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Sengsuk's Comment on the draft Constitution of Federal Union of Burma

by the National Council of Union of Burma (NCUB)

by Sengsuk, Spokesperson, Shan Democratic Union

CHAPTER (IV). Congress of the Federal Union.

Article 39. and 40.

"Article 39 FORMATION

The Congress of the Federal Union (Federal Congress) shall be composed of the National Assembly and the People's Assembly.

Article 40. POWER

The legislative power of the Federal Union shall be vested in the Federal Congress." Both articles are empowering of the Burman majority. National Assembly comprising 4 reps from each Member State with no real legislative power or to check and balance the power of the People's Assembly. "Article 48. FORMATION The National Assembly shall be composed of four representatives from each Member State.

* Article 41.

(c) Sessions of the Federal Congress shall be convened by the President of the Federal Union upon request of the majority of the members of either Assembly or upon request of the Prime Minister.

Power of the Prime Minister elected by the Burman majority more powerful than the president. Individual states have no equal authority with the Prime Minister (Burma) to call for convening of the Federal Congress.

* Article 51. (a) and (b)

Article 51. CONVENING OF SESSIONS

(a)	At the request of representatives from two Member States, the Chairperson of the National Assembly shall convene the National Assembly.
(b)	At the request of the Prime Minister of the Federal Union, the Chairperson of the National Assembly may convene the National Assembly.

* Article 54.

Article 54. COMMITTEES

The National Assembly shall appoint a Committee on Foreign Affairs and a Committee on Defense.

Do not specifically empower the committees on Defense and Foreign Affairs.

People's Assembly.

Article 55. FORMATION

The People's Assembly shall be composed of representatives elected by the citizens.

Article 56. CHAIRPERSON AND VICE-CHAIRPERSON

A Chairperson and a Vice-Chairperson shall be elected from among the representatives of the People's Assembly.

Article 57. TERM

The regular term of the People's Assembly shall be four years. The term of office of the representatives shall be the same as that of the People's Assembly.

Article 58. ELECTION OF REPRESENTATIVES

The representatives shall be elected by general, free, equal, direct and secret elections.

Article 59. QUALIFICATION OF REPRESENTATIVES

Candidates for the People's Assembly shall be

(a)	citizens of the Federal Union having attained the age of 25 years on the day of the election,
(b)	in the case of naturalized citizens, residents in the Federal Union for at least five years continuously after naturalization, and having attained the age of 25 years on the day of the election.

Article 60. CONVENING OF SESSIONS

The Chairperson shall convene special or emergency sessions on

(i)	the directive of the President,
(ii)	the request of the Prime Minister, or
(iii)	the request of one fourth of the representatives.

Article 61. ELECTIONS

Elections to the People's Assembly shall be held three months prior to the expiration of the current term.

Article 63. SESSIONS FOLLOWING ELECTIONS

The People's Assembly shall assemble within 30 days following the election.

Article 64. DISSOLUTION

(a)	The President shall dissolve the People's Assembly on the advice of the Prime Minister.
(b)	Elections shall be held within 60 days following the dissolution.
(c)	The President shall appoint a care-taker government following the dissolution of the People's Assembly to administer the country until a new government is formed.

Article 65. AUTHORITY OF THE CHAIRPERSON

The chairperson shall have the authority to supervise and to enforce the rules and regulations of the sessions. No search or seizure shall be made on the premises of the People's Assembly without the permission of the chairperson.

There are no articles concerning a political party of a state extending its branches into another or other states. Contrary to prior agreement made between Non-Burman ethnic states and U Aung San before the Panglong Agreement. It ignores the historical political heritage of the Karenni, Shans, Kachin, Chin and their basic rights.

*Article 66.

Article 66. COMMISSION OF INVESTIGATION

Upon the motion of one fourth of its members the People's Assembly is obliged to set up a Commission of Investigation. The Federal Congress shall enact a law for the constitution and the mandate of the Commission.

It does not state the purpose of the commission.

CHAPTER (v)

Federal Legislation.

