Author: Quintus Lim, The London Globalist Frequent Contributor

Firstly, is it Burma or Myanmar? Leaders of the Tatmadaw, Myanmar’s armed forces, changed the name from “Burma” to “Myanmar” in 1989. This change was accepted by some, such as the UN, France and Japan. Others, such as USA and the UK, rejected it, questioning the legitimacy of the unelected military regime to change the official name of the country[1]. I will use the name “Myanmar” in this essay, not to demonstrate political opinion or solicit controversy, but simply to avoid confusion with the term “Burman”, which is Myanmar’s majority ethnicity.

Myanmar took the international spotlight during its General Elections (GE), held on 8^th November 2015. The National League for Democracy (NLD), led by Nobel peace laureate Aung San Suu Kyi, won 78.3% (390 out of 498)[2] of the contested seats in the Pyidaungsu Hluttaw, Myanmar’s bicameral Houses of Parliament, in what will probably go down in Myanmar’s history as the landslide election which paved the way for Myanmar’s democratisation. (The previous landslide in GE1990 was overturned by the Tatmadaw.) The overwhelming NLD victory heralded a momentous step forward for human rights development in Myanmar. However, this is merely one step in a marathon, and since then, media hype has all but extinguished, and the world’s attention turned elsewhere.

This essay seeks to highlight the human rights issues behind interethnic conflicts – focusing mainly on the Rohingya Muslims – in Myanmar. It discusses the political obstacles, both democratic and undemocratic, domestic and regional, which may hinder their progress. The aim of this essay is to warn against complacency: democratisation alone will not solve the Rohingya problem. Rather, given that Myanmar is democratising, active and sustained efforts to promote universal human rights for its minorities need to be undertaken more than ever.

Part I – The Rohingya

Interethnic conflict still bears primacy in Myanmar, despite its democratisation. Most prominent is the conflict between Buddhists and Rohingya Muslims in the Rakhine State. To date, over 146,000 Rohingyas have been displaced from their homes, living destitute lives in camps[3]. Tens of thousands have fled on overcrowded boats[4]. Moreover, one has not seen refugees returning to Myanmar since its democratisation; if anything, more are leaving every day[5].

Rohingyas remained deprived of nationality due to the 1982 Citizenship Act, which was introduced by the junta, adjudging that minorities must prove their ancestors lived in Myanmar before the British invasion to be considered citizens[6]. This stringent law sees a low success rate, heavily restricting Rohingyas’ movement, marriage, reproduction, and access to education and employment[7]. Furthermore, in June 2015, Myanmar’s Constitutional Tribunal disenfranchised all 666,831 temporary card holders in the Rakhine state, most of whom are Rohingyas[8]. Rohingyas are now dismissed by both the federal and Rakhine state government as “foreign Bengalis”[9].

Coupled with pressure from ultra-nationalist Buddhist movements, Ma Ba Tha and 969, not a single Muslim candidate appeared on ballots for the incumbent Union Solidarity and Development Party (USDP) and the NLD, the 2 biggest political parties in Myanmar. This is despite the fact that Rohingyas constitute at least 5% of Myanmar’s 51-million population. “Aung San Suu Kyi said I have to go to the country and persuade the Islamic people (to vote for the NLD)…but she doesn’t want me to apply as a candidate,” said Win Mya Mya, a Muslim NLD member[10]. This reflects the harsh reality of Rohingyas’ oppression; their political participation is not just lacking, but actively resisted.

Part II – The Democratic System

The belief that democratisation will eventually and automatically guarantee the human rights and suffrage of the Rohingyas is misplaced. Democracy can plausibly hinder progress as well, particularly given Myanmar’s First-Past-the-Post electoral system. The NLD captured a 78.3% legislative majority, but its actual vote share is probably much lower. Westminster systems typically exhibit disproportionality, where parliamentary composition is unrepresentative of voting patterns. For example, in the UK’s GE2015, the Conservative Party won 50.9% of the seats in the House of Commons, with only 36.9% of votes, while the Scottish National Party won 8.62% of the seats with a much lower vote share of only 4.7%[11]. If we accept this disproportionality, we then have to accept that the NLD is disproportionately over-represented in Myanmar’s bicameral parliament, the Pyidaungsu Hluttaw[12]. Conversely, we also have to accept that Myanmar’s many ethnic minorities are disproportionately under-represented. With the systemic under-representation of ethnic minorities in the legislature, Rohingyas’ interests are likely to remain suppressed by the tyranny of the majority, this being a result of the electoral system itself[13].

Proponents of democracy may counter that Rohingyas’ lack of representation in parliament does not mean their fundamental rights will not be protected, this being the key tenet of democracy. Given that the NLD is a defender of democracy, surely it will be able to effect change? And surely this change will protect the Rohingyas?

