Don’t relax the muscle yet!

Writer: 
Nay Tun Naing
NLD supporters waiting to see poll results in the front of the NLD (headquarters). (Photo-Kyi Naing)

 

The National League for Democracy (NLD) won 387 seats in two parliaments, according to the Union Election Commission (UEC) as of November 11.

The NLD secured 59 seats more than the required count of 328 seats to form the government.

The NLD won by landslide this time as it did in 1990. The speculation of the ruling Union Solidarity and Development Party (USDP) and political commentators that the NLD would not score a landslide victory in 2015 election since it was not as same as the 1990 election is wrong.

A total of 93 parties competed in the 1990 election and the NLD won 392 seats out of 485 seats; it was 80.82 per cent. It may win more than 80 per cent this time.

The NLD was not handed the state power in 1990 despite its victory. The then government said that the election was just to draw the constitution and broke their promise.

But not this time; the government must hand the power to the NLD in accord with the constitution and the parliamentary laws or it infringes the law.

Don’t let the history repeat itself

The NLD scored a landslide victory this time but this is not finished yet. Everything concludes well only once the power transition process ends well.

The 1990 election was held on May 27; the people, winning candidates and international media thought there would be power transition.

On July 27, Khin Nyunt, one of the coup leaders, declared the Statement 1/90 and said there would not be power transition.

The winning candidates were hunted down before and after the declaration and forced to leave their statuses.

The political parties including the NLD were targeted and wiped out. The dictators did such things from 1990 to 1992. Then the dictators called a national convention with more than 600 of their henchmen and 100 from 485 winning candidates.

Swedish journalist Bertil Lintner said the current situation is to be cautious while he recalled what happened in 1990. He said it during the interview with The Irrawaddy.

He said: “… in 1990, it was the same thing; on the 27th of May, enormous joy and celebration, people really thought this was a breakthrough, that things were really going to change. Two months later, exactly two months later, the SLORC [State Law and Order Restoration Council] came out with an announcement basically saying no, we cannot hand over power to one party, there are so many other parties, other interests we need to take into consideration.”

Lintner said the current situation should be watched with a great care.

“…it remains to be seen how they are going to deal with the election results. We will not know that until, I would say, end of December or maybe January. And by that time all the foreign journalists are gone, they’ve moved on to other stories. Everybody has already come to the conclusion that Burma [Myanmar] is now free and democratic, and I think we will have to watch this very carefully, what will happen,” he said in the interview with The Irrawaddy.

In 1990, the NLD and the winning candidates were caught off guard due to the flaws in the law.

This time there are the 2008 constitution and relevant parliamentary laws. So the things cannot be done wildly. But there are still some cases to be aware of.

Power transfer                                                                        

According to the 2008 constitution and the parliamentary laws, the power transition does not follow immediately after the election. The power transition process will begin after February 2016.

So the months of December and January need to be watched carefully.

The lower house election law states that the cognisable offences related to the election must be taken care of within 15 days after the election. If someone is to object to another’s election, they may present it to the UEC within 45 days after the election.

The UEC must issue the report 45 days after the day of election and its duty concludes only after this.

There were not any considerable complaints and legal suits concerned with the election yet. There was not any complaint letters the UEC received within six days after the election.

There could be legal suits and objections in order to reduce the seats won by the NLD. But the NLD’s scores cannot be reduced through this way.

The USDP’s candidates had done many things that were not in line with the election law and malpractices in the constituencies they have won.

The people have enough evidences for this and the relevant candidates and voters can file complaints over this case. The action is to be taken if someone complained. Some people have prepared for this.

The parliament’s tenure is to be decided first before the power transition.

According to Section 119 of the constitution, the term of the Lower House is five years from the day of its first session. So it expires on January 31, 2016, so does the Upper House.

Section 123 stated that the first regular session of a term of the Lower House shall be held within 90 days after the commencement of the general election.

So the first session of the newly elected lawmakers must be called between January and February by the sitting parliamentary speaker Thura Shwe Mann.

Then the Union Parliament must be held within 15 days after Lower House and Upper House sessions have been held.

After the union parliamentary session, the election of the President must be processed. Then the union parliament may approve the cabinet submitted by the President.

Thus the new President and government must be brought forth by February.

It the state power is not handed to the newly elected lawmakers, it means infringement of the constitution, parliamentary laws and other standing laws.

The parliamentary session was held in January 2011 after the 2010 election. The cabinet swore an oath and took the executive duty in March.

Senior General Than Shwe, the chairperson of State Peace and Development Council (SPDC), issued the Notification 7/2011 and signed and dissolved the council on March 30, 2011.

Subsequently it was officially announced that the legislative, executive and judicial powers were handed to the union-level officials appeared by the approval of the Parliament.

By this example, the Thein Sein government must handover the power to the new administration not later than March.

Things to be aware of

The NLD has won enough to form a government and elect the President.

According to the UEC’s figures announced on November 14, the NLD has won more than 75 per cent of seats in both parliaments.

Like in the 1990 elections, the NLD is likely to win more than 80 percent. Under these circumstances, the NLD is in a position to form a government without necessity to coordinate with others.

However, Aung San Suu Kyi sent separate letters to President Thein Sein, Commander-in-Chief of the Defence Services Senior General Min Aung Hlaing and Union Parliament speaker Thura Shwe Mann on November 10 to meet and discuss national reconciliation.

President Thein Sein and Senior General Min Aung Hlaing replied that they would meet after the completion of the work of the Union Election Commission (UEC).

