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II. Political Process 1962 – 2008

Since overthrowing a democratically elected civilian government in 1962, the Burmese military has ruled Burma with an iron fist, violently repressing popular demands for the restoration of democracy and severely restricting fundamental human rights. The military’s stranglehold on civil and political rights is matched only by its economic incompetence; Burma, prior to military rule one of Southeast Asia’s leading economies, is now one of the poorest countries in the world.

Throughout more than four decades of oppression, courageous Burmese have tried to restore democratic rule. They have time and again expressed their desire for an end to military rule whenever they saw an opportunity to do so: during the 1988 student protests that brought hundreds of thousands onto the streets, during the annulled 1990 elections that gave the opposition National League for Democracy (NLD) 80 percent of the parliamentary seats, and most recently during the violently repressed August-September 2007 protests by monks and pro-democracy activists. This history of popular demands for democratic reforms and violent repression by the generals is fundamental to understanding the dynamics behind the May 2008 referendum.

The First Rigged Referendum – 1973

On March 2, 1962, the Burmese Army under General Ne Win staged a coup against the democratically elected government in Rangoon and took control of the country. Within weeks, basic freedoms were severely restricted, with political parties outlawed, public gatherings limited or banned, press freedoms sharply restricted, and internal and international freedom of movement regulated by the Burmese army. Those freedoms have never been regained.

The newly formed Revolutionary Council of military officers opposed all forms of perceived political dissent. Following protests by the Rangoon University Students Union (RUSU) on July 8, 1962, the army shot scores of students and blew up the student union’s headquarters. Many political activists and journalists were jailed for expressing dissent.

In 1973 the Revolutionary Council staged a national referendum to adopt a new constitution. This was part of its plan to gain legitimacy for continued military rule and economic reform.

The vote was rigged and voters were manipulated—voters had to deposit their votes in one of two boxes, marked “Yes” (white) and “No” (black), and vote tallies were changed in favor of a “Yes” vote—with official results stating that more than 90 percent had voted in favor.³

Veterans of the 1973 constitutional referendum told Human Rights Watch that, notwithstanding the rigging and manipulation that secured the outcome, in the run-up they had been relatively free to campaign for or against the referendum, addressing communities throughout the country, in sharp contrast to today’s political climate in Burma.⁴

The 1974 constitution reformed Burmese federalism, establishing seven predominantly ethnic Burman divisions and seven ethnically distinct “states” to form the Socialist Union of Burma. This system remains in place today.⁵

The 1988 Student Unrests and the Army Massacres

Social tensions produced by 26 years of repressive military rule and socialist economic mismanagement came to the surface in March 1988 by way of student protests. The deaths of 42 student protestors from asphyxiation and heat after lon htein riot police bundled them into a van sparked a series of student demonstrations.⁶ The authorities closed all universities in Rangoon and ordered the students to return home, but this only emboldened the students. Small demonstrations against the government began to spread throughout towns and cities in government-controlled areas.⁷

General Ne Win resigned from the leadership of the military junta and admitted government failings, but threatened that “those creating disturbances will not get off lightly.”⁸ Despite this threat, people continued to march in the streets in large numbers. As the government rapidly lost control of the streets, independent newspapers and political posters were produced and openly distributed. Service personnel from the air force joined the demonstrators.

On August 8, 1988 (commemorated in Burma as 8-8-88), a major nationwide protest took place, with hundreds of thousands of people (some estimate up to one million) marching in Rangoon calling for democracy, elections, and economic reforms. Two days later, as tens of thousands of protesters remained on the streets, army units trucked into Rangoon began shooting at unarmed protesters. At Rangoon General Hospital, five doctors and nurses who were helping the wounded were shot and killed by the soldiers.⁹

The government authority then effectively collapsed. Much of the daily order of towns and cities was now in the hands of ordinary civilians, with the Buddhist monkhood (the Sangha) playing an important role as marshals of demonstrations to keep them peaceful and avert rioting, looting, and reprisals.