Article 67.THE INITIATION OF BILLS

(a)	Bills shall be introduced by the Government of the Federal Union or by representatives of either of the two Assemblies.
(b)	Federal budget bills and revenue bills shall only be introduced in the People's Assembly.
(c)	Bills relating to natural resources shall only be introduced in the National Assembly.

Article 68. ADOPTION OF A BILL

(a)	Except for the Federal budget bill, a bill introduced in the People's Assembly receiving a majority vote, and majority vote of the statutory members in the National Assembly, shall become law.
(b)	A bill introduced in the National Assembly receiving a majority vote, and a majority vote of the statutory members in the People's Assembly, shall become law.

Article 69. ADOPTION OF THE BUDGET BILL

The annual Federal budget bill shall be introduced in the People's Assembly. The approved bill shall then be forwarded to the National Assembly. If the National Assembly approves it within 14 days, it shall become law. If the bill is not approved by the National Assembly, it shall be returned to the People's Assembly. If further approved by the People's Assembly with a majority of its statutory members, the bills shall become law.

Article 70. JOINT COMMITTEE

(a)	The National Assembly, the People's Assembly or the Government may demand that a bill be referred to a joint committee when a bill or part of it is adopted by one Assembly only.
(b)	The joint Committee shall be set up with equal number of representatives from each Assembly.
(c)	The Committee shall be dissolved on the completion of its task.
(d)	A bill which has not been approved of by the Joint Committee shall be considered a dead bill.
(e)	If there are amendments to or alteration of the bill by the Joint Committee, it shall be sent back to the Assembly where it was introduced. If the bill as approved by the original Assembly is approved by the other, it shall become law.
(f)	If the bill referred to in sub-paragraph (e) is not adopted in accordance with Article 68, it shall be considered a dead bill.

Article 71. DEAD BILLS

A dead bill shall not be reintroduced in any Assembly within a period of two years from the date of its rejection.

Article 72. PROMULGATION

The Federal President shall sign and promulgate every bill adopted by the Federal congress within seven days. A bill shall become law, even if the Federal President does not sign the bill at the end of the seven days period.

Article 73. EXCLUSIVE LEGISLATION

The Federal Congress shall have exclusive legislative powers in the following areas:

(i)	foreign affairs,
(ii)	defense of the Federal Union,
(iii)	postal services and telecommunications with the exception of local radio and television services,
(iv)	currency, money and coinage,
(v)	weights and measures,
(vi)	the annual Federal Union budget,
(vii)	federal highways, railways, waterways, air and sea transportation,
(viii)	postgraduate education,
(ix)	trade and commerce with other countries,
(x)	citizenship in the Federal Union and immigration,
(xi)	police force of the Federal Union
(xii)	state of emergency ,
(xiii)	census,
(xiv)	production, sale, exportation and importation of arms, ammunitions and explosives,
(xv)	election to the People's Assembly,
(xvi)	copyright, patents, designs and trade marks,
(xvii)	marriage, divorce and inheritance with regard to mixed marriages,
(xviii)	customs, export/import taxation.

Article 74. CONCURRENT LEGISLATIVE POWERS

Member States shall possess legislative power concurrently in relation to the following areas:

(i)	purchases and sales tax, business enterprise tax, income tax, liquor and tobacco tax, port tax within the Federal Union.
(ii)	Protection of the environment,
(iii)	Drugs,
(iv)	Registration of births and deaths,
(v)	Federal Union energy and development projects within Member States,
(vi)	Exploration, exploitation and sale of natural resources within a State,
(vii)	Investment by foreign governments and companies within a Member State,
(viii)	Local radio and television services,
(ix)	Banking services,
(x)	Transfer of homes, premises and land matters,
(xi)	University and vocational education,
(xii)	Regulations relating to rivers and waterways crossing Member State's borders, domestic sea and coastal transportation,
(xiii)	Refugee and political asylum matters,
(xiv)	Criminal law and civil procedural codes, and
(xv)	Education and vocational trainings for public servants.

Article 75. CONCURRENT LEGISLATION OF THE FEDERAL CONGRESS

The Federal Congress shall make laws on concurrent matters when a Member State by making the said law would endanger another Member State or its people or would endanger the economic interests of the whole Federal Union.

