gas firms in Myanmar, Global Witness found that only 13 out of 47 companies approached initially provided any data. However, when these poor results attracted media interest and companies became aware of reputational impacts of failing to engage in this exercise, more chose to participate. By October 2014, a total of 25 oil and gas companies had disclosed in full the beneficial ownership information requested from them, representing a majority of applicable private Myanmarregistered companies. See Global Witness, “The Shell Starts to Crack?” 2014, available at: https://www.globalwitness.org/en-gb/ reports/shell-starts-crack/. 10. For more on the use of official asset disclosures to find PEPs, see World Bank, “Using Asset Disclosure for Identifying Politically Exposed Persons,” 2012, available at: http://siteresources.worldbank.org/FINANCIALSECTOR/Resources/Using_AD_for_PEP_ identification.pdf 11. For further details of the International Open Data Charter, please see www.opendatacharter.net. 12. For further details on the Global Beneficial Ownership Register, please see Global Witness, ‘New global register sheds light on anonymous companies, a root cause of corrupt, illegal activities’, 4 April 2016; available at https://www.globalwitness.org/en/ press-releases/new-global-register-shine-light-anonymous-companies-root-cause-corrupt-illegal-activities/. 13. For an example of the former, see Article 27 of the 2012 amendments to the Kyrgyz Republic’s Subsoil Law.

The Natural Resource Governance Institute (NRGI) helps people to realize the benefits of their countries’ endowments of oil, gas and minerals. We do this through technical advice, advocacy, applied research, policy analysis, and capacity development. We work with innovative agents of change within government ministries, civil society, the media, legislatures, the private sector, and international institutions to promote accountable and effective governance in the extractive industries. www.resourcegovernance.org

Many of the world’s worst environmental and human rights abuses are driven by the exploitation of natural resources and corruption in the global political and economic system. Global Witness is campaigning to end this. We carry out hard-hitting investigations, expose the facts, and push for change. We are independent, not-for-profit, and work with partners around the world in our fight for justice. Global Witness is a company limited by guarantee and incorporated in England (Company No. 2871809). www.globalwitness.org

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Beneficial Ownership: Tackling Hidden Company Ownership Through Myanmar’s EITI Process

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Myanmar is one of many countries where the oil, gas and mining industries have long been synonymous with secrecy and dirty dealing. Too often resource riches which could be used to lift populations out of

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poverty instead fall into the hands of corrupt elites. The Extractive Industries Transparency Initiative (EITI) is a global standard which aims to help change this dynamic by requiring member countries to open the management of their natural resources up to public scrutiny. Myanmar is in the process of implementing EITI, publishing its first report in January 2016; if the next steps are taken seriously, the initiative could help pave the way towards a natural resource sector which benefits the country’s people. This paper focuses on a new and ground-breaking provision of EITI: a requirement for the identities of the real owners – the ‘beneficial owners’ – of extractive industry companies to be made public. It makes recommendations about the information which needs to be collected and disclosed to make the most of EITI standards on beneficial ownership, and suggests steps to carry out this process successfully in Myanmar.

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Civilian justice trumps military impunity in Myanmar AILEEN THOMSON 11 December 2014

The rare conviction of a soldier in civilian court shows how, case by case, the criminal justice system is slowly taking a stand against the country's still-powerful military.

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In November, a civilian court in Myanmar’s Shan State did what few courts in the country have ever done–it sentenced a soldier in the https://www.opendemocracy.net/opensecurity/aileen-thomson/civilian-justice-trumps-military-impunity-in-myanmar

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Myanmar military to prison for a crime committed against a civilian. It did so after the military court overseeing the case, under intense pressure from local human rights groups and media, agreed to transfer the defendant to a civilian court. The Burmese law governing courts martial allows such a transfer to civilian courts when a soldier is accused of violating civilian criminal law, including sexual violence and murder. The victim in this case was a 14-year-old mentally handicapped girl of Kachin ethnicity. The perpetrator, Private Kaung Bo Bo, attacked her while she was on her way to the market, dragged her into some bushes, and raped her. The court found the soldier guilty of kidnapping and rape, and sentenced him to 13 years in prison. Before his civilian trial, a court martial had found him guilty of another crime, leaving his barracks without permission, and sentenced him to a year in prison. The case in question was particularly horrifying, but it sadly fits a well-documented pattern of sexual violence committed by soldiers against ethnic civilians. For many years, women’s groups and human rights organizations have documented the use of sexual violence as a weapon of war in areas of ethnic conflict in Myanmar. Sexual violence is used to terrorize ethnic civilian populations into submission and as punishment for their assumed support of ethnic armed groups. The Women’s League of Burma and its member organizations have gathered documentation showing that over 100 women have been raped by members of the Myanmar Army since the country started on its path to peace and democracy in 2010. Nearly half of the attacks were gang rapes. Most cases were linked to military offensives in Kachin and Northern Shan States. The push for civilian justice for military abuses is not limited to sexual violence. Torture and killings of ethnic civilians by the Myanmar military are also well-documented. While common in areas of ethnic https://www.opendemocracy.net/opensecurity/aileen-thomson/civilian-justice-trumps-military-impunity-in-myanmar

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conflict in Myanmar over the past decades, they have been more frequent in Kachin and northern Shan States in the past few years. Torture is used in and outside of detention. Villagers in areas of ethnic conflict report being tortured by members of the Myanmar military as punishment for their perceived support of armed groups, as revenge for a recent military defeat, or to instill fear. Villagers and displaced persons also face arbitrary arrest and detention because their ethnicity or place of residence puts them under suspicion of being members or supporters of an ethnic armed group. Almost none of these victims of sexual violence, torture and killings—and their families—will likely ever have their day in court. They face numerous obstacles to seeking justice in Myanmar’s criminal justice system. A primary challenge is Article 445 of the 2008 Constitution, which forbids legal action against members of past governments for actions undertaken by those governments. Although it is unspecific about who may be charged, and in what kinds of proceedings, it is widely interpreted as an amnesty provision guaranteeing impunity to members of the military and government for past and future violations. Yet, it has not completely barred judicial and non-judicial bodies from considering some violations. Another challenge is that military courts have jurisdiction over all Defense Services personnel, and the decision of the Commander in Chief on issues of military justice is final and conclusive. Myanmar’s military justice system is not open to the public, and civil society activists find it difficult, if not impossible, to obtain reliable information about pending or completed cases. Civilians, including victims and their advocates, have no right to be present at the trial or to obtain any information about the charges, findings, or sentence. A recent report by the Women’s League of Burma details the challenges in pursuing military justice, including the transfer of the https://www.opendemocracy.net/opensecurity/aileen-thomson/civilian-justice-trumps-military-impunity-in-myanmar

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accused to new jurisdictions, lack of transparency, and intimidation. Even when civilian courts gain jurisdiction over military personnel, victims’ rights are impeded by institutions that should support them. Police often cooperate with the military to pressure victims to stay silent, sometimes offering compensation in exchange for agreements not to press charges or inform the media. Human rights defenders face threats of retaliation and experience difficulty gaining access to victims. The rape conviction in Shan State demonstrates that it is possible, at least in some cases, to obtain justice for crimes committed against civilians. There are also reports that last year a soldier was sentenced by a criminal court to life in prison for the rape of a young girl, and other advocates have mentioned three to four other similar cases. The Myanmar National Human Rights Committee recently recommended that a civilian court take up another high-profile case of military abuse in a conflict area—the killing and alleged torture of journalist Par Gyi, who was allegedly killed while in military custody in Mon State’s Kyeikmayaw town. These cases represent some of the first efforts to deal with the past and obtain justice for victims of human rights violations in Myanmar. The work of civil society, politicians and media on these cases is admirable. However, the current ad hoc approach is not sustainable. Groups such as the Women’s League of Burma and its member organizations struggle to provide the necessary support for the growing number of victims who approach them for help in seeking justice. The military and government can take steps in the short term that would make a significant contribution. The military courts should authorize more transfers of cases of sexual violence, torture, and killings to civilian criminal courts when requested—starting with accepting the recommendations of the Myanmar https://www.opendemocracy.net/opensecurity/aileen-thomson/civilian-justice-trumps-military-impunity-in-myanmar

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National Human Rights Commission in the Par Gyi case and taking steps to ensure the trial is fair and effective. A policy that directs all military courts to transfer these cases automatically, or at the least on the request of the victim, should be adopted. In a recent interview with Voice of America, Commander in Chief Senior General Min Aung Hlaing confirmed that, although the military would decide in most cases, civilian justice is an option in some cases when soldiers are accused of human rights violations. Further, the military leadership should publicly affirm that violations against civilian populations, particularly rape and sexual assault, can never be excused or tolerated. Military training should be revised to ensure that human rights violations, particularly sexual violence, are no longer perpetrated, if they are, they must be thoroughly prosecuted. Establishing accountability for the security forces will not only increase their professionalism but ultimately demonstrate that they can and shall be devoted to the protection of civilians. These actions, to avoid recurrences, should pave the way to larger reforms aimed at introducing civilian oversight over the army The responsibility to provide a remedy for violations goes beyond criminal justice. The Myanmar government should take responsibility for the medical, psychosocial and other needs of survivors of sexual violence and torture, as well as the family members of victims of killings. The government should also reform its laws governing these crimes to meet international standards and undertake an investigation of institutional factors that enable or encourage systematic use of sexual violence, torture, and killings as weapons of war, with a view to recommending reforms to prevent their recurrence. International actors engaged in rule of law assistance also have an important role to play. In their work with the judiciary, police, and lawyers, they should help to build their capacity to handle cases of https://www.opendemocracy.net/opensecurity/aileen-thomson/civilian-justice-trumps-military-impunity-in-myanmar

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sexual violence, torture, killings and other serious violation of human rights. These courts must also be able to act independently, both from institutional pressure and from threats or bribes by the accused. At a time when building trust and reconciliation at all levels—from communities to leaders of armed groups—is a high priority for the Myanmar government, it is important to take steps to address the abuses that civilians have suffered in conflict. Without accountability for perpetrators, and without recognition or support from the government to remedy these violations, the survivors of sexual violence and torture and the families of victims killings cannot be expected to have any trust in reforms. Related Articles Myanmar: the human-rights story behind the spin OLOF BLOMQVIST and LAURA HAIGH

Daring to speak: militarism and women’s human rights in Burma JESSICA NHKUM and JENNIFER ALLSOPP

Myanmar’s 2010 elections: a human rights perspective BENJAMIN ZAWACKI

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Institutionalising Military Rule in Burma/Myanmar: External and Internal Factors

Marco Bünte

Abstract Direct military rule has become rare in world politics. Today, most military regimes have either given way to some form of democracy or been transformed into another form of authoritarianism. This article formulates an analytical framework for the detachment of militaries from politics and identifies positive and negative factors for a withdrawal. It then applies this framework to the case of Burma/Myanmar, which is an example of deeply entrenched military rule. It is argued that the retreat from direct rule has brought with it a further institutionalization of military rule in politics, since the military was able to safeguard its interests and design the new electoral authoritarian regime according to its own purposes. The article identifies the internal dynamics within the military regime as a prime motive for a reform of the military regime. Although the external environment has completely changed over the last two decades, this had only a minor impact on military politics. The opposition could not profit from the regime’s factionalization and external sanctions and pressure have been undermined by Asian engagement.

