|Draft Shan charter
on the stands
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
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
"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
Draft Constitution #1
Constitution by Drafting Commission Shan State
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
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.
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.
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
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
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
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
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.
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
Unity in diversity adopted this constitution.
Shan State [Name of the country agreed at CDC-S and from
1. Shan State is founded on the following values: -
1.1. A federal structure and a democratic decentralized administrative
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.
2.1. All ethnic races of Shan State born in Shan State before
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
[C] Acquisition, loss and restoration of Citizenship must
be Provided by the National Legislation.
National Flag is as it is now and proclaimed since 11 February
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.
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
5. Head of State/President shall proclaim after parliamentary
6. Head of State /President shall proclaim after parliamentary
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.
BILL OF RIGHTS
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
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
Religion and belief:
8.8. Every person has the right to freedom of religion and
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.
[b] Receive or share information
[c] Artistic creativity
[d] Academic and scientific research
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.
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
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
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
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.