Article 76. JOINT AGREEMENTS

Laws relating to the exploitation and sale of natural resources, foreign investment and production of energy, shall come into force only after, in case of federal law, the Member States involved, and in case of a state law, the Federal Congress have agreed upon the said law.

Article 77. LEGISLATIVE POWER OF MEMBER STATES

Member States have the right to legislate in so far as this constitution does not confer legislative powers on the Federal Congress.

Article 78. PRECEDENCE OF FEDERAL LAW

Federal law shall override state law.

*Article 73, 74, 74, 76, 77, 78. all of it together but deprived most of the important legislative power of member states, except, of course, the Burman State.

Article 75 does not give clear definition concerning endangering another member state or the economic interests of the whole Federal Union. Therefore, this article together with article 78 effectively give decisive power to the Burmans or the Burman State.

Article 77 seemingly gives residual power to the member states. But Article 78 withdraws all the residual powers given to the states. It also neutralizes the power stated in Article 76 for the member states.

CHAPTER (VI)

The President of the Federal Union

Only a ceremonial puppet.

Article 72 Chapter (V)

Article 72. PROMULGATION

The Federal President shall sign and promulgate every bill adopted by the Federal Congress within seven days. A bill shall become law, even if the Federal President does not sign the bill at the end of the seven days period.

Article 79 Chapter (VI)

Article 79. HEAD OF STATE

The Federal President shall be Head of State.

It is uncertain that the Federal President has any real power to control the Federal Armed Forces, [Article 83.] as the Supreme Commander of the Federal Armed forces, except to grant pardons. [Article 83. (c)]. Article 116 seemingly entrusting power to the President but all of this power was actually to be used by the Federal Prime Minister and his government. According to the articles in the Chapter (XII). Totally vulnerable for the Member States to look for justice through the Federal President or the National Assembly when one of its member is in conflict with the Federal Government [Bamah govt.] according to this draft.

CHAPTER (VII) Federal Government ARTICLE 88. FORMATION

Article 88. (C)

The Federal Government shall be collectively responsible to the People's Assembly.

Also gives Federal Powers exclusively to the Burman State (Burman Majority = People's Assembly). This article does not allow capable outsider to become a minister.

"ARTICLE 88. (b) No person shall be a Minister unless he or she is a representative of the People's Assembly".

There is also no provisions dealing with the prevention of vote buying and good governance. There could be a big loophole to bring the country into many critical periods in future. Hence, returning to military dictatorial rule again. Together with Article 90,

ARTICLE 90. FEDERAL PRIME MINISTER

(a)	The Federal President shall appoint a representative elected by the People's Assembly as the Federal Prime Minister.
(b)	The candidate attaining the votes of the majority of the representatives is elected.
(c)	If no candidate has been elected within fourteen days of the ballot, the candidate gaining most votes is elected.
(d)	The Deputy Federal Prime Minister and the Federal Ministers shall be appointed or dismissed by the Federal President upon the proposal of the Federal Prime Minister.
(e)	No representative of the People's Assembly shall serve as Federal Prime Minister for more than two terms.
(f)	At the request of the Federal President, the Federal Minister or the Federal Ministers, shall be obliged to continue in office until a successor has been appointed.

Burman hegemony (Chauvinism) will prevail. Other member states will find it without power but still contributing all of their rich natural resources to the Burmans in the name of Federal Union as in the past decades.

Article 93. (a) A no confidence motion against the Government shall be submitted not before 18 months after the formation of the Government.

However good intention it might have a bad government could destroy the country in 6 months or less, as in the case of Thailand, during Chavalit Yongchaiyut's government. Therefore soundness of this sub-article came into question.

*Article 93. (b) The People's Assembly may express its lack of confidence only by electing a successor to the Federal Prime Minister with the majority of the representatives.

Practicality of this sub-article also is in question.

*Article 93. (c) Not before 48 hours After the successor to the Federal Prime Minister has been elected, a motion of no confidence shall be voted upon. If the motion obtains the vote of the majority of the representatives, the entire government shall resign from office.

