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I. Summary and Recommendations

On May 10, 2008, the Burmese military government will hold a referendum on a draft constitution that it claims will usher in a new era of “discipline-flourishing genuine multiparty democracy.”

However, the generals’ referendum, reflecting 46 years of brutal military rule, will not bring the people of Burma any closer to a democratic and rights-respecting government they so desperately seek, and for which they have courageously struggled. Instead, the draft constitution that the generals are demanding the Burmese people approve is designed to perpetuate military control in Burma, and obstruct any steps toward a meaningful multiparty democracy that upholds human rights.

The environment in Burma prior to the referendum has been one of continuing intimidation of the political opposition and general populace, denial of basic freedoms of expression, association, and assembly, and arbitrary arrests and detention. Under such widespread repression and a pervasive climate of fear, no free and fair referendum can take place in Burma.

Since the military crackdown on monks and pro-democracy protestors in August-September 2007, foreign governments and intergovernmental bodies have responded in varying ways. International criticism may be partly responsible for the referendum being announced, in February 2008, but it will not ensure that the vote is conducted freely. Concerted public pressure and targeted sanctions by the military government’s international supporters as well as its detractors is needed if there is to be any hope that real democratic progress, rather than further constitutional travesties, can be achieved.

Impossible Conditions for a Free and Fair Referendum

The Burmese people have the right to make up their own minds about the draft constitution, but the conditions for the May referendum do not allow them an informed and free choice. Most Burmese have not even seen the draft constitution, a 194-page document (in Burmese and English, and in none of the minority languages) that was released only a month before the referendum and is only available for purchase in some bookshops.

The ruling State Peace and Development Council (SPDC) has refused to allow any meaningful public discussion and debate of the draft constitution, and has arrested and jailed those who have expressed opposition to its contents. The government-controlled press writes endlessly about the merits of the “discipline-flourishing” draft constitution, and viciously denounces its opponents. The more independent weekly newspapers and magazines have decided to refrain from making any critical comments about the draft constitution, preferring self-censorship to the known consequences of speaking out—detention and the closure of their papers. At least seven prominent journalists remain imprisoned in Burma, convicted on spurious charges such as “engaging in anti-government propaganda” for writing about human rights abuses, and publishing information that “makes people lose respect for the government.”

The SPDC also denies the Burmese people the right to freely discuss the draft constitution, or to engage in any form of assembly or association to protest the upcoming referendum. SPDC spies and informants are everywhere, severely limiting the ability of people to speak freely even when talking with friends in teahouses or private homes. Any gathering of more than five people is banned in Burma, and even solitary peaceful protesters face the full wrath of the generals.

Activists have been detained for holding peaceful protests urging a “No” vote on the referendum; on March 30, security forces detained five activists of the main opposition party, the National League for Democracy (NLD), three days after they had participated in a protest by 30 NLD activists who wore T-shirts emblazoned with the word “No” during a brief, peaceful walking protest in Rangoon. Two other NLD activists were detained on the night of April 1.

Opposition political parties operate in a climate of severe harassment and repression of their activities by the authorities. Most political parties have been deregistered in Burma since the annulled 1990 elections, the NLD and the military-backed National Unity Party (NUP) being the main exceptions. Pro-SPDC groups routinely pressure NLD members into resigning from their party, under threat of vigilante violence. In April 2008 a number of NLD officials and human rights activists were attacked by alleged pro-junta elements operating in plainclothes. There are some 1,890 political prisoners in Burma, including 755 detainees arrested since January 2007, most of them for the peaceful expression of their political beliefs or their participation in peaceful opposition activities such as rallies.

The referendum process will not be monitored by any independent local or international monitoring organizations. The SPDC has rejected UN assistance in organizing a free and fair referendum, saying that Burma “has adequate experience”—even though the last national referendum, in 1973, was blatantly rigged, and the most recent elections, in 1990, had their results overturned.

Under such repressive conditions and a pervasive climate of fear, no free and fair referendum can take place in Burma. Instead, the continuing denial of basic freedoms, arbitrary arrests, and the widespread repression show that the generals have no interest in bringing about a rights-respecting, democratic government in Burma.

A Fatally Flawed Constitution-Writing Process

The draft constitution being put to the May referendum has been 14 years in the making. These 14 years have not been well spent. Throughout, the SPDC has tightly controlled the writing process to ensure that the constitution’s language incorporates the desire of the ruling generals to remain firmly in control.

After overturning the results of the 1990 elections that were overwhelmingly won by the National League for Democracy, the military ruling body, then named the State Law and Order Restoration Council (SLORC), announced that the elected representatives would form a National Convention rather than a parliament. Even so, by the time the National Convention convened in 1993, only 106 of the 702 delegates were elected representatives, with the remaining 596 delegates handpicked by the generals to “represent” workers, peasants, intellectuals, national races, and the army, plus “specially invited persons.”