The electoral process will finish following the submission of a report 45 days after the elections. So the meeting requested by Suu Kyi will come at least in the last week of December.  

Thein Sein said the meeting could take place only after the electoral work. But he called a meeting with 92 political parties in Yangon on November 15. This means that he met with other parties by turning down Suu Kyi's request to hold a four-party meeting. We cannot know what is behind such a meeting (held on November 15).

Senior General Min Aung Hlaing repeatedly said in his interviews that the military would accept the fair results, regardless of whoever wins the election. He also clearly said there would be no military coup.

Despite the promise of the military chief, we must caution that the 2008 constitution, a kind of legislation which has never existed in any other country, allows a coup. This point is clearly described in the provisions of state of emergency in the constitution.

Aung San Suu Kyi has already warned the people not to do anything that could help stage a coup under the constitution.

She made the caution during a weekly programme of RFA (Radio Free Asia) titled "Tough journey of democracy and Daw Aung San Suu Kyi".

She told RFA: "I would just like to thank all the people. I am encouraged, and I appreciate and value the support of the people.  But it’s not finished yet and I’d like to caution all to look out for instigation. In the next few weeks, couple of months, people must be able to control themselves, beware of instigation aimed at creating riots and disturbances. There might be provocations from the sidelines when you are walking your own path but these can be overcome by trust and understanding of each other and it is important to calmly move towards the goal."

The Thein Sein government only has responsibility to ensure peace in the transitional period.  It is the responsibility of the ministry of home affairs to ensure that there is no anarchy, unrest and violence. Instability would ensue if the ministry ignored anarchy and the rule of law but exercised lawlessness and made unfair arrests.

Actually, it failed to effectively prevent acts of lawlessness and anarchy before the election period. Yet the people were able to keep calm and stable in the election period.

If the home affairs ministry fails to prevent and stop any acts of anarchy and lawlessness in the power transition period, the ministry itself as well as the perpetrators could face action in accordance with the existing laws and even be changed with high treason against the state.

Bertil Lintner recounted that in the 1990 elections, military dictators had enough time to counterattack after remobilizing their broken force in two months.

Such a situation is impossible now. But there are words of warning that under the 2008 constitution, the home affairs ministry, the defence ministry and the border affairs ministry are under the military control.

Sub-section (ii) of Section 232 (b) of the constitution stipulates that the president shall obtain a list of suitable Defence Services personnel nominated by the Commander-in-Chief of the Defence Services for Ministries of Defence, Home Affairs and Border Affairs. In other words, the commander-in-chief has the right to appoint these three ministers.

According to Section 232 (h), however, the ministers shall be responsible to the president.

When the NLD comes into power, those three ministers will be appointed by the military chief. But if the president is not happy with their performances or their performances are not in line with the procedures, the president has the right to remove or replace them.

Despite being able to form a government after winning a sizeable parliamentary majority, the NLD has offered a meeting in view of national reconciliation. And this is more than magnanimity.

The military's stance

Senior General Min Aung Hlaing has repeatedly said that the military would accept and respect the election results, regardless of whoever won.

He said he hoped the party on whom the people place reliance would win on November 8 when the election took place. There was no reason not to accept the results. The military would accept whoever wins just after the results are announced by the UEC, he added. The Senior General also pointed out a constitutional clause where power must be transferred to the elected government.

In a meeting with the media on September 21, he said the military had no plan at all to stage a coup.

"…I don't have such a plan at all. Let me say that the military has no such a plan," said Senior General Min Aung Hlaing.

"We don't like coups. This is our real will. The military is an institution formed in a disciplined manner and it has to act based on discipline. Ours is an enormous institution. So we want to go in a disciplined manner."

He also said the military would act in line with the constitution and it was impossible to breach the constitution.

When asked about the military role in national reconciliation efforts if the opposition wins the election, the commander-in-chief said: "We will accept whatever party wins. I have already said so. I have said I will accept the results if they are free and fair. That will have to go in accord with the constitution. We cannot act beyond the constitution. No one is above the law. You would say the commander-in-chief is the man of law. I would not. But it is the best thing to act within the framework of law for the country's sake. If we go like this, the efforts for national reconciliation will become smooth. We will take a constructive approach for the good of the country."

Reviewing the military chief's words, it is clear that the military will act in accordance with the constitution in power transfer and that it will not stage a coup.

If the constitution is beached,

Section 384 of the constitution says that every citizen has the duty to abide by the provisions of the constitution.

This is why everyone, including the president and the commander-in-chief, has such a duty.

When it comes to power handover under the constitution, parliamentary must be called 90 days after the elections. In parliament, the president and ministers must be elected and then power must be transferred. Power transfer must be carried out by March 31.

If there is any intentional delay in transferring power and calling parliament, it is an act of violating the constitution and the perpetrator could face legal actions in accord with the existing laws and even a death sentence on charges of high treason against the state.

Again, if there is any delay in power transfer by stirring up unrest and violence to cause instability, any perpetrator could face legal actions in accord with the existing laws and on charges of high treason.

For the people, the time has not come to take the situation lightly as they have learned lessons from the 1990 elections.

If they attempt to recall the elected parliamentary representatives based on alleged electoral fraud, we can return lawsuits with our strong evidential sources. For this, it is just enough to study the constitution and the election and parliamentary laws.

Anyhow, for those who don't want to transfer power or delay power handover by breaching the provisions of the constitution, they would come to a sticky end.