Constrained democracy

When Myanmar's new president, Htin Kyaw, was inaugurated on 30 March this year, it was a moment of celebration for the people of Myanmar, and those of us around the world who have supported their struggle for freedom. For the first time in over half a century, Myanmar has a civilian, democratic president with a clear mandate from the people.

When, a few days later, the new government created a new post, that of "State Counsellor", with powers similar to that of a prime minister, and appointed the leader of Myanmar's democracy movement, Nobel Peace Prize Laureate Aung San Suu Kyi, who more than anyone else has come to symbolise her country's struggle, it was as close as it is possible to get within the country's flawed constitution to the realisation of a dream many thought we might never see. The woman who had spent over 15 years under house arrest is now running the government.

The path to this point began in August 2011, when Myanmar's president at the time, Thein Sein, met Aung San Suu Kyi. Nine months earlier, the country held its first elections in 20 years, which were widely regarded as a sham. Suu Kyi remained under house arrest and her party, the National League for Democracy (NLD), boycotted the election and there were widespread reports of harassment, intimidation and vote rigging.

The military's party, the Union Solidarity and Development Party (USDP), formed a new government, but in effect it was simply a change of clothing, with generals swapping uniforms for suits and military rank for ministerial titles. Within days of the results, Suu Kyi was released, but for months the regime ignored her and it looked as if nothing would change. Then, one day in August 2011, Thein Sein surprised us all.

That meeting was followed by the release of hundreds of political prisoners, relaxation of the clampdown on the media and civil society and the negotiation of ceasefires with many of the country's ethnic nationalities who had been fighting a civil war for political autonomy for decades. It was not, however, by any means a smooth path, with periods of crackdown and accusations that the reform process had stalled, and an intensification in the military's war against one particular ethnic group, the Kachin in northern Myanmar. A shocking wave of violence against Muslims broke out, fuelled by a deeply unpleasant strain of extreme Buddhist nationalism. This began and was at its worst in Rakhine State, where the Muslim Rohingya population, one of the most persecuted minorities in the world, was subjected to pogroms in 2012. But it spread throughout the country, to Meikhtila, Lashio, Oakkan and Mandalay, and threatened to derail the prospects for democratisation. Widely suspected of being supported by elements of the military and the USDP for political purposes, the religious nationalist movement, in the form first of a group known as '969' and then 'Ma Ba Tha' – which translates as the Committee for the Protection of Race and Religion – appeared to change tactics, moving away from direct violence to more insidious tactics: hate speech, and the use of discriminatory legislation. In August 2015, the parliament passed a package of laws, put forward by the government at Ma Ba Tha's instigation, known as the 'Protection of Race and Religion Laws', which include restrictions on religious conversion and inter-religious marriage. The dark storm clouds of religious hatred and intolerance continue to loom over Myanmar today.

That Myanmar has changed is not in doubt. That Myanmar's military accepted the results of last November's elections, given all they had done to try to stay in power, was a surprise. The NLD won 86 percent of the seats in the national parliament, ending over half a century of military rule. And while the military-drafted 2008 constitution explicitly bars Aung San Suu Kyi – whose British husband Michael Aris died in 1999, and whose sons retain British citizenship – from becoming President, through Article 59F, which states that no one with a spouse or children who are citizens of a foreign country is eligible for the presidency, the military was unable to prevent the creation of the 'State Counsellor' position, a clever and creative way around the problem.   

And yet, it is not nearly as simple as that. The military are not naive, and they planned for this eventuality carefully and with foresight. The 2008 constitution gives the military very significant powers in a so-called democratic system: a quarter of the parliamentary seats are reserved for the army, for a start. Immunity from prosecution for past crimes is enshrined in Article 445 of the constitution, which says that "no proceeding shall be instituted against the said [previously ruling] Councils or any member thereof or any member of the Government, in respect of any act done in the execution of their respective duties". Theoretically, soldiers could be punished for violence committed outside the "execution of duty" but that too is unlikely given the military's resistance to it and political constraints on Suu Kyi.  Legislation introduced in Parliament in the final months of the previous regime – former president's Security Bill – further ensures that the former president is "immune from any prosecution for his actions during his term."  Of course, the ethnic armed resistance organisations enjoy no such protection. Furthermore, three key ministries – home affairs, border affairs and defence – are controlled by the military, the ministers appointed by the Commander-in-Chief. One of the two vice-presidents is a military nominee. And crucially, the constitution gives the military the right to seize power in the event of a "state of emergency". The transition to genuine democracy in Myanmar is thus still only in its infancy, and remains very fragile. The new government faces a host of challenges, not least on the one hand addressing the causes of conflict, human rights abuses and poverty, while avoiding anything that would give the military the pretext to 'constitutionally' seize power again.