Keywords: military regime, civilian control, external influences, internal influences, institutions, democratisation; Burma/Myanmar

Dr. Marco Bünte GIGA Institute of Asian Studies Rothenbaumchaussee 32 20148 Hamburg Germany [email protected]

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1. Introduction 2. Military Regimes and Military Intervention in Politics 3. Conducive and Unfavourable Conditions for Military Withdrawal 4. The Military in Burmese Politics 1948–2010 5. From Direct Rule to Military Control: Burma’s Transition to “Disciplined Democracy” 6. Endogenous and Exogenous Factors in the Military’s Withdrawal (1988–2011) 7. Summary and Conclusion

1. Introduction Direct military rule has become rare in world politics. In March 2011 the Burmese military regime dissolved the ruling junta, the State Peace and Development Council (SPDC), and handed over power to a newly elected civilian government. Due to these circumstances, Burma can no longer be classified as a case of direct military rule. This process illustrates a gradual decline of military regimes worldwide in the last two decades. This phenomenon has been especially virulent in Asia, where in 1987 half of the continent’s countries still lived under military or military-backed rule. Since then, democracy has replaced many military or quasi-military regimes in Bangladesh, Indonesia, South Korea, Thailand and Pakistan.1 This, however, is by no means a linear process, as the military coups in Pakistan 1999 and in Thailand 2006 demonstrated. Moreover, recent studies have also shown that in many newly democratized nations the military enjoys considerable political prerogatives and a great deal of institutional autonomy (Alagappa 2001; Beeson and Bellamy 2006; Croissant et al. 2011a). Why do militaries withdraw from power? How can we assess the military’s role in a “civilian state”? Does the military still wield power behind the scenes, making direct rule unnecessary? This paper adds to the literature on civil military relations in several ways: First, it constructs a concept of military participation in politics that goes beyond the recent emphasis on coup politics. Traditionally, the detachment of military from politics and the establishment of civilian control has been defined as the lack of military coups and military rule (Nordlinger 1977). In contrast to this dichotomous perspective, I use a gradual concept of military involvement whose polar opposites are civilian supremacy/civilian control on one side and military control/military rule on the other. Second, I construct a framework that discusses various positive and negative factors for a detachment of the military from politics. This framework succeeds in overcoming the traditional limitations of the dominance of either internal or external factors found in the literature on civil–military relations. Third, this paper brings attention to the outlier Burma/Myanmar,2 which is an example of extreme persistence 1

Quasi-military regimes are military regimes with a civilian façade (such as a constitution, civilian president, semi-competitive elections). These regimes, however, are military in substance, since the military holds a political hegemony (Finer 1962). 2 The military regime changed the name of the country in July 1989 from Burma to Myanmar. At the same time, a number of other titles and places were changed in an attempt to remove any traces of the colonial era. In the subsequent years, the new name was accepted by the UN and other states and institutions. A number of countries and pro-democracy groups have, however, refused to acknowledge the new name as a protest against the human rights abuses of the military and its refusal to hand over power to an elected civilian government. Throughout this paper, “Burma” is employed in preference to “Myanmar”, though this is highly contested terrain. The name

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of military rule and thus contradicts the overall diagnosis of extreme instability of military regimes found in the general literature on authoritarian regimes (Geddes 1999; Hadenius/Teorell 2007). Burma is generally regarded as the most durable military regime worldwide. Soon after independence from Great Britain in 1948, the military became the most powerful institution in the country with a huge impact on society and the economy. Confronted with a number of countrywide insurgencies after the departure of the British, the military initiated a rapid modernization of the armed forces that by far overtook the institutional development of the Burmese state. The consequence was a “military aggrandizement of resources, responsibilities and powers in traditional non-military realms” (Callahan 2003:18). After General Ne Win’s coup against the civilian government of U Nu in 1962, the country has oscillated between direct and indirect forms of military rule. General Ne Win and his Revolutionary Council ruled Burma directly until 1974, when the country was transformed into a military-backed, socialist one-party state under the leadership of Ne Win’s Burmese Socialist Programme Party (BSPP). The “Burmese Way to Socialism”, however, led to a severe economic crisis at the end of the 1980s. Confronted with massive pro-democracy demonstrations in the wake of the economic crisis, Ne Win decided to resign in July 1988. The military, however, managed to reconsolidate its power, after it cracked down on prodemocracy demonstrations in August 1988, killing several thousand protestors. The coup by the State Law and Order Restoration Council (SLORC) on 18 August 1988 re-established direct military rule, which continued for over 21 years until 30 March 2011, when the military dissolved the ruling body, the State Peace and Development Council (SPDC, the SLORC’s successor), and handed over power to the newly elected President Thein Sein. Military rule in Burma has been especially contested over the last two decades: After the military promised to hand over power to an elected government in 1988, it did not acknowledge the results of the elections in May 1990, which ended in a landslide victory for the oppositional National League for Democracy (NLD). Acting in the manner of a caretaker government, the military argued that the country lacked a constitution for transferring power to a new government. What followed was a decade of confrontations – on one side between the military, the NLD and the ethnic groups, and on the other side between the military and the Western countries, which supported the opposition’s call for an acknowledgment of the results of the 1990s elections. Finally, in September 2003, the military announced its roadmap to “disciplined democracy”, which promised to transfer power to an elected government again. After the military managed to write a new constitution and to hold multiparty elections, in which the playing field was heavily tilted toward the military-dominated party, it handed over power to the new civilian government in March 2011. In the following section, I give a definition of military regimes and discuss the various ways militaries can be involved in politics. I then go on to formulate a framework for discussing various preconditions and reasons for militaries to disengage from politics. Then I elucidate the evolution and state of military involvement in politics in Burma from 1948 till 2011 and discuss reasons for the military’s withdrawal from direct rule. In the last section, I offer some conclusions based on the case of Burma.

“Burma” is less obviously associated with the dominant ethnic group. For more on these issues see Dittmer (2008).

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2. Military Regimes and Military Intervention in Politics Military regimes, which can be defined as a “system of government by the military” (Perlmutter 1980:96), are a special form of authoritarian rule. As such, they have to be distinguished from both democracies and other forms of authoritarian rule. Following Dahl’s concept of polyarchy, scholars have adopted a “procedural minimum” definition of democracy that includes four key attributes: free, fair and competitive elections, full adult suffrage, broad protection of civil liberties (freedom of speech, press and association) and the absence of non-elected “tutelary authorities” that limit the governing power of elected officials (Dahl 1971; Diamond 1999:7-15).3 If militaries wield these “tutelary powers” or “reserved domains” but still accept the democratic game, a “tutelary democracy” evolves (Collier/Levitsky 1997; Merkel 2004). In these “democracies with adjectives” (Collier/Levitsky 1997), the problem of military involvement in politics and the establishment of “civilian control”4 become some of the main challenges of democratic consolidation, since liberal democracies require the civilian control of the armed forces as a necessary condition (Croissant et al. 2011b). At the other end of the political spectrum, we find closed authoritarian regimes, in which no channels exist for oppositional forces to legally contest for executive power (Levitsky/Way 2010:7; Snyder 2006). This type includes two subcategories: closed regimes, in which we find no democratic institutions, and hegemonic regimes, in which formal democratic institutions exist on paper but are nothing more than a façade (Schedler 2002). Military regimes, in which “military officers are major or predominant political actors by virtue of their actual or threatened use of force” (Nordlinger 1977:2), may fall into either category. We can distinguish between direct military regimes, in which the military forms the government, and quasi-civilian regimes, which are military regimes with a civilian window dressing (civilian president, constitution, semi-competitive elections). The latter are military regimes in substance in the sense that the military holds political hegemony (Finer 1962). Moreover, the armed forces may also be part of the regime coalition in other forms of closed authoritarian regimes such as monarchies, Sultanistic regimes (e.g. the Philippines under Ferdinand Marcos 1972–1986) and single-party regimes (North Korea). These different forms of regimes can frequently not be categorized accurately, although they “draw on different groups to staff government offices and different segments of society for support. They have different procedures for making decisions, different ways of handling their choice of leaders and succession, and different ways of responding to society and opponents” (Geddes 1999:121). Moreover, there are often amalgams or hybrids of these diverse regime types. In general, military regimes are considered the weakest form of authoritarianism. According to Barbara Geddes, who analysed the stability of 163 authoritarian regimes from 1945–1998, military regimes have an average lifespan of only seven years, while single-party regimes have an average lifespan of 35 years (Geddes 1999:121). Whereas in the 1970s and 1980s military regimes were the most common form of authoritarian government, they have increasingly been transformed into “limited multiparty systems” since then (Hadenius/Teorell 2007: 152). Despite these developments, the military often wields enormous influence behind the scenes of these regimes. The problem of “civil–military relations” and “civilian control” of the military has often been the focus of studies in post-authoritarian contexts, as civilian control has often been considered a necessary condition for democratic rule. For liberal 3

Other scholars, such as Przeworski, employ a more minimalist definition that centres on contested elections (Przeworski et al. 2000). 4 In civilian regimes, the armed forces are under the supremacy of the civilian government. In a democratic state, civilian control means that civilian authorities are responsible for making political decisions, and the military is responsible for implementing them.

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democracies to persist, the armed forces must be subordinate to democratically elected civilian authorities (Diamond 1999; Croissant et al. 2011b). Earlier research on military rule has worked out various subtypes that draw on the social foundations of military rule, its class background and its role in economic development: The most important forms have been market-bureaucratic regimes, monarchic military, single party (often socialist) military regimes and oligarchic military regimes (Janowitz 1964; Huntington 1968; O’Donnell 1973; Perlmutter 1980; Remmer 1989). With the growing extinction of direct military regimes from the political scene, these concepts fall short of delineating the extent of military power in politics. According to Nordlinger, there are two factors that define the level of military intervention: the extent of power of the armed forces and their political and economic goals (Nordlinger 1977:22). Nordlinger distinguishes three ideal types of military rule: rulers, guardians and moderators. As rulers, militaries dominate the regime and attempt to control large segments of society and the economy. They “intend to bring basic changes in the distribution of power by eliminating all existing power centres” (Nordlinger 1977:22). In both other regime types, militaries aim to preserve the status quo. Guardians control the government from backstage; they have not taken over the government by themselves but control the government informally. Moderators leave the most important positions in the government to civilians, but the military maintains veto power over certain policies (Nordlinger 1977:22). The problem with Nordlinger’s theory is that some hidden forms of military rule cannot be separated clearly from civilian autocracies. It is, therefore, necessary to identify the exact relationship between civilian and military authorities in these regimes. Finer distinguishes three modes of military intervention in civil politics (Finer 1962): blackmailing, displacement and supplantment. First, the military pressures or blackmails civilian authorities. The military intervenes in decision-making by threatening to withdraw its support for the regime coalition or by supporting groups that agitate against the government. Second, the military attempts to displace members of the cabinet. The third mode of intervention is supplantment: either the military or factions within the military support rebel groups fighting against the government or threaten to stage a military coup. The problem with both Finer’s and Nordlinger’s theories is that they do not give exact criteria for delineating military intervention into politics. Recent innovative approaches have proposed conceptualizing military intervention in politics along a spectrum of military influence, military participation and military control of government (Welch/Smith 1974; Siaroff 2009; Croissant et al 2011b). Siaroff designed a continuum for measuring the degree of military intervention into the political and civilian affairs of the state. He accounted for eleven indicators that are used to categorize the military’s intervention. Siaroff envisions a continuum of civil–military relations that ranges from “civilian supremacy” and “civilian control”,5 across the middle categories of conditional subordination and military tutelage to military control and military rule. He uses several criteria such as influence on policy-making in certain fields, representation in government, right to intervention, accountability for past human rights violations and autonomy over resources and processes.6

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In contrast to the first category, civilians lack expertise in military affairs, do not hold the military to account for past human rights violations, and cannot control its internal affairs. 6 Siaroff’s classification is based on a set of eleven indicators that are measured on a scale of 1 to 10. The higher the numerical score, the more comprehensive the civilian control.

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Figure 1: Degree of Military Intervention Regime Type

Liberal Democracy

Degree of military Civilian intervention supremacy Siaroff 2009: 90.

Civilian control

Electoral Democracy

Autocracy

Conditional Military subordination tutelage

Military Military control rule

However, as Croissant et al. rightly argue, civilian control also exists in autocracies. Consequently, we see that regime type is not a good predictor of the type of civil–military relations (Croissant et al. 2011a: 194). Military officers play a decisive role in all regimes, since they are either part of the ruling coalition or heavily influence policy decisions in certain fields. Most of these regimes also depend on the military for their very survival. In some cases, they act as veto actors. Regime transitions within authoritarian regimes thus often lead to a different role for the military – it is shifted away “from the driver’s seat” to a more backseat role (Finer 1985:18). It is, therefore, always necessary to contextualize the military’s role in politics, along with its reasons for intervention, instruments and scope of power (Snyder 2006:220). It is also necessary to delineate conditions for a withdrawal of the military from politics, i.e. a change in the degree of military intervention. In order to do this, it is necessary to identify factors that explain the motives for military interventions. 3. Conducive and Unfavourable Conditions for Military Withdrawal In general, two theoretical schools can be identified within the research on civil–military relations (Kennedy/Louscher 1991; Nordlinger 1977: 1; Sundhaussen 1985: Croissant 2004). The first relies on internal military variables to explain various degrees of military intervention; the second points to external factors. However, neither approach is allencompassing (Sundhaussen 1985: 272; Croissant 2004). Sundhaussen, who attempts to explore factors that facilitate a withdrawal of militaries from office, suggests combining these different theorems. According to Sundhaussen, the degree of military intervention into politics is the outcome of several mutually interdependent endogenous and extraneous factors. Departing from Finer’s distinction of the military’s disposition to intervene and their social opportunity structures (“mood” vs. “motive”), Sundhaussen argues that a withdrawal from politics is the outcome of two interdependent concurrent factors: the dynamics within the internal organization of the military itself and the political, cultural, economic and international environment that influence the military’s actions (Sundhaussen 1985:271). The strategic options of the armed forces are therefore shaped by two structuralist factors: a) endogenous factors, which shape the disposition and ability of the military to intervene into or withdraw from politics and b) extraneous factors, which form conducive or unfavourable opportunity structures for the military’s intervention or withdrawal. Examples of extraneous factors include the inability of civilian governments to control political violence and attempts of political groups to draw the military into the political arena. Croissant argues that these two factors act as “pull factors” for the military by pulling the armed forces into the terrain of civil politics, while endogenous factors operate as “push factors” by affecting the cohesion, coherence, internal resources, moods and organizational motives of military action (Croissant 2004:360). Military regimes disengage from politics if the military’s cohesion is threatened by ideological polarization or if increased factionalism endangers the unity of the armed forces (Nordlinger 1977:144; Huntington 1968:252-260; Finer 1962: 1973-186): The withdrawal of the military from the political arena depends on the interplay of both endogenous and exogenous factors. These two sets of variables can be further broken down into eight variables: 1. personal interests of the military; 2. corporate interests of the military; 3. military 6

ideology; 4. military cohesion; 5. configuration of the civilian sphere (strength of parties and civil society); 6. economic development; 7. internal security (e.g. secessionist movements); and 8. external security (Albright 1980:575; Finer 1962: Sundhaussen 1985; Croissant 2004).

