Constitutional Crisis in Burma
(Toward the Political Dialogue on Constitutional Issues in Burma)
Salai Ngun Cung Lian
Political crisis, ethnic conflict, civil war, and all other problems facing by the people of Burma for over five decades is a byproduct of conflict of interests over constitutional principles between Burman and non-Burman nationals. The Burman ethnic
nationals, which is not only majority in population but also dominating ethnic group of the Burmese Army persistently want unitary type of Constitution. Contrary to this, the non-Burman ethnic nationals, minority in population as well as dominated nationals in national, state, and local institutions desire to live together with Burman ethnic national within the framework of federal constitution, which can safeguard, promote, and protect their ethnic national interests and identities. This conflict of interest over the constitutional principle between the Burman ethnic national and non-Burman ethnic nationals is the root of the political crisis as well as the generator of ethnic conflict, hatred, and disunity among multi-ethnic nationals in the Union of Burma. There is only one but simple solution to solve the conflicts and crisis in Burma is to have a constitutional dialogue among National League for Democracy, State Peace and Development Council, and non-Burman ethnic nationals and allocate the problems within federal constitutional principle, which not only will fulfill the non-Burman ethnic nationals’ interests but also safeguard the Burman ethnic nationals’ interests as well. The following sub-titles analyze the defects of the previous Constitutions of the Union of Burma as well as draft Constitutions of Burma initiated by the NLD, SPDC, and the NCUB, which failed to fulfill the desires of Burman and non-Burman ethnic nationals in the Union of Burma.
The Panglong Agreement is equally important for the people in modern Burma as the way in which the “Declaration of Independence 1776” is important for the Americans in fundamental nature. If the agreement was not reached during negotiation among the representative of Ministerial Burma, the representatives of Chin, Kachin, and Shan leaders, there would have not been the UNION OF BURMA in modern world history. The signatories had negotiated and reached final agreement to form a UNION because they all guaranteed to treat each other with equalities in all aspects including rights and privileges in politic, economic, cultural, and self-determination right of each people within their own territories. The sincerity and trust of signatories of Panglong Agreement was revealed in Article 210 of the Constitution of Union of Burma (1948) by guaranteeing secession right of signatories state from the Union of Burma after ten years of independence. Therefore, the Panglong Agreement is the only contractual legal document of founding the Modern of Burma so that the essence of the Panglong Agreement needs to be respect and perverse by not only Burmese people but also international governments, organizations, and associations who want to see continuation of the existence of the Union of Burma in international politic and relation.
AFPFL Draft Constitution for Burma
After the Panglong Agreement was signed, the Anti Fascist Peoples Freedom League (AFPFL) initiated to draft the Constitution of Burma Union and Its Territories. The AFPFL elected General Aung San as a leader of Drafting Committee along with 110 Committee Members. The Draft Constitution of Burma Union and Its Territories was brought to the AFPFL National Convention and subsequently approved enormously in May 27, 1947.
The substances of the Draft Constitution of Burma Union and Its Territories was purely based not only federal principles but also the Draft Constitution of Burma Union and Its Territories guaranteed each unit (State) to have their own unit (State) Government to perform, safeguard, promote, and protect the interests and benefits of their own states. However, 57 days after the draft Constitution of Burma Union and Its Territories was approved, General Aung San and his interim leaders were assassinated by their political rivals, who refused to grant equal rights and privileges to non-Burman ethnic nationals. The Governor of Burma immediately authorized U Nu to takeover the position of General Aung San and ordered him to lead the national movement into independence.
U Nu, the new leader of transitory period was not participated in Panglong Agreement so that did not understand the essence of Panglong Agreement as well as who was a person critical to grant non-Burman ethnic nationals to have equal rights with Burman ethnic nationals during negotiation of General Aung San and Attlee on Burmese independence. U Nu authorized U Chan Htun, legal consultant of Constitution Drafting Committee of AFPFL to revise the “Approved Constitution of Burma Union and Its Territories” to approval of the interim legislature that was due in September. U Chan Htun and few Burman nationalists as well as Cambridge Legal scholars revised substantively the “Approved Constitution of Burma Union and Its Territories” from federal type of constitution to unitary type of constitution. The revised “Constitution of Burma Union and Its Territories” was brought to the interim legislature by U Nu and asked the speaker of the interim legislature for approval from the interim legislators without debate and subsequently approved on September 24, 1947. The revised Constitution of the Union of Burma came into force on January 4, 1948 when Burma was officially granted independence by Great Britain.