That last point lies at the heart of Aung San Suu Kyi's current approach. She has been repeatedly criticised by many in the international community for her perceived failure to show moral leadership over the past five years, on some of Myanmar's key human-rights issues: the plight of the Rohingya, the war against the Kachin, the repression of protestors against the Letpadaung copper mine, to name just three. Accusations of silence are somewhat undeserved, in that she has on occasions spoken up against violence, and in a BBC interview immediately after the elections in November 2015, she said that "hatred has no place" in the country and that her government would protect minorities and bring to justice those who incite hatred or violence. The announcement in May 2016 that she would lead a new initiative to secure peace in Rakhine State, and her advocacy of a nationwide peace conference, are welcome initiatives.

In 2013, Suu Kyi spoke of how "fond" she is of the Myanmar Army. A strange comment, one might think, from a woman who was kept under house arrest, separated from her husband and sons, for so many years by that army, and whose electoral victory in 1990 went unrecognised by the army for a quarter of a century. Yet there are two ways to understand her comment. The first is her well-known devotion to her father, Aung San, founder of Myanmar's army and father of the nation's independence movement during British colonial rule. Although he was assassinated when she was only two years old, her adulation of him and the sense of destiny she feels as his daughter is well documented. The second, however, is a pragmatic sentiment: her knowledge that if she is ever going to be able to persuade the military to cede power, as – up to a point now – she appears to have done, she needs to be able to reassure them that she won't threaten their core interests. She has repeatedly and publicly given the military the assurance suggesting that there will be no reprisals against them, no recrimination, and no prosecution. "We are not going in for vengeance, and we are not going in for a series of Nurembergs," she told one reporter, according to the New York Times.

There have been occasions, however, when she could be accused of a compromise too far. When the NLD chose not to put forward a single Muslim candidate, leading to a situation where for the first time in Myanmar's history there is no Muslim in the parliament, many would argue that this was a step too far. Others would say it was a necessary temporary step, however distasteful, because the USDP and Ma Ba Tha were looking for any occasion to play with religious nationalist sentiments and cast Suu Kyi as a threat to Buddhist nationalism – and so to win, something many had sacrificed their very lives to achieve, they had to make some temporary, even immoral, compromises. Similarly, the new government's request to foreign embassies in Myanmar in May 2016 to desist from using the term "Rohingyas" to describe the Muslim population in Rakhine State was seen by many as an unpalatable step of collusion with racists. Her justification was that such an "emotive" term would make the situation more difficult.

So how to balance principle and pragmatism, particularly in addressing the country's human-rights violations and moving towards what she terms "national reconciliation"?

The truth cannot be ignored. Former political prisoners live with the trauma and scars of torture. Their families have suffered years of torment. Upon release, they face the challenge of rebuilding their shattered lives and earning a living. Recognition of the wrongs done to them, and some recompense to help them rehabilitate would be only right. Lifting all previous charges, removing their so-called "criminal" record, repealing any remaining conditions that may have been attached to their release and ensuring that they receive assistance to find work without discrimination or stigma would be steps in the right direction. Amending or repealing all unjust laws that led to their imprisonment would be vital. Amnesty International's report 'New Expression Meets Old Repression' provides a insightful guide to the laws in need of review. Releasing all remaining political prisoners should be a priority. As Suu Kyi has said, "there should be no political prisoners in a democratic country."

In the ethnic states, for decades the military has perpetrated grave human-rights abuses which could constitute war crimes and crimes against humanity. Rape as a weapon of war, forced labour, the destruction of villages, torture and killing of civilians, the use of human minesweepers, the displacement of thousands of people, all on a widespread and systematic level. For the hundreds of women who have been gang-raped and tortured and have survived, or for the thousands of children forcibly recruited into the army recognition of the wrongs done might help towards reconciliation.

In Rakhine State, several international experts, not least legal researchers at the Allen K Lowenstein International Human Rights Clinic at Yale Law School, the International State Crime Initiative at Queen Mary University of London and the former UN Special Rapporteur on Human Rights in Myanmar Tomas Ojea Quintana believe that there is "strong evidence" of potential genocide. Human Rights Watch has called the campaign against the Rohingya as "ethnic cleansing" and "crimes against humanity".

Myanmar's Cardinal Charles Maung Bo has said that the persecution of the Rohingya is "an appalling scar on the conscience of my country," describing them as "among the most marginalised, dehumanised and persecuted people in the world. They are treated worse than animals. Stripped of their citizenship, rejected by neighbouring countries, they are rendered stateless. No human being deserves to be treated this way. Without [a solution], the prospects for genuine peace and true freedom for my country will be denied, for no-one can sleep easy at night knowing how one particular people group are dying simply due to their race and religion." It is, he adds, a crisis that is "intolerable – and one which cannot be allowed to remain unresolved". And as the current UN Special Rapporteur on Human Rights in Myanmar Yanghee Lee has said, "There are more than a million Rohingya Muslims in Burma deprived of some of their most fundamental rights. This is a million too many."

