Paragraphs on the National Convention
from the reports of the Special Rapporteurs on Myanmar
to the UN General Assembly (GA) and  Commission on Human Rights (CHR)

(Not included are annexes by the SLORC and SPDC and references to human rights violations associated with criticism of the National Convention)

The full texts of the reports in several languages may be found in the Online Burma Library at http://www.burmalibrary.org/show.php?cat=705&lo=d&sl=0

 

CHR 1993


E/CN.4/1993/37
17 February 1993
Report on the situation of human rights in
Myanmar, prepared by Mr. Yozo Yokota, Special Rapporteur of the Commission on Human Rights


V. THE NATIONAL CONVENTION FOR DRAFTING A NEW CONSTITUTION AND THE TRANSFER OF POWER TO A CIVILIAN GOVERNMENT

199. Under article 21 (1) of the Universal Declaration of Human Rights, everyone has the right to take part in the government of his country, directly or through freely chosen representatives.

200. Article 21 (3) states that the will of the people shall be the basis of the authority of government; this shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

201. In 1988 the SLORC announced that elections would be held. Two hundred and thirty-three political parties were formed by February 1989. Fifty-three contested the election. The rest either were declared illegal, had boycotted the elections (and were then declared illegal for having boycotted) or could not organize sufficiently to put up candidates, in part, because of the legal restrictions on lawful assembly and freedom to publish and distribute campaign material.

202. On 27 May 1990, general multi-party elections were held. Governmental as well as non-governmental sources told the Special Rapporteur that these elections were held in a free and fair manner. Ninety-three parties contested the elections, of which 27 won seats. Results published by the Government showed that the National League for Democracy (NLD), then headed by the presently detained leaders U Tin Oo (Chairman) and Daw Aung San Suu Kyi (General Secretary), won 392 of the 485 seats contested (80 per cent of the vote). Of those, 11 died (1 while in custody) and over 70 were jailed and/or disqualified. There are 281 remaining representatives with 84 of these potential representatives still under investigation as to their campaign expense accounts or other potential campaign irregularities. At present, the NLD is allowed to send 97 MPs and 5 members of the party to the National Convention.

203. The Shan National League for Democracy (SNLD) had 23 elected representatives. Of these, three died (of natural causes) and two were disqualified by the Election Committee. Eight are still being investigated by the Election Commission.

204. The Rakhine Democracy League won 11 seats; the SLORC-backed National Union Party (NUP) won 10 seats; the Mon National Democratic Front won 5 seats; the National Democratic Party for Human Rights won 4 seats. Four other parties won 3 seats each; 5 political parties won 2 seats each; 12 political parties won 1 seat each and 6 independents won seats, totally 485 seats altogether.

205. Government Authorities informed the Special Rapporteur that the intent of the elections had been misunderstood. Following the mass demonstrations for democracy in 1988, the then Chairman of the SLORC, General Saw Maung, announced the military coup and stated that "the military must first try to solve difficulties and hardships faced by the people and then carry out a general election." It was stated that the purpose of the elections had not been to turn over the Government to the elected party, but to select the persons who would draft the new constitution, after which, there would be a change in government. This turning over of the government would occur only after the new constitution provided a legal basis for doing so.

206. On 27 July 1990 Declaration No. 1/90 stated that a broad-based national conference would be convened so that all factors that should be taken into consideration in drawing up the constitution could be discussed and made available to the drafters of the constitution. The Convention was announced for January 1993.

207. On 24 April 1992, by Declaration No. 11/92, the SLORC announced that there would be meetings with the leading members of the elected parliament from existing legal political parties and the independent elected members of Parliament within two months, for the purpose of convening the National Convention in accordance with Declaration No. 1/90.

208. On 10 July 1992, a coordination meeting for the convening of the National Convention was held. It was chaired by a 15-member SLORC Steering Committee headed by Major General Myo Nyunt, Commander of the Yangon Military Command. Twenty-seven elected members of Parliament from the seven remaining legally-standing parties attended. The rules of procedure were determined by the Steering Committee. After three days, Major General Myo Nyunt announced that a general consensus had been reached that delegates from eight different categories would be invited to participate in the National Convention:

Five delegates from each of the legally-standing political parties;

Delegates who are the elected representatives;

About 200 persons representatives of the different "nationalities" in proportions determined by percentage of population;

Peasants - about 100;

Workers - about 100;

Intelligentsia - about 100;

Public servants - about 100;

Special invitees of the Commission - about 50.

These approximately 650 representatives, totalling about 70 per cent of the overall participants, were to be selected by the SLORC, primarily at the township level by the local SLORC representatives.

209. In total, 702 delegates had been named to the National Convention. The representatives of the seven parties which won seats in the elections and which are the only ones of the original twenty-seven which still exist are the NLD, SNLD, NUP, Union Pao National Organization, Lahu National Democratic Party, Mro or Khami National Solidarity Organization and the Shan State Kokang Democratic Party.

210. The Government informed the Special Rapporteur that there would be free discussion at the National Convention within the parameters of the six points determined by the SLORC for discussion:

Non-disintegration of the Union;

Non-disintegration of national solidarity;

Consolidation and perpetuation of sovereignty;

Emergence of a genuine multi-party democratic system;

Development of eternal principles of justice, liberty and equality in the State;

Participation of the military (Tatmadaw) in the leading role of politics in the State of the future.

211. As explained to the Special Rapporteur, the SLORC is responsible for determining and administering the rules of procedure by which the discussions will take place. These rules of procedure have reportedly not yet been specified to the delegates. The SLORC is also responsible for the taking of minutes during the Convention and for preparing the final report to be submitted to the SLORC after the Convention. The SLORC will then convene the Constitutional Drafting Committee.

212. By Declaration 1/90, the SLORC stated that the representatives elected in the multi-party democracy general elections in May 1990, would be responsible for drawing up the new Constitution. According to statements by Government authorities to the Special Rapporteur, Declaration 1/90 remains extant.

213. In regard to Declaration 1/90, during meetings with various Government officials, the Special Rapporteur was variously informed that the elected representatives would be allowed to take a "leading role", that elected representatives would be allowed to participate in the drafting process in which all opinions expressed in the Convention would be reflected; that they would be allowed a "leading role" but that Constitutional experts as determined and selected by the SLORC would also participate; that participation in the Drafting Committee would be determined on the basis of maintaining the integrity of the State and would be a step in the transition to democracy, but that this determination was a question of internal affairs not to be interfered with by the international community.

214. Non-governmental groups and individuals informed the Special Rapporteur that all elected representatives had been required to sign their agreement to Order No. 1/90. The Special Rapporteur was informed that, several elected representatives and party workers were arrested for refusing to sign.

215. Government officials told the Special Rapporteur that it has not been determined if after the constitution is drafted there will be a referendum to endorse it. No answer was received as to whether a general election will be held to elect the People's Assembly under the new constitution, nor was an answer obtained as to whether the Military Orders and laws instituted by the SLORC would be abolished under the new Constitution. Government sources indicated that these decisions would be taken by the Constitutional Drafting Committee members.

216. The Special Rapporteur was further informed that point number 6 of objectives on the agenda of the National Convention, i.e., the "leading role" of the military (Tatmadaw) in the future government was not an objective agreed to by the elected representatives. The Special Rapporteur was told that it is not clear what role or influence the Tatmadaw is to carry out in the Drafting Committee and how its role in the future, democratic government as defined in the constitution to be drafted was another point of great concern to the elected representatives.