Constitution of the Union of Burma (1948)
Gradually, the non-Burman ethnic national leaders, politicians, and scholars realized that the Constitution of the Union of Burma (1948) not only disregard the essence of Panglong Agreement but also was substantively different from the “Draft Constitution Approved by the AFPFL National Convention”. They also realized that the Constitution of Union of Burma (1948) allowed majority Burman nationals to manipulate all legislative, executive, and judiciary powers over non-Burman ethnic nationals.
Therefore, the non-Burman ethnic national leaders gathered in Taunggyi, the capital city of Shan State in 1961 to discuss the defects of the Constitution of Union of Burma (1948). Over 200 non-Burman politicians, leaders, and scholars agreed to amend the defects of the Constitution of Union of Burma (1948) within democratic principals and approved the drafted “Federal Bill” to table at the Union Parliament. Consequently, they also urged Prime Minister U Nu to initiate Federal Seminar in Rangoon to discuss the future of Burma Union and implementation of federalism in the Union of Burma.
The Prime Minister and all Burman ethnic national leaders understood that Federal Bill was ready to table in the Union Parliament for amending the Constitution of the Union of Burma (1948) and it will be passed without difficulties since all non-Burman ethnic national leaders favor to amend the Constitution according to the “Federal Bill”. They also understood that if the Constitution of the Union of Burma was amended according to the “Federal Bill,” the Burman will have equal status with non-Burman nationals although they are majority in population and in some other aspects. The Burman nationalists, who were the high-ranking officers in Burmese Army, realized that the only way to safeguard Burman domination over non-Burman ethnic nationals is removing the democratic regime by force. Therefore, the Burmese Army took the power on March 2, 1962.
Constitution of Socialist Republic of the Union of Burma (1974)
After the coup, Brigadier General Aung Gyi, the second most powerful in the coup have said to the media that the reason of the military coup was to prevent from disintegration of Burma Union and also indirectly indicated the “Federal Movement” was an evident to prove the coup. The Revolutionary Council arrested all participants in the Taunggyi Conference and sent them to jail without due process of law. Many prominent non-Burman ethnic national leaders were secretly murdered in jail. Subsequently, the Revolutionary Council drafted a new Constitution after ten years that came to force in 1974. The new Constitution not only disregarded the essence of Panglong Agreement, but also constitutionally expanded Burman ethnic national domination toward non-Burman ethnic nationals by creating Seven Divisions out of Burman inhabitant area. Therefore, under the Constitution of the Socialist Republic of the Union of Burma (1974), the Burman had monopolized all legislative, executive, and judicial power by creating Seven Divisions and Seven non-Burman ethnic national States.
NLD’s Interim Constitution
Although the Socialist military regime collapsed in 1988 and the NLD was voted for to restore democracy in Burma by the people, the NLD has failed to carry out the peoples’ mandate due to two significantly important factors. First, NLD failed to draft the Interim Constitution of Burma based on the essence of Panglong Agreement, the Draft Constitution of Burma Union and Its Territories approved by AFPFL National Convention in 1947 and the Federal Bill of Taunggyi Conference. Instead of drafting a new Interim Constitution to retain the “TRUST” of Signatories of Panglong Agreement and the non-Burman ethnic national leaders, the NLD cheaply revised the Constitution of the Union of Burma (1948) and proclaimed to be used as interim Constitution for transitory period. The responses of non-Burman ethnic nationals on the NLD’s initiative were mute and the NLD consequently lost the trust of non-Burman ethnic nationals. Secondly, majority of NLD’s top leaders are former military officers who were ousted by General Newin so that restoration of democracy in Burma is not priority for them but toppling the present military regime is always their first priority in their head. Although, their supreme leader, Daw Aung San Suu Kyi had expressed her willingness to form a Federal Union of Burma to solve political problems in Burma but she has not received warm responses from NLD’s top leaders as well as the Burman ethnic national on this regard.
