Draft Sagaing constitution missing key rights

The draft Sagaing Federal Unit Interim Constitution marks a significant improvement over Myanmar’s military-drafted Constitution (2008) and the Federal Democracy Charter (2021). It references global human rights standards (Arts. 41.b and 30.c) and includes a historic provision requiring that the government adhere to international law (Art. 191).

As a precedent-setting document, the Sagaing Constitution could shape governance for years and lay the foundation for a future national constitution. The Sagaing Federal Unit Hluttaw’s consultation request also sets a positive precedent.

The draft strengthens fundamental rights protections without the vague national security restrictions found in the 2008 Constitution. It explicitly protects marginalised groups, including women, and prohibits various forms of discrimination.

However, international legal protections for civil and political rights are missing. The draft does not abolish the death penalty, ban cruel, inhuman, or degrading treatment, or guarantee the right to vote and the right to privacy. The draft also fails to enhance fair trial safeguards, ensure judicial independence, establish judicial review, or restrict emergency powers.

Human Rights Myanmar supports the development of a robust and democratic constitution for Sagaing and offers these recommendations based on international law.

The draft does not address capital punishment, leaving open the possibility that the death penalty may be retained or reintroduced. Global human rights trends favour abolition since capital punishment violates the inherent right to life. Article 16(a) should be revised in accordance with international human rights standards—including the ICCPR (Art. 6; Second Optional Protocol) and drawing on examples from democratic constitutions in Mongolia (Art. 16) and Nepal (Art. 16).

(a) Life. No person shall be subject to the death penalty, and all previous death sentences shall be commuted to an appropriate alternative sentence in accordance with the law;^[1]

Cruel, inhuman, and degrading treatment

Although the draft requires protection from torture (Art. 16), it does not explicitly ban torture or extend to cover all forms of cruel, inhuman, or degrading treatment or punishment. Comprehensive bans are required under international law to prevent abuses in detention, law enforcement, and military operations. Article 16(j) should be amended in line with the ICCPR (Art. 7) and the Convention Against Torture (Art. 1), following examples in constitutions such as Japan (Art. 36) and South Korea (Art. 12).

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