Dr. Salai Ngun Cung Lian[CG Note: Dr. Salai Ngun Cung Lian, one of the Chin Forum Managing Board Members, who was born in East-Maraland, Burma, received a Burmese Refugee Scholarship from the United States Information Agency in 1996 and earned his BA in International Economics and Cultural Affairs from Valparaiso University and his LL.M from the IU School of Law – Bloomington in 2001.
He has been a James J. Robinson Fellow for Graduate Legal Studies; an Earl Snyder Visiting Scholar at Lauterpatch Research Center for International Law at University of Cambridge; a summer visiting fellow at Solomon Asch Center for Studies of Ethnopolitical Conflict at University of Pennsylvania; and a co-founder, Assistant Director and Post-doctoral Fellow at the Center for Constitutional Democracy at Indiana University Maurer School of Law.
He earned his Doctor of Juridical Science (SJD) degree at the Indiana University Maurer School of Law -Bloomington in May 2007. His dissertation titled, “Ethno-political Conflict, Constitutional Crisis, and Federalism Discords in Contemporary Burma.”
Van Biak Thang of Chinland Guardian talked to Dr. Salai Ngun Cung Lian about the SPDC’s upcoming election, what it means to the peoples of Burma and more.]
Chinland Guardian: Recently, there have been some reports saying that the SPDC plans to hold the election on 10.10.10. Isn't that a strange date?
Dr. Salai Ngun Cung Lian: The Asahi Shimbun seems to be very confident in the source of its report, although it did not mention what that source was. Other reports indicate that Daw Aung San Suu Kyi might be released in November. If both reports are correct, the chance of holding the election in October of 2010 is more possible than ever.
In addition to these reports, my own research leads me to believe that the election might take place on 10.10.10. The text of the Constitution itself, specifically, Articles 123, 78 and 441, indicates the possibility of elections being held on that date. Article 123 prescribes that “the first Pyithu Hluttaw regular session shall be held within 90 days after the commencement of the general election.” Article 78 prescribes that “the first regular session of the Pyidaungsu Hluttaw shall be held within 15 days from the first day of the commencement of the first session of the Pyithu Hluttaw.” Then, article 441 prescribes that “….this constitution shall come into operation throughout the Union from the day the first session of the Pyidaungsu Hluttaw is convened.” So, based on these articles, I have reason to believe that holding election on 10.10.10 seems very highly possible. As the SPDC wants to be seen as bound by the fundamental rules of its own constitution, October seems a perfect answer for them. If not, SPDC can do whatever they want as usual.
As always, numbers are very important particularly for the SPDC and generally for the people of Burma. Therefore, in my views, 10.10.10 is not a strange date.
Chinland Guardian: Do you think that the SPDC is very confident that it will be able to hold this election and still retain power? Can the 2008 Constitution safeguard the interests and benefits of the military cliques? In your opinion, what lessons has the SPDC learned from the 1990 election?
Dr. Salai Ngun Cung Lian: The military junta spent 14 years working intermittently to complete a constitution with several intentions; one of the most important of which is to protect the interests and benefits of the military cliques. First of all, according to article 445, no one can take legal action against SLORC or SPDC members for their wrongdoings. Second, articles 20(f), 436, and 452, were adopted to protect the Constitution from being amended. To reinforce those articles, articles 74(a) and (b) were adopted to allow the military appointed Union Hluttaw members to practice the “Burmese way of Filibuster.” Third, articles 293(b), 319, and 343 were adopted to prevent all military personnel from prosecution in the civilian courts. Fourth, articles 209(a) and (b) were adopted to protect military leaders from prosecution under international legal mechanisms. Finally, articles 410 to 432 were adopted to constitutionally permit a military coup if the above four mentioned mechanisms fail. Therefore, in my view, the SPDC seems very confident that the “Five Constitutional Walls” mentioned above can protect their interests and benefits as long as the Constitution is functioning properly. But the question is: how long can the 2008 Constitution last?
