Politics

Finally, after almost three years, the first part of the first draft of the Shan State constitution prepared by its exiled activists has been put out for public scrutiny, according to reports received yesterday.

"People expected us to set down and write the draft as soon as the Commission was formed in 2000", said Sao Sengsuk a.k.a Khun Kya Nu, former Shan State Army leader and son of one of Panglong signatories, Khun Kya Bu, in defense of the alleged dawdling. "But drafting a constitution is not just composing the document. Anyone with some basic training can do it. The most important thing is what is known as Process."

That process involved capacity building for the members, awareness raising among the grassroots and getting feedback and input from various organizations, social institutions professionals and village communities, according to him. "Dozens of questionnaires dealing with different subjects: land, environment, media, culture, human rights and others had to be explained and discussed," he said. "And that took time and resources"

"The reason is", the 68 year old chairman of Shan State Constitution Drafting Commission, elected at a meeting on 8-11 September 2000, said, "we want it to be a truly people's constitution that is acceptable to the majority of the people in Shan State. Accordingly, we have to encourage as much participation of all sectors of our society and consensus and that isn't a simple job under present circumstances."

Representatives from various organizations and the civil society participating in the founding meeting had opted for a "federal structure" and a "decentralized system of administration."

The draft's Forward section contended Shan State has become separate and independent as a result of the abrogation of the 1948 Union Constitution by the 1962 coup leaders. The Preamble section then allows for the choice of a political status between a Nation and a constituent State.

The first chapter, Founding Provisions, suggests everyone born before 1946, the year Shan principalities formed their own council that was independent from the British rulers, and their descendents as citizens of Shan State. Acquisition of new citizenships "must be provided by national legislation."

The second chapter, Bill of Rights, deals with human rights. Other chapters are still being drafted, Sao Sengsuk says.

The state constitution project is supported by the Canada-based National Reconciliation Program, as a part of national reconciliation and peace restoration process in Burma.

For further information, consult attachment and Sao Sengsuk <syammax@cscoms.com>.
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Shan State
Draft Constitution #1

Constitution by Drafting Commission Shan State
(August 2003)

FORWARD

The following draft is but a document, as an exercise, which the people of Shan State may benefit by participating in drafting the Shan State Constitution;

Through answering the questions posed by the Constitution Drafting Commission, CDC-S;

Individual social civil organizations [Media, Women, Youth, Environmental, Cultural, Civil servants and Professionals.];

As already presented in the Brief Background History of the CDC-S's and elsewhere in its report paper on "Questionnaire";

Political parties and politically affiliated armed organizations.

The CDC-S in carrying out its 'Tasks', with the cooperation of Shan State ethnic communities, their representatives being members of the CDC-S, is trying its best to set a precedent for future implementation of tasks given to the political parties and people's representatives through democratic election or elections.

The practical implementation, the first tactical plan implementation phase of its strategies, a bottom up approach, promoting ethnic communities to have their own projects drawn up and integrated in the CDCS project and actual implementation done by respective group by themselves, has been completed to a certain satisfactory level and thus the drafting of its Preamble, Chapter 1, the founding provisions or Characteristics and Chapter 2, Civil Rights Bill of Rights by referring to the feedback and input. Some feedback and input were for other provisions and some for the whole document [feedback and input of an elected representative of National League for Democracy, Shan State, Aung San Suu Kyi's political Party, elected in 1990].

The CDC-S is aware that there may be differences in interpretations, approach and in essence between State Constitution Drafts of all the 8 States forming the federal union of Burma. It is aware that there is a need for understanding and differentiation of Bottom-up, Horizontal and Top-down mechanisms and relativity among and between them.

Bottom Up

Policies and legislation are either to be derived from the grassroots, which means the people in general or consent by them through acceptable mechanism and devises.

Horizontal

Basically, all forums, seminars, consultations, ordinary meetings and parliamentary or house meetings at different levels are all horizontal processes.

Because, all participants have equal status in presenting or objecting any proposals at these gatherings. And under the prior accepted rules of a civil society. These gatherings would share knowledge and experiences to devise mechanisms either to serve the "Bottom Up" concept or the "Top Down" processes.

Top Down

Normally, Civil Services are all "Top Down" institutions to carry out the tasks of implementing the policies either directly or indirectly derived from the "Bottom Up" processes. The "Top Down" process is equally important as that of the "Botom Up" process.

Therefore, it is very important to recognize that all the three concepts are equal in value and that they are inseparably inter-related.

The most fundamental principle of law is regarded by the CDC-S as a SET OF RULES MADE BY A SOCIETY AND ACCEPTED BY THAT SOCIETY. The fundamental principle of the aim of law is JUSTICE and JUSTICE is the acceptability of the rules aimed to achieve it by various communities and societies living together in a shared land. Therefore, rules and regulations, although accepted by a majority, could be rejected by a small community or communities to safeguard their security and existence. Rejection could come through by a referendum even at the community level. Hence, referendum is one of the mechanisms that could be used at local, state or federal level to ensure justice. But the application of referendum at different level must be clearly and specifically stated in the constitution and its guideline to organic law legislation.