Election of the new P.M. could be done only after no-confidence motion and the former P.M. and his government voted out.

And (d) The person elected according to sub-paragraph (b) shall be appointed Federal Prime Minister by the Federal President.

Should be the election of a successor by a sound majority.

*Article 94. Power within the Government

The Prime minister should be obliged to follow the policy guidelines promised at the election campaign by his Party.

Should explore for prevention of any kind of dictatorship. Not create loophole to let the dictatorship return to power.

CHAPTER. (VIII)

Federal Judiciary

Article 96. (b) The Federal Congress shall enact laws for the establishment and the proceedings of the federal courts.

Again giving indirect power to the Burman to control the court.

Supreme Court

*Article 97. (b) The Federal President shall appoint those proposed by the Federal Prime Minister and approved of by the Federal Congress as judges of the Federal Supreme Court.

Again giving much power to the Prime Minister and the Federal Congress hence giving indirect control of the supreme court by the Burmans.

OTHER ALTERNATIVES GIVING EQUALITY OF INDIRECT CONTROL (or none at all) by ALL ETHNIC STATES (INCLUDING BURMAN'S) SHOULD BE EXPLORED.

Nomination by a joint committee of the National States, various institutions and the non-political NGOs for the position of Supreme Court Judges separately and should be elected by the people in a nation wide basis explored.

Jurisdiction of the Federal Court: Attorney General.

*Article 107. (a) The Federal Courts shall have jurisdiction in the following matters:

(i)	disputes and complaints concerning this Constitution,
(ii)	disputes between Member States,
(iii)	disputes between Member State and citizens of other Member States,
(iv)	transfer of cases from one state court to another state court,
(v)	jurisdiction disputes between member State courts,
(vi)	disputes arising out of contracts between foreign companies and domestic companies and or the Federal Union, and
(vii)	bankruptcy and insolvency.

Should be the jurisdiction of the Federal Supreme Court. Federal court should be dealing with Federal Law offenses only.

*Article 108. (a) The Federal president shall appoint a person proposed by the Federal Prime Minister and approved of by the Federal congress, as Attorney General who shall advise and represent the Government of the Federal Union on all legal matters.

The same old Burman indirect control of the appointment of Attorney General.

CHAPTER (IX)

Basic Provisions Concerning the Federal Union

*Article 110. The Minister of Defense and the Federal Government shall formulate policies of defense, Which will be implemented by the Federal Armed Forces.

The basic defense policy of the Armed Force should be PROFESSIONAL FORCES free from political leanings.

According to the structure of this draft there will always be a Burman defense minister. Should look for alternatives.

*Article 111. Establishment.

(b) The Federal armed Forces units shall be drawn from the Member States on proportional basis.

The Federal Armed Forces units should not be on proportional basis, because the forces must be PROFESSIONAL, and all the people should be free to choose their profession as any other profession. A larger Burman presentation might cause history to repeat itself like the past 5 decades.

*Article 112. Separate defense academies shall be established for the Army, the Navy and the Air Force. Officer cadets from the Member States shall be entitled to attendance on a proportional basis.

Here again proportional basis would create the same complication like in the past. Theoretically, seemingly fair and equal but in practice inequality will prevail. In fact, smaller races of the Union comprising as the larger member of the Armed Forces would create better professionalism and solidarity of the union.

*Article 114. (b) The Chief of the Staff shall be selected by the Prime Minister from amongst the members of the staff on an annually rotation basis.

The selection of the chief of staff could be made by the Federal Union Burma President on a rotating basis.

*Article 129. Human Rights Commission.

(a)	The Federal Prime Minister shall establish a Human Rights Commission consisting of seven members whom the Federal Congress has consented to.
(b)	The Commission shall be competent to investigate on its own initiative or on a receipt of a complaint any alleged violation of human rights.
(c)	The Human Rights Commission shall submit a report of its activities to the Federal Congress.
(d)	The Federal Congress shall enact laws with regard to the competences of the Human Rights Commission.


(a)	This commission should be free from political influence and interference. Therefore, should explore other methods for its formation. Direct election by the people should be one of them. Member of this commission must be free from political affiliation.
(b)	Should only report to the National Assembly.