I think the SPDC learned a valuable lesson from the 1990 Constitutional fiasco. This time, the SPDC has taken additional precautions that address its old problems by adopting a Constitution which would enforce military dominance over Parliament by reserving at least 25% of the legislature for military appointees. Furthermore, under the new Constitution, the military will retain control over the most important offices, such as the Presidency, the National Security Council, the Civil Service Commission, and the Ministries of Defense, Home, Boarder Affairs, and Finance. So, even if 75% of Parliament’s seats are filled with non-military personnel, they can still retain 25% of the seats, plus the most important Ministries in the government to secure themselves from danger. Therefore, I think the SPDC will go ahead for the remaining steps in its current roadmap.
Chinland Guardian: So, you think that the military junta is determined to continue according to plan whether the international community and the peoples of Burma agree or not?
Dr. Salai Ngun Cung Lian: I think yes. The Constitution allows them to retain 25% of Parliament’s seats as well as the most important ministries. This makes them secure. On the other hand, sadly, the opposition inside Burma could not destabilize the junta by confrontation, agitation, persuasion or negotiation. Similarly, the ethnic armed resistance groups could not defeat the Burmese military junta and vice versa, via military power. The international community simply does not have the uniform policy and action plan necessary to restore democracy in Burma. So, simply, I do not think that international concerns and the concerns of the people of Burma are enough to halt the SPDC’s plan to hold elections in 2010.
Chinland Guardian: In particular, what will this election mean to the ethnic nationalities in Burma, for instance the Chin?
Dr. Salai Ngun Cung Lian: Regarding the election, it is impossible to predict precisely what it would look like or what might happen after the election until I have a chance to read the forthcoming Electoral Laws. Whether the political parties can be formed freely and fairly, I don’t know. Whether the politicians will freely and fairly engage political debates, I don’t know. Whether enough time, space, resources, and facilities will be available for the people and the political parties, I don’t know. Whether the vote will be counted properly, I don’t know.
However, one thing we will see out of nothing is that the Chin people and the people of Burma will experience a tiny democratic process which we have missed for the past 48 years. Our people will experience a general election. Our people will see many smiling candidates. Our people will see a military government with civilian dress. Our people will see and hear about parliamentary debates. Our people will see something we have not seen for 48 long years.
In addition, we will see something completely different between the 1990 and 2010 general elections. In the 1990 general election, there was no an active constitution, so the chance to engage in political debate among candidates, and amongst the voters, were muted. If the 2010 general election takes place as stated, although we have a Constitution which is designed to protect and promote the interests and benefits of the military, and if freedom of speech and expression are allowed in Electoral Laws, there will be a certain level of space to engage in political debates which we have not experienced for four decades.
Technically speaking, even if the SPDC and its allies win 500 seats and the opposition parties win 164 seats, there is still a chance for the opposition to engage in constitutional debates with the ruling military and its alliance inside the Pyidaungsu Hluttaw, under article 435 of the Constitution. And if some military representatives, honest representatives and the people stick together, then I think, we can move forward gradually, yet surely.
Chinland Guardian: Is there a way that the Constitution can be amended? As you stated above, if the military junta and it alliances wins 500 seats out of 664 and the opposition parties win only 164, you think there is no way any articles of the Constitution can be amended.
Dr. Salai Ngun Cung Lian: I have never been, in my life as being, “a law maker,” so it is very difficult to answer your question. But, what I know for sure is that, in a democracy, we should not depend only on the numbers but also on our skills to negotiate, compromise, give and take, and so forth.
We, the people of Burma, have been under one party rule or military rule for 48 years. So, we often can see legislative matters based only on the numbers. So, to answer your question I would say both “yes” and “no.”