SPDC’s Draft Constitution
In 1992, the State Law and Order Restoration Council, renamed as the State Peace and Development Council in 1997, issued a decree and initiated to draft the Constitution of the Union of Burma. The SPDC’s clear intention is to legalize the military rule in Burma within constitutional framework so that the NLD had withdrew from the National Convention. The provisions of the SPDC’s draft Constitution will not only bring the legitimacy of military rule in Burma through the Constitution but also it will create a strong central government to control every local, regional, and state entities within the Union
NCUB’s Draft Constitution
Since 1992, the National Council of Union of Burma (NCUB), composed with members of National Democratic Front, Democratic Alliance of Burma, NLD (Liberated Area), and Members of Parliament Union initiated to draft the Future Constitution of the Federal Union of Burma and the second edition of the draft constitution has been published in English and Burmese. Unfortunately the NCUB draft Constitution clearly reveals that there were gigantic confusions and lacks of understanding on the federalism, federation, de-centralization, separation of powers, checks and balances of powers among the participants of the NCUB Draft constitution process. In addition, the participants of NCUB draft constitution clearly isolated the essence of Panglong Agreement, the Draft Constitution Approved by the AFPFL National Convention, and the Federal Bill of 1961.
The National Reconciliation Program’s Initiative
The NRP has organized and sponsored for creation of the State Constitution Drafting Committee (CDC) for existing non-Burman ethnic national states – Arakan, Chin, Kachin, Shan, Karen, Kayah, and Mon ethnic nationals since 2000. Prior to the NRP’s initiative, the Chins in international have formed the Chin Forum and initiated for drafting the Future Constitution of Chinland in the Federal Union of Burma and which is due to publish its fourth revised version of the draft Constitution.
Although all non-Burman ethnic nationals have been giving attention to write their own STATE constitutions according to democratic principles and practices with limited resources, the Burman ethnic nationals have not shown interest to draft a Burman State Constitution for the Federal Union of Burma.
This evidence has led many non-Burman ethnic nationals to conclude that either the “Burman military leaders in SPDC” or “Pro-democratic Burman nationals” in and outside the Burma are sharing the same sentiment in connection with disregarding the essence of Panglong Agreement.
Suggestions to the US State Department
Therefore, in order to solve the political crisis and ethnic conflicts in the Union of Burma, the US State Department should take the following initiatives as priorities:
1. To call the NLD, UNLD, SPDC, CDC, and NUCB to have Dialogue on the Constitutional Issues for the Federal Union of Burma based on the essence of Panglong Agreement, the Draft Constitution Approved by the AFPFL Convention, and the Federal Bill of 1961;
2. To engage and play as a third parties for the Dialogue on the Constitutional Issues for the Future of Federal Union of Burma among the NLD, UNLD, SPDC, CDC, and NCUB members; and
3. To pressure the EU, ASEAN, UN, and other interest parties to give pressures for the Dialogue on the Constitutional Issues for the Future of Federal Union of Burma among the NLD, UNLD, SPDC, CDC, and NCUB.
 Salai Ngun Cung Lian is a candidate for Doctor of Juridical Science degree at Indiana University School of Law. He is a co-convener of the Chinland Constitution Drafting Committee; Consultant for Transitional Justice in Burma (The Burma Fund); and Legal Consultant of the Chin Human Rights Organization. He can be reached at <[email protected]> (or) at (317-788-8918) or (317-694-0672).
 In this paper Burman means a majority ethnic group also known as “Bama” or “Myanmar” by non-Burman ethnic nationals in the Union of Burma. The non-Burman ethnic nationals include Arakan, Chin, Kachin, Karen, Kayah, Shan, Naga, Mon, Lahu, Pa-O and so on.
 The first Draft Constitution for Burma Union and Its Territories was initiated by the Anti Fascist Peoples Freedom League (AFPFL), under the leadership of General Aung San, U Bawin (the elder brother of General Aungsan), and 110 Constitution Drafting Committee members. The Draft Constitution for Burma Union and Its Territories was brought to the AFPFL National Convention for approval and subsequently approved without dissented vote on May 27, 1947.
 UNLD stands for the United Nationalities League for Democracy, the non-Burman political parties which was formed in 1991 and also the alliance of NLD.