CHAPTER (X)

Member States of the Federal Union

*Article 135. Guarantee of Federal Protection.

The Federal Union guarantees that it will on request protect any member State from external and domestic danger.

Burman dominated Federal Union Army could use excuses to bully Member states.

More security of this article is needed to prevent a Burman unsurpation of power of a member state as this draft has already provides quite an unlimited power to the People's Assembly dominated by the majority Burmans.

CHAPTER (XII)

State of Emergency

*Article 140. A state of emergency shall be declared when: (iii) peace and security of the population are seriously threatened.

Precise definition for "peace and security of the population are seriously threatened", is needed. Careful scrutiny should be given to prevent future military takeover of the power of the state.

*Article 141. On request of the Federal Government, the Federal President shall declare the state of emergency for the territory either of the while Federal Union of part of it.
Same as Art. 135 and 140 (iii)

*Article 143.

(a)	The Federal Government shall during a state of emergency be entitled to
	(i) deploy security forces of the Member States,
	(ii) issue directives to States Governments.
(b)	The Federal Armed Forces may only be deployed when actions taken by security forces of the Member States are insufficient. Such deployment shall be approved by the Federal Congress.
(c)	The Federal Government shall during the state of emergency report on all actions taken to the Federal Congress.

Same as in Art. 135.

*Article 144. In any state of emergency judicial power shall remain with the courts. Courts for special jurisdiction shall not be admissible.

The meaning of "Court for special jurisdiction shall not be admissible" is not clear.

CHAPTER (IVX)

Amendment of the Constitution.

*Article 149. Careful scrutiny should also be given so as to address the grievances of a member state if her grievances are true and real. (IV) At a joint session according to Article (41) (b), the bill of amendment must be carried by a vote of two thirds of the representatives of each assembly to become law makes it practically impossible to amend the constitution except if it serves the interest of the Burman state where vote buying is also possible. Provisions against any kind of vote buying is not given in this draft.

Conclusion.

(1)	This draft does not specifically recognize the Panglong Agreement. The Panglong accord was the historical political heritage of all the ethnic nationalities which includes the Burman, therefore, the Federal Union of Burma, as the drafters termed it, lacked legitimacy.
(2)	Formation of "People's Assembly", Federal Government and giving much power to them, (legislative & executive), and given much influence in the formation of supreme court judges, indirectly control the Judiciary and directly control the legislative and executive.
(3)	The structure is seemingly bicameral. But the National Assembly lack any real power for legislative scrutiny, check and balances. e.g. Article 69. Looking at Article 73, 76 and 78, the concurrent legislative power of member state and their Residual Power A.77 became quite meaningless.
(4)	The structure actually is against the principle of democratic genuine Federal Union based on equality of states. It actually is the Burman state domination of the so called Federal Union. Hence, other ethnic states as minor partners in the federal union.
(5)	It does not promote good governance: - Limit the power of central government and state governments. - Grassroots participation in the governing of the Union, - Right to Information of the people and administrative transparency, - Precise interpretation of Democracy, from the people, by the people and for the people. - Prevention of election fraud and vote buying, - Empowerment of the grassroots people, local community and minority. (Religious, small tribes, communities.) Check and balances of public institutions by the people.
(6)	Provisions concerning Peaceful Conflict Resolution, bargaining principles should be given to solve the problems between a Member State and central government, instead of Article. 78.
(7)	Provision stressing the Right of individual Member State in case there is a conflict between a state and the Federal Government builds up. Focusing on the special, political and economic well being of the Member State, on the principle that, the NATURAL RESOURCES, LAND and SPACE belong to them. GOVERNMENT WITHOUT THE CONSENT OF THE GOVERNED is SLAVERY.
(8)	The cultural, social, political and economic heritage of every ethnic state and peoples should be recognized in a very specific and precise manner.
(9)	Bowing to the FEDERALISM as defined by the Western academic would make the Shans and other non-Burmese lose their INTEGRITY and identity faster than they ever imagined. We have the sole right to define our own FEDERALISM after all.