Figure 2: Determinants of Military Interventions ENDOGENOUS FACTORS 1. 2. 3. 4.

Personal interests Corporate interests Ideology Cohesion

EXOGENOUS FACTORS 1. 2. 3. 4.

Civilian sphere Internal security Economy External security

DEGREE OF MILITARY INTERVENTION (MILITARY RULE, MILITARY CONTROL, MILITARY TUTELAGE, CONDITIONAL SUBORDINATION, CIVILIAN CONTROL, CIVILIAN SUPREMACY)

Endogenous factors A retreat of the military from political power is facilitated by the belief that civilian governments will take into account the personal and corporate interests of the military. Leading military officers might fear being persecuted under the new regime and being held responsible for past human rights violations. Consequently, they may be reluctant to leave office. The military might also have some corporate interests: It might demand sufficient budget allocations from the (civilian) government to acquire adequate equipment and armaments and to pay satisfactory salaries and wages. When a government fails to care for the interests of the military, officers will be more inclined to intervene. Moreover, certain factions or influential leaders within the military might have economic interests in legal or illegal businesses such as drug trafficking or the arms trade. The armed forces therefore might attempt to safeguard these interests from civilian influence. The enforcement of civilian control is hampered when the military is engaged in entrepreneurial roles, as the civilian government might refrain from implementing policies that run counter to the interests of the military. Since the military is capable of supplanting the government, it is a far more dangerous political actor than other political groups. In post-authoritarian governments, the military often has institutional prerogatives, such as legislative seats or a high degree of representation in cabinets to lobby certain political groups to shield its corporate interests. Additionally, the military often has the ability to lobby certain criminal elements in order to stimulate unrest and to create a situation that might facilitate a return of the military into politics. Moreover, the ideological orientation of the military is an important factor. An ideologically coherent military that does not follow Huntington’s ideal of a non-political, “professional” military (Huntington 1957)7 but has instead expanded its role to a “new professionalism” 7

Huntington argued for what he called “objective civilian control”, focusing on a politically neutral, autonomous, professional officer corps. This autonomous professionalism is based on a special esprit de corps

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(Stepan 1976) is far less willing to withdraw from politics. These soldiers believe that regular political interventions are their moral duty as they often identify themselves with the national interest. On the other hand, a “democratic professionalism” of the armed forces (Fitch 1998) may facilitate the subordination to civilian authorities, since the armed forces accept the supremacy of the civilian government and the constitutional order. Additionally, military factionalism can influence the military’s decision to withdraw from politics. The decision to return to the barracks must be agreed upon by all military factions. An increased factionalism – which means the division of the armed forces along class interests or ethnic and/or religious loyalties – increases the likelihood of counter-coups and civil war in situations in which power is fragmented and dispersed. Exogenous factors It is often argued that military interventions in politics take place merely when the civilian government proves unable to govern the country effectively, when they are unable to solve internal conflicts and manage security threats peacefully. Intense political polarization and the lack of mature political institutions to solve political conflicts therefore have been the most important preconditions for the return of the military into the political arena. However, this hypothesis implies the existence of civilian governments. In cases where the military has ruled a country for decades, such civilian structures are often weak or non-existent. Strong civil societies based on social movements, political parties or middle classes seem to be more important to force the military out of power. In similar contexts, students often act as a vanguard to force the military out of office. Additionally, it is important for these different groups to form a consensus on common goals and future directions in order to negotiate the military’s retreat from power. In this context, it is important to offer the military certain incentives that draw them to their side. Moreover, attacks by guerrillas or secessionist movements might give the army the pretext to stay in power or pull the armed forces back into domestic politics. The opportunity structure for military intervention is favourable in situations where there is no consensus about the rule of the political game, where there is considerable uncertainty about the future of the state or where there are external threats to national security. However, an environment conducive to military disengagement prevails if the civilian government enjoys broad legitimacy due to its social and economic policies, as long as there is a general consensus on the rules of the political game and the role of the military therein. It must be emphasized that the prevalence of these points is not the same in all countries. They affect the dynamics in various regimes at different points in time and in various ways. However, it is the interplay of these internal and external factors that leads to the withdrawal of the military. 4. The Military in Burmese Politics 1948–2010 The Burmese military (Tatmadaw) has been deeply involved in politics since the country’s independence from Great Britain in 1948. As its formation in 1942 preceded the existence of an independent state and the officer corps was politicized as a liberating force during the struggle for national independence, the army could retrospectively assume the role of guardian of the Burmese state and bulwark of national independence. Although the 1947 Constitution established a democratic system of government and the military accepted civilian supremacy, the army was able to gradually expand its political role (Taylor 1985; Callahan 2001; Callahan 2003). Both external and internal factors explain the increasing assertiveness

and sense of distinct military corporateness, which prevents officers from interfering in politics (Huntington 1957).

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of the Burmese military: the outbreak of ethnic and communist rebellions8 after the departure of the British triggered the institutional modernization of the armed forces, which did not keep pace with the civilian government capacities of the national state. In the 1950s the military increasingly took over administrative and civilian functions and claimed a substantial part (one-third to one-half) of the national budget for internal security. However, unlike its Thai or Indonesian counterparts, the Burmese army did not develop its own business network at this point in time (Taylor 1985:28). In 1958, increasing factionalism within the ruling Anti-Fascist Peoples Freedom League (AFPFL) led to a split in the party and a growing instability in the parliamentary system. The officer corps feared that the split could also weaken the army’s unity. General Ne Win urged the civilian government of Prime Minister U Nu to temporarily transfer power to the armed forces (“Caretaker Government”, 1958–1960). During this period, the officer corps developed a praetorian ethos, which was grounded in the belief that it was more effective than its civilian counterparts. The military adopted a new ideology, which defined the role of the military in broad national security terms as being responsible for the defence of the national objectives of establishing “peace and the rule of law”, “democracy” and a “socialist economy” (Aung Myoe 2008: 16-44). This prepared the groundwork for the “new professionalism” of the Burmese military (Tin Maung Maung Tan 2001: 165f.): The military also expanded its business activities into the banking sector, construction industry and fishing, and it became the most powerful business organization in the country (Taylor 1985:32). Although the “Caretaker Government” handed back power in February 1960, General Ne Win staged a coup in March 1962, which brought army leaders into power and “eliminated their civilian counterparts once and for all” (Callahan 2001:422). U Nu’s decision to make Buddhism the state religion, along with the calls by ethnic groups for greater autonomy and secession from the union prepared the groundwork for the intervention of the military, which stepped in to save the country from disintegration. Since then, the military has prevented the emergence of any autonomous centres of influence. General Ne Win formed a Revolutionary Council, which ruled the country by fiat until 1974. It abolished the 1947 Constitution, dissolved parliament and banned all political parties. The military government nationalized the economy under the banner of the “Burmese Way to Socialism” and cut all ties to the outside world. It set up its own Leninist party, the Burmese Socialist Programme Party (BSPP), which ran the country unchallenged for over 25 years (Silverstein 1977). Apart from one short outbreak of student demonstrations in 1974,9 army and party leaders were able to control society. The military became the backbone of the socialist one-party state (19741988), in which General Ne Win was both party chairman and president. Based on his personal influence on the army and the party, he kept his subordinates divided and controlled all potential rivals through regular purges. Active and retired military officers dominated the cabinets and rubber stamp parliaments. In the closing years of the socialist period, the influence of the military waned, since the BSPP was transformed into a socialist mass party – a considerable percentage of the party leadership, however, remained in military hands (Taylor 2010:318-321). The military-backed, socialist one-party regime crumbled from within in 1987/88, when the country was facing a severe economic crisis. In 1987 the World Bank had given the country the status of Least Developed Country. Further economic mismanagement led to massive student demonstrations in 1988, which forced General Ne Win to resign as party chairman in 8

These rebellions were supported by foreign powers. The Kuomintang rebels (KMT) were supported by the CIA, while the rebellion of the communists was supported by the Chinese. 9 Workers and students in Rangoon protested against inflation and food shortages after the implementation of policies that favoured the rural economy. The military used force and at least 22 people were killed. Universities were closed. In December 1974, students and monks protested at the state’s funeral arrangements for former UN Secretary General U Than (Taylor 2010:36).

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July 1988. The protests escalated into a broad-based, countrywide democracy movement that continued until September 1988, when the military reorganized itself, staged a coup and brutally cracked down on the movement, killing thousands of demonstrators (Steinberg 2001:3-12; Lintner 1990). The coup of the State Law and Order Restoration Council (SLORC) re-established direct military rule on 18 August 1988. The military revoked the 1974 Constitution, dissolved parliament and concentrated executive, legislative and judicial powers in military hands. When seizing power, the junta under the leadership of Saw Maung promised to hand over power after holding fresh multiparty elections. However, the military council failed to acknowledge the results of the May 1990 elections, which ended in a landslide victory for the oppositional NLD.10 Acting in the manner of a caretaker government, the military argued that the country lacked a constitution for transferring power to a new government. Military rule has been heavily contested since then: The NLD and the ethnic political parties have called for a swift transfer of power and subsequently mobilized the international community to support their demands. As a consequence, the military found itself under heavy criticism from Western states, international NGOs and human rights advocates. The military instead attempted to safeguard its leading role in politics (see below). It tried to draft a new constitution and invited political parties for a National Convention, which started work in 1993 but came to a halt in 1996, when the NLD left the convention because of a lack of debate and undemocratic principles. Lacking electoral legitimacy, the military junta ruled with an iron fist, suppressing all avenues of dissent and controlling society: Members of the opposition – including NLD leader and Nobel Peace Prize laureate Aung San Suu Kyi and other leading figures of her party – had to spend long periods under house arrest or had to flee the country due to military persecution. The number of political prisoners has remained high over the last two decades. After 1990 the military embarked on a massive state-building programme, which has concentrated on modernizing the country’s weak infrastructure (construction of roads, bridges, hospitals, etc.) and negotiating a series of ceasefires with ethnic insurgent groups. The latter could substantially reduce the internal armed threat that it faced (see below). In 1997 the junta reorganized and renamed itself the State Peace and Development Council in order to signal a shift from restoring order to fostering peace and development. The modernization of the coercive apparatus has been at the heart of the state-building programme. This entailed an expansion of the armed forces from 186,000 to more than 370,000 soldiers (Callahan 2003; Selth 2002; Aung Myoe 2008). The military has subsequently enhanced its territorial representation in the country, which it deemed necessary for building roads and infrastructure. It has also increased its surveillance capacities. The military has allocated huge sums for defence expenditures throughout the 1990s (see Table 1). The military government spent more than 1 billion USD on 150 new combat aircrafts, 30 new naval vessels, 170 tanks, 2,500 armoured personnel carriers, as well as rocket-launching systems, infantry weapons and other hardware (Callahan 2001: 424). The military has also stirred up nationalism in order to achieve a rally-around-the-flag effect; moreover, it has been pointing out its historical role as builder of nation and state (Steinberg 2006:102-110; Taylor 2010).

10


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Table 1: Burma’s Defence Expenditure by Year (1988–2003)11 Year MMK (in billions) % of GDP 1988 1.6 2.1 1989 3.7 3 1990 5.2 3.4 1991 5.9 3.2 1992 8.4 3.4 1993 12.7 3.5 1994 16.7 3.5 1995 22.3 3.7 1996 27.7 3.5 1997 29.8 2.7 1998 37.3 2.3 1999 43.7 2.0 2000 58.9 2.3 2001 63.9 1.8 2002 73.1 1.3 2003 2.3 Source: SIPRI Military Expenditure Database, Stockholm; Note: from 2002–2010 no data available; data for 2002–2003 provided by Taylor 2010.

