By Chin Forum Working Group I
Constitution Drafting Committee
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A. Reunification of Union of Burma as a Federal Union
The constituent units of the Union under the Constitution of Union of Burma at present can choose to reform the Union if the 1947 Constitution of the Union is readopted with amendments according to the core of the Panglong Agreement to unite and cooperate in their common interest, and give the right of self determination to all the units as demanded by their distinct natures.
All the democratic forces of the Union are to uphold the generally accepted principle that, “A nation is said to be a group of people who agree to live together in voluntary association”. The association must be voluntary, and not forced, to form a real nation. Voluntary association can only arise among peoples who have confidence in one another and who feel that, by living together, they have much to gain and little if anything to lose, that thereby their welfare and progress will be helped and not thwarted. So if the SLORC /SPDC is trying to conquer the will of the peoples by force of arms, intimidation, and deception, it will just make the people increase the hatred they have for them.
Even if the SLORC/SPDC could successfully conquer them by force of arms today, the spirit to escape from their brutal bondage will always be smoldering, which means that there will be no peace in the country. The constituent units of any countries who have been conquered by force of arms, in fake union founded by force of arms against the voluntary will of the constituent units, usually keep on struggling in cold or hot war till the opportunity arises when the oppressors become weak, and on the day when the iron grip of the oppressors is weak, which almost surely happens at some time, the situation usually ends with chaos and bloodshed.
In this way a country ruled by force of arms against the voluntary will of the constituent units and the people will never have peace. This is just the way things are now in the Union of Burma, and have been for a half century by now, dragging down the country into the condition of the poorest country in the world with all kinds of suffering and misery in spite of the richness of its natural resource; for, all money to be invested for the development of the country has been spent only for arms and ammunition and other military purposes by the successive despotic military regimes to oppress and kill their own citizens.
Thus the only way of solving the political crisis in the Union of Burma will be to strictly observe the natural course of democratic legal phenomena, which can be accomplished only by handing over power peacefully to the elected representatives elected in the last 1990 May general election, who will in turn proclaim the re-adoption of the 1947 Union Constitution with its amendments to federal form to bridge the gap between the period of democracy, defunct since 1962, and the future.
Then only will the people of the Union be able to pursue in freedom — freedom from fear and freedom from want – the cultural richness and many-colored variety of their land, beautifying their part of the world and playing their parts on the stage of the world with pride and dignity, recreating all that has been lost under the bondage of militarism.
B. The basic grounds on which Federal Union of Burma may be reunited
The universal practice of equality according to the principles of democracy anywhere in the world is universal adult suffrage, no matter how different those adults are in size, in gender, status or other distinctions amongst persons. This principle is also applied to nations and States, as they are also corporate personal entities.
This is the reason why nations large and small have equal rights and have equal numbers of representatives in the General Assembly of the United Nations. It is the same reason why the constituent unit states, large and small, of many sizes in population and geographical territory in a country have equal representatives as in the Senate of the United States of America and in the legislatures of many other countries.
William Peterson, a representative of New Jersey (USA) was quoted as saying, “What, Pray, is representation founded on Numbers? If State Sovereignty is to be kept up, shall I submit the welfare of New Jersey with five votes in a council where Virginia has sixteen? This would lead to Autocracy. Neither my State nor myself will ever submit to despotism or to tyranny”.
Thus the signing of the Panglong Agreement by all the signatory nationalities and the several agreements that have been signed since then among the constituent nationalities of the Union have made this universal fundamental principle of democracy applicable to the signatory nationalities of the Agreement and other recognized nationalities of the Union large and small, no matter what their respective differences in geographical and population size within the Union.
Therefore all the national states in the Union shall have equal representatives and equal votes in the national convention and in the constitutional assembly and in at least one chamber of legislature, which has more power in the federal legislation of the Union. Then only can all the nationalities in the Union be united according to the generally accepted theory of voluntary association mentioned above.
Actually, a constitution is not an ordinary piece of legislation. Instead it is a sacred document and it is an agreement to live together. It cannot be compared to any ordinary law. So the practice of adopting a constitution by referendum is not fair, as it is not as simple as asking the people to give an answer of ‘yes’ or ‘no’ to such a comprehensive document.
It is therefore essential that the constitution of the union should be adopted and amended by equal representatives popularly elected to the constitutional assembly by each of all the national states of the Union, respectively, to be just and fair to all of them. It is this concept, which should be enshrined together with democracy and self-determination in the constitution of the federal Union of Burma in which Chinland is to be a constituent unit, to guide us in freedom to carry out the task of continually increasing the prosperity and development of Chinland and its population.
That is, adoption and amendment of the constitution of the union should be decided on the basis of a majority of individual national states and not by on that of the total population of the union. Thus the conditions expressed here are the only favorable condition for joining the reunification of the Federal Union of Burma.
C. Government formation systems and Chinland constitution.
Building a sovereign nation or sovereign state always involves the constitutional law of that nation or state. It is constitutional law, which create the constitution of a nation or state. There are so many assertions on what constitution of a nation is. The statement on it, which seems to be the easiest to understand, is “A constitution may be said to be a collection of principles according to which powers of the government, the rights of the governed, and the relations between the two are adjusted”.
So in building a nation the most important function of the nation is to make those principles usually known as the constitution and the laws of the country concerned. The principles mentioned above are commonly embodied in an established Legislature, Executive and Judiciary. Those who make laws are representatives usually known as the Legislature elected by the people. Those laws passed by the legislature are enforced by an executive body usually known as Government. Whether the government executes the laws as passed by the Legislature is decided by the Judiciary whenever there arise legal problems in the courts.
