New Constitution Needed for Genuine Transition to Democracy

“The current constitution is not democratic, and Myanmar cannot be considered a democracy without it being amended.”

The UN Special Rapporteur on the human rights situation in Myanmar

Two years since the assassination of U Ko Ni, the National League for Democracy’s (NLD’s) legal adviser who was working on a draft replacement of the 2008 Constitution, Yangon’s Northern District Court handed down its sentence to several men involved in the assassination. The slow trial process reflects obstacles within Myanmar’s[1] justice system that reflects its inability to effectively administer justice. At the backbone of the system lies the 2008 Constitution, which the NLD has recently made a surprise move to amend.

The gunman, Kyi Lin, who shot and killed U Ko Ni and the taxi driver, and Aung Win Zaw, an accomplice involved in planning the killing, were both sentenced to death on 15 February, 2019. The Independent Lawyers’ Association of Myanmar denounced the court’s light sentencing of former military intelligence captain, Zeyar Phyo who was initially charged with premeditated murder and aiding and abetting an offender for offering financial support to carry out the murder, but was instead sentenced for destroying evidence and only received a five-year sentence for a crime that has devastated and shocked many following this case. The prosecution lawyer is calling for a revision of the light sentencing against Zeyar Phyo and will be filing an appeal.

The slow trial, which has span over two years, has failed to establish the whole picture despite holding over 100 court hearings, while the mastermind of the assassination – a retired lieutenant colonel and a business crony, Aung Win Khaine – has continued to evade arrest and is currently subject of an Interpol notice. He was last seen near the National Herbal Park in Naypyitaw. The investigation into the killing of U Ko Ni was riddled with obstacles including military involvement in police investigations. Lines of inquiry to uncover the motive of the killing, particularly as many of the suspects had ties to the military, were wholly unsatisfactory. Such obstacles have resulted in the lack of impartiality and independence of the investigation, while Myanmar’s judges, police, court and prosecutors also continue to lack independence from the Myanmar military in order to administer justice.

Such issues are emblematic of the challenges that victims face when pursuing justice in Myanmar. At the root of the obstacle is the 2008 Constitution which continues to grant the Myanmar military power over the civilian NLD-led government. The Constitution also prohibits accountability as the military remains the ultimate arbiter of crimes, while granting blanket amnesty to former military regimes who have committed crimes. In addition, it effectively grants the military veto power over any attempts at amending the constitution. Recently, the NLD proposed to form a joint parliamentary committee to work on amending the Constitution, and despite the objections from the military and the military aligned Union Solidarity and Development Party (USDP), nearly 67 per cent of lawmakers voted in favor of forming the committee. The joint committee to draft amendments will consist of 45 members of parliament, though this also faced objection from USDP as the Senior General Min Aung Hlaing continued to defend the military’s constitutionally guaranteed allotment of 25 percent of seats in the national legislature.

The UN Special Rapporteur on the human rights situation in Myanmar has welcomed the establishment of the parliamentary committee to amend the Constitution and expressed her hope that this development will aid Myanmar to “truly transition to democracy,” noting that “The current constitution is not democratic, and Myanmar cannot be considered a democracy without it being amended.” In addition, hundreds of people in Mandalay gathered in support of the Constitutional amendment, showing strong solidarity towards the recent move. Meanwhile ultra-nationalists, including Wirathu, gathered in downtown Yangon in protest, echoing the military’s objections to the proposal that deemed the move to fall outside parliamentary procedures.

The military drafted 2008 Constitution grants the Myanmar military complete autonomy and supremacy over the civilian government, while empowering them to act with impunity and to stay in power. Diverse communities throughout Myanmar, including the dominant Bamar majority, must act collectively for a new Constitution that embraces the distinct ethnic, religious and cultural diversity of the country. The new Constitution is needed for a radical departure from the country’s centralized Bamar Buddhist military-dominated system that the military and its allies capitalize on to remain in power and continue to commit grave crimes against ordinary civilians. As the UN-mandated Independent International Fact-Finding Mission on Myanmar stated in its concluding report, the 2008 Constitution “makes the Tatmadaw [the Myanmar military] accountable only to itself.”