217. The National Convention was announced for January 1993. On 9 January 1993, the National Convention was convened with speeches by the Chairman of the Steering Committee and SLORC member, General Myo Thant. There was no other discussion. Several different national constitutions translated into Burmese were said to have been received for consideration by the delegates. Reports received by the Special Rapporteur indicate that a number of elected representatives decided to attempt discussion as to point number 6 of the objectives, i.e., the "leading role" of the Tatmadaw in the new government. It is reported that the following day, the SLORC announced that the National Convention was to be postponed until February. The delegates were told to return home and not to remain in Yangon. Information received by the Special Rapporteur does not clarify whether these same elected representatives will be allowed to participate when the Convention is reconvened.

 

VI. CONCLUSIONS

239. The National Convention preparatory to the drafting of the constitution was convened on 9 January 1993. After one and a half days the Convention was postponed reportedly because some elected representatives were preparing to bring up the question of the "leading role of the Tatmadaw (army) in the new government". Several persons were reportedly arrested for having distributed written material.

240. The National Convention was reconvened on 1 February. Discussion on the constitution is taking place under a panel of 45 chairmen elected by the 8 groups represented as delegates. Of these chairmen, only one is a member of the National League for Democracy which won 80 per cent of the vote in the national elections. It has been announced that the universities will reopen on 19 February 1993.

241. On the basis of the visit to Myanmar and the well-documented information received, the Special Rapporteur has assessed that serious repression and an atmosphere of pervasive fear exist in Myanmar. He found that there is a lack of accountability on the part of the Government and an absence of legal and administrative protection and/or recourse available for victims and families of victims of human rights abuses. In the light of these findings, the Special Rapporteur recommends that the Commission on Human Rights continues its close monitoring of the situation of human rights in Myanmar and extend the mandate of the Special Rapporteur to report to the Commission at its fiftieth session.

 

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GA 1993

A/48/578
16 November 1993
report prepared by Professor Yozo Yokota, Special Rapporteur of the Commission on Human Rights on the situation of human rights in Myanmar

H.  The National Convention

 "38. In regard to the National Convention, it has been reported that of the 702 delegates from 8 categories of people, 49 were selected by the 10 political parties remaining after the elections, 106 were elected representatives and the remainder of the delegates from the other six categories were chosen by the State Law and Order Restoration Council (SLORC).

 "39. It has been further reported that the draft principles or guidelines for discussion during the Convention were to remain within a framework of the following objectives:  (a) non-disintegration of the union; (b) non-disintegration of national solidarity; (c) consolidation and perpetuity of sovereignty; (d) emergence of a genuine multi-party democratic system; (e) development of eternal principles of justice, liberty and equality in the State; and (f) participation of the Tatmadaw in a leadership role in the national politics of the future; and that this framework for discussion was determined by SLORC and that the discussions were to remain exclusively within these guidelines.  Wearing badges, distributing leaflets or disseminating propaganda were reportedly prohibited.

 "40. It has been further reported that each of the eight groups represented were to have a panel of five chairmen who would lead the discussions, and that in the political parties group, only one chairman (U Tha Zan Hla) was from the National League for Democracy (NLD), the party that won the majority in the May 1990 elections.  In the elected representatives group, where 89 of the remaining 105 delegates were from NLD, no NLD representatives were selected as chairmen.

 "41. It has been further alleged that since the beginning of the National Convention, numerous participants have been disqualified or arrested for allegedly contravening these guidelines and particularly for having questioned the leadership role foreseen for the Tatmadaw.  When the Convention reconvened in June 1993, statements were allegedly read out by Chairman Major General My Nyunt and U Aung Toe to the effect that, there should be a strong President who should be able to carry out his responsibilities 'without constraints' in working for the development of the country, and that this person should be 'an indigenous citizen who is loyal to the nation and its citizens'.  Several persons have allegedly since been arrested for challenging these concepts, and some have been charged with participating in activities intending to undermine the National Convention (see paras. 1-8 above).

"42. The Special Rapporteur would appreciate information from the Government regarding these allegations, indicating what steps have been taken to comply with the results of the elections of May 1990.


PRELIMINARY OBSERVATIONS

49.In regard to the National Convention for the drafting of a new constitution, no evident progress has been made towards turning over power to the freely elected civilian Government.  The fifteen-member Steering Committee set out the agenda, the terms of reference and the topics to be discussed.  Each of the eight categories represented at the Convention elected 5 delegates (total of 40 delegates) to be on the Panel of Chairmen to direct the Convention.  Out of the ten nominees allowed the political parties and representatives-elect, one member of the National League for Democracy, the party that won 80 per cent of the vote in the national elections, has been named as a Chairman. 

 

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CHR 1994


E/CN.4/1994/57
16 February 1994
Report on the situation of human rights in
Myanmar, prepared by Mr. Yozo Yokota, Special Rapporteur

H.  The National Convention

60.  On 9 January 1993, the Government convened a National Convention to lay down the basic principles for the elaboration of a new and enduring constitution.  Of the 702 delegates from 8 categories of people, 49 are selected by the 10 political parties remaining after the 1990 elections, 106 are elected representatives and the remainder of the delegates from the other six categories were chosen by the SLORC.  Before any real discussion could take place at the National Convention, a broad framework of basic objectives was given by the Government as follows:  (a) non-disintegration of the Union; (b) non-disintegration of national solidarity; (c) consolidation and perpetuity of sovereignty; (d) emergence of a genuine multi-party democratic system; (e) development of eternal principles of justice, liberty and equality in the State; and (f) participation of Tatmadaw in a leadership role in the national politics of the future.

61.  The Special Rapporteur has been informed that each of the eight groups represented were to have a panel of five chairmen who would lead the discussions and that, in the political parties group, only one chairman was from the NLD - the party that won a majority in the 1990 elections.  In the elected representatives group, where 89 of the remaining 106 delegates were from the NLD, no NLD representatives were selected as chairmen.

62.  In response to the query by the Special Rapporteur with regard to the allegation that, since the beginning of the National Convention, numerous participants have been disqualified or arrested for allegedly contravening the guidelines and, in particular, for having questioned the leadership role foreseen for the Tatmadaw, the Government replied, in paragraph 34 of its note verbale of 17 October 1993, and as reproduced by the Special Rapporteur in his interim report to the General Assembly (A/48/578, para. 12), as follows:

"The sweeping allegations that numerous participants were disqualified or arrested for various reasons are totally false.  Out of all the delegates attending the National Convention, action was taken against the following five delegates:

"(a) The names of U Aung Htoo and Dr. Aung Khin Sint of the National League for Democracy were struck from the list of delegates representing the National League for Democracy.  This action was carried out at the request of the National League for Democracy itself;

"(b) Legal action was taken against U Maung, who represented one of the national racial groups, for infringement of existing laws;

"(c) A representative from Pekhon constituency was disqualified as he became involved in and joined a terrorist group;

"(d) The name of U Maung Ngwe of the Union Paoh National Organization was struck from the list of delegates as he passed away on 25 April 1993."

 

 

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CHR 1995

E/CN.4/1995/65
12 January 1995
 Report on the situation of human rights in Myanmar, prepared by the Special Rapporteur, Mr. Yozo Yokota

I. The National Convention

 136. On 9 January 1993, the Government convened a national convention to lay down the basic principles for the elaboration of a new and enduring constitution. Of the 702 delegates from 8 categories of people, 49 are selected by the 10 political parties remaining after the 1990 elections, 106 are elected representatives and the remainder of the delegates from the other 6 categories were chosen by SLORC. Before any real discussion could take place at the National Convention, a broad framework of basic objectives was provided by the Government: (a) non-disintegration of the Union; (b) non-disintegration of national solidarity; (c) consolidation and perpetuity of sovereignty; (d) emergence of a genuine multiparty democratic system; (e) development of eternal principles of justice, liberty and equality in the State; and (f) participation of the Tatmadaw in a leadership role in the national politics of the future.