Generally speaking, constitutions are classified as being of either the unitary system or the federal system. Constitutions in which unitary system is used are common in countries where there is only one sovereign government. It is adopted mainly in countries where the citizens are similar people of the same culture and language in which only one government can treat the citizens as only one kind of people.
Federal systems of constitution are also used, however, even in countries of the same language and culture, if the country is too vast in area to be controlled from one central government. The Federal system necessarily involves decentralization of the sovereign power of the country or nation concerned. The Federal is most to be pursued by people with different languages and cultures in different territories, which can agree to form a central government to share the same administration only in their common cause and interest, though each territory keeps its own sovereign government for its internal affairs.
In forming the Executive or government of a country, there are several forms of government mainly presidential system of government and parliamentary system of government no matter it be unitary or federal system of constitution. In the presidential form of government, the President (the Head of State and Chief Executive of Government) is in general supposed to be elected by the majority votes of adult population of the whole country. The President selected his secretaries with the consent of the legislature. The power is in the head of the state — but the people in presidential system have a wide range of executive discretion.
In the Parliamentary system of government, the Legislature elects a Prime Minister by majority votes of the members of Legislature and the Prime Minister selects ministers in consultation with the members of Legislature. Actually, the leader of the political party, which wins the majority of seats in the Legislature usually, forms the government with selected members of the party in power.
The President in the parliamentary system is a nominal head of state elected by the legislature or presidential electoral committee. The President acts according to the advice of the Prime Minister and the Prime Minister acts only in the name of the President. In the same way, a governor of a member state acts according to the advice of the Chief Minister and the Chief Minister acts in the name of governor. In the parliamentary system of government, the power is in the population, but the central government or the state government has a wide range of executive discretion.
There is also a dual system- the combination of the two systems, practiced by some countries like Pakistan, France and Russia. The President is very powerful here. The Prime minister is responsible to the President. That is the Prime Minister and his/her Ministers hold their posts at the discretion of the President. The constitution of the future federal Uninon of Burma is being suggested to be in this dual system by the Chin Forum as it seems to balance the minority rights and the minority rights of the Union constituent states in a condition where the size of one state and the other is in differences in the size of population as well as in geographical area.
To make it more understandable, the function of the president and the prime minister of a state is roughly and generally comparable to the function of President and Secretary in an organization. Many of us have had experiences in one or more of such organizations. The President of a country performs functions performed by the Chairman or President of an organization and Prime Minister is just carrying out the function of the secretary in an organization. The Prime Minister is like the General Secretary and his ministers are like under-secretaries in an organization. So in an organization, some time the general secretary has the power and the Chairman or the President follows the plan of the general secretary.
The constitution of Federal Union of Burma will be a federal constitution. But the Chinland constitution has to be a unitary constitution, with several local areas having autonomous decision powers in some cases. How to form the authority in the districts and their power may be enacted into law by the Chinland Legislative Assembly. Or it may be in federal form which we need to consider any one of which will fit us best. The Chinland constitution here has not been well arranged yet though the idea also is to be in federal form too.
Adopting presidential system of government in the constitution of Federal Union of Burma is regarded by some people to be out of question owing to the vastness of the country with the very poor and from one of the constituent peoples hold that office who is inherently prejudiced against other constituent peoples of the country — a situation that has been experienced in Burma in the past and exists there to this day.
That also is a reason why parliamentary system of government is to be adopted in the union, so that the people have the sovereign power and not the government. Anyhow, there are people who still advocate the presidential system of government for the federal Union of Burma with the idea that true federal form can only be instituted in this way. So let us all think it over.
But to adopt presidential system of government for the Chinland government is quite a considerable step. If we adopt the presidential system of government, the head of the State or the governor of the state will be elected by the whole adult population of the Chinland and the Governor is to select the secretaries with the consent of the legislative assembly of the Chinland. The presidential system of government is more or less adopted in this draft.
In this way, since, the whole adult population is to elect a governor, and there is a greater and better chance of electing the most qualifie d and most popular person in the whole state. In the same way, the elected governor might have more sense for the equal treatment of all the tribes and sections of the Chin people in consideration of the support of every section of the residents of the Chinland. In this way there can be fairness and unity to solve the many differences we could possibly have.
But in some way, there is some danger to be apprehended. That is, if a very irresponsible person is elected, the governor could easily abuse his power and it will be not easy to control him by impeachment or otherwise after he is duly in full power. We have to keep in mind some of the bygone Chin leaders who often were accused of localism and nepotism.
Thus on the basis of the arguments and evidence given above in Volume I, Part I to Part II, the Framework of the Chinland constitution in the Volume II of this Paper is tentatively proposed as a menu to be discussed and to provoke the interest of everyone who has any interest in the matter to respond with suggestions, feedback and advice.
In short, our conclusion will include the following terms of reference:
The Chinland constitution is not to be a rigid one, but a flexible one.
It will be a constitution, which will promote democracy and freedom.
It should be based on dialectal or geographical or traditional jurisdictions in our society.
It should be the constitution of the state, which will be a constituent state in the federal Union that might be called Federal Union of Burma.
It should be a unitary form of constitution with several local areas having autonomous decision in some cases.
A Presidential system or a Parliamentary system of government may be adopted but the presidential system of government is more or less adopted in this draft.