Towards "Emergent Federalism" in Post-coup Myanmar.

• Author: South, Ashley

As a result of the COVID-19 pandemic and the 1 February 2021 coup, Myanmar is facing extraordinary human rights, political and socioeconomic crises. At this critical juncture, it is worth re-visiting and re-imagining the type of country Myanmar could be. Federalism has long been considered as the solution to the country's protracted state--society and centre-periphery conflicts and to enable ethnic minority communities to achieve self-determination. However, discussions about federalism are often framed in terms of revising or replacing the 2008 Constitution in a top-down manner. While constitutional change is necessary, federalism can also be seen as an "emergent" phenomenon, developing from the "bottom-up" out of the existing structures and practices of the ethnic minority communities and the Ethnic Armed Organizations (EAOs). Several EAOs have long-established governance regimes in their areas of control or influence, delivering a range of essential and life-saving public services to their communities. These local frameworks of public administration and services provision can serve as important building blocks of a bottom-up federalism, especially given the collapse of a credible and legitimate Myanmar state. As such, EAOs should be supported to develop their governance and services delivery systems. Arguably, the present multiple crises in Myanmar offers the closest approximation since the 1947 Panglong Conference of the idea that a federal union should emerge out of agreements among sovereign states, i.e. that state formation (and sovereignty) must precede a federal constitutional settlement.

Keywords: Myanmar, Burma, federalism, armed conflict, governance.

Recent debates have questioned whether Myanmar is a "failed state", and/or whether this concept is even relevant for a country like Myanmar. (1) Myanmar has never achieved credibility as a state that citizens in ethnic nationality and conflict-affected areas can positively identify with. Myanmar was a failed nation before it was a failed state. As David Steinberg has recently pointed out, since independence, political leaders have failed to foster a common sense of belonging among Myanmar's various ethnic groups, especially between the elites from the Burman majority and the ethnic communities which constitute over one third of the 55 million-strong population. (2)

Nearly all Myanmar's ethnic politicians are in accord about achieving "genuine federalism", which has long been regarded as a solution to the country's state-society and centre-periphery tensions. However, there has been relatively little discussion of what federalism entails, and how to achieve it. In large part inside the country, such ideas were suppressed until the military rule ended in 2010. In the meantime, ideas and frameworks for federalism were kept alive in opposition circles, particularly among the Ethnic Armed Organizations (EAOs) in the 1990s and 2000s. For instance, in the 1990s the National Council of the Union of Burma (NCUB)--an opposition body made up of EAO representatives and exiled politicians--oversaw the development of a series of statelevel constitutions for a future federal union. Many of the charters were designed with the help of civil society organizations (CSOs). (3)

Federalism is a means to an end. In the case of Myanmar, the end is self-determination and justice in the context of a violent and predatory state which has long suppressed ethnic autonomy through protracted armed conflict. Federalism, with its emotional-symbolic weight and potential value as a conflict resolution (or at least conflict management) tool, may be an idea whose time has come once again.

As Milton Friedman observed, "Only a crisis - actual or perceived - produces real change. When that crisis occurs, the actions that are taken depend on the ideas that are lying around." (4) Over the past two years, Myanmar has experienced two massive crises: the COVID-19 pandemic, which was followed, and exacerbated by, the February 2021 military coup. These disruptive junctures are likely to be aggravated by the impacts of climate change. (5) The triple crises have introduced a political landscape in which it is possible to think about federalism in new and creative ways to bring about "real change". For instance, some of the larger and longere-stablished EAOs are in the process of establishing themselves as micro-states that are effectively independent of the Union in many, and politically significant, ways. These developments suggest that the building blocks of a flexible and asymmetrical federalism--with different arrangements in different areas, reflecting the complexity of the situation on the ground--is emerging from the present crises. It remains to be seen whether political elites from the Burman majority community, including politicians from the National Unity Government (NUG), will partner with these ethnic groups to encourage this emergent, bottom-up federalism.

This article begins with an overview of conceptual and historical discussions regarding the nature and significance of federalism in Myanmar, and how this relates to previous attempts to achieve peace in the country. It proceeds to examine different models of federalism, focusing on the concept of "emergent" federalism, built on the existing governance administration and services delivered by some of the country's major EAOs.

Federalism: A Tool for Nation-building?

Like peace, federalism means different things to different people. Technically, federalism refers to a system of government involving mixed sovereignty, (6) in the sense that power and authority is divided and shared between a central federal (union) and provincial (state/region) governments. (7)

Federalism has long been seen by the political leaders of Myanmar's ethnic minority groups as a potentially powerful tool for achieving self-determination. The concept and practice of federalism is related to consociational (elite-pact) approaches to political settlement in multi-ethnic countries. (8) Related but distinct concepts include "decentralization" and "regional autonomy". (9) The latter is a form of decentralization sometimes used when particular groups are concentrated in a specific geographic area, which allows demands for political and cultural autonomy to be more easily accommodated. Regional autonomy can be granted without a federal constitution. Regional autonomy has been de facto introduced in certain parts of Myanmar through the designation of "special regions", especially since the ceasefires of the late 1980s. (10) While critics may point out that the Special Regions under the State Law and Order Restoration Council (SLORC) and State Peace and Development Council (SPDC) military regimes enjoyed little real autonomy, the leaders of the Pa-0 National Organization (PNO) have pointed to the increase in the local delivery (even if partial) of services and development projects in their areas, following their 1994 ceasefire agreement with the junta.

For many conflict-affected communities, federalism is primarily valued as a way to achieve political settlement and prevent the continuation of armed conflict. For ethnic elites, the notion of federalism usually has a stronger attraction than decentralization or regional autonomy, since it putatively involves a fundamental restructuring of Myanmar's legal-constitutional framework. Ultimately, the calls for federalism from Myanmar's ethnic groups come from their deep-seated experience of inequality vis-a-vis the majority Burman community. In contrast, Burman political (and particularly military) elites have historically been very wary of federalism. For example, the military coup of March 1962 was justified by General Ne Win as a way to prevent an imminent disintegration of Burma's national unity brought about by the civilian government's introduction of a federalist system.

Typically, federalism is achieved either through a "federating process", in which (at least nominally) independent units are consolidated into one singular political entity, or through a "federalizing process", in which the central authority of a political unit grants constitutional autonomy to its local or regional constituent parts. (11) The latter can also be described in terms of a process of radical decentralization. The key element of the federating process is that the individual constituent units are regarded as sovereign, (12) as is the case of the 13 North American colonies that formed a federal union in 1789 or when the German Empire was created in 1871. More uncommon is the federalization, or radical decentralization, of a pre-existing "unitary" state. Recent examples would include devolution in the United Kingdom (UK) and the adoption of a nominal form of federalism in Spain.

There are thus many forms of federalism and different ways of getting there. The February 1947 Panglong Conference can be seen as a "federating moment" for Myanmar, in which leaders from the Shan, Chin and Kachin communities agreed to form an independent union with Ministerial Burma after independence from Britain. Whether this is how the Panglong Agreement was understood at the time by Burma's independence leader General Aung San and the other participants is questionable, as shall be discussed later. (13) Moreover, while the 1947 Constitution of the Union of Burma was federalist in appearance, the arrangement was one of centralization in practice, not least because the federal government retained budgetary control over the ethnic states. In some sense, Burma followed the model of the UK--recognizing the existence of sub-nations within the sovereign territorial state, but with power firmly entrenched in the capital.

More than half a century after the Panglong Agreement, it now seems that advancing federalism in Myanmar instead requires a "federalizing" process, whereby the constitutional framework has to be re-negotiated to create something approaching...