 137. The Special Rapporteur has been informed that each of the eight groups represented were to have a panel of five chairmen who would lead the discussions and that, in the political parties group, only one chairman was from NLD the party that won a majority in the 1990 elections. In the elected representatives group, where 89 of the remaining 106 delegates were from NLD. No NLD representatives were selected as chairmen.

 138. During his visit to the National Convention, the Special Rapporteur met with several delegates. He was informed that all the delegates to the National Convention are required to stay in the Convention compound. In the same dormitory, five delegates live together. There is one sergeant clerk in each dormitory serving the delegates. It is reported that these sergeant clerks may also observe the activities of the delegates.

 139. Delegates are not totally free to meet with other delegates inside the compound. They are not entitled to leave the compound without authorization. When they leave the compound, delegates are not allowed to take out any written or printed materials. It was also reported to the Special Rapporteur that when the delegates return to their States to see their families they are sometimes harassed by the local authorities. The Special Rapporteur is concerned that such an atmosphere does not permit the delegates to be in touch with the populations they represent, or enable them to take into account their grievances, wishes and points of view and, thus, to represent them meaningfully during the debates which are taking place in the National Convention.

 140. The Special Rapporteur was told that the delegates enjoy the freedoms of expression and discussion. However, they cannot distribute discussion papers among themselves: all papers have to be distributed to the chairmen of the groups. The chairmen scrutinize the contents and, if the statements are found to be contradictory with the agreed principles, the relevant parts are deleted. Only then will the papers be read at the group meetings. When the proposed statements are to be read before the plenary meeting, they have to be submitted again for scrutiny by the Work Committee.

 141. The reply of the Government in response to a query by the Special Rapporteur with regard to progress made so far in the National Convention on the drafting of a new constitution, and the anticipated schedule for future meetings, is reproduced in the addendum to the interim report of the Special Rapporteur to the General Assembly (A/49/594/Add.1, pp. 13 to 15 of the English version).

149. The persons whose civil and political rights are most severely restricted are the leaders of political parties, particularly the NLD leaders, and delegates to the National Convention, again particularly those from NLD. Because of both visible and invisible pressures, they cannot assemble in a group, cannot freely discuss, and cannot publish or distribute printed materials. In this situation it is difficult to assume that, in the National Convention, open and free exchanges of views and opinions are taking place in order to produce a truly democratic constitution.

 

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CHR 1996

 

E/CN.4/1996/65
5 February 1996
Report on the situation of human rights in
Myanmar, prepared by Mr. Yozo Yokota, Special Rapporteur of the Commission on Human Rights


G.  The National Convention and the process of democratization

 145.    When the National Convention adjourned on 8 April 1995, its Chairman, Chief Justice U Aung Toe, stated that agreement had been reached to lay down principles for the designation of self-administered divisions and self-administered zones under the chapter of the Constitution entitled "State structure".

 146.    On 28 November 1995 the Government of Myanmar reconvened the National Convention.  The subjects on its agenda were:  the legislature; the executive and the judiciary branch.  Like the previous sessions, the plenary opening session was attended, among others by 5 delegates from the National League for Democracy included in the political parties delegates group and 81 representatives elected from the NLD included in the representatives elected group.  Following the opening address delivered by Lt.Gen. Myo Nyunt, Chairman of the National Convention Convening Commission, the NLD representatives decided to withdraw from the Convention and to boycott its current session.

 147.    Article 21.1 and 21.3 of the Universal Declaration of Human Rights provides that everyone has the right to take part in the government of his country, directly or through freely chosen representatives, and that the will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections.

 148.    The Special Rapporteur notes that of the 702 National Convention delegates from 8 categories, 49 are selected by the 10 political parties remaining after the 1990 elections, 106 are elected representatives and the remainder of the delegates from the other 6 categories were chosen by SLORC. In fact, NLD members, despite winning 80 per cent of the seats in the 1990 general elections comprise only about 15 per cent of the 702 delegates.

 149.    Furthermore, the Special Rapporteur has been informed that each of the eight groups represented were to have a panel of five chairmen who would lead the discussions and that, in the political parties group, only one chairman was from the NLD - the party that won a majority in the 1990 elections.  In the elected representatives group, where 89 of the remaining 106 delegates were from the NLD, no NLD representatives were selected as chairmen.

 150.    Given these figures and the process of selection of the delegates, the Special Rapporteur notes that the National Convention is not truly representative in the sense of article 21.1 and 21.3 of the Universal Declaration of Human Rights, because its membership does not reflect the results of the elections.

 151.    Freedom of expression in general and political debate in particular in the National Convention compound seem to be severely restricted and circumscribed.  Delegates cannot distribute discussion papers among themselves:  all papers have to be submitted first to the chairmen of the groups.  The chairmen scrutinize the contents and, if the statements are found to be contradictory with the agreed principles, the relevant parts are deleted.  Only then can the papers be read at the group meetings.  When the proposed statements are to be read before the plenary meeting, they have to be submitted again for scrutiny by the Work Committee.  Moreover, it appears that delegates are not totally free to meet with other delegates and to exchange their views inside the compound.  They are reportedly not entitled to distribute leaflets, to wear badges or to bring any written or printed materials to the Convention without prior approval by the National Committee.

 152.    During the Special Rapporteur's visit to Myanmar in 1995, he was also informed that all the delegates to the National Convention are required to stay in the Convention compound.  Five delegates live together in each dormitory.  There is one sergeant clerk in each dormitory serving the delegates.  It is reported that these sergeant clerks may also observe the activities of the delegates.  It was also reported to the Special Rapporteur that when the delegates return to their states to see their families they are sometimes harassed and monitored by the local authorities.  In this regard, the Special Rapporteur fears that this atmosphere of intimidation does not permit the delegates to be in touch with the populations they represent to enable them to take into account their grievances, wishes and points of view and, thus, to represent them meaningfully during the debates which are taking place in the National Convention.

Conclusions

175. The persons whose civil and political rights are most severely restricted are the members of political parties, particularly the NLD leaders, and delegates to the National Convention, again those from the NLD.  Because of both visible and invisible pressures, they cannot assemble in a group, cannot have free discussion, and cannot publish or distribute printed materials.  In this situation, it is difficult to assume that open and free exchanges of views and opinions are taking place in Myanmar in order to produce a truly multi-party democratic society.

177.    Government representatives have repeatedly explained to the Special Rapporteur that the Government is willing to transfer power to a civilian government, but that, in order to do so, there must be a strong Constitution and that, in order to have a strong Constitution, they are doing their best to complete the work of the National Convention.  However, the Special Rapporteur cannot help but continue to feel that, given the composition of the delegates (only one out of seven delegates was elected in the 1990 elections), the restrictions imposed upon the delegates (practically no freedom to assemble, print and distribute leaflets or to make statements freely), and the general guidelines to be strictly followed (including the principle regarding the leading role of the Tatmadaw), the National Convention does not appear to constitute the necessary "steps towards the restoration of democracy, fully respecting the will of the people as expressed in the democratic elections held in 1990" (General Assembly resolution 47/144, para. 4).

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GA 1996

A/51/466
8  October 1996
Report on the situation of human rights in
Myanmar, prepared by Judge Rajsoomer Lallah, Special Rapporteur of the Commission on Human Rights


B.  The general elections of May 1990

21.  In May 1990, general elections to the People's Assembly were held in Myanmar.  More than 90 political parties contested the elections, among which were the National Democratic League (NLD), the National Unity Party (NUP) and the League for Democracy (LDP).  The elections were generally accepted to have been held in a free and fair manner.  NLD won the overwhelming support of the electorate and obtained over 80 per cent of the seats in the People's Assembly (392 out of a total of 485) with a 60 per cent share of the vote.

