The question of which entity Australia recognises as the legitimate representatives of Myanmar, and the underlying principle of ‘recognising states, not governments’ was a prominent theme of discussions at the two public hearings. This chapter examines Australia’s bilateral cooperation with the Tatmadaw since 1 February 2021. It also examines Australia’s engagement with democratic bodies in Myanmar, particularly the Committee Representing Pyidaungsu Hluttaw (CRPH) and the National Unity Government (NUG) that later formed.
As oral and written evidence was primarily gathered in April, the discussion centred around the CRPH, and this is the primary term used in this report to refer to the group representing democratically-elected parliamentarians in Myanmar.
Mr Christopher Sidoti identified that ‘there are now a number of significant actors in Myanmar, not only the military and not only the [National League for Democracy] but also several new bodies and coalitions, including the Committee Representing the Pyidaungsu Hluttaw (the national parliament), the ethnic organisations’ negotiating committee, the Civil Disobedience Movement and the General Strike Committee.’
The CRPH formed in the days following the coup in February. On 17 April 2021, members of the CRPH and other parties formed a National Unity Government (NUG), which has sought to act and be recognised as the legitimate government of Myanmar.
Foreign policy objectives
In May, the Department of Foreign Affairs and Trade (DFAT) outlined that the outcomes that it is seeking are to see Myanmar ‘get back onto the path of democracy,’ and for the Tatmadaw military regime:
‘to stop killing people’,
‘to stop the deaths’, and
‘release the arbitrarily detained people.’
DFAT stated that its interim objectives are to:
‘not give recognition to the regime’,
identify ‘where Australia can have the most impact’,
provide development assistance, and
‘understand the new needs around food security and homelessness, and all of the other things that are emerging’.
Engagement with Myanmar’s democratic representatives
Inquiry participants called for the Australian Government to recognise the CRPH as the legitimate government of Myanmar. DFAT confirmed in April that the Australian embassy in Myanmar had received letters from the CRPH but that it had ‘not yet engaged with the CRPH.’ DFAT elaborated:
We recognise it's important to engage with a range of political actors, but the situation is complex and sensitive. There are also potential legal, safety and other considerations to take into account. Some of these people are being actively hunted down by the military, and we have to be careful about what role we play in all of this, who we engage with and how we talk to people. Our embassy has to be very careful about what we do there and who we talk to[.]
Inquiry participants were critical of Australia’s lack of engagement with the CRPH in April. Ms Tun stated that:
[The] CRPH has been talking to every other Western embassy in Myanmar, including our allies, the [United States of America], the [European Union] and so on. The fact that Australia has not engaged or opened communication channels with the CRPH indicates exactly how slow and ineffective our response has been and how behind the ball we really are on that front.
DFAT outlined that the Australian Government’s ‘longstanding policy’ is to ‘recognise states and not governments.’ Mr Nicholas Coppel, a former ambassador, stated:
[M]ost governments, including Australia, recognise states and don’t announce whether they recognise, or don't recognise, new regimes in existing states. That said, foreign governments can and do indicate their attitude to regimes which come to power through unconstitutional means. Indicators of attitude to the new regime will be found in public statements, the conduct of diplomatic relations, and the nature and extent of any ministerial contact and other contacts (e.g. economic, aid or defence arrangements, technical and cultural exchanges).
Mr Christopher Sidoti, a member of the Special Advisory Council for Myanmar and former human rights commissioner, stated a lack of contact with the CRPH constituted the ‘de facto recognition of a government’:
I'm absolutely astonished that the Australian mission in Yangon have not had contact with the CRPH, and I wonder now whether they've had contact with the strike committee and the civil disobedience movement. This goes to this question of the simplicity of saying we recognise states, not governments, yet, if the only source of authority in Myanmar that our embassy is dealing with is the Tatmadaw, that is de facto recognition of a government. We have to deal with all of the relevant parties in Myanmar, including, or perhaps particularly, the CRPH.
Ms Tun stated that the Australian Parliament should also show its support for the CRPH:
Many other parliaments around the world have done so, including, for example, the German parliament. The chair of their parliament has issued a public statement saying they support the CRPH and support the fact that these are, like you, publicly elected members of parliament.
Dr Shwe highlighted in April, that due to the CRPH and NUG’s strong internal support, it may emerge as the focal point from which an armed resistance emerges:
… the CRPH [is] the very strong legitimate body in Myanmar, and the committee is going to form a national unity government very soon, and then the committee has a lot of negotiating and discussion with ethnic armed organisations to form a federal army. So, many people in Myanmar think that there will be a really big civil war coming soon.
At the second public hearing in May, DFAT advised that it had established direct communication ‘primarily at officials level’ with both the CRPH and the NUG. DFAT elaborated that these communications had been ‘very long and very productive discussions.’
DFAT advised it had spoken to the NUG about Australia’s development assistance program. DFAT also advised that it raised concerns about ethnic representation with the NUG:
One of the issues that we've raised with [the NUG] is the importance of having Rohingya representation in the national unity government. They've told us that they're definitely looking at that, which … is very encouraging. They're also engaging very closely with … ethnic armed groups and other ethnic organisations. There are members of the national unity government that do represent a number of those ethnic groups around Myanmar. So to see that greater ethnic representation among that organisation is a good thing[.]