The assertion of drafting the constitution from the top, then through the constitution, giving away powers to the bottom is contrary to the principle of sovereign powers belong to the people. Or the sovereign powers derived from the people. In fact, sovereign powers is shared among civil governmental institutions, the legislature, the judiciary, the executive and the people themselves. Although, conceptually, the people are sovereign. The people shared their sovereign powers with the three governmental institutions. Retaining residual powers through constitutional arrangement. This is done through provisions of referendum requirements.

However, the CDC-S will concentrate only on a [legal and extra legal document] constitution for Shan State and her people. The document itself will reflect a federal structure. It could be used as a basis for any larger federation through modification to meet the needs. Modifying such as powers given to the federal level and retaining residual powers for the constituent states.

Shan written history, according to Shan academics on history and culture, could be traced back up to 4,500 years. The history of Shan empires was recorded by Asian and western historians.

Present Shan State was a separate entity up to 1947 when she joined with other states to form the federal Union of Burma, through Panglong Agreement, and to get independence from British colonial rule. The Panglong Accord was never fully honored by the Burman dominated rulers since her independence from Britain. To remedy the weaknesses in the 1948 Constitution of the Federal Union of Burma, aimed to reflect the Panglong Agreement, the leaders of constituent states gathered at Taunggyi, the capital of Shan State, to amend the constitution of the federal union. They came up with a proposal known as a Federal Proposal for the Union of Burma. This was wrongfully accused by the military as a separatists move by the Shans. Shan State could in fact use the right of secession provided in the 1948 constitution chapter 10 Article 202 to secede from the union. But, the Shan leaders chose to organize the other constituent states' legitimate leaders to gather at its capital and together tried to amend the fundamentally flawed 1948 constitution instead. That was an official legitimate action of the Shan leaders together with other leaders of the constituent states recorded.

It was in fact an action, which could be considered, to remedy the constitutional crisis of that time. This action was fully democratic and legal.

In 1962 after the military coup d'etat led by General Newin, the constitution of the Union of Burma 1948 that guaranteed the right of secession for Shan State, agreed at Pang Long Conference in 1947 and some other states was abrogated. His action amount to breach of Panglong Agreement and 1948 constitution, thus the federal Union of Burma became defunct. Which means the constituent states of the federal union automatically and legally became separated and independent.

International cold war period political conditions at that time made it impossible for the international community to recognize the facts concerning Burma and her constituent states.

PREAMBLE

We, the people of Shan State, based on our conviction that Shan State belongs to the people of Shan State who lives in it since time immemorial and are

Sovereign resolve to establish a Nation/State ensuring social justice and fundamental human rights based on democratic values;

Lay foundation for a civil society where participatory and inclusiveness is encouraged;

Limiting and clear separations of the powers of governmental institutions; Enhance the will of the people and every citizen is equal and equally protected by law; and

Through especially elected representatives for drafting, approved by freely elected representatives Parliament? and Referendum.

Unity in diversity adopted this constitution.
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CHAPTER 1.

FOUNDING PROVISSIONS

Shan State [Name of the country agreed at CDC-S and from feedback.]

1. Shan State is founded on the following values: -

1.1. A federal structure and a democratic decentralized administrative system.
1.2. Advancement of freedoms and fundamental human rights ensuring human dignity.
1.3. Supremacy of constitution and the rule of law.
1.4. Inclusive and participatory in accordance with universal suffrage, a multi-party system of democratic civil governance based on transparency, accountability, receptive and responsiveness.
1.5. Non- Racial discrimination and gender equality.
1.6. People of Shan State are sovereign.
1.7. Sovereignty is applied through the provisions of this constitution and legislation of its organic laws.
1.8. The territory of Shan State is as it was in 1922 when Federated Shan States was formed. [Approximately over 64,000 square miles or 160,000 square kilometers.]

Supremacy of constitution

2. This constitution is the supreme law of Shan State; any law or conduct
Inconsistent with this constitution is invalid and the obligations imposed by it must be duly met through legislation of its organic law or provided by law.

Nationality.

2.1. All ethnic races of Shan State born in Shan State before 1946 and
Their direct descendents are entitled to be common nationals/ Citizens of Shan State.
2.2. All citizens are: -
2.2. [A] Equally entitled to the rights, privileges and benefits of Citizenship; and
[B] Equally subject to the duties and responsibilities of Citizenship
[C] Acquisition, loss and restoration of Citizenship must be Provided by the National Legislation.

National Flag

National Flag is as it is now and proclaimed since 11 February 1947.