On September 18, 1988, the army forcibly retook control of the cities and towns. Army chief General Saw Maung declared martial law and the creation of the State Law and Order Restoration Council (SLORC, or Na Wa Ta), a collective of senior military officers who would form a “transitional” military government—and whose successor, the military State Peace and Development Council (SPDC), still rules Burma today. Through military brutality and a shoot-to-kill policy against protesters, the SLORC managed to deter further street protests. Estimates of the number killed range from 1,000 to 10,000 deaths nationwide, with 3,000 deaths a commonly accepted figure. Although the army was responsible for the vast majority of the deaths, mobs murdered some suspected military intelligence agents, soldiers, and government bureaucrats.¹⁰

The Stolen 1990 Elections: SLORC Overturns the NLD’s Election Victory

To gain internal legitimacy and foreign support for its rule, the SLORC changed the English name of the country to “Myanmar” and rapidly instituted a series of reforms, including promulgating an electoral law that permitted political parties to form and organize.¹¹ The National League for Democracy, led by Aung San Suu Kyi and retired generals U Tin Oo and U Aung Shwe, became the most popular and well-organized political party throughout the country.

The SLORC announced parliamentary elections for May 1990, but placed severe restrictions on political parties and activists. Suu Kyi’s widespread popularity proved to be a major threat to the SLORC, which had embarked on a strategy to discredit the 1988 uprising as instigated by old guard communists, foreign “colonialist” powers, and the western media.¹² As Suu Kyi’s speeches drew large rallies throughout the country, the SLORC sentenced her to house arrest in July 1989 on charges of instigating divisions in the armed forces.

Despite the repression faced by opposition parties during the campaign period, in the May 1990 elections the NLD won an overwhelming victory. A total of 13 million valid votes were cast out of nearly 21 million eligible voters. The NLD won over 80 percent of the seats (392 out of 485 parliamentary seats) and 60 percent of the popular vote. The second largest opposition party, the ethnic-based Shan Nationalities League for Democracy (SNLD), won 23 seats. The SLORC-backed National Unity Party won just 10 seats and just over 2 percent of the vote.

The SLORC was taken by surprise by the magnitude of its defeat and the repudiation of military rule. It scrambled to nullify the NLD’s victory, announcing in July 1990 that the new members of parliament (MPs) were elected only to form a constituent assembly to draft a new constitution, rather than sit as the elected parliament. The SLORC held that the new constitution had to be adopted before the parliament could be convened.

Without consulting the political parties that had won the elections, the SLORC assumed to speak for them by stating that:

The desire of the majority of the political parties which contested the General Election is to draw up a new constitution.… Consequently, under the present circumstances the representatives elected by the people are those who have the responsibility to draw up the constitution of the future democratic State.¹³

Ignoring the election results, the SLORC maintained martial law, and continued to exercise all executive and legislative powers, to the exclusion of the newly elected MPs.

The National Convention: 14 Years of “Guided” Constitution-Writing

The SLORC overturned the results of the 1990 national election by declaring that the elected MPs were elected not to sit in parliament, but only to “draw up the constitution of a future democratic State.” The generals reneged on this promise as well. After the annulled 1990 election, more protests and arrests took place, resulting in the arrest of many newly elected MPs, and forcing dozens of elected MPs to flee into exile to Thailand and the West.

In May 1992 the SLORC announced the formation of the National Convention Convening Commission, headed by SLORC member and Rangoon division army commander General Myo Nyunt. The Coordinating Commission met for two months to decide on how the National Convention would function, and who would attend. The aim of the National Convention would be to draw up a list of “Basic Principles,” which would then be incorporated into the draft constitution after the National Convention completed its work. In January 1993 the National Convention was finally convened with 702 delegates, of whom only 106 were elected representatives from the 1990 elections. All the other 596 delegates were handpicked by the SLORC to “represent” workers, peasants, intellectuals, national races, and the army, or were “specially invited persons.”

From its inception, SLORC (and its successor, the SPDC) designed and controlled the National Convention to ensure its outcome would reflect the objectives of the military junta. The delegates were only allowed to draw up the “basic principles” of the draft constitution, not the constitution itself. Moreover, the “principles” of the constitution had to conform with the “objectives” of the National Convention as already drawn up by the SLORC, which included “the participation of the Tatmadaw [armed forces] in the national political leadership role of the State in the future.”¹⁴