Yes, it is still possible to amend the Constitution through the legislative process if we have very persuasive opposition legislators and the rest of the people stand behind them. For example: Article 20(f) prescribes that “The Defense Service is mainly responsible for safeguarding the Constitution.” This provision not only directly insults all the other services but also reflects the selfishness of the Defense Service. It is an insult to those who educate the family members of Defense Service personnel, who nurture sickness of Defense Service personnel, who prepare the housing and other services to Defense Services personnel. The questions can go on forever and we can make them feel ashamed and change their mind to amend this provision.
I think that if we have 164 fine Pyidaungsu Legislators, they should introduce a bill to amend Article 20(f) to state that “All the citizens of Burma are responsible for safeguarding the Constitution.” If 164 Pyidaungsu Legislators can persuade not only the rest of Pyidaungsu Legislators, but also the rest of the people, there is always a way to amend the Constitution. Also, we have to keep in mind that any constitution in the world which does not reflect the will and desires of the people is illegitimate.
My other answer could be “no” because we have never interacted with each other as opposition for the last 48 years, but as enemies. As long as we have a habit, or mentality, of seeing our opponents as enemies, and trying to eliminate our opponents, the survival of democracy in Burma is very uncertain.
Chinland Guardian: What could be the pros and cons of this election if it is held as planned by the military regime?
Dr. Salai Ngun Cung Lian: It will depend on the Electoral Law. If a free, fair and inclusive election takes place as stated by the junta, I think the way in which we engage our struggles for the restoration of democracy, self-determination, and federalism will be changed slightly. However, the SPDC needs to look beyond the election as well.
First, if the SPDC does not respond to the Shewgonedaing Declaration and the UN, US, EU, and Japanese demands, the NLD will remain an opposition party and continue its struggle for restoration of democracy in Burma. The international communities, in that case, would not change their positions dramatically, if at all.
Second, non-ceasefire ethnic armed organizations will remain. They could extend their political and national manifestoes through their respective representatives and through the people as well. Some ceasefire groups will play a very important role by bridging the gap between the military and ethnic nationalities, but they will be able to achieve very little.
For the positive side, all the elected representatives of the State, Division, or Union, who oppose the military rule or domination by the military cliques, will play a crucial role which we have not seen in the past 48 years. That, however, all depends on how free, fair, and inclusive the election is, as well how much the opposition parties to the SPDC can play the art of legislature in Pyidaungsu Hluttaw.
For the negative side, if we look only at the Nargis Constitution and cannot see some alternative, we would not see dramatic changes after the election.
Therefore, I would say that if a free and fair election takes place as planned by the military regime in 2010, we might see a few opportunities to restore democracy in Burma gradually, but this is only one opportunity and not the only opportunity or change.
Chinland Guardian: There have been rumours about the possibility of trying the military regime at ICC or ICJ based on 'crimes against humanity.' Do you think this is feasible? How and why?
Dr. Salai Ngun Cung Lian: In legal field, one thing we always say is “it depends on . . . .” All things can be possible. When the Rome Statute was being drafted by the international community in early 1990s, I could not imagine that the ICC would become the strong international legal mechanism it is today. So, we can always hope for the best and who knows the future kismets of the Burmese regime?
As I have stated above, articles 209(a) and (b) were adopted to protect the military leaders from prosecution by international legal mechanisms. Therefore, as long as the SPDC’s constitution remains in force in Burma, we will have a little or no chance to bring the criminals to international court.
However, we should also remember the constitutional history of Burma. The Government of Burma Act of 1935, which was designed to promote and implement the interests and benefits of the colonial power, was abolished when the Union of Burma became an independent and sovereign union in 1948. The Constitution of the Union of Burma of 1948 came to an end when the military junta staged a coup in 1962. The Constitution of the Socialist Republic of the Union of Burma came to an end in 1988 because the Constitution did not reflect the will and desires of the majority people in Burma.