22.  It was generally expected that the People's Assembly, as a constituent assembly, would be convened for the drawing up of a constitution and, in the meantime, to form an interim government.  A number of obstacles, however, came one after another to thwart the freely expressed will of the people at the general elections and SLORC continued to exercise all powers under martial law. It is necessary to refer to some of these obstacles.


C.  Declaration No. 1/1990 and the National Convention

23.  First, the official announcement of the results of the poll was postponed for the apparent purpose of allowing the Election Commission to scrutinize the expense accounts of all elected representatives.  Second, two months later, in July 1990, SLORC issued Declaration 1/1990, the most important parts of which are reproduced in the annex to the present report.  What was clear at this juncture was that SLORC would continue to exercise all powers of State; there would be no transfer of power to the Civil Authorities, whether under an interim constitution or otherwise, until a new constitution was enacted; and it would be the responsibility of representatives elected at the general elections to the People's Assembly to draft the new constitution.

24.  Subsequent events have shown, however, that various measures were progressively taken, effectively preventing, or at best delaying, the People's Assembly from being convened. On 18 October 1990, SLORC Deputy Foreign Minister U Ohn Gyaw announced in the General Assembly that a broadly based national convention would be convened to discuss all factors that should be taken into account in drafting the new constitution.  Its drafting would be the responsibility of the elected representatives.  One year later, also in the General Assembly, Deputy Foreign Minister U Ohn Gyaw stated that in addition to the elected representatives, leaders of political parties, leaders and representatives of all national races and respected veteran politicians would participate in the convention.  On the basis of the national consensus arrived at in the convention, the elected representatives would draw up a new constitution.

25.  It is evident that the issue of convening a National Convention to draw up guidelines or principles for the eventual drafters of the new constitution and the issue of the delegates composing the National Convention emerged as a controversial and unexpected element in the envisaged process of the transfer of power.  Further, a significant proportion of the elected members of NLD have subsequently been arrested and imprisoned or else disqualified temporarily or for life from membership of the People's Assembly.

26.  In 1992, a National Convention Committee was formed by SLORC with the purpose of convening a National Convention to draw up a new constitution.  Its objectives were: non-disintegration of the Union; non-disintegration of national solidarity; perpetuation of sovereignty; the establishment of a genuine multi-party democratic system; the promotion of justice, liberty and equality in the State; and the participation of the Tatmadaw (Armed Forces) in a leadership role in the affairs of the State.  It is to be noted that the mandate of the National Convention Committee was not only to select delegates to attend the National Convention but also to direct the proceedings and to lay down its objectives, one of which included "the participation of the Tatmadaw in a leadership role in the national politics of the State".

27.  On 9 January 1993, the Government convened the National Convention to lay down the basic principles for the elaboration of a constitution.  In a report to the Commission, the Special Rapporteur noted that, of the 702 National Convention delegates from eight categories, 49 were selected by the 10 political parties remaining after the 1990 elections, 106 were elected representatives and the remainder of the delegates from the six other categories were chosen by SLORC.  In fact, NLD members, despite winning a little more than 80 per cent of the seats in the 1990 general elections, comprise only about 15 per cent of the 702 delegates and are thus permanently in a minority.  Furthermore, the Special Rapporteur has been informed that each of the eight groups represented were to have a panel of five chairmen who would lead the discussions and that, in the political parties group, only one chairman was from NLD, the party that had won the majority in the 1990 elections.  In the elected representatives group, where 89 of the remaining 106 delegates were from NLD, no NLD representatives were selected as chairmen.

28.  On 28 November 1995, the Government of Myanmar reconvened the National Convention.  Following the opening address delivered by Lt. Gen. Myo Nyunt, Chairman of the National Convention Convening Commission, the representatives and delegates of NLD decided to boycott the Convention following the denial of an NLD request to review its working procedures.  Subsequently, the National Convention's Work Committee revoked the delegacy of the NLD delegates on the ground that they had absented themselves on two occasions without permission. The Chairman of the Convention invited the remaining delegates to continue their work in accordance with the original arrangements.  This expulsion was, in the view of the Special Rapporteur, arbitrary and has highlighted the lack of any meaningful representation at the Convention.  The members of parliament elected in 1990 now constitute less than 3 per cent of the total current delegates to the Convention and none are from NLD, the party which had won the elections and which would otherwise have been the government returned by the will of the people.

29.  The procedures for the working of the Convention have been controversial and not conducive to any genuine attempt to consider properly the views of delegates.  The issues to be raised and the papers to be presented are rigidly controlled and supervised at the level of the National Convention Convening Commission, the chairmen of the eight discussion groups and at group discussion level as well.  Freedom of expression in general, and political debate in particular, in the National Convention compound seems to be severely restricted and circumscribed.  Delegates cannot distribute discussion papers among themselves.  All papers have to be distributed to the chairmen of the groups. The chairmen scrutinize the contents and, if the statements are found not to comply with the established principles, the relevant parts are deleted; only then will the papers be read at the group meetings.  When the proposed statements are to be read before the plenary, they have to be submitted again for scrutiny by the Work Committee.  Moreover, it appears that delegates are not totally free to meet other delegates and to exchange their views freely inside the compound.  They are reportedly not entitled to distribute leaflets, wear badges or bring any written or printed materials to the Convention without the prior approval of the National Committee.


D.  Non-conformity of the legal framework with international norms

30.  Article 21 of the Universal Declaration of Human Rights proclaims, in paragraph 1, that everyone has the right to take part in the government of his country, directly or through freely chosen representatives.  It further proclaims, in paragraph 3, that the will of the people shall be the basis of the authority of government and that this will shall be expressed in periodic and genuine elections.

31.  In essence, the assumption of all governmental powers by SLORC in 1988 constituted, as mentioned earlier, a break from constitutionality and legal continuity and further constituted a departure from the norms governing the enjoyment of political rights proclaimed in article 21 of the Universal Declaration.  There could, arguably, have been some legitimacy in the assumption of power by SLORC, without the consent of the people, in circumstances which could be said to have amounted to a state of public emergency threatening the life of the nation.  In any event, as its name indicates, an emergency is only temporary and cannot be said to last longer than a given situation requires.  It is not uncommon, however, to have a civilian government managing a state of emergency, with the military playing an important role but still under the policy directions of the civil authorities.  In the case of Myanmar, general elections took place so that a civilian government was chosen as a result of the freely expressed will of the people.  The will of the people has remained frustrated for a period which is now in excess of five years.  The question arises, with growing urgency, as to whether any juridical legitimacy that could, arguably, have been derived from past acquiescence in the assumption of power by the Military Forces can any longer provide a defensible basis for the continued maintenance of a non-constitutional system based on the assumption of martial powers, having such an unfavourable impact on human rights in the context of generally accepted international norms and the obligations undertaken by Myanmar.

32.  SLORC gave the explanation, in Declaration No. 1/1990, that the People's Assembly could not be convened until a constitution was drafted and that it was the responsibility of the elected representatives to draft the constitution. However, it has not been left to the People's Assembly, returned by the people, to draft the Constitution and determine the principles on which it should be founded.  Instead, a National Convention, consisting of delegates who in their overwhelming majority were not returned by the people, was devised some three years after the general elections of 1990.  Two features of this Convention require to be mentioned. First, it was expressly mandated to adopt principles on the basis of which a democratic constitution would be drafted by the People's Assembly.  Already, however, the mandate contained the principle that the Armed Forces would have a leading political role in the constitutional system.  It is questionable whether this principle would be consistent with article 21 (3) of the Universal Declaration of Human Rights, which requires that the will of the people "shall be expressed in periodic and genuine elections" and that although the Armed Forces can be understood to be part of the State's services, it cannot be understood how they could be periodically elected.  In any event, this principle could not be said to have been a political principle approved by the people in the general elections of 1990.  Second, three more years have gone by since the National Convention started its work and from all accounts it would appear that detailed provisions are being worked out for a constitution and not merely general principles which could be considered by the People's Assembly in the drafting of the constitution.