With regard to economic liberalization, the military formally embraced a market economy after 1990. However, the economy of the country has remained completely state-controlled over the last two decades.12 Moreover, after 1988 the military further expanded its business activities and economic bases. It built up the most important conglomerates in the country, the Union of Myanmar Economic Holdings Limited (UMEH) and the Myanmar Economic Cooperation (MEC), which were given licences in diverse businesses such as construction, hotels, tourism, transport, gem and jade extraction and agriculture. As a consequence, the military became the most important business actor in the country (Selth 2002:130). 5. From Direct Rule to Military Control: Burma’s Transition to “Disciplined Democracy” The military returned to civilian rule only after it succeeded in designing a political system that safeguarded its own core interests. The political changes fall short of a genuine democratic transition, since the military remains fully in control of the political system after having successfully manipulated the 2010 elections. Additionally, it has managed to orchestrate this transition process at every single stage. The military has continuously restricted political space so that oppositional forces have virtually no room to manoeuvre. Officially announced in late 2003 by General Khin Nyunt, the military’s roadmap to “disciplined democracy” envisioned the installation of a new political system in seven steps: The first step was the reconvening of the National Convention to finalize the Constitution’s basic principles, which were introduced at the 1993 National Convention. These codified the military’s leading role in the participation of the state.13 Like the first National Convention 11

The evaluation of the actual level of Burma’s annual defence expenditure is very difficult given the regime’s opaqueness and secrecy. The expenditures vary significantly between different sources. For a discussion of various estimations see Selth (2002: 131-145). 12 Burma was continuously ranked among the lowest in the Heritage Foundation’s Index of Economic Freedoms throughout the 1990s. In 2011, it was ranked 174th of 179 countries (Heritage 2011). 13 The main objectives as later laid down in the Constitution were a) non-disintegration of the Union, b) nondisintegration of national solidarity, c) perpetuation of sovereignty, d) flourishing of a genuine, disciplined multiparty democratic system, e) enhancement of the eternal principles of justice, liberty and equality in the Union, and f) enabling of the Defence Services to be able to participate in the national political leadership role of the state (Constitution of Myanmar, 2008).

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(1993–1996), the second was “marred by a lack of inclusiveness, heavy restrictions on public debate and little input by the participants into the final product” (Pederson 2011:50). The two main opposition parties, the NLD and the Shan National League for Democracy (SNLD) boycotted the National Convention. Although some ethnic parties participated, they ended up frustrated by their inability to influence the outcome. The drafting of the new constitution was finalized in February 2008, and in May 2008 it was formally approved in a nationwide referendum. The referendum was apparently manipulated, since the official results of 94.4 per cent in favour with a voter turnout of 98 per cent lacked any credibility (Pedersen 2011:51). The new constitution enshrines military control. Although it formally establishes a multiparty democracy with elections for national and regional assemblies, the military will maintain a dominant role in the years to come. Of all regional and national parliament seats, 25 per cent are reserved for the military, and security-related ministries are also promised to the military. Moreover, the military remains fully autonomous, since it is not subject to civilian control. The SPDC also managed to manipulate elections in November 2010 in a way that ensured military dominance. The junta fielded its own proxy party, the Union Solidarity and Development Party (USDP), which is an offshoot of the Union Solidarity and Development Association (USDA), a mass organization with approximately 12 million members established by SLORC in 1993 to support its political agenda. Shortly before the elections, many leading SPDC generals, ministers and members of the military discarded their uniforms to join the party, which was led by former Prime Minister Thein Sein. The USDP had the financial backing of the regime, while the opposition faced severe financial hurdles because parties were required to pay high registration fees. Altogether, the pre-election playing field was tilted heavily in favour of the USDP (Bünte 2010; ICG 2011; NDI 2010). The main opposition party, the NLD, split over the issue of running in the election. While Aung San Suu Kyi’s NLD boycotted the election, a splinter group, the National Democratic Force (NDF), ran in the elections and secured a few seats in the new parliament. The militarysponsored USDP won a huge majority of seats – 80 per cent in the lower house and 77 per cent in the upper house. The landslide victory of the USDP has arguably been the outcome of massive manipulations of the vote count (ICG 2011). The transition to “disciplined democracy” has been accompanied by a wave of privatization measures. 271 state-owned companies have reportedly been sold to Than Shwe’s closest cronies, such as Thay Zar, Zaw Zar and Chit Khaing (Myanmar Times, Govert. Property Auction nets K800b, 4 April 2011). While the military conglomerates have been weakened in this process, Than Shwe’s informal influence has been consolidated. Altogether, the influence of the military conglomerates in the economy remain considerable. Summing up, the generals’ transition ensured a return to civilian rule without relinquishing de facto military control of the government. The military still remains the arbiter of power in the country, though it has created new political institutions that might develop some autonomy of their own in the future. Currently, the military dominates all important state institutions: The cabinet announced in March 2011 includes 26 retired military officials or former junta ministers and only four civilians. The number of civilians included in the cabinet is not higher than it was in 1993, when the SLORC included four civilians in its cabinet. Moreover, of the 14 chief ministers at the division and state levels, six are former SPDC commanders, and three are former SPDC ministers. Moreover, the military also controls a quarter of both legislatures directly, which were filled with lower-ranking officers, ensuring that the military bloc remains cohesive and compliant with the wishes of the military superiors (ICG 2011:3). Since a quorum of 75 per cent is necessary to change the Constitution, the military effectively has a veto power over constitutional changes. Within the government, the new National Defence and Security Council is the most powerful institution, which is controlled by the commander-in-chief of the armed forces. In terms of civil–military relations, the military remains fully autonomous subject to neither executive nor judicial civilian authority. 12

However, other power centres might develop some autonomy of their own in the future: The parliament – although dominated by the USDP and the military at the moment – might contribute to greater openness by debating key bills and criticizing the government. Another power centre is the ruling party, the USDP, which controls over half of the seats in both houses of the legislature: Although packed with former military men and led by former SPDC General Shwe Mann, it might develop policy initiatives of their own in the future. Another important aspect of the military’s transition is the creation of regional governments, which are the seed of political decentralization. Although the local governments are headed by a chief minister appointed by the central government, the existence of elected regional legislatures allows a degree of ethnic autonomy within the ethnic states. This is especially important for those states where ethnic political parties have sizable minorities and whose representatives will be included as ministers in the local governments. However, the degree of military control over local autonomy will be considerable. All in all, one has to conclude that the military’s withdrawal from power does not mean a retreat into the barracks but rather a further institutionalization of military control. The military has managed to establish a competitive authoritarian regime, in which it remains the arbiter of power. 6. Endogenous and Exogenous Factors in the Military’s Withdrawal (1988–2011) To assess the internal reasons for the military’s withdrawal from the apex of power, one has to look at the changing dynamics within the military regime, the development of the military’s interests, ideology and coherence over time. The Tatmadaw’s leadership has always seen itself as the defender of national unity, and internal security has always been directed toward domestic politics. When the military-backed socialist regime was under the imminent threat of breakdown due to the student revolt in 1988, the military reorganized itself and embarked on a massive modernization programme. Harbouring a strong distrust of politicians and ethnic leaders, the armed forces conflated their own interests with those of the regime and government (Selth 2002; Aung Aung Myoe 2008; Tan 1998: 391). Apart from strong nationalistic feelings and a strong esprit de corps, the “persistent sense of vulnerability” (Selth 2002:43) of the regime seemed to have contributed to the modernization of both army and state. After 1988, the regime seemed to have feared cooperation between democracy activists and ethnic insurgents. Arguably, at various points in time, the government has felt there was a threat of a foreign-led invasion: During the student demonstrations, Burma’s state-owned media had reported about the presence of a US naval fleet in the country’s territorial waters. The regime was also concerned that foreign powers could help insurgents on the border to develop armed forces that would challenge the new regime in Rangoon. The top generals also may have feared an Iraq-like intervention by the US or a UN-led intervention like in East Timor. The relocation of the administrative capital from Rangoon to Naypyitaw in 2006 underscored the continuity of this point (Aung Myoe 2007). As a consequence, the military regime was “prepared to take whatever measures were required to recover and consolidate its grip on government” (Selth 2002:33). The regime formulated three broad “national causes”: 1. non-disintegration of the Union, 2. non-disintegration of national solidarity; and 3. perpetuation of national sovereignty, from which it derived its own “Defence Mission”. The third “cause” gave the army a leadership role in the management of the state (Selth 2002:30).14 The modernization of the armed forces has been a huge challenge for the military’s cohesion, since different factions of the armed forces developed different organizational and corporate 14

According to Maung Aung Myoe, Than Shwe made a secret speech to his senior military commanders in July 1997, in which he explained Burma’s defence policy for the first time (Maung Aung Myoe 2008 ). This policy, however, corresponds to earlier policies of the regime (Selth 2002:31).

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interests. Nevertheless, the military has managed to remain relatively coherent over the last two decades. It managed to avoid a split between the hardliners and “softliners” and a subsequent schism in the coercive apparatus (Stepan 1988:55), which in some Latin American and East Asian cases has led to a liberalization of the political systems through elite pacts between military “softliners” and oppositional moderates. Although the Burmese armed forces have not been free from factionalism and internal rifts, the military junta has eased these tensions through purges at the top level, routine reshuffles and institutional reorganizations. These measures have strengthened the unity of the military and the centralized command structure under the leadership of General Than Shwe, who himself became commander and chairman of the SLORC after a palace coup against junta chief Saw Maung in 1992. Patronage and increasing surveillance have also guaranteed the long-term, monolithic cohesion of the armed forces (Callahan 2001; Win Min 2008; Kyaw 2009). One set of intra-military tensions has resulted from factionalism at the top of the SPDC. In the early 1990s, SLORC was dominated by the triumvirate of Senior General Than Shwe, General Maung Aye and Major General Khin Nyunt. Khin Nyunt was the head of Military Intelligence (MI), an extremely powerful body that was deeply engaged in business activities, especially at regional levels, where it was colliding with the interests of regular army officers. General Khin Nyunt was often seen as a “moderate” because he was the architect of numerous ceasefire agreements with ethnic groups, negotiated with opposition leader Aung San Suu Kyi about possible reforms and represented the junta as the liaison to the international community. As he became too powerful for the other two leading generals Than Shwe and Maung Aye – supposedly “hardliners” – in September 2004 Khin Nyunt was purged and his intelligence apparatus was dismantled. The purge allegedly came after he refused to follow an order from Senior General Than Shwe to relinquish the intelligence apparatus and punish his corrupt intelligence officers (Win Min 2008). In the years following the purge, Senior General Than Shwe has regularly promoted his followers into top positions, thus centralizing the command structure and strengthening the unity of the armed forces. With this move, the hardliners within the SPDC have resoundingly defeated the “softliners” (Callahan 2007: 37; Kyaw 2009:288; Win Win 2008). Another set of intra-military tensions was put to rest in the mid-1990s: Tensions had mounted between the junta in Rangoon and powerful regional commanders, which were given powers in their respective regions to conduct their own administrative and military affairs. The power of these “warlords” was subsequently “re-centralized” by requiring regional commanders to serve as members of the junta and by regularly assigning regional commanders to positions in the War Office and the cabinet in Rangoon (Callahan 2007; Win Min 2008:1025). Whereas negative consequences of both factionalism at the top and central regional relations within the regime have been minimized through institutional reorganization and regular reshuffles, the issue of leadership change at the upper echelons remained a serious problem. The “transition to disciplined democracy” has solved these problems for both the junta chief and the top generals in the military hierarchy. It provided a “retirement plan” for Senior General Than Shwe, who has stepped down from the position of junta leader and commander in chief of the armed forces.15 General Maung Aye has also retired. Other top leaders and regional commanders have discarded their army uniforms, changed into party dresses and use their power, for instance, as chief ministers in the regions. These changes have eased generational pressures within the army, since a younger cohort of military leaders can now rise within the ranks without creating too much competition or risk of a military coup. Some elements in the armed forces did not support the loss of power and resisted the new civilian posts assigned to them by Senior General Than Shwe. In February, the SPDC reportedly 15

He is believed to use his personal influence through patronage and personal connections from behind the scenes (Wall Street Journal, 16. May 2011; ICG 2011).