3.1. 5 feet long, 3 feet wide, yellow color band at the top, green color band at the center, red color band at the bottom and one and a half feet in diameter white circle at the center of the flag.
3.2. The yellow color on top is the symbol of high respect for religions; the green color is the symbol of respect for the country of the Shan people, where the land is always green and prosperous and her people's love for nature and environment; the red band symbolizing the courage of her people in protecting the country; the white circle at its center is the symbol of her people's love for peace, purity and tranquility.

National Anthem

4.1. The National Anthem of Shan State is as it is now which was adopted at 1947 Panglong Conference.
4.2. Other ethnic races of Shan State may translate the National Anthem, Which is presently in Dai Language, to their respective dialect for Local use. Present tune must be maintained for the sake of solidarity.
4.3. A New National Anthem could be adopted through Head of State's Proclamation.

National Capital.

5. Head of State/President shall proclaim after parliamentary adoption.

National Seal.

6. Head of State /President shall proclaim after parliamentary adoption.

A multi-ethnic Nation/State

7.1. Shan State is a multi-ethnic Nation/State.
7.2. Through National legislation, promote and ensure respect for Indigenous languages. Indigenous religions, cultures, customs and Traditions.

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CHAPTER 2.

BILL OF RIGHTS

Human dignity.

8.1. Human dignity is inherent rights of every human being and this Rights must be respected and protected.
8.2. Human dignity, liberty and security of the person must be protected by national legislation.
8.3. Freedom of informed choice must be provided through National Legislation.
8.4. All the people of Shan State regardless of gender, religion, ethnicity, birth or social status, without discrimination, are equal before the Law.
8.5. Each and everyone of the people of Shan State have equal opportunity to choose his/her profession and livelihood.
8.6. Every person has the right to life.

Freedom and Security:

8.7. The rights of freedom and security of the person must not be deprived of arbitrarily without a just cause provided by law.

Religion and belief:

8.8. Every person has the right to freedom of religion and belief.

Freedom of expression and information:

8.9. Every person has the right to freedom of expression.

8.10. Every person has the right to information.

[a] Media

[b] Receive or share information

[c] Artistic creativity

[d] Academic and scientific research

[e] Publications

Freedom of Assembly:

8.11. Every person has the right to assemble for an unarmed peaceful demonstrations to present petitions oppose or support a cause as provided by law.

Freedom of Association:

8.12. Every person has the right to freedom of association, political social or civil organizations. To establish or participate in these organizations as provided by law.

Freedom of movement and residence:

8.12. Every citizens of Shan State has the right to leave, remain or reside anywhere in Shan State.
8.13. Every citizen has the right to all official papers issued to a citizen as provided by law.

Freedom of trade:

8.14. Every citizen has the right to choose his or her trade freely as provided by law.

Labor Rights:

8.15. For fair labor practices and labor benefit the national legislation must provide necessary laws through national legislation.

Land and property ownership rights:

8.16. Every citizen has the right to ownership of land and property according to the customary or traditional law of communities living in Shan State before 1946 and their descendents.
8.17. National legislation may provide laws for the ownership of Land to the citizens of Shan State for fair and just distribution of land.
8.18. Every citizen has the right to ownership of property as prescribe by law.
8.19. No law shall override the sub-article 8.16, except laws provided for financial reparation for the land and property lost; And for the sake of public and national security interests.

Right to environmental protection:

8.20. Every citizen has the right and duty to protect the environment for the sake of the right to health and well-being of citizens.
8.21. A local community of Shan State has the right to initiate laws directly to the national legislation for the protection of their environment, forest or biodiversity.
8.22. A local community of Shan State has the right to reject the national legislation, if it deems unjust, for the protection of their immediate environment, through local level referendum.

The right to informed choice.

8.23. Every citizen has the right to informed choice. Access to information held by the state or other sources required for the protection of any rights.
8.24. The state must provide adequate necessary information on all subjects as provided by law.
8.25. No legislation may deprive of this right except at certain period of national security crisis.
8.26. The declaration of the period of national security crisis must not exceed six months consecutively. Declaration of it or extension of it must go through parliamentary process of both Houses.
8.27. Both Houses must clearly define "National Security" and "National Security Crisis" and must be approved by National Referendum.

The right to be served by the Public Institutions.

8.28. Every citizen has the right to be served by all level of Public Institutions.
8.29. The legislation must provide necessary laws and guideline for ministerial and departmental regulations to make all public servants to responsibly serves every citizen.

Rights Abuse Prevention Measure.

8.30. National Legislature must provide appropriate rights abuse prevention laws for all citizens regardless of origin, gender, believe, religion, culture, tradition, social status, children, old age, indigenous or minorities.

Human Rights Promotion Measure.

8.31. A national human rights commission must be established, and through due process of national legislature, appropriate empowerment to the commission must be made as soon as the national legislature came into being.
8.32. Constituent States' and local level human rights commissions must be established to ensure justice, check and balances.

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