In reality, the National Convention delegates only provided a convenient fig leaf for the military to push through a draft constitution that guaranteed future military control. The delegates were supposedly brought together to draw up the “basic principles” of the draft constitution, rather than the draft constitution itself, but even the “principles” had to conform with the “objectives” of the National Convention already adopted by the generals—including the entrenchment of a large military role in the future system of government. Delegates had to have any statements they wished to make pre-approved by the military-dominated National Convention Convening Commission, which censored anything remotely at odds with the aims of the generals. Regulations prohibited any kind of protests, the distribution of leaflets, the wearing of badges, bringing in of papers not approved by the Convening Commission, or the lobbying of delegates. When the National Convention was in session the delegates were confined to their dormitories, requiring permission to leave the premises. Those who violated the strict rules faced dire consequences: NLD delegate Dr. Aung Khin Sint and his colleague U Than Hla in 1993 were sentenced to 20 and 15 years’ imprisonment respectively for disseminating speeches delivered to the convention.

In November 1995, after fruitlessly trying to change the operating procedures of the National Convention to allow for meaningful participation by the delegates, the NLD walked out of the process, announcing a boycott until the procedures were changed. Two days later the Convening Commission expelled all 86 NLD delegates on the basis that they had failed to obtain the commission ’s permission for their absence.

The National Convention was adjourned in March 1996. Daw Aung San Suu Kyi was released from house arrest in early 2002. She spent all of the period 1989 to 1995 incarcerated, with conditional release between June 1995 and 1997 when she conducted popular weekend gatherings of citizens and supporters at the gates of her Rangoon home. Following her 2002 release, she immediately went on a national tour; her pro-democracy speeches drew massive, enthusiastic audiences. On May 30, 2003, the SPDC orchestrated a vicious attack on Suu Kyi’s convoy outside the town of Depayin that killed scores of NLD supporters, causing widespread international condemnation of the SPDC. After placing Suu Kyi again under house arrest (where she remains, now in her 13th year of detention), and in a bare-faced attempt to deflect international criticism, the SPDC announced its “Seven Step Roadmap to Democracy,” starting with a reconvening of the National Convention in late 2004.

But the reconvened National Convention was no different from its first incarnation. It was no more representational than the original body, particularly after the expulsion of the NLD delegates. The strict restrictions on the participation of the delegates remained in place. Time after time, any proposal at odds with the SPDC’s own vision was firmly rejected, without any substantive discussion.

On September 3, 2007, amid rising pro-democracy protests in the country, the SPDC announced the completion of the National Convention, and in October 2007 appointed a hand-picked 54-member Commission for Drafting the State Constitution to complete the process. The NLD and other independent political parties were excluded from the final constitution-drafting process, giving the SPDC a final opportunity to ensure its draft constitution would conform to its requirements.

Facing renewed criticism in the wake of the September 2007 crackdown on monks and pro-democracy protesters, and international calls for real democratic reform, the SPDC announced on February 19, 2008, that it would hold a referendum on the draft constitution in May 2008, to be followed by parliamentary elections in 2010, renewing its commitment to the “Seven Step Roadmap to Democracy.” The SPDC’s sudden acceleration of the “Roadmap” closely mirrors its actions following the Depayin killings in 2003, when it first announced the seven-step project; whenever the SPDC comes under pressure to carry out real democratic reforms, the generals reinvigorate their sham path to democracy to lessen international pressure.

A Constitution for Military Dominance

The SPDC’s draft Burmese constitution is not designed to bring about a real transition to democratic rule; its clauses demonstrate that the document’s purpose is to continue military dominance of Burma with a civilian face, and to deny political parties the right to participate freely in the future governing of the country.

The constitution states as one of its fundamental aims “for the [military] to be able to participate in the national leadership role of the state,” and it makes good on that promise. One-quarter of the seats in both houses of parliament are reserved for military officers appointed directly by the commander-in-chief, and standing military officers can also run for the “open” seats of parliament. An even broader role is given to the military in selecting the president and two vice-presidents. Certain cabinet positions, including those with a security or military component, are reserved for the military. The dominant military role in the government is virtually impossible to change by amendment, since any amendment of these clauses requires more than three-quarters of the votes in both houses of parliament. Since the military has one-quarter of those seats, it holds an effective veto.

By contrast, the constitution treats political parties with open hostility. Provisions bar individuals and entire political parties from eligibility for office. A custom-drafted clause prevents Aung San Suu Kyi from running for office, by barring anyone who is married to a foreign national or has children who have foreign nationality (Suu Kyi is the widow of a British citizen, and has two children who hold British nationality). But the sweeping powers to exclude others go much beyond Suu Kyi’s tailor-crafted exclusion; anyone convicted for a criminal offense can be permanently excluded, which means that thousands of opposition leaders and activists who have been arbitrarily punished for their peaceful political activism are excluded from participating in parliament.