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placed Lt. General Myint Aung under house arrest because he allegedly refused to be transferred to the less powerful position of defence minister (Mizzima News, 10 February 2011 “Myint Aung rejects defence minister job; reportedly under arrest”; Irrawaddy 10 February “Myint Aung Dismissed, Placed Under House Arrest”). To assess the external influences on the military’s withdrawal, one has to look at the configuration of civilian forces in the light of existing opportunity structures and the internal and external security environment during the last two decades.16 All in all, the SLORC/SPDC has managed to prevent any major organization from effectively toppling the military regime over the last two decades. The degree of repression has been constantly high, as the military banned assemblies of more than five people, censored the media and effectively controlled oppositional forces. Whereas the country has only a very small middle class and no strong labour organizations or mass organizations – except those of the regime-sponsored USDA – the main threats to the regime emanated from actions of the NLD, remnants of the 1988 student movement and Buddhist monks. When the military regime has been threatened, it has constantly used harsh measures to suppress these “destructive elements”. The NLD has come under intense pressure since the early 1990s, when it engaged in a confrontational policy to force the junta to convene parliament and transfer power. Leading members of the NLD have been under house arrest for most of the last 20 years,17 while local party cadres were often intimidated, harassed or jailed. Many of them also had to flee the country due to constant repression. Under constant pressure from the military regime, the NLD leadership lacked room to manoeuvre to build up its own strength and force the military out of office. Moreover, it subsequently “failed to come up with concrete strategies to deal with the military government” (Kyaw Yin Hlaing 2007:41; also Win Zin 2010). Apart from government repression, factional infighting and low social capital also weakened the strategic importance of the NLD, which was not able to profit from the factional struggles in the SPDC (Kyaw Yin Hlaing 2007: 17). On the contrary, after 20 years of repression the SPDC has managed to weaken the opposition even further, since it has managed effectively to split the opposition: While the NLD decided to boycott the general’s 2010 election18 and subsequently lost its status as an official party, a splinter group, the National Democratic Force (NDF), participated and managed to secure 12 seats in both houses of parliament altogether. Despite the general political failure of the NLD to bring about a transfer of power, however, the NLD was able to seriously undermine the military government’s legitimacy in the eyes of the international community. Many Western countries linked their Burma policy to the fate of opposition leader and Nobel Prize laureate Aung San Suu Kyi: After she began to call for sanctions in 1997, many Western states enacted targeted sanctions in order to protest Burma’s human rights abuses and its foot dragging in terms of moving toward democracy. Sanctions were even tightened after the attack on Aung San Suu Kyi in 2003 (see below). Another part of the opposition against the military has been the student movement, which has been sporadically active after 1988. For instance, in 1996 university students staged demonstrations in order to call for improvements in the education system. The military

16

The analysis does not look at the impact of economic factors due to the unreliability of the Burmese government’s official economic data. Burma’s economy is heavily dependent on the income generated by the export of natural resources (above all natural gas). Its economic performance is heavily contested. Since the country is not integrated into the world economy, the impact of external economic factors (e.g. the recent financial crisis) can be considered quite low (see McCarthy 2000; Turnell 2008). 17 Party leader Aung San Suu Kyi was put under house arrest for the first time in July 1989 for “endangering the state”. She was released in 1995, but was not allowed to travel outside of Rangoon. Altogether, she has spent 15 years under house arrest. The last house arrest lasted from 2003 till 2010. Shortly after the elections, she was again released. 18 The NLD boycotted the elections because the leadership considered the election laws unfair.

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reacted with repression: Over 100 students were arrested and jailed. Most university buildings were closed for years and later relocated to suburban areas to prevent further demonstrations. The most serious internal threat to military power, however, came from the demonstrations of Buddhist monks in September 2007, which ended in another brutal crackdown and the death of 31 Buddhist monks.19 Although these demonstrations have not threatened the cohesion within the ranks of the military, they have challenged its claim to traditional legitimacy as rulers of the devoutly Buddhist country (Hlaing 2009; Steinberg 2006: 94-97; McCarthy 2008: 312). Summing up, one can say that oppositional groups failed to bring about a regime change in the country. They have neither forced the military into dialogue nor helped to ease repression. They have, however, seriously undermined the legitimacy (international, traditional) of the military government, which might have accelerated the “transition to disciplined democracy”. With regard to internal security, the situation has completely changed since 1988. When the army took over power again in 1988, more than 20 substantial insurgent groups remained active with about 40,000 soldiers combined (Smith 1999, 2006; Taylor 2010:443). Some of these groups had full control over their territory, with self-administration in foreign relations, school and hospital management. Since the beginning of the 1990s the security situation has completely changed. During the 1990s and 2000s the military regime managed to negotiate ceasefire agreements with most ethnic groups. Today, there are only three numerically important groups fighting the government that no longer control substantial territory: the Karen National Union (KNU),20 with an estimated 2,000 combatants, the Karenni National Progressive Party (KNPP), with approximately 500–1,000 militia members, and the Shan State Army South with 3,000–4,000 soldiers.21 The government has officially signed ceasefire agreements with 17 ethnic groups, which allowed these groups a certain degree of autonomy, often including the concession to maintain their arms and control over their territory (Petersen 2008; South 2004; Smith 2006; Oo/Min 2007).22 While the overall security situation has improved markedly since the early 1990s, there is still ongoing violence and the risk of a renewed escalation of violence. Whether the transition to indirect rule will entail a new round of violence between the new government and the ethnic groups remains to be seen. 23 The international security situation has also completely changed since the early 1990s, and the military junta has been confronted with a new strategic environment. Most members of the international community have attempted to persuade the military government to change its behaviour vis-à-vis its own citizens. We can identify three approaches to achieving this goal: 1. The “hardliners”, led by the US, the UK and to a lesser extent the EU, have imposed economic sanctions, including an effective ban on financial assistance, travel restrictions and an arms embargo. In 2005, the US also succeeded in bringing the attention of the UN Security 19

The protests started in August 2007 with small-scale demonstrations of students and democracy activists against the sudden increase in (government-controlled) fuel prices. When several demonstrating Buddhist monks were mistreated by the security forces in Pakkoku in September 2007, the movement turned into a countrywide protest movement. The largely religious protest quickly gathered momentum as the All-Burma Monks Alliance. 20 The KNU entered into ceasefire talks with the military government. The “gentleman’s agreement”, however, broke down after the purge of General Khin Nyunt. 21 There is also a further dozen small splinter groups operating at the Indian-Burmese and Thai-Burmese borders. These groups have only a few hundred soldiers. 22 As Ashley South (2004) notes, the precise terms of these ceasefires are not known, but in general it is clear that the terms are not uniform across all groups with which the government has ceasefire agreements. 23 There are some indications that the transition to “disciplined democracy” has fuelled ethnic conflicts. The military government’s plan to transform the armies of the ethnic groups into border guards of the Tatmadaw has met with fierce resistance from certain ethnic groups. While smaller forces have agreed to integrate into the future system, stronger groups such as Shan State Army North, the New Mon State Party and the United Wa State Army (UWSA) have rejected this proposal. Another sign of ethnic conflicts is the breakdown of the ceasefire with the KIO in June 2011 (TNI 2011).

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Council to Burma, where the US declared the situation a threat to regional security. When the generals did not allow foreign aid to come into the country in the wake of the cyclone Nargis, some Western politicians also invoked the concept of “responsibility to protect” to further enhance the pressure on the junta (Bünte 2008, Haake 2008). In general, most states attempted to force the generals to accept the 1990s election results and return to the barracks. During the last decade, however, the approaches have softened and focused on the release of political prisoners, national reconciliation and human rights themes. However, implicit in this more nuanced approach is a “strong demand for regime change” (Selth 2008:287). These political and economic measures against Burma were denounced as interference in Burma’s own internal affairs and were thus firmly rejected. Senior spokesmen for the regime accused Western powers of neocolonialism and of trying to harm Burma’s economy and attempting to dictate domestic politics. 2. The second approach has been more pragmatic. In line with the charter of the Association of Southeast Asian Nations (ASEAN), of which Burma became a member in 1997, the ASEAN governments have attempted to engage Burma. The Asian way of avoiding direct criticism was believed to be more successful, as it would allow the junta to build up contacts to the outside world and to foster economic development. Continued economic growth would eventually lead to increasing spaces for civil society and acceptance of international norms. 3. The third group, led by China, Russia and India, has developed close ties to the junta. These countries attempt to promote greater stability in the country in order to further their own strategic interests (Selth 2008; Haake 2010, Holliday 2009). Given the unreliability of the Burmese economic data and the lack of access to Burma’s hardliner generals, it is difficult to say precisely what all these approaches have achieved over the past two decades. It is safe to say, however, that no economic sanction regime can work effectively when the sanctioned regime has access to finances, arms and diplomatic support. The pragmatists have been equally unsuccessful in encouraging far-reaching political reforms. One can conclude that “external factors have been largely incidental in this process” (Selth 2008: 288). Indeed, it can be said that despite all the measures taken against Burma over the last two decades, the regime has become stronger and the army could even tighten its grip over the country. 7. Summary and Conclusion The military’s withdrawal from the apex of power in March 2011 does not signal a full retreat from politics. The generals’ transition ensured a return to civilian rule without relinquishing de facto military control of the government. The military remains the arbiter of power in the country. It dominates all important state institutions. During its transition to “disciplined democracy”, it has succeeded in designing a new political system, in which it controls important state institutions. The military has institutionalized its “leading role” in the new competitive authoritarian system. There is some room for autonomy of civilian forces within the ruling party, which until now has been dominated by former generals. Due to the privatization drive in recent years, the role of the armed forces’ conglomerates in the economy has been diminished. However, the conglomerates still remain the most important business actors in the country, although the generals’ cronies have managed to secure some of the key state assets. Why did the military abandon the driver’s seat, and what accounts for the transition from military rule to military control? This paper proposes that the new situation can be attributed to a transformation in the internal and external factors that impact the military’s moods and motives as well as its disposition to intervene. Table 2 illustrates these factors and evaluates their positive or negative impact on military intervention.

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Table 2: Endogenous and Exogenous Factors of Military Intervention in Burma (1990–2011) Early 1990s

Early 2000s

End of 2000s

Endogenous Factors Supporters of new Supporters of new Supporters of new professionalism (-1) professionalism (-1) professionalism (younger generation might be more professional) (-1) Organizational cohesion High degree of Medium degree of Stable factionalization in military junta factionalization (-1) factionalization (0) (+1) (SLORC/SPDC) Personal interest Leadership vacuum, fear Consolidated leadership, Safe succession, fear of of personal persecution (- still fear of personal personal persecution 1) persecution (0) reduced (+1) Economic interests Economic interests Economic interests Economic interests outside military sphere (- outside military sphere (- outside military sphere (1) 1) 1) Ideological cohesion

Exogenous Factors Civilian forces

Internal security External security Economy Scale from -8 (unweighted)

to

No consensus on military role in politics / high degree of polarization (1) High rate of violent conflict (-1) Perceived external threats (-1) (0) 8 (-7)

No consensus on military No consensus on military role / high degree of role in politics / high polarization (-1) degree of polarization (-1) Medium rate of political conflict (-1) Perceived external threats (-1) (0) -5

Medium rate of political conflict (-1) Perceived external threats (-1) (0) -3

Key: +1 means conducive, 0 means neutral, -1 means negative. Some points stand out: In general, the conditions for a retreat of the military from politics on the whole are quite negative and have only slightly improved over the last two decades. The long endurance of military rule, the officers’ deeply entrenched self-perception as guardians of the unitary state, the deep mistrust of politicians, the ongoing armed conflict within the country (despite a much-improved situation since the mid-1990s), the constant fear of external intervention in various guises – all these conditions have remained more or less the same during the last two decades. Second, the retreat from direct rule and transition to military control can be attributed to several internal factors. The transition toward “disciplined democracy” has solved the problem of leadership change in the armed forces for both junta chief Than Shwe and top generals in the military hierarchy, who have either retired or discarded their uniforms. These changes have eased generational pressures within the army, since a younger cohort of military leaders can now rise within the ranks without creating too much competition and risks of a military coup. Since the old guard has managed to design a political system under military control, they can also resign without having to fear being persecuted or being held responsible for past human rights violations. Third, exogenous factors have hardly changed over the last two decades. Although many military regimes worldwide have been transformed due to changing external environments (Siaroff 2009; Croissant et al. 2011), the exogenous environment of military rule in Burma has remained more or less constant for the last two decades. The opportunity structures have hardly allowed the military to abdicate: The opposition has attempted to force the military to 18

accept the results of the 1990s election and transfer power. It has used a confrontational strategy to force leading generals to transfer power. Moreover, it has attempted to mobilize the international community to question the legitimacy of the ruling junta. These strategies had a huge impact on the international community, which in recent years has both strengthened its engagement (UN, ASEAN) and its sanction tools (US, UK). However, neither of these strategies has achieved the desired results. The military, which has managed to modernize its coercive and repressive tools in recent years, has curtailed the room to manoeuvre of the political and ethnic opposition. It has also managed to split the opposition into a more moderate group, which is now working within the military-dominated system, and a hardline group. However, it might have been the lacking “external” acceptance and growing “internal” pressures that led the military government to transfer power to a new civilian government and change from military rule to military control. Yet, the transition to “disciplined democracy” falls short of a genuine transition to democracy, since every single step of the generals’ transition has been carefully guarded and kept under control. The transition established a “competitive authoritarian regime”, in which the playing field was heavily tilted toward the party dominated by the military.24 These findings confirm the dictum of O’Donnell and Schmitter that “there is no transition whose beginning is not the consequence – direct or indirect – of important divisions within the authoritarian regime itself, principally along the fluctuating cleavages between hardliners and softliners” (O’Donnell/Schmitter 1985:19). If these divisions do not come to the fore in military regimes, or if hardliners prevail, the evolving transition might lead to another form of authoritarianism. The case of Burma illustrates that military dominance can be sustained even after the military formally retreats from power. The ongoing discussion in civil–military relations debates about the exact conceptualization of civilian control will shed further light on the diverse roles militaries play in diverse forms of authoritarian regimes.