A robust amendment of the Constitution, or better yet, a complete rewriting of the 2008 Constitution is vital in order to establish a federal democracy that reflects the genuine will of all people in Myanmar, guaranteeing ethnic nationalities and religious minorities protection and rights as well as putting an end to impunity of the military. As long as the military drafted 2008 Constitution remains intact, any civilian government – now and in the future – will be unable to hold the military to account or resolve the situation of grave human rights violations and humanitarian crises unfolding across the country. The international community must reiterate their call for the amendment of this military-drafted Constitution and take concerted actions to hold the Myanmar military to account under international human rights and humanitarian law.

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[1] One year following the 1988 pro-democracy uprising, the former military junta changed the country’s name from Burma to Myanmar overnight. Progressive Voice uses the term ‘Myanmar’ in acknowledgement that most people of the country use this term. However, the deception of inclusiveness and the historical process of coercion by the former State Peace and Development Council military regime into usage of ‘Myanmar’ rather than ‘Burma’ without the consent of the people is recognized and not forgotten. Thus, under certain circumstances, ‘Burma’ is used.


Resources from the past week

actions

Statements and Press Releases

Local Shans Welcome Engie’s Withdrawal from Upper Yeywa Dam, Urge Other Companies to Follow Suit

By Action for Shan State Rivers

Fresh Evidence of Violations Amid Ongoing Military Operation in Rakhine State

By Amnesty International

End Crackdown on Protesters in Kayah State

By Article 19

Statement on the Occasion of Union Day and Regarding the Continued of Arrests of Ethnic People, Youth and Students

By Assistance Association for Political Prisoners (Burma)

တိုင္းရင္းသားမ်ား၊ ေက်ာင္းသားလူငယ္မ်ား အားဖမ္းဆီးေနျခင္းႏွင့္ ပတ္သက္၍ သေဘာထား ထုတ္ျပန္ခ်က္

By Assistance Association for Political Prisoners (Burma)

Free Seven University Students in Mandalay: University Students Sentenced to Hard Labor for Peaceful Protest

By Athan and Fortify Rights

EU Must Halt Burma Police Training Programme

By Burma Campaign UK

ဗိုလ္ခ်ဳပ္ေအာင္ဆန္းေၾကးရုပ္တည္ေဆာက္ျခင္းႏွင့္ ပတ္သက္၍ ၿငိမ္းခ်မ္းစြာ ဆႏၵထုတ္ေဖာ္ေနေသာ ကရင္နီလူငယ္မ်ား၏ လႈပ္ရွားမႈ သပိတ္စခန္းအား အင္အားသံုးၿဖိဳခြင္းျခင္းအေပၚ သေဘာထားထုတ္ျပန္ခ်က္

By Burmese Women’s Union

Protect Peaceful Protesters in Karenni State: Police Fired Rubber Bullets, Tear Gas at Protesters

By Fortify Rights

The Government of Myanmar Must End the Grave Human Rights Violations against Minorities and Ensure Accountability

By Human Rights Now

Statement in Support of the Karenni Students’ Protest Against Burmanization

By Karen Women Organization

Statement on the Meeting for the Removal of Gen. Aung San Statue from the Gandahaywon Garden

By Karenni State People’s Representative Negotiation Committee

ျမန္မာနိင္ငံလုံးဆိုင္ရာ ရွမ္းလူငယ္ကြန္ရက္မွ ကရင္နီလူငယ္မ်ားအေရးထုတ္ျပန္ေၾကညာခ်က္

By Tai Youth Network

UN Special Representative Ms. Pramila Patten concludes her visit in Myanmar and calls for concrete implementation of Government’s commitments to prevent and address conflict-related sexual violence

By UN Office of the SRSG on Sexual Violence in Conflict

Expert Says Violence and Arrests of Karenni Protesters Must Stop

By UN Human Rights Council

UN Women’s Rights Committee to Review Angola, Antigua and Barbuda, Botswana, Colombia, Ethiopia, Myanmar, Serbia, and the United Kingdom

By UN Human Rights Office

အမ်ဳိးသားတန္းတူေရး အခြင့္အေရးလႈပ္ရွားမႈႏွင့္ပတ္သက္၍ လူ႔ေဘာင္သစ္လူငယ္၏ ေၾကညာခ်က္

By Youth for a New Society (YNS)


Progressive Voice is a participatory, rights-based policy research and advocacy organization that was born out of Burma Partnership. Burma Partnership officially ended its work on October 10, 2016 transitioning to a rights-based policy research and advocacy organization called Progressive Voice. For further information, please see our press release “Burma Partnership Celebrates Continuing Regional Solidarity for Burma and Embraces the Work Ahead for Progressive Voice.”

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