33.  With regard to the proceedings of the National Convention, the main criticisms which have been variously made have centred around, first, the composition of the delegates and the absence of genuine and proper representation of members returned at the general elections; second, the restrictions imposed upon the delegates and the restrictive procedures which are required to be followed; and third, the restricted opportunity for meaningful discussion, including the absence of free debate and exchange of ideas.  These features do not appear to constitute the necessary steps towards the restoration of democracy so as to respect the will of the people as expressed in the democratic general elections held in 1990 and do not conform to the rights to freedom of thought and expression in accordance with international norms necessary for the exercise of political rights, especially when a constitution is being formulated.


E.  Remedial measures for the re-establishment of constitutionality and the democratic order

 34.  Given the non-conformity of the present legal framework with international norms, coupled with steps taken over the past six years which have been adverse to the implementation of the democratically expressed will of the people at the general elections, necessary measures implementing the resolutions of the General Assembly and the Commission on Human Rights become the more urgent for the re-establishment of constitutionality and democracy.  Some work has been done in the proceedings of the National Convention.  But those proceedings were themselves flawed by the unrepresentative character of the Convention and its other features relating to its mandate and restrictive procedures.  In the Special Rapporteur's considered view, a dialogue should be engaged between the present regime and the leaders of political parties which have been returned by the people, with a view to working out such measures as might be considered best to bring the democratic process engaged in the 1990 elections to fruition.


94.  In Myanmar, the exercise of the freedom of opinion, particularly in political matters, is currently violated by the ban on the expression of any kind of political dissidence for the duration of the period of transition or drafting process of the new constitution at the National Convention, which, under the relevant circumstances, has no time-frame.  The situation has given rise to widespread friction between the authorities and the various bodies of opinion seeking to establish a political position for themselves in the public life of Myanmar.  In order to prevent any dialogue on the political situation which could take place outside the National Convention, the Myanmar authorities published, on 7 June 1996, a law called "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 Oppositions". Under this law, any organization or person who incites, demonstrates, delivers a speech, makes an oral or written statement and disseminates anything in order to "undermine the stability of the State, community peace and tranquillity and prevalence of law and order", "national reconsolidation" or "undermine, belittle and make people misunderstand the functions being carried out by the National Convention ..." shall be subject to imprisonment for a term of a minimum of 5 years to a maximum of 20 years and may also be liable to a fine. This Law also forbids anyone or any organization to carry out, draft "the functions of the National Convention" or draft or disseminate the "Constitution of the State without lawful authorization".


148. Government representatives have repeatedly explained that the Government is willing to transfer power to a civilian government but that, in order to do so, there must be a strong constitution and that, in order to have a strong constitution, they are doing their best to complete the work of the National Convention.  However, the Special Rapporteur cannot help but observe that, given the fact that most of the representatives democratically elected in 1990 have been excluded from participating in the meetings of the National Convention, the restrictions imposed upon the delegates (practically no freedom to assemble, print and distribute leaflets or to make statements freely), and the general guidelines to be strictly followed (including the principle regarding the leading role of the Tatmadaw), the National Convention does not constitute the necessary "steps towards the restoration for democracy, fully respecting the will of the people as expressed in the democratic elections held in 1990".

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CHR 1997

E/CN.4/1997/64
6 February 1997
Report of the Special Rapporteur, Mr. Rajsmoor Lallah,

63. In the view of the Special Rapporteur, the absence of respect for the rights pertaining to democratic governance, as exemplified by the absence of meaningful measures towards the establishment of a democratic order, is at the root of all the major violations of human rights in Myanmar. It is most unlikely that these violations will cease as long as the democratic process initiated by the general elections of 1990 is not re-established. In this regard, the release in 1995 of Daw Aung San Suu Kyi and the cease-fire with armed ethnic forces during 1995 and 1996 did raise some hopes that a political dialogue might be about to begin. Disappointingly, however, the National Convention, by reason of its mandate, composition and procedures, including its protracted proceedings, has not proved a positive step and is devoid of democratic credibility. The political process continues to appear deadlocked, with sweeping restrictions in law and practice on the exercise of virtually all human rights and freedoms.

 103. Government representatives have repeatedly explained that the Government is willing to transfer power to a civilian government but that in order to do so there must be a strong constitution, and that in order to have a strong Constitution they are doing their best to complete the work of the National Convention. However, the Special Rapporteur cannot help but observe that, given the fact that most of the representatives democratically elected in 1990 have been excluded from participating in the meetings of the National Convention, the restrictions imposed upon the delegates (practically no freedoms to assemble, print and distribute leaflets or to make statements freely), and the general guidelines to be strictly followed (including the principle regarding the leading role of the Tatmadaw), the National Convention does not constitute the necessary "steps towards the restoration of democracy, fully respecting the will of the people as expressed in the democratic elections held in 1990".

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GA 1997


A/52/484
16 October 1997
Report on the situation of human rights in
Myanmar, prepared by Mr. Rajsoomer Lallah, Special Rapporteur of the Commission on Human Rights


2.  The priority concerns of the international community with regard to the situation of human rights in Myanmar are referred to in the resolutions adopted by the various competent organs of the United Nations over the past six years, in particular General Assembly resolution 51/117 and Commission resolution 1997/64, which are the most recent. These concerns may be summarized, in substance, as follows:

(c) The exclusion of the representatives democratically elected in 1990 from participation in the long-drawn-out proceedings of the National Convention, the severe restrictions on delegates, including members of the National League for Democracy (NLD), who have withdrawn and subsequently were formally excluded from the sessions of the Convention and who were unable to meet or distribute their literature, the adoption by the Convention of a basic principle conferring on the armed forces (Tatmadaw) a leading role in the future political life of the State and the conclusion that the National Convention does not appear to constitute the necessary steps towards the restoration of democracy; 

9.  In both of his reports, the Special Rapporteur described the politico-legal system in Myanmar.  The present legal and institutional framework through which legislative, executive and judicial powers continued to be exercised in Myanmar was not in conformity with established international norms governing human rights.  Those norms required that the authority of Government be based on the will of the people and that such will be expressed in genuine elections in which everyone is entitled to participate, either directly or through freely chosen representatives.  Several years had passed since the will of the people in Myanmar was freely expressed in general elections in 1990, but that will continued to be frustrated.  The National Convention, established by the authorities in 1993 to devise principles to govern a new constitution, had been afflicted by criticism that it is unrepresentative, that its procedures obstruct meaningful debate and, in particular, that it confers a leading role on the armed forces in the future political life of the country.  There was no indication as to when its proceedings would end.

146. Government representatives have repeatedly explained that the Government is willing to transfer power to a civilian Government, but that in order to do so there must be a strong constitution, and that in order to have a strong constitution they are doing their best to complete the work of the National Convention.  However, the Special Rapporteur cannot help but observe that, given the fact that most of the representatives who were democratically elected in 1990 have been excluded from participating in the meetings of the National Convention, the restrictions imposed upon the delegates (practically no freedom to assemble, to print and distribute leaflets or to make statements freely) and the strict guidelines (including the requirement that the Tatmadaw play a leading role), the National Convention does not constitute the necessary steps towards the restoration for democracy, fully respecting the will of the people as expressed in the democratic elections held in 1990.