Bibliography Alagappa, M. (2001): Investigating and Explaining Change: An Analytical Framework, in: M. Alagappa (Ed.): Coercion and Governance: The Declining Political Role of the Military, Stanford: Stanford University Press, pp. 29-68. Albright, David (1980): A Comparative Conceptualization of Civil-Military Relations, World Politics, vol. 32, No. 4, pp. 553-576. Aung Myoe (2007): The Road to Naypyitaw: Making Sense of the Myanmar Government’s decision to Move its Capital, Singapore: Asia Research Institute Working Paper No. 346. Aung Myoe (2008): Builiding the Tatmadaw. Myanmar Armed Forces since 1948, Singapore:ISEAS. Beeson, Mark and Bellamy (A.J.) (2008): Securing Southeast Asia: The Politics of Security Sector Reform, Routledge Security in Asia Pacific Series 6, London: Routledge. Bünte, Marco (2008): External Intervention in Myanmar: From Responsibility to Protect to Humanitarian Dialogue, in: die Friedenswarte. Journal of International Peace and Organization, 1/2008, pp. 125-142. Bünte, Marco (2010): Wahlen in Myanmar. Die Konsolidierung autoritärer Herrschaft, Hamburg: GIGA-Fokus Asien. Bünte, Marco/Aurel Croissant (2011): The Crisis of Democratic Governance in Southeast Asia, London: Palgrave.

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This, however, is hardly surprising, since the regional norm in Southeast Asia is – with some notable exceptions – electoral authoritarianism (Bünte/Croissant 2011).

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Callahan, Mary (2001): Soldiers as State Builders. Coercion and Governance. The Declining Political Role of the Military in Asia. Ed. by Muthiah Alagappa, Stanford University Press, pp. 413-433. Callahan, Mary (2003): Making Enemies. War and State Building in Burma, Cornell: Cornell University Press. Callahan, Mary (2007): Of Kyay-Zu and Kyet-Su: The Military in 2006, in: Monique Skidmore/ Trevor Wilson (ed): The State, Community and Environment, Canberra: ANU Press, 36-54. Collier, David/ Steven Levitsky (1997): Democracy with Adjectives: Conceptual Innovation in Comparative Research, World Politics, 430-451. Croissant, Aurel (2004): Riding the Tiger. Civilian Control and Democratic Consolidation in South Korea, Armed Forces and Society, Spring 2004, pp. 357-381. Croissant, Aurel, Paul Chambers, Philipp Völkel (2011a): Democracy, the Military and Security Sector Governance in Indonesia, the Philippines and Thailand, in: Marco Bünte/Aurel Croissant (ed): The Crisis of Democratic Governance in Southeast Asia, Basingstoke: Palgrave, pp. 190-209. Croissant, Aurel/ David Kühn, Paul Chambers, Siegfried Wolf (2011b): Conceptualising Civil-military relations in emerging democracies, European Political Science, 10, pp. 137-145. Dahl, Robert (1971): Polyarchy. Participation and Opposition, New Haven: Yale University Press. Diamond, Larry (1999): Developing Democracy. Towards Consolidation, Baltimore: Johns Hopkins University Press. Dittmer, Lowell (2008): Burma vs. Myanmar – What’s in a name, Asian Survey, 48:6, pp. 885-888. Finer, Samuel (1985): The Retreat to the Barracks: Notes on the Practice and the Theory of Military Withdrawal from the Seats of Power, Third World Quarterly, Vol. 7, No. 1, 16-30. Finer, Samuel E. (1962): The Man on Horseback. The Role of the Military in Politics. London: Pall Mall Press. Fitch, Samuel (1998): The Armed Forces and Democracy in Latin America, Baltimore: MD, Johns Hopkins University Press. Geddes, Barbara (1999): What do we know about democratization after 20 years, in Annual Review of Political Science, 2, 115-144. Haake, Jürgen (2008): ASEAN and Political Change in Myanmar: Towards a regional Initiative? Contemporary Southeast Asia, Vol. 30, no. 3, pp. 351-378. Haake, Jürgen (2010): China’s role in the pursuit of security by Myanmar’s State Peace and Development Council: Boon or Bane, Pacific Review, 23:1, pp. 113-137. Hadenius, Axel/ Jan Teorell (2007): Pathways from Authoritarianism, Journal of Democracy, Vol. 18, No. 1, pp. 143-157. Holliday, Ian (2009): Beijing and the Myanmar Problem, Pacific Review: 22:4, 479-500. Huntington, Samuel (1957): The Soldier and the State: The Theory and Politics of CivilMilitary Relations, New Haven. Huntington, Samuel (1968): Political Order in Changing Societies, New Haven: Yale University Press. ICG (2011): Myanmar’s Post-Election Landscape, Crisis Group Asia Briefing, No. 118, March 2011. Brussels. Janowitz, Morris (1964): The Military and Political Development of New Nations: Chicago: the University of Chicago Press, 1964.

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Kennedy, Charles F. / Louscher, David (1991): Civil Military Interaction: Data in Search of a Theory, in: Charles F. Kennedy and David J. Louscher (eds.): Civil-Military Interaction in Asia and Africa, Leiden: Brill. Kyaw Yin Hlaing (2009): Setting the rules for survival: Why the Burmese military regime survives in an age of democratization, Pacific Review, Vol. 22, No. 3, pp. 271-291. Kyaw, Yin Hlaing (2007): The State of the Pro.-Democracy Movement in Authoritarian Burma, East West Center Washington. Levitsky, Steven, Lucian Way (2010): Competitive Authoritarianism. Hybrid Regimes after the Cold War, Cambridge University Press. Lintner, Bertil (1990): Outrage. Burma’s struggle for democracy, Bangkok: White Lotus. McCarthy, Stephen (2000): Ten Years of Chaos in Burma: Foreign Investment and Economic Liberalization in under SLORC/SPDC 1988-1998, Pacific Affairs, Vol. 73, No. 2, 233-262. McCarthy, Stephen (2008): Overturning the Alms Bowl: The Price of Survival and the Consequences for political legitimacy in Burma, Australian Journal of International Affairs, 62:3, pp. 298-314. Merkel, Wolfgang (2004): Embedded and Defective Democracies, in: Democratization, Vol. 11, No. 5, pp. 33-58. NDI (National Democratic Institute) (2010): Burma’s 2010 Electoral Framework. Fundamentally Undemocratic, A legal and human rights analysis, August 2010, ndi.org, Nordlinger, Eric (1977): Soldiers and Politics. Military Coups and Governments, London: Prentice-Hall. O’Donnell, Guillermo/ Philippe C. Schmitter (1985): Transitions from Authoritarian Rule. Tentative Conclusions about Uncertain Democracies, Baltimore: Johns Hopkins University Press. O’Donnell, Guillermo (1973): Modernization and Bureaucratic Authoritarianism, Berkely: Univers. California. Remmer, Karen (1989): Military Rule in Latin America, Boston: Unwin. Pedersen, Morten B. (2008): Burma’s ethnic Minorities. Charting their own path to peace, Critical Asian Studies, Vol. 40:, No. 1, 45-66. Pedersen, Morton B. (2011): The Politics of Burma’s “Democratic” Transition, Prospects for Change and Options for Democrats”, Critical Asian Studies, 43:1, 49-68. Perlmutter, Amos (1980): The Comparative Analysis of Military Regimes, Formations, Aspirations, Achievements, World Politics, 33/1, pp. 96-120. Przeworski, Adam, Michael E. Alvarez, Jose Antonio Cheibub and Fernando Limongi (2000): Democracy and Development: Political Institutions and the Well Being of the World, 1950-1990, New York: Cambridge University Press. Schedler, Andreas (2002): The Menu of Manipulation, Journal of Democracy, 13:2, pp. 3650. Selth, Andrew (2002): Burma’s Armed Forces: Power Without Glory, New York: Eastbridge. Selth, Andrew (2008): Burma’s ‘Saffron Revolution’ and the limits of International Influence, in: Australian Journal of International Affairs, 62:3, pp. 281-297. Siaroff, Alan (2009): Comparing Political Regimes: A thematic introduction into comparative politics, Toronto. Silverstein, Josef (1977) Military Rule and Politics of Stagnation, Ithaca: Cornell University Press, 1977. Smith, Martin (1999): Insurgency and the Politics of ethnicity, 2nd London: Zed Books. Smith, Martin (2006): State of Strife: The Dynamics of Ethnic Conflict in Burma, Washtington: East West Center.

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Snyder, Richard (2006). Beyond Electoral Authoritarianism: The Spectrum of Nondemocratic Regimes, in: Andreas Schedler (ed): Electoral Authoritarianism: The Dynamics of Unfree Competition, Boulder, CO: Lynne Rienner Publishers, pp. 219-233. South, Ashley (2004): Political Transitions in Myanmar: A New Model for Democratization?, in: Contemporary Southeast Asia, Vol. 26, No. 4, pp. 233-255. Steinberg, David (2001): The State of Myanmar, Washington: Georgetown University Press. Steinberg, David (2006): Turmoil in Burma. Contested Legitimacies in Myanmar, East Bridge. Stepan, Alfred (1976): The New Professionalism of Internal Warfare and Military Role Expansion, in: Abraham Lowenthal (ed.): Armies and Politics in Latin Amiercia (New York: Holmes and Meier, pp. 244-260. Stepan, Alfred (1988): Rethinking Military Politics. Brazil and the Southern Cone, Princeton: Princeton University Press. Sundhaussen, Ulf (1985): The Durability of Military Regimes in Southeast Asia, in: Zakaria Haji Ahmad/Harold Crouch (Eds.): Military-Civilian Relations in Southeast Asia, Singapore: Oxford University Press, pp. 269-286. Taylor, Robert (1985): “Burma”, in: Zakaria Haji Ahmad/Harold Crouch (Eds.): MilitaryCivilian Relations in Southeast Asia, Oxford University Press: Oxford, pp. Taylor, Robert (2010): The State of Myanmar, Hawaii University Press. Tin Maung Maung Than (1998): Myanmar: Preoccupation with Regime Survival, National Unity and Stability, in: Muthiah Alagappa (ed.): Asian Security Practice: Material and Ideational Infuences, Palo Alto, pp. 390-416. Tin Maung Maung Than (2001): The “New Professionalism” of the Tatmadaw, in: Muthiah Alagappa: Military Professionalism in Asia. Conceptual and Empirical Perspectives, Honolulu: East West Center, pp. 163-179. Transnational Institute (2011): Burma’s New Government: Prospects for Governance and Peace in Ethnic States, Burma Policy Briefing Nr. 6, May 2011. TNI. Turnell, Sean (2008): Burma’s insatiable state, in: Asian Survey, Vol. 48, No. 6, pp. 58-976. Welch, Claude/ Arthur Smith (1974): Military Role and Rule, Perspectives on Civil-Military Relations, Belmont: Duxbury Press. Win Min (2008): Looking Inside the Burmese Military, in: Asian Survey, vol. 48, No. 6, pp.1018-1037. Win Zin (2010): Opposition Movements in Burma. The Question of Relevancy, in: Susan L Levenstein (Ed.): Finding Dollars, Sense, and Legitimacy in Burma, Washtington: Wodrow Wilson Centre, pp. 77-91. Zaw Oo and Win Min (2007): Assessing Burma’s Ceasefire Accords, East West Center Policy Studies 39, Washington.

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WORLD NEWS JA N UA RY 4 , 2 0 1 8 / 3 : 0 8 P M / 2 M O N T H S AG O

Myanmar president calls for reform of nation's military-drafted constitution Robert Birsel

YANGON (Reuters) - Myanmar’s civilian president called in an Independence Day speech on Thursday for reform of a military-drafted constitution and for justice for all recognized minorities under a federal system, but made no mention of the treatment of its Rohingya Muslim people.