On its face, both the referendum and the draft constitution are designed to constitutionally enshrine and forever entrench more of the same abusive rule that Burma has endured already for nearly half a century.

Recommendations to Concerned Governments

In our December 2007 report on the crackdown against popular protests, Human Rights Watch took the unusual step of not making recommendations directly to the Burmese government.1 We said:

Since elections were annulled in 1990, international institutions including the UN General Assembly and other UN bodies, concerned governments, and nongovernmental organizations such as Human Rights Watch have made dozens of good-faith recommendations to the government that have been systematically ignored.2

Unfortunately, the Burmese government is still not serious about respecting fundamental rights and engaging in democratic reform. All the elements for a free and fair referendum are absent, including freedom of expression, freedom of association, and freedom of assembly. The process is so flawed that the SPDC has refused to allow independent, international observers to monitor the referendum.

Human Rights Watch urges all countries and intergovernmental institutions dealing with Burma to recognize the severe limits on basic freedoms and other human rights abuses in the constitution-drafting process and the pre-referendum period. Announced approval of the draft constitution on May 10 should not result in international endorsement of the referendum process.

It is nonetheless important that concerned governments adopt strong measures in the aftermath of the referendum.

Countries that have already publicly and strongly criticized the constitution-drafting process and the pre-referendum period, namely Australia, the European Union states, and the United States, are urged to:

  • Continue to make public statements calling on the SPDC to permit broad public participation in the constitutional process and political reforms, including by opposition political parties and ethnic minority groups.
  • Press the SPDC to respect human rights and engage in a genuine political reform process by all political parties and ethnic groups. Implement such measures as targeted financial sanctions on leading military and civilian officials responsible for abuses, and on companies owned and controlled by the military or whose revenues substantially benefit the military. In addition, impose targeted sanctions on imports, exports, and new investment in sectors of Burma’s economy that substantially benefit the military or are otherwise associated with serious human rights abuses, including the petroleum, mining, precious stones, and logging sectors, as well as hydropower and other major infrastructure projects. (See Human Rights Watch’s special webpage, “Crackdown in Burma: Targeted Sanctions Needed” at http://hrw.org/english/docs/2008/01/11/burma17719.htm for more information on targeted sanctions.)
  • Call for a mandatory and fully enforced embargo on all weapons and ammunition sales and transfers to Burma, adopted by the United Nations Security Council.

Human Rights Watch urges India, Japan, Thailand and other ASEAN nations, the ASEAN secretariat, the UN secretary-general, and the UN special advisor on Burma, which have responded to the constitutional referendum cautiously, to:

  • Make clear before the referendum that the flawed constitutional drafting process and pre-referendum abuses mean that approval of the draft constitution by the referendum cannot be accepted as a genuine expression of the popular will of the Burmese people.
  • In public statements on the referendum, urge that the SPDC respect the internationally protected rights of the Burmese people.
  • Press the SPDC to respect human rights and engage in a genuine political reform process by all political parties and ethnic groups.

Finally, Human Rights Watch urges China and Russia and other countries that have welcomed the constitutional referendum as a sign of “progress” and have provided political support and cover to the SPDC to:

  • Refrain from making public statements about the referendum that are dismissive of the rights of the Burmese people and only serve to undermine these countries’ credibility.
  • Refrain from blocking meaningful statements and action by the UN Security Council on Burma.
  • Publicly urge the SPDC to respect human rights and engage in a genuine political reform process with full participation by all political parties and ethnic groups.

Methodology

Human Rights Watch has been monitoring the SLORC/SPDC’s hijacking of Burmese democracy, the unfolding National Convention process, and the drafting of a new constitution in Burma since their beginnings. They have been background and context to the full range of our work on Burma, and have arisen in interviews with Burmese interlocutors too numerous to specify. Reference to a wide-range of specialist commentary and other published material has furthered our understanding of the constitution-drafting process over the years.

Since the referendum was called in February 2008, Human Rights Watch conducted specific, targeted research in Thailand amongst exiled and migrant worker populations. Between March and April 2008, we conducted interviews with 18 journalists, most of whom work in government controlled areas of Burma, and over 20 workers, students, and activists who are based both inside Burma and in neighboring countries. The report was supported by additional research from Human Rights Watch consultants conducted inside Burma and along the Thailand-Burma border since 2006. Some of the names of the people interviewed have been changed and interview locations withheld to protect the safety of interviewees. Many people we interviewed did agree to use their real names.




1 Human Rights Watch, Crackdown: Repression of the 2007 Popular Protests in Burma, vol. 19, no. 18(C), December 2007, http://hrw.org/reports/2007/burma1207/.

2 Human Rights Watch, Crackdown, p. 123.