To further control the process of the National Convention, the SLORC’s strict rules for the delegates prevented free discussion, even within the convention hall. Delegates were required to pre-clear any statements they wished to make at the convention with the SLORC-dominated National Convention Convening Commission, which censored any statements it felt inconsistent with SLORC aims, and the discussions held at the National Convention were not publicly reported. The SLORC-drafted regulations for the delegates also prohibited walk-outs and any other shows of protest, prohibited delegates from distributing leaflets, wearing badges, bringing in papers that were not approved by the Convening Commission, or lobbying and influencing other delegates.¹⁵ When the National Convention was in session, the delegates themselves were required to live in dormitories guarded by the military, and required official permission to leave the compound.¹⁶ The elected delegates were not even allowed to discuss the proceedings and their party’s positions with other members of their own party.¹⁷ Any violation of the convention rules was severely punished. In 1993 Dr. Aung Khin Sint, an NLD delegate, and his colleague U Than Hla were arrested for disseminating speeches delivered to the convention, and sentenced to 20 years’ and 15 years’ imprisonment respectively.¹⁸

In reality, the National Convention only served as a fig-leaf for the SLORC’s drafting of a constitution that guaranteed future military control, giving the process some semblance of “democratic” legitimacy. The delegates had no real input on the draft constitution itself, and were powerless to influence the outcome of the process to any significant degree. Each session of the National Convention opened with a speech by a member of the Convening Commission in which “suggestions” were made about the particular chapter of the draft constitution under discussion, and was closed by another speech summarizing the “agreed” principles. In three of the first four sessions, the opening speech and the closing speech were identical in content, showing the lack of input from the delegates. In effect, the delegates only served to rubber-stamp the “suggestions” of the SLORC-dominated Convening Commission, rather than drafting their own “fundamental” principles.

In November 1995 the elected NLD delegates walked out of the National Convention, announcing a boycott of the process, “until such time as a dialogue is held on national reconciliation, the genuine multiparty democracy system, and the drafting of a constitution which is supported and trusted by the people.”¹⁹ The NLD’s walk-out followed the Convening Commission ’s summary refusal of an NLD request to review the convention’s working procedures. In response, the Convening Commission expelled the 86 NLD delegates from the National Convention, on the basis that the NLD delegates had violated the SLORC-drafted convention rules by failing to ask permission for their two-day absence from the National Convention.

The state-controlled press vilified the NLD for boycotting the National Convention, opining that the NLD’s decisions “were made with intent to mar the successes achieved so far by the National Convention… their National League for Democracy would replace [the National Convention] with a convention they would be able to dominate as they like, giving priority to promotion of the interest of their party.”²⁰

Aung San Suu Kyi pointed out the fundamental flaws of the National Convention process:

SLORC Declaration 1/90 of July 27 1990 states that it is the duty of the elected representatives of the people to draw up a constitution. An examination of actual conditions within the National Convention reveals that there has been a shift away from its declared aims. The following are some of the features of the present convention. The elected representatives of the people constitute only 15.24 percent of the delegates and thus are permanently in the minority. Neither the objectives of the Convention nor its working procedures were drawn up in consultation with delegates. Papers to be presented at the Convention are censored and have to be corrected in accordance with the wishes of the authorities. Decisions are laid down before an issue has been fully discussed. The Convention is making decisions not only on broad principles for the proposed constitution but also on its details. There is no fixed timetable for the [completion of the] Convention.²¹

Soon after the NLD expulsion, the SLORC adjourned the National Convention in March 1996; it would not be reconvened until 2003. In June 1996 the SLORC passed an even more repressive law to prevent any criticism of the National Convention process. Law No. 5/96, “The Law Protecting the Peaceful and Systematic Transfer of State Responsibility and the Successful Performance of the Functions of the National Convention Against Disturbances and Opposition,” prohibits any criticism of the National Convention, makes it illegal to make speeches or distribute statements “that belittle the National Convention,” and provides for prison sentences of up to 20 years for such criticism.

In May 2002 Aung San Suu Kyi was briefly released from house arrest and she went on a national tour, giving speeches about the need for democratic reform throughout the country. Her ability to draw large, enthusiastic audiences demonstrated her continuing national popularity, unaffected by years of house arrest and official vilification, and the continuing desire of the population for democratization and respect for human rights. The SPDC responded with violence. On May 30, 2003, a mob of SPDC-backed militias attacked Suu Kyi’s convoy near the town of Depayin, killing scores of NLD supporters. Suu Kyi was immediately placed under house arrest again, where she remains to date. Her house arrest was renewed most recently for another year on May 27, 2007, the day after she was visited by United Nations Special Advisor Ibrahim Gambari.