So, what I am suggesting is that if this Constitution does not reflect the will and desires of the people of Burma, it will come to an end, one way or another. Like all of Burma’s previous constitutions which did not reflect the will and desires of the people of Burma, this one, too, shall be abolished. So, if we are looking for remedies from the
International Criminal Court, we should not be discouraged. There will be a way to do but this should not be viewed as the only option. However, we also need to look at different mechanisms or models such as the South African model or others to restore democracy, self-determination, and federalism in the Union of Burma.
Chinland Guardian: How do you see the current situation and movements taken by opposition groups such as NLD and Ethnic Nationalities in regards to the 2010 Election?
Dr. Salai Ngun Cung Lian: As the winner of the 1990 general election, the NLD has the right to have its own policy on 2010 ballot and I have no right to say whether the NLD’s policy towards the 2010 election is right or wrong. I respect their policies in general but one of the things I would like to see is for the NLD to be permitted to successfully execute any policies it has adopted. So far, I have not seen any NLD policies or resolutions which make me uncomfortable. But, with due respect, the NLD should be more active, more engaged, more accessible, and more pragmatic.
Regarding the Ethnic Nationalities, seeing and utilizing the 2010 general election as one of the opportunities to promote, protect, and safeguard the interests and benefits of the Ethnic Nationalities in Burma is both important and necessary, in my opinion. With due respect, I would like to see more engagement and cooperation among the Ethnic Nationalities inside and outside, ceasefire or non-ceasefire, legal parties or illegal. Such cooperation is highly essential and warranted because the Ethnic Nationalities’ interests and desires are almost always identical.
Chinland Guardian: Recently, the 84-year-old opposition leader of National League for Democracy (NLD) U Tin Oo was released by the SPDC after spending nearly seven years in prison and under house arrest in Rangoon. Does it signal anything at all?
Dr. Salai Ngun Cung Lian: Releasing U Tin Oo was to measure the international communities’ pressures before issuing the 2010 general election law by the junta. As SPDC might have expected, many people cautiously welcomed the released of U Tin Oo but collectively urged the junta to release all political prisoners and conduct free, fair, inclusive yet transparent general election. So, if the junta wants 2010 election and the outcome to be legitimate and credible, it has only one choice that is comply with international communities demand.
Chinland Guardian: The military regimes since 1962 have been gripping to power in the country despite various forms of oppositions and pressures from both the international community, including the UN, and from the peoples of Burma,, by taking to the streets in protest against the regime. Can we admit that they are actually winning the game?
Dr. Salai Ngun Cung Lian: To be honest, the winner of the any game doesn’t necessarily win the game always legitimately. Sometimes, a referee can make a mistake and the loser can be the winner. Sometimes, someone, or some group, can cheat the system and win the game.
In Burma, the SPDC is leading the game because it can resist the pressures of the UN, EU, USA, ASEAN, etc, with the help of some other countries. The SPDC could not eliminate completely the political opposition inside Burma, but, at a certain level, it can monopolize them illegitimately and immorally. The SPDC does not have the power to root out all the armed organizations and the armed organizations do not have the power to conquer the SPDC.
So, technically speaking, the SPDC is leading the game, but has not won the game. Winning the game and leading the game are not the same phenomenon. The game is still going on and we are playing a “handicap match” with the SPDC, but who knows the outcome? Sometimes, the game can change completely. Well, these are my personal opinions and do not necessarily reflect the organizations, entities, or institutes to which I am related. I could be wrong and I could be right as I am one of the human beings. Thank you.
This is a very precise and sound assessment of the political game witnessed by the 2010 election and on going drama of various hluttaw now. The SPDC won the game landslide as the NLD, the able challenger among the oppositions went astray of the course of democratisation by boycotting the election. Present opposition is so weak in the parliament and insignificant. Yet, if the opposition players could control their emotional outbursts and walk on the thin line, we still could expect to advance the cause a little farther until the balance of power could change in the next election in 2015. Every political activist should read this article as frequently as possible and try to understand what an expert's opinion mean to the unfolding events that follow.
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