Almost 70 years since the first agreement, the 21st Century Panglong conference comes in the wake of shifting government policies on the recognition of ethnic claims. The debate is no longer about secession, although many ethnic groups still demand greater recognition. In considering a way forward, any constitutional proposal as a result of the peace process needs to evaluate the forms of recognition inherent in the 2008 Constitution.

First, the 2008 Constitution retains ethnic-based States corresponding to the seven largest minority nationalities (Karen, Shan, Mon, Kachin, Kayah, Rakhine, Chin), and seven Regions that are majority Burman. Despite the appellation, both states and regions are the same level of government with the same powers. This division of power and territory was first fully crystalised by General Ne Win’s socialist regime in the 1974 Constitution. The recognition of these states and regions is therefore not self-evident, but should rather be seen as a relatively recent construct. In many ways, the linking of certain ethnic identities with territorial claims obscures more than it explains, particularly as ethnic demographics do not map neatly onto state boundaries.

At any rate, the legal and de facto centralization and concentration of power in the Union government under the 2008 Constitution means that the state and regional parliaments have little substantive power. There are no demands for changes to the territorial boundaries of the states and regions or for the creation of new states. There is demand for greater decentralization of power to the states and regions. For example, there have been calls to reform the presidential appointment of the head (chief minister) of the states and regions so that the head is chosen from among the elected representatives of the state/region parliament.

Second, the 2008 Constitution creates the new and unprecedented category of Self-Administered Zones and Divisions. This may have drawn inspiration from the original draft constitution proposed by Aung San and its ideas of differentiated ethnic recognition.  In the 1990s, this idea came to prominence in the drafting of what was to become the 2008 Constitution, at a time when the military regime was offering generous concessions to certain ethnic armed groups who were willing to enter into ceasefire agreements.  There was fierce debate over which ethnic groups would get such recognition. Only six of the 16 ethnic groups that applied were successful. Five of the six areas are in Shan State. Four of the six areas (Pa-o, Palaung, Wa and Kokang) were clearly part of concessions to ethnic armed groups who agreed to enter ceasefire agreements with the military.

How meaningful the new designation is remains debatable, but it may be difficult to take away such status now. Part of the original criteria to become a Zone or Division was based on population and township location, yet the current status is based on old census data. If the Zones were to be reconsidered once the 2014 census data on ethnicity is released, this may potentially lead to demands for the creation of new zones.

Third, the 2008 Constitution provides for Ministers for National Race Affairs at the state and region level if a population has more than 0.1 percent of the population in a state or region. The role and position of these Ministers is somewhat opaque and has been the subject of several constitutional challenges. Initially, the government was going to pay them less than other Ministers, but after a constitutional challenge, it was held that these Ministers are equal in status to other Ministers and should receive the same wage and benefits.

A second controversy arose over ethnic groups trying to assert their dominance in the state parliament. In a separate Constitutional Tribunal case, Kachin political leaders tried to argue these Ministerial positions should only be for the eight main ethnic groups. That is, they suggested groups such as the Lisu and Rawun are merely “sub-groups” of the Kachin, rather than distinct groups. This was a blatant attempt by the Kachin to assert their dominance over minority groups in their area by denying them representation in state parliament. The Constitutional Tribunal held that the Union Election Commission has responsibility on this issue, which effectively affirmed the right of the Lisu and Rawun to representation.

What all three forms of recognition have in common is that they reinforce the military’s idea of a set number of races, a rigid concept of identity and the recognition of a few to the denial of others. The figure of “135 races” is often mentioned, although this number has been hotly debated in recent years. Many ethnic groups have raised concerns that they have been wrongly categorized. Other groups are not even recognised at all.