The “Seven Step Roadmap to Democracy”

In the wake of international condemnation of the Depayin attack and criticism of the SPDC’s continued refusal to embark on real democratic reform, Prime Minister Khin Nyunt announced a “Seven Step Roadmap to Democracy.” The roadmap envisioned the reconvening of the National Convention, to be followed by a “step-by-step process necessary for the emergence of a genuine and disciplined democratic system,” the drafting of a new constitution, the holding of a referendum, parliamentary elections, and the “building of a modern, developed and democratic nation.” But rather than embarking on an inclusive and democratic process aimed at real reform, the SPDC continued to push forward a tightly controlled, undemocratic process that excluded the NLD from participation.

When the National Convention finally resumed in late 2006, Information Minister Kyaw Hsan, the secretary of the National Convention Convening Commission, reminded the delegates of the strict restrictions under which they would be working:

The important codes of the conduct are: the delegates shall not be loyal to any state, other than the Union of Myanmar; the delegates will have to observe the directives of the panel of chairmen and the chairmen of the delegate groups; to live and act in accord with the prestige of a National Convention delegate and stay away from disturbing or undermining the tasks and functions of the National Convention; to hold discussions in an objective way and to stay away from making personal criticisms or criticizing a particular organization; and to bow to the State Flag every time they enter and exit the conference hall;… and the delegates shall keep all the news of the National Convention secret till they are officially released.²²

The reconvened National Convention was even less representative than the original one. Because of the expulsion of the NLD delegates, the number of remaining elected delegates stood at just 15 out of 1,088 delegates. The SPDC made up for the decrease in elected delegates by vastly increasing the number of delegates from “National Races”—many representing the ethnic minority groups who had signed ceasefire agreements with the SPDC—from 215 in 1993 to 633 in 2004 (for the continued participation of ethnic political parties see Chapter III, below, subsection “Freedom of association and assembly”).²³ Any proposal at odds with the SPDC’s own vision for its draft constitution was dismissed or ignored. In June 2004 the SPDC summarily rejected a proposal submitted by 13 of the ceasefire groups to establish a decentralized federal union of Burma with “ethnic or national democracy.” In December 2005 the New Mon State Party (NMSP) downgraded its involvement in the convention from delegates to observers in protest to their suggestions being ignored, and the restrictions on their involvement.

Constitution Drafting and the Renewed “Path to Democracy”

Finally, in July 2007, after 13 suspensions and 14 years, the SPDC announced the convening of the “final” session of the National Convention. The Kachin Independence Organization (KIO), an ethnic minority group that signed a ceasefire with the central government in 1994 and participated actively in the convention since that time, made a last-ditch effort to change the course of the convention by releasing a 19-point list of proposals in August 2007, most of them focusing on the rights of the seven ethnic states. The SPDC ignored the proposals, and amid widespread street demonstrations in late August prompted by the increase in fuel prices, the drawn out convention concluded on September 3, 2007.²⁴

The government crackdown began on September 25, and involved widespread violence against the peaceful demonstrators, including severe beatings and the use of live gunfire into crowds, resulting in dozens of deaths—the total death toll remains unknown. Thousands of protesters were detained, and dozens of monasteries were raided during the nights of the crackdown. Detainees suffered severe beatings, torture, and inhuman conditions in overcrowded ad hoc detention facilities, resulting in additional deaths. Hundreds remain in detention, including most of the leadership of the ’88 Generation students’ movement, and those who have so far been sentenced have received long prison sentences for their involvement in the peaceful protests, including life sentences. The violent crackdown and the use of military-backed militias to beat and intimidate the population have resulted in a pervasive climate of fear. The story of the courageous protests, and the full horror of the violent crackdown and its aftermath, was the subject of a detailed Human Rights Watch report, “Crackdown: Repression of the 2007 Popular Protests in Burma.”²⁵

In October 2007, with the crackdown on demonstrators still in the air, the SPDC handpicked a 54-member Commission for Drafting the State Constitution. This body was to draw upon the recently concluded National Commission and the finalized “fundamental principles” to write the text of the draft constitution. The NLD and other independent political parties were excluded from the constitution-drafting process, which gave the SPDC the opportunity to ensure the draft constitution would conform to the SPDC’s requirements.

Facing continuing criticism of the September 2007 crackdown and international calls for real democratic reform, the SPDC announced on February 19, 2008, that it would hold a referendum on the draft constitution sometime 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 path; whenever the SPDC comes under pressure to carry out real democratic reforms, it reinvigorates its own sham path to democracy to lessen international pressure.