For a few years up until 2011, momentum grew behind calls on the United Nations (UN) to establish a Commission of Inquiry to investigate violations of international human-rights law in Myanmar, but the prospects came to a halt when the regime began its reform process and engaged with Suu Kyi. Without her support, the likelihood that the UN would proceed down any path of accountability for past crimes is almost nil, and unless something significant changes the prospects of her providing that support are equally nil. However, there are other options to be considered.

Provided it is made clear that it will not delve into recommending punitive measures for accountability, an independent investigation, with international experts involved, into the causes of the violence in Rakhine State might become a more realistic possibility. If it is presented as a constructive step forward, aimed at establishing the truth and providing practical recommendations for how to address the crisis, it could be perceived as an initiative helpful to the government. Addressing the crucial and thorny question of citizenship, in a just and fair way, must be a priority.

Similarly, over time, there may be a place for a truth and reconciliation process, similar to those in South Africa or East Timor. A process that focuses on recognition of the truth, some expression of remorse, but without any threat of punitive action, could be a helpful compromise between the principle of accountability and the pragmatism of keeping a young, fragile, nascent democracy together and contribute to the healing the nation desperately needs. Such a process, if it happened, should examine not only the appalling human-rights violations in the ethnic states and against religious minorities, but also the brutal crackdowns on pro-democracy protestors, notably in 1988, 1996 and 2007, as well as the violent assault on Suu Kyi and her supporters at Depayin in 2003.

Perhaps more immediately, there are some easier steps that could be taken to begin to improve the human rights situation in the country and build the fabric of a democratic society. Engaging with civil society is one step. Instead of viewing civil-society organisations as a threat to their interests, the new government should see them as essential to democratisation. One key step to illustrate this is to ensure that survelliance of activist's ends, and that civil society is no longer harassed by the Special Branch and military intelligence. As Lee states in her 2016 report, "civil society and human rights defenders play a vital role in democratic societies".

Moving forward with a political dialogue with the ethnic nationalities is another. A negotiated political settlement, which gives autonomy to ethnic states within a federal framework is the only way to conclude the legacy of armed conflict which has led to horrific human rights violations, including extra-judicial executions, torture, rape and displacement of thousands of people. While the limited ceasefires are a much needed respite from fighting ,a ceasefire alone does not guarantee lasting peace. The large military presence in the ethnic states remains a daily threat to peace, and sporadic fighting continues. Opening greater access for humanitarian agencies to those displaced in Kachin, northern Shan and Rakhine states is necessary. Tackling the drugs epidemic and human trafficking are other priorities.

And practical steps to promote inter-religious harmony and counter hatred should be considered. The new government should invite the UN Special Rapporteur on Freedom of Religion or Belief to visit the country. Perhaps an international conference on freedom of religion and inter-religious dialogue, under the auspices of the UN or the European Union, could be held in the country, bringing together international expertise and Burmese religious and civil-society voices to share ideas and experiences and to send a clear message to those who spread hate.

Despite these challenges there is hope. Even though there were calls for protest by militant Buddhist nationalists, Henry Van Thio, a Chin Christian, was nominated and successfully elected as one of the Vice-Presidents. This is a noteworthy step forward for a multi-religious, multi-ethnic Myanmar. It is the first time a non-Burman and a non-Buddhist has held such high office in decades.

In all of this, the message for the world is that the election of a new, democratic-led, civilian government is not the end of the story; it is just the opening of a significant new chapter in Myanmar's continuing struggle for freedom and democracy. The two most powerful blocs in Myanmar – the men in green, the military, and the men in saffron, the Buddhist 'Sangha' – continue to be close to the levers of power. The task for the new government will be maintaining a workable relation with both these groups, while beginning the hard work of delivering change. The voters have tasked the NLD government with the responsibility to "bring about change". The fulfilment of this mandate to deliver will only be possible with a careful balance of patience and advice.

~ Benedict Rogers is a human rights activist. He is the East Asia Team Leader at the human rights organisation Christian Solidarity Worldwide, and is the author of six books, including Burma: A Nation at the Crossroads (2012, Random House) and Than Shwe: Unmasking Burma's Tyrant (2010, Silkworm). He is a regular contributor to The Wall Street Journal, New York Times and Huffington Post. He is co-founder and deputy chairman of the Conservative Party Human Rights Commission.