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CHR 2004

 

E/CN.4/2004/33
5 January 2004
Report submitted by the Special Rapporteur, Paulo Sérgio Pinheiro

 

C. The National Convention

27.       The Government of Myanmar has started preparations for the reconvening of the National Convention that has been adjourned since 1996. Reviving the National Convention is the first step under the seven-point road map for national reconciliation and democratic transition presented by the new Prime Minister, General Khin Nyunt, on 30 August 2003. The other elements of the road map are: (i) step-by-step implementation of the process necessary for the emergence of "a genuine and disciplined democratic system"; (ii) drafting of a new constitution; (iii) its adoption through a national referendum; (iv) the holding of free and fair elections; (v) the convening of elected bodies; (vi) the building of a "modern, developed and democratic nation" by the State leaders elected and the government organs formed by the legislative body.

28.       At the time of the announcement, the Special Rapporteur noted that these steps represented very general and broad objectives, with no specifics or time frames. Moreover, these political objectives are conditional on the achievement of peace and stability, national unity and economic development, all formidable tasks with which the successive Governments in Myanmar have been struggling. It was also unclear what role, if any, NLD, which won the 1990 general elections, and other pro-democracy parties would be permitted to play in the future political process. In addition, there were no indications of how the National Convention would be established, or when it would convene.

29.       By the time of the Special Rapporteur's last mission, the Government had announced the reconstitution of three bodies mandated to prepare the reconvening of the National Convention: (i) the 18-member National Convention Convening Commission (NCCC) charged with overseeing the drafting of the Constitution, chaired by the newly appointed Secretary-2 of SPDC, General Thein Sein (on 6 September); (ii) the 35-member National Convention Convening Work Committee (on 2 October); and (iii) the 43-member National Convention Convening Management Committee (on 21 October). The Special Rapporteur took note that these bodies did not include any members of NLD or any other political party or representatives of ethnic nationalities. Mass rallies had also been organized throughout the country in support of the road map by USDA, in which it was alleged that people were forced to participate. There were also reports about the meeting SPDC held with ceasefire groups to discuss the National Convention.

30.       During his last visit, the Special Rapporteur collected sufficient insights on the current thinking and attitude of SPDC and others about the road map and, in particular, the National Convention. He had lengthy discussions with the Chair and other members of NCCC. He was informed that the above-mentioned three bodies had held their first joint meeting on 5 November 2003. He was given to understand that the starting point of the National Convention would be the 104 Principles that had been developed by the previous National Convention; all political parties would be able to participate equally in the Convention as one of the eight eligible categories of participants; and there would be new elections held in accordance with a new constitution. In response to his specific question regarding NLD participation, the Special Rapporteur was informed that NLD would be expected to take part in the National Convention on an equal footing with other political parties and it was now up to NLD to come forward and join the process. The Special Rapporteur's reading of the indications he received from various interlocutors is that the results of the 1990 elections are unlikely to be considered. In addition, the process of the National Convention has yet to embrace those elements that are conducive to a genuinely free, transparent and inclusive process involving all political parties, ethnic nationalities and elements of civil society.

31.       After his mission, the Special Rapporteur took note that on 16 December 2002 the Minister for Foreign Affairs of Myanmar, at a meeting in Bangkok, stated that SPDC had set a time frame for the road map and that some steps of the road map, including the National Convention to draft a new constitution, would be implemented in 2004.

32.       The Special Rapporteur is aware of how complex is the task of bringing all components of society together in a spirit of mutual respect, cooperation and equity, which he believes should find its full expression through a democratic constitution after 15 years of constitutional vacuum in Myanmar. The first constitution was adopted in 1947, before independence, while the second was introduced in 1974 during the Government of Ne Win. After taking power on 18 September 1988, the present military Government dropped the 1974 constitution. However, the work to draft a new constitution was never completed by the previous National Convention owing to the lack of "procedural" democracy and violations of the human rights of the participants in the Convention, as well as the absence of an "enabling" general environment in the country. If there is to be a new National Convention, lessons must be learned from past experiences, and the process must be guided by human rights principles if there is to be any chance of success. A discussion about democracy, after all, should take into consideration and respect basic international democratic and human rights principles.

33.       The historical record of human rights abuses committed during the previous National Convention (1993-1996) was well documented by previous Special Rapporteurs. The human rights of the participants in that Convention - the rights to freedom of expression, assembly, association, and movement, and the right to freedom from arbitrary detention - were regularly violated. If SPDC wants to promote a genuine process of political transition to a democratic Government, there are some fundamental human rights requirements that must be fulfilled. Delegates to the Convention should be freely chosen and represent the full range of political parties and ethnic minority groups and should proportionally reflect the results of the 1990 elections. They must have the freedom to speak freely at the Convention (for instance, without first being "cleared" by the Chairman), to meet others without hindrance, to bring in and distribute documents and other materials. They must be able to challenge peacefully and protest against procedures and other limitations set down by the authorities. Delegates must also have freedom of movement, and especially not be confined to their dormitories and be able to return to their constituencies to consult during the Convention. They must not be arrested for their peaceful activities carried out in relation to the Convention. Political parties or other groupings must not be expelled from the Convention for what they say or advocate peacefully. Political parties should not be deregistered or otherwise disqualified from participating in the Convention.

34.       Political rights and freedoms must be respected in order to create an enabling environment conducive to a successful democratic transition. The implementation of human rights reforms set out by the Special Rapporteur in his reports and letters to the authorities of Myanmar will help create a climate or enabling environment that would allow open and wide ranging discussions among SPDC, all political parties, ethnic nationalities, and representatives of a broad sampling of civil society sectors. These require the lifting of all remaining restrictions on the freedoms of expression, movement, information, assembly and association and the repealing of the related "security" legislation. The release of all political prisoners and the opening and reopening of all political parties' offices must be considered as an immediate priority. All political parties must have freedom to carry out peaceful political activities. At the moment, the only political party able to conduct its activities is the National Unity Party, aligned with SPDC. The remaining 9 of the 10 legally registered political parties exist in name only because of the restrictions in place. There should be no further arrests for peaceful political activities. The freedom of movement and political activity of Daw Aung San Suu Kyi and other leaders and members of NLD must be immediately restored in order to secure their early participation in the first stage of the National Convention if SPDC is genuinely serious about democratic transition.

35.       Human rights principles should be incorporated in the new constitution of Myanmar. While it is up to the people of Myanmar to decide their own structure of government, there are certain human rights and rule of law principles that should be an integral part of any constitution in the twenty-first century. These principles should include explicit human rights guarantees for both civil and political rights and economic, social and cultural rights; non-discrimination; the independence of judiciary and other mechanisms of accountability; and remedies for citizens for abuse of power by officials. There are many good examples of constitutions in the region, including those of Thailand and the Philippines, which could be studied.

36.       The Special Rapporteur notes the agreement in principle of the authorities of Myanmar at all levels to his proposals for incorporating human rights and freedoms from the early stages of any process leading to political transition. The Special Rapporteur expects that credible indications would be given as to when and how these human rights reforms would be implemented in order to confirm the authorities' commitment to their stated agreement.

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GA 2004 (59th Session)

 

United Nations A/59/311  Fifty-ninth session

Interim report of the Special Rapporteur of the Commission on Human Rights on the situation of human rights in Myanmar

 

III. Human rights-related developments

 

A. The National Convention

 

7. Reviving the National Convention constitutes the first step under the sevenpoint road map for national reconciliation and democratic transition presented by the Prime Minister, General Khin Nyunt, on 30 August 2003. It should be recalled that the previous Convention, which began its work in 1993, was adjourned in 1996 after delegates from the National League for Democracy (NLD) walked out because of what NLD described as undemocratic procedures. There were also human rights abuses committed during its proceedings, which were documented by previous special rapporteurs (E/CN.4/2004/33, para. 33).