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Myanmar's President Htin Kyaw looks down as he leaves a joint press conference with Japan's Prime Minister Shinzo Abe (unseen) at the Prime Minister's official residence in Tokyo, Japan December 14, 2017. REUTERS/Franck Robichon/Pool

Amending the charter to remove a dominant political role for the military has been one of the most contentious issues facing Myanmar as it emerges from nearly half a century of strict army rule. The debate over constitutional reform, however, has been muted since the assassination in January last year of a lawyer advising government leader Aung San Suu Kyi’s ruling party on the issue. “As we build the Democratic Federal Republic, in accordance with the results of the political dialogues, we all need to work collectively for creating a suitable constitution,” President Htin Kyaw said in his speech marking the 70th anniversary of Myanmar’s independence from Britain. Htin Kyaw’s post is largely ceremonial but he is a close ally of Suu Kyi. He did not elaborate on what he meant by suitable or spell out why he was suggesting the 2008 constitution drawn up by the military was unsuitable. The constitution bars Suu Kyi from becoming president because it rules out candidates with a foreign spouse or child. Suu Kyi’s late husband was British as are her two sons. It also reserves for the military one quarter of the seats in parliament and several major cabinet posts, including defense, interior and border affairs, giving it an effective veto over constitutional change and control of security affairs. Myanmar began emerging from 49 years of military rule in 2011. Suu Kyi’s party swept a 2015 election and formed a government but concern is growing that the reform program is stalling https://www.reuters.com/article/us-myanmar-independenceday/myanmar-president-calls-for-reform-of-nations-military-drafted-constitution-idUSKBN1E…

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or even sliding back. This has been compounded by attacks on press freedom, including the detention of several journalists over the past year. On Dec. 12, the authorities arrested two Reuters reporters who had covered the army crackdown that has led to the mass flight of Rohingya residents of Rakhine State across the border into Bangladesh. Htin Kyaw called for respect for human rights but he did not refer to the crisis over the exodus of 655,000 Rohingya people, nor to the international condemnation it has generated. “We are working for the emergence of a democratic state based on the principles of freedom for all ethnic national races, justice, equality and right of self-determination,” he said. “National race” is a term used by Myanmar referring to what it categorizes as indigenous ethnic groups. The Rohingya, who have traditionally lived in Rakhine, have been denied inclusion as authorities regard them as illegal immigrants who have crossed over from Bangladesh.

END TO CONFLICT The Rohingya crisis erupted in late August after Rohingya insurgent attacks on security posts in Rakhine triggered a fierce military response that the United Nations denounced as ethnic cleansing. Myanmar denies ethnic cleansing saying its security forces have mounted legitimate clearance operations. Htin Kyaw called for an end to conflict with insurgents from various ethnic minorities who have been battling for autonomy for decades. Clashes have flared in recent weeks between the army and guerrillas in Kachin and Shan states in the north.


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Myanmar’s minorities have long demanded self-determination under a federal system. The army has traditionally seen itself as the only institution preventing the country’s disintegration and has favored a unitary state. Amending the constitution would not be easy. Changes require a 76 percent majority vote in a parliament dominated by military members and their allies. The killing of lawyer and constitutional expert Ko Ni last year has not been fully explained even though the gunman was caught at the scene. Many activists believe Ko Ni, who was Muslim, was targeted for his efforts to reduce the military’s political role. Editing by Simon Cameron-Moore


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WORLD NEWS F E B RUA RY 2 0 , 2 0 0 8 / 1 2 : 2 5 A M / 1 0 Y E A R S AG O

New Myanmar constitution gives military leading role Reuters Staff

YANGON (Reuters) - Army-ruled Myanmar has finished writing a new constitution, to be put to a May referendum, which gives the military the “leading political role” in the future state, official media said on Tuesday.


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A view of the Parliament Building being built in Myanmar's new capital Nay Pyi Taw December 3, 2007. Armyruled Myanmar has finished writing a new constitution, to be put to a May referendum, which gives the military the "leading political role" in the future state, official media said on Tuesday. REUTERS/Aung Hla Tun

“I hereby declare that the draft of the state constitution has been approved by this commission,” Chief Justice Aung Toe, chairman of the military-appointed drafting commission, was quoted as saying on state-controlled MRTV. He said the commission had followed the basic principles adopted last year by a National Convention, also appointed by the military, which took more than 14 years to complete its work.

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“In drafting the constitution, the commission adhered strictly to the six objectives, including giving the Tatmadaw (the military) the leading political role in the future state,” he said. The armed forces have ruled the former Burma since 1962. He did not give more details of the charter, but previous state media reports suggest the army commander-in-chief will be the most powerful figure in the country, able to appoint key ministers and assume power “in times of emergency”.


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It also gives the military a quarter of seats in parliament and a veto over decisions made by legislators. Aung Toe urged the 54 commission members to campaign for the charter, the country’s third since it won independence from Britain in 1948. A firm date for the referendum has not been announced. The opposition National League for Democracy (NLD), which won a 1990 election only to be denied power by the military, said on Monday the charter “will worsen the political, economic and social crises being faced in the country”. The NLD boycotted the National Convention because of the continued house arrest of its leader, Nobel Peace laureate Aung San Suu Kyi, who has spent more than 12 of the past 18 years under some form of detention. The United States says the referendum will be a sham conducted in a “pervasive climate of fear”. Dissident groups are already campaigning for a “no” vote, saying the charter is an attempt to legitimize the generals’ grip on power after 46 years of military rule. The junta has accused pro-democracy and dissident groups of trying to tear the country apart, and urged the public to back its “road map to democracy”. Reporting by Aung Hla Tun; editing by Darren Schuettler and Andrew Roche


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Asia Pacific Bulletin EastWestCenter.org/APB

Number 233 | September 24, 2013

Patterns of Military Behavior in Myanmar’s New Legislature BY RENAUD EGRETEAU

“Praetorian transition” is the term used to describe the transfer of direct military rule to a quasi-civilian government. Over a period of time, the military ratchets up or down the scale of praetorianism according to their ability and interests in seeking more—or less— control over policymaking. In modern politics, praetorianism refers to the unhealthy political influence of the military upon an emerging democratic civil society. Renaud Egreteau, Research Assistant Professor at the University of Hong Kong, explains that “All indications are that there is a long way to go before the Myanmar military fully returns to the barracks.”

The East-West Center promotes better relations and understanding among the people and nations of the United States, Asia, and the Pacific

In the case of Myanmar, the disbanding of the State Peace and Development Council (SPDC) in March 2011 has resulted in the armed forces (Tatmadaw) slowly moving down the spectrum of praetorian intervention. This started with an initial partial withdrawal from day-to-day politics in 2011. To date though the military has not fully disengaged from the highest structures of the post-SPDC state. The 2008 constitution, drafted by the military, has a number of legal instruments and institutions through which the Tatmadaw can still exert its influence and sway on Myanmar’s political life and society. Among the new state structures in Myanmar are a national parliament located in Naypyitaw and fourteen local assemblies around the country. In post-junta transitory regimes, the military commonly seeks to maintain some influence on the new evolving legislative process, which they once used to bypass by solely ruling by decrees. According to Myanmar’s constitution, army officers are to be commissioned to all new national and local lawmaking bodies. Today, military appointees represent a quarter of each chamber of the bicameral national parliament: 110 seats in the Lower House (Pyithu Hluttaw), and 56 seats in the Upper House (Amyotha Hluttaw). In the fourteen local assemblies the number of army delegates is equal to one-third of the number of elected representatives. All military appointees are nominated by the Commander-in-Chief of the army and can be removed at will, without any oversight from the civilian government. To many observers, the sole reason that military officers have a seat in parliament is to ensure that the Tatmadaw has a non-negotiable “veto” on any potential constitutional amendment. Safeguarding the new constitution is one of the major tasks assigned to the army as enshrined in Article 20f, and military delegates are there to ensure that all reform proposals put forward by civilians are formulated according to the basic principles already specified in the text. A vote by 75 percent of all legislators is required to pass any constitutional amendment, and with its 25 per cent seat reservation, the Tatmadaw can effectively reject any proposed legislation.

through cooperative study, research, and dialogue. Established by the US Congress in 1960, the Center serves as a resource for information and analysis on critical issues of common concern, bringing people together to exchange views, build expertise, and develop policy options.

The role of military appointees in Myanmar’s re-emerging parliamentary politics may grow more complex in coming years. Official army publications reveal that the Tatmadaw has long distrusted the civilian sphere. Discourse often centers on accusing politicians and parliamentarians of repeatedly dragging the country since independence in 1948 from one crisis to another. The Tatmadaw views itself as the sole cohesive and disciplined institution able to safeguard Myanmar’s national unity and bring about social stability,

Asia Pacific Bulletin | September 24, 2013

“Odds are therefore that the Tatmadaw will continue to serve in all of Myanmar’s legislative assemblies in the coming years as ‘moderator.’”

including now in legislative assemblies where factional rivalries and political infighting are persistent. In a recent interview this author conducted with Khin Aung Myint, who also happens to be a former two-star general and is now Speaker of the Upper House, he highlighted the role of “arbitrator” that the armed forces intend to play in parliament. The very presence of army officers in legislative bodies, he stressed, ensures that no single political party dominates the new parliamentary scene—whichever party this may be. In line with the image the Tatmadaw has always attempted to project of itself, the military now seeks to “moderate” Myanmar’s political and legislative debates, balance potential feuds between the executive and legislative branches, as well as between the two houses of the parliament, and remain politically “neutral” among centrifugal civilian forces. The political significance of army representatives in parliament has already evolved with increased numbers of higher ranking officers joining legislative assemblies after 2012. The new army chief General Min Aung Hlaing, unlike his predecessor Than Shwe, wants his senior army officers to project an image of responsibility and dedication to the public good by standing firm in civilian bodies, especially at this highly sensitive time of political transition. Interviews with civilian MPs reveal that most of their military colleagues have kept a relatively low profile ever since the first parliamentary session was convened in January 2011. However, even though no military appointee to date has drafted any legislative bill, many have asked questions and expressed their preferences in legislation under review. They have also strengthened their presence in all parliamentary committees where some military MPs have voting powers, while others just act as observers. Discussions between civilian and military MPs within the assemblies in Naypyitaw have appeared far more forthcoming than expected. As far as voting behavior is concerned, initial observations highlight intriguing patterns. Unless national security or the army’s vested interests were involved, military MPs have not always voted as a single bloc—including in local parliaments. They have approved proposals drafted by the traditional opposition, the National League for Democracy (NDL) of Aung San Suu Kyi or ethnic parties, and showed that they were even willing to vote against bills formulated by President Thein Sein’s cabinet. Interestingly, the latter is dominated by ex-army officers. It is worth noting that tensions between active duty officers and their erstwhile superiors-turned-politicians are commonly observed in transitions from military to civilian rule.

The Asia Pacific Bulletin (APB) series is produced by the East-West Center in Washington. APB Series Editor: Dr. Satu Limaye APB Series Coordinator: Damien Tomkins The views expressed in this publication are those of the author and do not necessarily reflect the policy or position of the EastWest Center or any organization with which the author is affiliated.

Odds are therefore that the Tatmadaw will continue to serve in all of Myanmar’s legislative assemblies in the coming years as “moderator,” a position that has been much criticized for going against the grain of a full transition to civilian democratic governance. Yet recent interviews have illustrated that an increasing number of civilian MPs seem reluctant to openly confront the army on this topic; indeed, unlike the NLD, many ethnic representatives do not consider a prompt disengagement of army delegates as a top priority. A fully functioning representative democracy cannot be consolidated without full-fledged civilian control over the military as outlined in the civil-military relations scholarship. In the case of Myanmar, civilian MPs are increasingly exposing during parliamentary debates the military’s misdeeds and abuse of power, especially at the local level. In doing so, they gradually craft a cautious oversight of the Tatmadaw’s activities. Yet, while President Thein Sein does not seem averse to the idea of a military withdrawal from the legislative institutions, he—and the army—have yet to give any hint of when this can be expected. All indications are that there is a long way to go before the Myanmar military fully returns to the barracks. Foreign diplomats and potential investors should take notice. Renaud Egreteau is Research Assistant Professor at the University of Hong Kong. His recent book, coauthored with Larry Jagan, Soldiers and Diplomacy in Burma: Understanding the Foreign Relations of the Burmese Praetorian State was published in 2013. He can be contacted via email at [email protected].

