New Constitution Needed for Genuine Transition to Democracy
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 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.
 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
Statements and Press Releases
By Action for Shan State Rivers
By Amnesty International
By Article 19
By Assistance Association for Political Prisoners (Burma)
By Assistance Association for Political Prisoners (Burma)
By Athan and Fortify Rights
By Burma Campaign UK
By Burmese Women’s Union
By Fortify Rights
By Human Rights Now
By Karen Women Organization
By Karenni State People’s Representative Negotiation Committee
By Tai Youth Network
By UN Office of the SRSG on Sexual Violence in Conflict
By UN Human Rights Council
By UN Human Rights Office
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.”