7 January 2013

Establishing Peace in Kachin State: Time for Humanitarian Intervention?

Between 70,000 and 100,000 displaced civilian population in Kachin state are facing a severe humanitarian crisis as the conflict between the government troops and armed ethnic opposition group, Kachin Independence Army (KIA) escalates. Following the recent air strikes by the government, refugees in wartorn Kachin state are in desperate need of protection and assistance such as food, shelter and medications. There must be an immediate ceasefire in Kachin state and both the President U Thein Sein and opposition leader Daw Aung San Suu Kyi need to work together to bring peace to the region. Otherwise, the international community should begin to seek possible solutions through the United Nations Security Council such as imposing a No-Fly Zone and providing much needed humanitarian assistance to beleaguered refugees. It is deeply regretful that both the government led by President U Thein Sein and opposition leader Daw Aung San Suu Kyi fail to explore possible ways and means of facilitating peace to Kachin state in line with the 2008 Constitution. According to Section 353 of the 2008 Constitution1, not only the government has a duty to protect the people but also it must not be a detrimental to the life and personal freedom of the people. Therefore, escalating military campaigns against the Kachin Independence Army (KIA) which the Air Force indiscriminately shelling and attacking areas with the civilian population not only violates the 2008 Constitution but constitutes a possible Crimes against Humanity. Furthermore, the Union Government has executive power to preserve stability, peace and tranquillity in Kachin state. Therefore, it should initiate a peaceful and political solution to preserve peace in Kachin state by stopping its offensive against Kachin Independence Army (Section 219, The Executive Power of the Union Government).2 It is regretful and doubtful that President U Thein Sein fails to inform the Speaker of the Pyidaungsu Hluttaw (Union Assembly) to summon an emergency session or a special session of the Pyidaungsu Hluttaw with regards to the deteriorating situation in Kachin state (Section 211).3 As stated in the 2008 Constitution, executive power is shared between the government and the 11-member National Defence and Security Council (NDSC).4 Five members of the NDSC hold military positions, and

Ch. VII. Citizen, Fundamental Rights and Duties of the Citizens, 353: Nothing shall, except in accord with existing laws, be detrimental to the life and personal freedom of any person. 2 The Executive Power of the Union of Government, 219: The Union Government preserves stability of the union, community peace and tranquillity and prevalence of law and order. 3 Powers and Functions of the President, 211: The President may intimate the Speaker of the Pyidaungsu Hluttaw to summon an emergency or special session of the Pyidaungsu Hluttaw, if necessary. 4 Chapter V, Executive

other members of the council, except the Vice-President Sai Mauk Kham, are retired generals.5 Furthermore, specific powers and functions of the NDSC are not clearly defined in the constitution. Therefore, crucial information on how executive power is distributed between the Union Government and the NDSC, among the members of the NDSC and how decisions are made is not available to the public. However, since the President led the council and work in accordance with other members, President U Thein Sein is accountable together with other members of the council for war against KIA and the humanitarian catastrophe in Kachin state. Since the Executive Power is shared between the Union Government and the NDSC, both the government and the NDSC are accountable for devastations in Kachin state. On the other hand, opposition leader Daw Aung San Suu Kyi should take appropriate actions through the parliament to make peace in Kachin state. Daw Aung San Suu Kyi needs to work together with other representatives in order to request the Speaker of the Pyidaungsu Hluttaw (Union Assembly) to hold a special session on the crisis in Kachin state referring Section 84 of the Constitution.6 The Pyidaungsu Hluttaw (Union Assembly) has the right to enact laws for the entire or any part of the Union related to matters prescribed in Schedule 1 of the Union legislative list (Section 96). 1(f) of Schedule 1, Union legislative list, prescribes that the Pyidaungsu Hluttaw has the right to enact laws related to stability, peace and tranquillity of the Union and prevalence of law and order. Therefore, an emergency session or a special session of the Pyidaungsu Hluttaw should be convened as soon as possible and an appropriate bill that can bring a lasting peace to Kachin state needs to be submitted. According to Section 100(a)7, the Parliamentary Committee on Rule of Law, Peace and Tranquillity, which is headed by Daw Aung San Suu Kyi, has the right to submit the bills related to matters such as 1(f) of the Union legislative list. Therefore, it is advisable that Daw Aung San Suu Kyi take any appropriate initiatives to resolve the conflict in Kachin state through the legislature. If both the government and opposition are unable to take timely and appropriate measures to save hundreds of thousands of displaced civilians, the United Nations and the international community will need to intervene to protect civilians in the war zone.

Burma Independence Advocates Park House 111 Uxbridge Road Ealing London United Kingdom W5 5LB

Chapter V, Executive; Formation of the National Defence and Security Council

Chapter IV, Legislature; The Pyidaungsu Hluttaw, Section 84: The Speaker of the Pyidaungsu Hluttaw shall convene a special session as soon as possible, if at least one-fourth of the total number of the representatives so require. The Union level organisastions formed under the constitution shall have the right to submit the bills relating to matters included in the Union legislative list to the Pyidaungsu Hluttaw in accord with the prescribed procedures.
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