Effecting change, however, presupposes universal suffrage, mature democratic values and strong institutions, all of which Myanmar lacks; the NLD is less powerful than one may think. I address the weaknesses in all 3 branches of Myanmar’s government:

The Judiciary

The rule of law is weak in Myanmar. Supreme Court judges are appointed by the President, completely unchallenged by both Houses. Presidents can also constitutionally remove judges’ powers in a state of emergency, granting judicial power to the Commander-in-Chief of the Defence Services[14], currently Senior General Min Aung Hlaing. Aside from a lack of judicial independence, the United Nations Development Programme published a report on the rule of law and access to justice in Myanmar. The report cited 3 main shortcomings:

• Laws are published in local newspapers, but are not made available electronically.
• Lack of data on the court system impedes understanding about the access to justice by disadvantaged groups.
• Apart from legal representation being made available to criminal defendants in cases punishable with the death penalty, there is no provision for state sponsored legal aid[15].

The lack of independence in/access to justice weakens the rule of law in Myanmar. The current legal system may thus be unreliable human rights protections.

The Legislature

In the Pyidaungsu Hluttaw, the vestiges of the previous military administration wield significant power. 25% of legislative seats must be allocated to serving members of the military. Rather than elected popularly, like the rest of their colleagues, military parliamentarians are chosen by the Commander-in-Chief. Furthermore, Article 436(b) of the Constitution states that the Constitution itself can be “amended only by a vote of more than seventy-five percent of all the representatives of the Pyidaungsu Hluttaw”[16]. This effectively grants military parliamentarians de facto veto power over constitutional amendments[17]. This military veto power was actualised in June 2015 when the proposed constitutional amendment bill to amend Articles 59, 60 (pre-requisites for Presidential candidates), 418(b) (concerning the state of emergency) and 436 was rejected[18]. Lastly, Presidents can constitutionally remove the legislature’s power in a state of emergency[19]. It can thus be seen that even in the sphere of government where the NLD commands the most influence, it is still limited heavily in some areas – it cannot amend the Constitution.

The Executive

Ms. Suu Kyi is constitutionally barred from running for President due to Article 59(f): the President and (Vice-Presidents) “shall he himself, one of the parents, the spouse, one of the legitimate children or their spouses…not be subject of a foreign power or citizen of a foreign country”[20]. Furthermore, under the Constitution, the Minister of Defence, Minister of Border Security and Minister of Home Affairs are appointed by the Commander-in-Chief[21]. Effectively, the police, armed forces and security services are under the command of the Commander-in-Chief, not the government. Thus, the (current) head of the NLD cannot be the Head of State; executive power in Myanmar is thus monopolised by the Tatmadaw, not the government. This restricts the capabilities of the NLD to enforce new laws. The handicap in all 3 branches of government, due to weak institutions, casts serious doubt on the NLD’s ability to effect change[22].

Part III – The Military

Myanmar’s recent democratisation alone cannot solve these problems. This is because in Myanmar’s previous landslide election in 1990, the junta, acting through the State Law and Order Restoration Council, overturned the result[23]. This was followed by 2 decades of military oppression, where the NLD was barred from contesting elections[24]. Ms. Suu Kyi herself understands this precarious power relation, and is treading very cautiously[25]. This is seen, for example, by her choice to enter Parliament through a side door, on the first sitting of Parliament after GE2015[26]. Similarly, the NLD has generally avoided ostentatious celebrations, immediately calling for “national reconciliation” after its election victory. Ms. Suu Kyi has also been privately negotiating deals with elites which do not overly antagonise the military, fearing military backlash[27]. Given the Tatmadaw’s monopoly on executive power, and the very genuine threat of a military coup, changes introduced by the NLD through the democratic process have to be tempered and moderate, so as not to overly threaten the military’s power. Thus, establishing a comprehensive rule of law in Myanmar which universally defends human rights will be a very protracted process.

But how is this related to the Rohingyas, and why would the Tatmadaw want to prevent their political participation? Outright racism aside, recognising the Rohingyas as citizens of Myanmar would create a huge backlash from Rakhine Buddhists, which have seen religious conflict with the Rohingyas over many years. Given that 89% of Myanmar’s population is Buddhist[28], granting citizenship and political rights to Rohingyas may create nationwide instability, which every group, no matter how dictatorial, wishes to avoid.

