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
CHR 1993
E/CN.4/1993/37
Report on the situation of human rights in
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
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
207. On
208. On
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
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
VI. CONCLUSIONS
239. The National Convention preparatory to the drafting
of the constitution was convened on
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
241. On the basis of the visit to
%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%
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.
%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%
CHR 1994
E/CN.4/1994/57
Report on the situation of human rights in
H. The National Convention
60. On
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
%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%
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
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
Report on the situation of human rights in
G. The National Convention and the process of democratization
145. When the National Convention
adjourned on
146. On
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
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
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
Report on the situation of human rights in
B. The general elections of May 1990
21. In May 1990, general elections to the People's
Assembly were held in
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
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
27. On
28. On
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
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
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
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
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
Report on the situation of human rights in
2. The priority concerns of the international community with regard to
the situation of human rights in
(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
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
Report submitted by the Special Rapporteur, Paulo Sérgio
Pinheiro
C. The National
Convention
27. The
Government of
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
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
31. After his
mission, the Special Rapporteur took note that on
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
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
35. Human
rights principles should be incorporated in the new constitution of
36. The
Special Rapporteur notes the agreement in principle of the authorities of
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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
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
9. At their second meeting,
on
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
12. On
13. The National Convention
was reconvened from 17 May to
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
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
CHR 2005
E/CN.4/2005/36,
Report submitted by
the Special Rapporteur, Paulo Sérgio Pinheiro
7. After having been suspended for eight years, the National
Convention was reconvened for eight weeks, from 17 May to
8. The Government of
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
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
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
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.
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
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.