 

8. Preparations for the reconvening of the National Convention were handled by three bodies — the National Convention Convening Commission, the Work Committee and the Management Committee — specifically reconstituted for that purpose by SPDC (ibid., paras. 29-30). They had their first joint work coordination meeting on 16 February 2004.

 

9. At their second meeting, on 19 April 2004, Lieutenant-General Thein Sein, Chairman of the National Convention Convening Commission and Secretary-2 of SPDC, announced the date of the National Convention and the parameters of its operation. It was made clear that the new Convention would be held in accordance with its previous objectives and procedures. The delegates were expected to frame their suggestions in the context of the “basic principles” and the 104 “detailed basic principles” already laid down during the 1993-1996 Convention. It was also declared that the list of delegates had been scrutinized and that invitations had been sent out beginning on 7 April 2004 to the delegates selected from the same eight social categories as at the previous Convention: political parties, representativeselect, national races, peasants, workers, intellectuals and intelligentsia, State service personnel and other invited delegates. Delegates were to register on 13 and 14 May 2004.

 

10. This announcement came three days after NLD released a statement that the situation would not be conducive to its participation in the National Convention if the latter continued to operate under the previous procedure and rules. The NLD position was that the National Convention must be held in accordance with democratic practices. Seven NLD Central Executive Committee (CEC) members who had already been invited to attend the Convention (the other two, Daw Aung San Suu Kyi and U Tin Oo, remained under house arrest and reportedly were not sent an invitation) stated that their participation would be officially decided only after they had discussed the matter with Daw Aung San Suu Kyi.

 

11. A meeting of the NLD CEC took place on 27 April 2004 at Daw Aung San Suu Kyi’s residence. All nine members of CEC were present, including U Tin Oo who was brought from house arrest to attend the meeting. From the reports that the Special Rapporteur saw, it appears that NLD was prepared and willing to attend the National Convention until it became clear that an agreement on the release of Daw Aung San Suu Kyi and the reopening of party offices would not be reached. The refusal of the NLD leadership to participate in the Convention was echoed by some other ethnic nationality parties. Some ethnic groups also objected to the six “basic principles”, which include a guarantee that the military will have a significant role in any future government, and to the 104 “detailed basic principles” for the constitution that were laid down by the previous Convention and would guide the work of the new Convention.

 

12. On 14 May 2004, the Secretary-General urged all parties concerned to make every effort in the next two days to reach an agreement, taking into account suggestions made by NLD and by other political and ethnic nationality parties. He also reiterated his call for the lifting of all remaining restrictions imposed on Daw Aung San Suu Kyi and U Tin Oo and the reopening of NLD offices, so that the National Convention could be all-inclusive. Those conditions were essential for the National Convention to be recognized by the international community as a credible forum for democratization and national reconciliation in Myanmar.

 

13. The National Convention was reconvened from 17 May to 9 July 2004 without NLD and other political parties that won a majority of seats in the 1990 elections. The Special Rapporteur, in his press statement of 1 June, noted that the concerns regarding the National Convention process, which he expressed in his last report to the Commission (ibid., para. 34) and subsequently reiterated in his speech to the Commission had not been addressed and that the necessary steps had not been taken to ensure that the National Convention would be reconvened under democratic conditions. He reiterated that fundamental human rights requirements had to be fulfilled if SPDC wished to promote a genuine process of political transition. In order to create an enabling environment conducive to a successful democratic transition, the rights to freedom of expression and assembly must be restored. All political prisoners (i.e. security detainees) must be released immediately and unconditionally, and no further arrests or punishment for peaceful political activities should take place. Moreover, Daw Aung San Suu Kyi and U Tin Oo must be freed from de facto house arrest and all NLD party offices should be reopened.

 

14. The reconvened National Convention was attended by 1,076 of the 1,088 invited delegates, i.e. more than 300 delegates more than the previous Convention, which had 702 participants. The increase was largely made up of representatives of ethnic nationalities, including ceasefire groups that had emerged in the new political environment created as a result of ceasefire agreements between the Government and 17 former armed groups. In terms of potential for conflict resolution, the 2004 National Convention may thus be a unique opportunity for ethnic minorities. This being said, the challenges should not be underestimated. The ceasefire groups, comprised of ethnic minority-based former armed opposition groups, were included in the “specially invited guests” category. Before it was convened, SPDC had requested the ceasefire groups to select a specified number of delegates. During the initial session of the Convention, the ceasefire groups raised issues of local autonomy for the ethnic minority areas, and some substantive discussions with the authorities reportedly took place about these concerns. With regard to the United Nationalities Alliance (UNA), a grouping of some of the ethnic minority political parties, only the Shan Nationalities League for Democracy (SNLD) was reportedly invited to participate in the National Convention, but until now they have not done so.

 

15. The Special Rapporteur took note of the concerns regarding the proceedings and the general atmosphere at the National Convention, which he expressed in his earlier report (ibid., para. 33), including in relation to Law No. 5/96 and other restrictive laws and procedures. The Special Rapporteur will address these during his next fact-finding mission to Myanmar.

 

16. While noting certain concerns about the current National Convention process, in particular with respect to inclusiveness and procedures governing its proceedings, the Special Rapporteur hopes that its final outcome will bring some concrete solutions benefiting the entire population of Myanmar. The Special Rapporteur believes that releasing Daw Aung San Suu Kyi and beginning a substantive dialogue with her and her party, as well as reaching an agreement with ceasefire groups that takes into account their suggestions, would contribute to the advancement of the political process. In this respect, the Special Rapporteur appeals to the Government of Myanmar to recognize the role of the Special Envoy of the Secretary-General and the need for his return to the country as soon as possible to continue his facilitation efforts, in particular, in the context of preparations for the next session of the National Convention which is expected to be convened sometime after the monsoon season, perhaps in November.

 

 

CHR 2005

E/CN.4/2005/36, 2 December 2004

Report submitted by the Special Rapporteur, Paulo Sérgio Pinheiro

 

 

II.  THE NATIONAL CONVENTION PROCESS

 

A.  Recent developments

 

7.         After having been suspended for eight years, the National Convention was reconvened for eight weeks, from 17 May to 9 July 2004.  The Special Rapporteur closely followed developments in the lead‑up to and the proceedings of the National Convention, and shared some observations in his two most recent reports to the Commission and the General Assembly (E/CN.4/2004/33, paras. 27‑36 and A/59/311, paras. 7‑16).  In the paragraphs set forth below, the Special Rapporteur presents more detail on the National Convention process, including its workings and composition, based on the information available at the time of writing of this report.

 

8.         The Government of Myanmar, in its communication of 18 September 2004, assured the Secretary‑General of “its unsparing efforts to ensure the success of the National Convention, which would lead to the successful drafting and an adoption by referendum of a democratic constitution.  Free and fair elections will then be held in which the people of Myanmar will elect leaders of their choice”.

 

9.         While there was a change of Prime Minister on 19 October 2004, the Government, under the new Prime Minister, Lieutenant‑General Soe Win, has given public assurances that all commitments made under the previous Government will be honoured and that, in particular, it will remain fully committed to the successful implementation of the seven‑step road map for national reconciliation and democratic transition, including the National Convention, which was announced by the former Prime Minister, General Khin Nyunt, in August 2003.  It was reiterated that the road map was formulated by the State Peace and Development Council (SPDC) rather than a single individual, and that SPDC would therefore continue to implement the road map, its own political agenda, without changes, step by step, “with a view to seeing to the emergence of a peaceful, developed and discipline‑flourishing democratic nation”.