Part IV – The Electorate & the NLD

One may question how a diminutive 5% minority religion can even be considered a threat to the 89% majority. The answer is that the socio-political zeitgeist in Myanmar overrides its demographics. The dynamics of the Rohingya-Buddhist conflict are understood very differently in Myanmar, compared to outsiders’ perspectives. For example, when three Nobel peace laureates described the Rohingyas’ persecution as “nothing less than genocide” in May 2015[29], the Ethnic Rakhine Affairs Minister for the Yangon Region, U Zaw Aye Maung, retorted that if genocide was taking place in the Rakhine State, it was against ethnic Rakhine Buddhists[30]. Schissler, Walton and Thi (2015) characterised this power dynamic succinctly on in their essay “The Roots of Religious Conflict in Myanmar” on The Diplomat:

Such a statement is not simple intransigence in the face of external criticism. It illustrates a conception of victim and violator that is diametrically opposed to the one made visible in international discourse. In Myanmar’s domestic context, such a conception is closer to the norm than otherwise. Other state authorities use similar rhetoric. Daw Aung San Suu Kyi, meanwhile, told the BBC in October 2013, “Fear is not just on the side of the Muslims, but on the side of the Buddhists as well. There’s a perception that Muslim power, global Muslim power, is very great.”[31]

By definition, religious conflict requires violence from both sides. Thus, perhaps the Rohingya are not as defenseless (and the majority not as invincible) as portrayed by the media. I do not seek to diminish the Rohingyas’ suffering, which I am sure has been excessive. However, accounting for ground sentiments makes it marginally more understandable why the electorate and the NLD itself has demonstrated little sympathy for the Rohingyas’ cause, even if their discrimination is nonetheless unjustified. U Win Htein, an NLD leader, said of the Rohingyas, “We have other priorities…Peace, the peaceful transition of power, economic development and constitutional reform…we have to deal with the Bangladesh government because almost all of them came from there”[32]. Peace, a far more politically salient goal, overrides Rohingyas’ rights. Given the ostensible lack of political will, democracy cannot be expected to automatically alleviate the Rohingyas’ plight.

Part V – The Region

Rohingyas also cannot turn to neighbouring countries for help; refugees are labelled by ASEAN states as “irregular migrants,” i.e. victims of smuggling and trafficking, rather than of state persecution. ASEAN states also abide by the principle of non-interference in members’ domestic affairs. This hinders the establishment of supranational frameworks aimed at addressing transnational challenges[33], allowing neighbouring ASEAN states to avoid their obligations under international human rights laws to take in the boat people. For example, the policy outcomes of the 2002 Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime were largely seen as insufficient[34]. The Rohingya are constructed in terms of national or economic security, rather than ‘human’ security[35]. This is illustrated by the game “human ping-pong” played out in Southeast Asia: Malaysia deflected boats towards Indonesia, which subsequently turned them back to Malaysia. Only after tedious bargaining have both countries pledged to hold 7,000 Rohingyas each, for up to a year. Following this, they expect the Rohingyas to be resettled elsewhere, with assistance from the international community[36]. The game of “ping-pong” has shifted from sea to land, and taken a slower pace. But it is still being played, nonetheless. Embarrassingly, the 3 ASEAN signatories of the 1951 Refugee Convention – Cambodia, the Philippines and Timor-Leste – have taken in a total of 334 refugees only, as of June 2015[37]. Regional politics refuses to provide a solution, which only worsens matters.

Conclusion

The pre-requisite for progress, through democracy, is political will. But this will is lacking both domestically and regionally. Even if we ignore all its current shortcomings, the democratic system alone will not solve Myanmar’s humanitarian issues; they may even legitimise them, exacerbating matters. However, this is not an argument against democracy. It is, rather, an acknowledgement of the weaknesses of democracy, for all its virtue, and a warning against complacency. Democracy cannot be expected to somehow protect the disenfranchised automatically, as seen historically with slavery. It must be supported by active citizenship. What democracy entails is, simply, what the people of Myanmar make of it. The Rohingya crisis is a deep and difficult structural issue, exposing the ethnic fault lines permeating society and political ideology. A sustained commitment, by politicians, human rights organisations and civil society, is required to solve it in the long-run. If Myanmar’s politicians and society choose to rest on their laurels, their victory would have defeated them. If they actively choose to ignore the Rohingyas’ plight, then Myanmar’s democracy is nothing but a hypocrisy. The short-term victory for democracy should not blind us to the long-term goals of universal human rights in Myanmar. The media has stopped reporting, but the tremendous work democracy needs to do has only just begun.

Bibliography

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[1]) BBC, (2007). Should it be Burma or Myanmar?

Other countries which have changed their names include Iran (Persia), Burkina Faso (Upper Volta) and Cambodia (Kampuchea). Curiously, the US and the UK etc. have accepted these name changes, although none of these regimes were/are legitimate in the democratic sense.

[2]) BBC, (2016). Has Aung San Suu Kyi’ picked Myanmar’s president?