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The realities of power in Myanmar - New Mandala

The realities of power in Myanmar ANDREW SELTH - 16 NOV, 2015

Ten ways Myanmar’s military can make life very dif cult for Aung San Suu Kyi and the NLD. Over the past few months, articles and op-eds by experts and others on Myanmar’s general elections have covered almost every conceivable aspect of the subject. Also, it seems a shame to dampen down the wave of euphoria that has swept around the world since the National League for Democracy’s (NLD) stunning victory on 8 November, which promises a new beginning for a country and people that have suffered for decades. In considering where recent developments might lead, however, it is important to take a broad view and keep the election outcome in perspective. As Nicholas Farrelly wrote in The Myanmar Times on 9 November, this is just the beginning of a very long and dif cult process. The harsh realities of power in Myanmar – at least as far as they have been seen until now – demand a fair degree of caution. It might be helpful to list a few basic facts of life in Myanmar, just to set the scene. First, the armed forces (Tatmadaw) have long been and arguably remain the most powerful political institution in Myanmar. As Robert Taylor has written, ‘Only the army can end its own role in Myanmar’s politics, and that decision is dependent on its perception of the civilian political elite’s ability to manage the future’. He might have added, ‘and protect the Tatmadaw as a national institution’.

https://www.newmandala.org/the-realities-of-power-in-myanmar/

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Second, it is also important to bear in mind that the elections were relatively free and fair, and produced a reasonably accurate result, only because the leaders of the armed forces permitted them to occur and did not interfere. It may not have been easy, but they could have intervened at any stage of the process and ensured that the elections were cancelled, postponed, or manipulated to give a different outcome. Third, given their resources and control of Myanmar’s internal affairs, the generals must have known that a free and fair election would result in a decisive victory for Aung San Suu Kyi and the NLD. The nal statistics may have come as a bit of a surprise (before the poll some respected analysts were questioning whether the NLD could achieve a landslide), but the outcome could not have been in doubt. Fourth, this being the case, it can be assumed that, well before the election took place, the Tatmadaw’s senior leadership, probably in consultation with the president, took a collective decision to accept the results. There is no real tradition in Myanmar of sharing political power, but they must also have faced the prospect of negotiating the future governance of the country with Aung San Suu Kyi and her party. And, rest assured, it will be a matter of the Tatmadaw and the NLD having to strike a deal of some kind. The massive show of popular support for Aung San Suu Kyi and her party on 8 November gives them enormous moral authority and a strong bargaining position, but it does not guarantee them a free hand to shape Myanmar’s future. Under current circumstances, that can only be done in cooperation with the armed forces. Neither the Tatmadaw’s leadership, nor Aung San Suu Kyi and the NLD, would gain anything from a direct confrontation. That would only cause internal turmoil, hurt the Myanmar people and see Myanmar condemned internationally. If it got out of hand, such a clash of wills would inevitably slow down the democratic transition process. In certain circumstances, it could even halt it. That would bene t no-one. While she has her critics, Aung San Suu Kyi enjoys strong support both inside Myanmar and outside it. Until now, however, her ability to work the levers of power has been heavily circumscribed. The NLD’s expected control of the national parliament opens up a number of intriguing possibilities, but there are still many https://www.newmandala.org/the-realities-of-power-in-myanmar/

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ways in which the Tatmadaw could make life very dif cult for her and the party, if it chose to do so. Let me point out 10 of the more obvious ones. One, the 2008 constitution could have been written with the current scenario in mind. The generals clearly anticipated the possibility that the armed forces might one day be faced with a potentially hostile parliament. So they built in various measures to protect the Tatmadaw’s position and core interests, and to guarantee its central role in national affairs. That is why the generals view the constitution as ‘the main or mother law’ of Myanmar, which they are determined to safeguard. Two, any attempt to challenge the Tatmadaw’s status will be resisted. It has already rejected moves to reduce the guaranteed 25 per cent military representation in all national and regional assemblies. It has also opposed moves to amend the constitution so that Aung San Suu Kyi can become president. Amendments have not been ruled out entirely, but military spokesmen have said they will only occur when Myanmar’s democracy has ‘matured’. The Tatmadaw will decide when that stage has been reached. Three, under the 2008 constitution, the Commander-in-Chief (CinC) of Defence Services has wide discretion to intervene in Myanmar’s internal affairs. With the president’s approval (and remember Thein Sein will remain in of ce until March 2016) he can even declare an emergency and take over the entire government. However, there is a lot the Tatmadaw can do to in uence events short of such an extreme step. Four, the constitution speci es that the portfolios of defence, home affairs and border affairs are lled by serving military of cers recommended by the CinC. Also, if the Vice Commander-in-Chief is included, the CinC exercises effective control over at least ve of the 11 members of the powerful National Defence and Security Council. These arrangements give the Tatmadaw effective control over Myanmar’s internal affairs. Five, should a NLD parliament put pressure on the Tatmadaw, by trying to reduce its share of the national budget, there is bound to be pushback from the armed forces on the grounds that they have a duty to ensure the country’s unity, stability https://www.newmandala.org/the-realities-of-power-in-myanmar/

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and sovereignty. In any case, under a 2011 law, the Tatmadaw is permitted to use other means to nd the resources they need to meet their responsibilities. They already receive funds from a range of off-budget sources. Six, the role of the armed forces in the national economy has been gradually declining since 2011, as the Tatmadaw has given up some of its monopolies and its two main conglomerates, the Union of Myanmar Economic Holdings Ltd and Myanmar Economic Corporation, have begun paying taxes. Should it wish to do so, however, the armed forces and their powerful ‘cronies’ could still exert pressure on the government by exercising their considerable economic power. Seven, Aung San Suu Kyi knows that an early resolution of the country’s longrunning insurgencies will be one of the NLD’s most pressing policy issues once it takes of ce. Yet, there is no hope of a more comprehensive cease re agreement – let alone a nation-wide peace settlement – without the full cooperation and support of the armed forces which, under the constitution, are guaranteed complete autonomy in all military affairs. Eight, it is also relevant that the government and civil service are dominated by exmilitary and military personnel. Out of 46 ministers at the national level, 37 are currently from the Tatmadaw, including ve on active duty. Of the 14 Chief Ministers of Myanmar’s states and regions, all but one are retired military of cers. These numbers will change as a result of the latest elections, but at least 170 retired senior of cers stood for parliament on 8 November and some will probably secure a seat, if not of cial appointments. Nine, in addition, 80 per cent of senior civil service positions in Myanmar are lled by ex-servicemen and women. Of the 33 permanent secretary positions created this year, 23 are held by former military personnel. As Renaud Egreteau has written, over decades the senior of cer corps has been socialised into believing that the Tatmadaw is the sole and uncontested embodiment of the state. Even under a NLD government, many positions of authority will be under the in uence of former military of cers with a strong institutional loyalty to their old employer. Last, but by no means least (and the country’s non-state armed groups aside), the Tatmadaw exercises a monopoly of the means of applying physical force in Myanmar. The CinC not only controls the powerful 350,000 strong armed forces https://www.newmandala.org/the-realities-of-power-in-myanmar/

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but also the 80,000 strong Myanmar Police Force (with its 30-plus armed security battalions), militia units and other paramilitary forces, the Fire Brigades and even the Myanmar Red Cross. Through these and various other measures, the armed forces have the means to exercise a powerful in uence over Myanmar’s political, economic and social affairs, short of direct intervention. In considering the way ahead, Aung San Suu Kyi and the NLD will need to make due allowance for this reality, and come to some kind of modus vivendi with the military leadership. To reject such a course of action would see everyone suffer. Individuals on both sides of the political divide are convinced of the validity of their respective positions. Also, they can be very stubborn, and prone to saying and doing unhelpful things. There is a risk, for example, that Aung San Suu Kyi will appeal to the armed forces over the head of the CinC, counting on the apparent support in the ranks for further reform. Any challenge to the loyalty and cohesion of the Tatmadaw, however, would arouse the generals’ deepest concerns, with possibly dire consequences. All that said, both sides have shown that they can be pragmatic when it suits them. If they accept that their best option is to work together for the good of the country, and permit each side to pursue their core interests without threatening the other, then Myanmar may be able to look forward to happier times. Should one side insist on exercising its perceived prerogatives over the objections of the other, however, or strong personalities adopt rigid and uncompromising positions, then the outlook will be much darker. Whatever happens, Myanmar’s future will continue to defy con dent prediction.

Andrew Selth is an Adjunct Associate Professor at the Coral Bell School of Asia Paci c Affairs, the Australian National University. This article forms part of New Mandala’s ‘Myanmar and the vote‘ series.

https://www.newmandala.org/the-realities-of-power-in-myanmar/

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What is wrong with Myanmar’s constitution? - The Economist explains

The Economist explains


What is wrong with Myanmar’s constitution? Less a charter for democracy than the generals' retirement plan


Mar 4th 2014

| by Banyan

OPINION is still divided about the reforms that have transformed Myanmar since a long-standing and vicious military junta gave way in 2011 to a civilian regime—run largely by former generals in mufti. Optimists point to the release of political prisoners, a burgeoning free press, the opening up of the country’s economy and the presence in parliament of the long-detained Aung San Suu Kyi (pictured), as the official leader of the opposition. Pessimists point out that no general has been punished, no crony has lost out and the opposition is still the opposition. Moreover, they say, look at the country’s constitution (http://www.burmalibrary.org/docs5/Myanmar_Constitution-2008-en.pdf) . Drafted https://www.economist.com/blogs/economist-explains/2014/03/economist-explains-3

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by a convention boycotted by Miss Suu Kyi’s National League for Democracy (NLD), it was foisted on the country in a farcical referendum in 2008 (a 92.48% “yes” vote on a turnout of 98.12% in a poll held just after the devastation and chaos of Cyclone Nargis). It is hardly a charter for democracy. Miss Suu Kyi and her party want to change it. Over the objections of many party members, they did take part in by-elections under the constitution in 2012. They won 43 out of the 45 seats contested (in a parliament of 440), proving themselves as popular with voters as when they won a general election in 1990, the outcome of which the generals chose to ignore. Last year a committee was set up to look at possible amendments to the constitution, which will then be put to parliament. Of the possible changes, the most fuss has been created by those that concern Miss Suu Kyi herself. Article 59 (f) was written with her in mind, barring from the country’s presidency anyone with a foreign spouse or children. Miss Suu Kyi’s late husband was British, as are her two sons. Miss Suu Kyi’s party will probably win a landslide in elections due next year. But it could not, as the constitution stands, then make her president. Get our daily newsletter Upgrade your inbox and get our Daily Dispatch and Editor's Picks. Email address

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https://www.economist.com/blogs/economist-explains/2014/03/economist-explains-3

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(http://www.economist.com/node/21553447) . It guarantees 25% of parliamentary seats to the army’s nominees, and by a strange coincidence, requires a vote of more Subscribe than 75% of parliamentarians to amend the constitution. Nor, in the eyes of the or sign up to enjoy 3 articles free

many ethnic minorities that have been waging decades-long secessionist insurgencies on Myanmar’s periphery, does it fully recognise their rights. Short of Get full would access to TheaEconomist via print, online and ourthem apps or independence, they like federal constitution, granting greater sign up to enjoy 3 articles free.

autonomy. The army, which used to justify its repressive rule as essential to keeping the fissiparous country together, does not like that idea either. Subscribe Of the desired changes, the one allowing Miss Suu Kyi to become president seemed + receive a free notebook

in some ways the easiest. It would put the seal on Myanmar’s reforms, such is her prestige at home and in the outside Theper signs are, however, that even this is Sign up:world. 3 articles week proving troublesome. Of 323,000 amendments suggested by political parties, civil society and the general public by the deadline of the end of last year, apparently very few wanted this—a finding that casts doubt on the integrity of the process, and suggests the army worries about its fate under a Suu Kyi presidency. Changes that would remove the army’s final say by cutting or abolishing its seats in parliament, or that would introduce something close to the federal structure the minorities want, would be even more repugnant to it. So it may be that the constitution is fundamentally unchanged ahead of next year’s election. That would leave Miss Suu Kyi and the NLD facing another difficult choice between boycotting it, and marginalising themselves, or competing, and lending legitimacy to a flawed process. It would also embarrass the countries that have rushed to embrace Myanmar’s reforms with the lifting of sanctions, lavish grants of aid and premature congratulations on its democratisation. Dig deeper: Aung San Suu Kyi's road to the presidency grows longer and more winding (http://www.economist.com/news/asia/21595920-aung-san-suu-kyis-roadpresidency-grows-longer-and-more-winding-not-so-fast?fsrc=explainsdig) (February 2014) Doing business on the final frontier in Myanmar (http://www.economist.com/news/asia/21592658-optimism-about-businessprospects-final-frontier-may-be-overblown-reality-check?fsrc=explainsdig) (January 2014) https://www.economist.com/blogs/economist-explains/2014/03/economist-explains-3

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