Engagement with the Tatmadaw
DFAT stated that it has sought ‘not to give recognition to the regime.’ DFAT highlighted that it had ‘strongly and repeatedly condemned the use of lethal force and violence against civilians, and we have called on the security forces to exercise restraint and to release all those arbitrarily detained’. DFAT advised that it had raised these concerns ‘directly to the authorities on numerous occasions. We've called in Myanmar's ambassador to Australia many times’.
DFAT detailed, in April, that the Australian Embassy in Myanmar was not ’dealing directly with the Tatmadaw itself’, but was instead ‘dealing with the bureaucracy and the foreign ministry, whoever the bureaucrats are who are now populating the foreign ministry, and with the defence attaché office.’ DFAT advised that ‘the only direct contact we've had with senior members of the Tatmadaw is that one [Vice Chief of the Australian Defence Force] call’.
Defence cooperation with the Tatmadaw was established in 2013. The Department of Defence advised that the bilateral defence cooperation program with Myanmar was suspended on 7 March 2021 ‘in response to the deteriorating situation’, and that:
Prior to the coup our bilateral defence cooperation was restricted to non-combat areas such as English-language training. Consistent with UN recommendations, it focused on appropriate use of the military and promotion of international humanitarian law. We do not provide any operational support for the military, and we do not conduct any bilateral military exercises.
The Department of Defence clarified that that no funds have been allocated to the defence cooperation program with Myanmar in the 2021-22 financial year, and advised that the portfolio budget statement’s allocation of $325,000 for the defence cooperation program with Myanmar was in error:
That's an error in the budget. The 2021-22 estimate for expenditure on table 53 of the portfolio budget statement was incorrect. The number should read zero. Defence is in the process of preparing a corrigendum to the portfolio budget statement that will correct this error.
Phone call with the VCDF
On 22 February 2021, the Vice Chief of the Australian Defence Force (VCDF) had a phone conversation with the Deputy Commander-in-Chief of the Tatmadaw, Vice Senior General Soe Win. Inquiry participants expressed varying views on the appropriateness of this phone call.
The Department of Defence acknowledged that directly engaging with the Tatmadaw did not ‘come without the risk that the Tatmadaw will use it for their own political purposes’ but that it judged ‘that the ability to register our deep concerns about the safety of Professor Turnell and all Australians outweighs the risk of that call being used for pretty transparent political purposes.’
DFAT stipulated that it is necessary to keep lines of communication open with the Tatmadaw so as not to reduce any existing influence Australia may have ‘as a country in this region, that our interests are best served by, potentially, having direct influence.’ DFAT advised that the VCDF call with the Tatmadaw had achieved some direct outcomes:
It led very directly to our first consular access with Professor Turnell. It led directly to him having a conversation with his wife, a very long one. … [I]t led very directly to some improvements in relation to Professor Turnell's circumstances. … [T]here were some very real and significant gains made from that engagement.
Mr Coppel and the Lowy Institute both contended that the Australian Government ‘should feel unencumbered’ in demands that it makes to the Tatmadaw. Mr Coppel elaborated that:
Professor Sean Turnell is not being held because of any Australian government statement or policy or position or anything; Sean Turnell is being held because of his association with Aung San Suu Kyi. When we have hostage diplomacy in other situations, one has to tread very carefully, and anything you say as a government is going to affect that hostage's welfare. But I don't think that's the case now.
Concerns were raised about the appropriateness of the Australian Government’s approach to engaging with the Tatmadaw military regime. The Committee appreciated the evidence of DFAT and Defence in detailing the balance of risks that were assessed prior to its engagements with the military regime. The Committee acknowledges that diplomatic situations involve complex and sensitive negotiations, and that this necessitates that lines of communication be left open.
The Committee acknowledges that the Australian Government has not recognised the military regime as the legitimate government of Myanmar. The Committee also acknowledges that the Australian Government acted to express its concerns at an early stage, prior to the coup.
However, the Committee was concerned to learn that the Australian Government did not initially respond to communication sent to it by the CRPH. The Committee acknowledges that the Australian Government recognises ‘states, and not governments’, but encourages the Australian Government to reflect upon the perceptions that may arise from not publicly engaging with all parties.
The Committee acknowledges arguments that communication with the Tatmadaw military regime, and not with other parties in Myanmar constituted a ‘de facto recognition of Government’. Accordingly, the Committee appreciated DFAT’s advice at its second public hearing that the Australian Government had commenced substantive engagement with groups representing the democratically elected representatives in Myanmar. The Committee expects that this engagement would be ongoing.
The Committee notes that the elected representatives of other countries have engaged directly with the CRPH and NUG, and intends to undertake a similar engagement.
The Committee recommends that the Australian Government formally engage with groups and individuals representing the legitimately-elected representatives of Myanmar, including the CRPH and the National Unity Government.
The Committee, whilst acknowledging that Australia has legitimate national interests which will require contact with the Tatmadaw, urges that such liaison be highly selective, and that care be taken to avoid conveying any sense of legitimacy to military rule in Myanmar. The Committee further endorses the Government’s decision to suspend defence cooperation with Myanmar.