[3]) UNHCR, (2015). 2015 UNHCR country operations profile – Myanmar

[4]) Burmese Rohingya Organisation UK, (2016). Is Myanmar’s transition to democracy tainted by the persecution of Rohingya Muslims? Inside Story -Al Jazeera

[5]) The Diplomat, (2015). Myanmar’s Refugee Problem: It’s Not Just the Rohingya

[6]) VOA, (2015). Myanmar Slams UN Officials For Using Term ‘Rohingya’

[7]) Burmese Rohingya Organisation UK

[8]) Myanmar Times, (2015). Former white-card holders cut from Rakhine voter lists

[9]) The Economist, (2015). Exile Island

[10]) The Guardian, (2015). No votes, no candidates: Myanmar’s Muslims barred from their own election

[11]) BBC, (2015). Results

[12]) I acknowledge that this disproportionality can also go the other way, i.e. the vote share is disproportionately higher than the share of seats in the legislature. E.g. in Malaysia’s 2013 General Elections, the opposition coalition Pakatan Rakyat obtained 50.9% of the vote, but only 40.1% of legislative seats. However, in the NLD’s case, where the share of seats in the legislature is already very high at 78.3%, intuitively, one would assume its vote share was lower than that, rather than equal to or higher. The actual vote share of each party in Myanmar’s 2015 General Election was not released.

[13]) Constitutional Design for Divided Societies (Lijphart 2004), Journal of Democracy.

For further recommendations on electoral systems compatible with ethnic diversity, see “Constitutional Design: Proposals versus Processes”, Horowitz (2002); “Electoral Systems for Divided Societies” Reilly (2002); “Measuring Ethnic Voting: Do Proportional Electoral Laws Politicise Ethnicity?” Huber (2012); “Divided We Stand: Institutional Sources of Ethnofederal State Survival and Collapse” Hale (2004)

[14]) Constitution of the Republic of the Union of Myanmar, (2008)

[15]) UNDP, (2015). Rule of Law and Access to Justice in Myanmar (2013 – 2015)

[16]) Constitution of the Republic of the Union of Myanmar, (2008)

[17]) The Wall Street Journal, (2016). Myanmar’s Military Resists Push to Install Suu Kyi, 8^th February 2016

[18]) The Diplomat, (2015). Constitutional Reform Fails in Myanmar Ahead of Polls

[19]) Constitution of the Republic of the Union of Myanmar, (2008)

[20]) Constitution of the Republic of the Union of Myanmar, (2008)

Some NLD members have contentiously suggested suspending Article 59(f), which only requires 50% legislative approval, rather than amending it, which requires above 75% approval. Military parliamentarians have opposed any moves for suspension, decreeing that such moves would not be in accord with the Constitution.

[21]) Constitution of the Republic of the Union of Myanmar, (2008)

[22]) Examples of (attempted) democratisation without support of strong democratic institutions are seen in the 2011 Arab Spring. According to Polity IV, the statistics are dismal: Tunisia is the only country which successfully democratised fully, and even so, the situation remains highly unstable.

[23]) Channel News Asia, (2016). Aung San Suu Kyi meets Myanmar army chief as power transition looms

[24]) Tonkin, (2004). The 1990 Elections in Myanmar (Burma)

[25]) Channel News Asia, (2016). Aung San Suu Kyi urges patience of Myanmar presidency decision

[26]) Myanmar Times, (2016). Day 1: NLD takes its parliamentary seats

[27]) Channel News Asia, (2016). Myanmar army chief to get five year extension as talks with Suu Kyi continue – media

E.g. it was recently announced that Commander-in-Chief Min Aung Hlaing and Deputy Soe Win would extend their terms for another 5 years, despite General Min being 60 years old this year (the retirement age for military generals).

[28]) index mundi, (2015). Burma Demographics Profile 2014

[29]) The Guardian, (2015). Burma reject ‘unbalanced’ Rohingya remarks by Nobel prize winners

[30]) Reuters, (2015). Myanmar says persecution not the cause of migrant crisis

[31]) The Diplomat, (2015). The Roots of Religious Conflict in Myanmar

[32]) Telegraph, (2015). Aung San Suu Kyi aide: Rohingya are not our priority

[33]) The Diplomat, (2015). The Roots of Religious Conflict in Myanmar

[34]) Douglas et. al, (2012). Combating Migrant Smuggling with Regional Diplomacy: An Examination of the Bali Process

[35]) The Diplomat, (2015). The Labelling Problem in Southeast Asia’s Refugee Crisis

[36]) The Diplomat, (2015). Towards A Real Solution to Southeast Asia’s Refugee Crisis

[37]) UNHCR, (2015). 2015 UNHCR subregional operations profile – South-East Asia.