 

10.       In his press briefing on 22 October 2004 (published in a booklet on 7 November 2004), the Secretary‑1 of SPDC and the Chairman of the National Convention Convening Commission, Lieutenant‑General Thein Sein, gave details of the joint meeting convened on that day by the National Convention Convening Commission, the Work Committee and the Management Committee.  He further noted that, during the first session of the National Convention, delegates from eight groups had offered suggestions on 11 chapters concerning “the delineation of the legislature”, which were compiled by the Panel of Chairmen for the detailed formulation of basic principles.  He added that it had been possible to reach agreement in that regard in keeping with the six main objectives for convening the National Convention.

 

11.       At the same briefing, Lieutenant‑General Thein Sein detailed the modus operandi of the next session of the National Convention.  He stated that the consolidated paper regarding “the delineation of the legislature” will be re‑read and further explained to delegates, with a view to obtaining their approval for submission to the National Convention Convening Commission.  Once that body had endorsed the paper, the detailed basic principles would be laid down.  Furthermore, the observations of the National Convention Work Committee concerning delineation of executive and judicial powers would be explained to the delegates; group discussions would be held; papers with suggestions made by the delegates would be considered by the group chairmen; approvals, submissions and suggestions would be consolidated; and papers representing the views of delegates would be rewritten and submitted to the Work Committee, which would also consider them prior to their presentation to the plenary meeting.  It was stressed that proceedings at the next National Convention would follow that specific course.

 

12.       In the memorandum of 29 October 2004 concerning the situation of human rights in Myanmar, submitted by the Permanent Mission of Myanmar to the United Nations for submission as a document of the fifty‑ninth session of the General Assembly, it was stated that deliberations during the first session of the reconvened National Convention had centred on the issue of power sharing between the central Government and the states and regions.  It was indicated that the states and regions would have their own executive and legislative bodies in the “envisaged new structure”.  The complex and sensitive nature of the issue was said to be the reason for the “time consuming and at times intense discussions”.  The first session of the National Convention was seen by the authorities as successful, during which “a common desire among the delegates to ensure the success of the road map was evident” and the outcome of which also “justified the assessment of the road map as a pragmatic approach to a smooth transition to democracy”. 

 

13.       On 23 November 2004, the National Convention Convening Commission, the National Convention Convening Work Committee and the National Convention Convening Management Committee held another coordination meeting.  Lieutenant‑General Thein Sein gave assurances of the Government’s commitment to working step by step towards “the emergence of a peaceful, developed and discipline‑flourishing democratic nation”, in accordance with the road map.  He also said that the National Convention would resume in February 2005.

 

 

B.  The participation of ethnic nationalities in the National Convention

 

14.       The Special Rapporteur deems the National Convention a potentially significant step towards national reconciliation and political transition in Myanmar, given that it has secured the participation of a large spectrum of ethnic nationalities, including ceasefire groups that had emerged in the new political environment created by the ceasefire agreements between the Government and armed opposition groups.  According to the Government memorandum of 29 October 2004, of the 1,088 delegates at the reconvened National Convention, 633 delegates were from various national races, while some 100 further delegates represented ceasefire groups included in the “specially invited guests” category.


15.       According to the above‑mentioned memorandum, 34 ceasefire groups were represented at the National Convention.  They included all 17 main ceasefire groups, who were each invited to send five delegates.  The remaining groups were mostly small splinter factions that had separated from larger ceasefire or non‑ceasefire organizations over the past decade.  The Special Rapporteur has no information on how many delegates each of those groups had been invited to send.

 

16.       Reportedly, 11 papers were submitted to the National Convention by various ceasefire groups, but the two main submissions were joint proposals from a 3‑party grouping and a larger 13‑party grouping that spelled out a variety of proposals relating to power‑sharing between their regions and the central Government.  The Special Rapporteur has no details of those proposals, the outcome of related discussions in the Convention, or the scope of the agreement that was reportedly reached.  Information from unofficial sources indicates that, during the National Convention meetings, there was disagreement with respect to federal‑based ideas proposed by the ethnic ceasefire parties and unitary‑based ideas proposed by Government supporters.  The same sources say that, before the National Convention could adjourn in July 2004, a compromise had to be reached whereby the wording of the final reports of all the National Convention category groups had to be accorded with the “104 detailed basic principles” that were carried forward from the previous National Convention of 1993‑1996.  It thus remains to be seen, when the Convention resumes in 2005, how the interests of each of those groups will be combined in the interests of all the peoples of Myanmar.

 

17.       Another important issue to be factored into the current situation is the impact on the ceasefire groups of the recent changes in the top military leadership.  The former Prime Minister was known to be closely involved in many of the ceasefire agreements, whereby the ethnic parties were permitted to retain their arms, maintain their territories and engage in economic activity until a new Constitution was introduced.  A critical time could be approaching.  However, all the indications are that the ceasefire arrangements will continue under the current Government.  The new leadership is sending out reassuring messages, reiterating that the policy on armed groups which “have returned to the legal fold” would remain unchanged, regardless of the recent change of Prime Minister.  At the same time, such groups were urged to work for national development in the framework of the law and to join efforts to realize the Government’s political road map to democracy.

 

18.       It should be noted that there are also a number of ethnic minority‑based armed groups and splinter factions of varying strength that have no peace agreements with the Government and remain outside the National Convention process.  Those groups are mostly based on the Thai‑Myanmar or Bangladesh‑India‑Myanmar borders.  Most are very small but some are significant in respect of both their history and their size, including the Karen National Union (KNU), the Karenni National Progressive Party and the Shan State Army [South].  Ceasefires should be established with those groups in order to enable them to join the National Convention.  The prospect of future peace talks, however, is not assured.  The recent attempt to pursue the SPDC‑KNU talks scheduled for 19 October 2004 reportedly resulted only in some informal talks in Yangon that were concluded prematurely because of the change of Prime Minister.

 

C.  The participation of political parties in the National Convention

 

19.       As in the previous National Convention (1993‑1996), delegates to the reconvened Convention from political parties constituted one of the eight categories of participants.  Of the 10 political parties which participated in the 1990 general elections and thereafter in the 1993‑1996 National Convention, and which were still “legally registered” in 2001 (E/CN.4/2002/45, paras. 25‑26), only 7 were present at the most recent Convention.  Those included six ethnic nationality political parties, namely, the Kokang Democracy and Unity Party, the Union Kayin League, the Union Pa‑O National Organization, the Mro or Khami National Solidarity Organization, the Lahu National Development Party and the Wa National Development Party.  Of the remaining two legal ethnic parties, the Shan Nationalities League for Democracy was invited but did not participate, and the Shan State Kokang Democratic Party was also absent.  The National Unity Party (NUP) was the only legal non‑ethnic party at the Convention, although there were reportedly 11 “independent” representatives from
the 1990 elections.

 

20.       The NLD, another legal non‑ethnic party, which won the majority of seats in the 1990 elections, refused to join the reconvened National Convention because of the unwillingness of the SPDC to allow NLD offices to reopen or to release from de facto house arrest its Secretary‑General Daw Aung San Suu Kyi and Vice‑Chairman U Tin Oo.  According to the aforementioned government memorandum of 29 October 2004, “the credibility of the National Convention has never been questioned by any quarter within the nation except by the NLD and its affiliate, the Shan NLD.  The two parties declined the personally delivered invitations extended by the Convention conveners to participate in this important process.  They have failed in their bid to sway public opinion away from supporting the National Convention”.

 

21.       It appears that none of the deregistered political parties which stood in the 1990 elections, including those that won seats, were invited to participate in the National Convention.  Those which are members of an informal umbrella organization known  as the United Nationalities Alliance (E/CN.4/2003/41, para.14), supported the NLD decision not to join the Convention.