Draft Sagaing constitution missing key rights

The draft Sagaing Federal Unit Interim Constitution marks a significant improvement over Myanmar’s military-drafted Constitution (2008) and the Federal Democracy Charter (2021). It references global human rights standards (Arts. 41.b and 30.c) and includes a historic provision requiring that the government adhere to international law (Art. 191).

As a precedent-setting document, the Sagaing Constitution could shape governance for years and lay the foundation for a future national constitution. The Sagaing Federal Unit Hluttaw’s consultation request also sets a positive precedent.

The draft strengthens fundamental rights protections without the vague national security restrictions found in the 2008 Constitution. It explicitly protects marginalised groups, including women, and prohibits various forms of discrimination. 

However, international legal protections for civil and political rights are missing. The draft does not abolish the death penalty, ban cruel, inhuman, or degrading treatment, or guarantee the right to vote and the right to privacy. The draft also fails to enhance fair trial safeguards, ensure judicial independence, establish judicial review, or restrict emergency powers.

Human Rights Myanmar supports the development of a robust and democratic constitution for Sagaing and offers these recommendations based on international law.

Ban death penalty and cruel treatment

The draft does not address capital punishment, leaving open the possibility that the death penalty may be retained or reintroduced. Global human rights trends favour abolition since capital punishment violates the inherent right to life. Article 16(a) should be revised in accordance with international human rights standards—including the ICCPR (Art. 6; Second Optional Protocol) and drawing on examples from democratic constitutions in Mongolia (Art. 16) and Nepal (Art. 16).

(a) Life. No person shall be subject to the death penalty, and all previous death sentences shall be commuted to an appropriate alternative sentence in accordance with the law;^[1]

Cruel, inhuman, and degrading treatment

Although the draft requires protection from torture (Art. 16), it does not explicitly ban torture or extend to cover all forms of cruel, inhuman, or degrading treatment or punishment. Comprehensive bans are required under international law to prevent abuses in detention, law enforcement, and military operations. Article 16(j) should be amended in line with the ICCPR (Art. 7) and the Convention Against Torture (Art. 1), following examples in constitutions such as Japan (Art. 36) and South Korea (Art. 12).

(j) Protection from forced labour, torture, slavery, sexual abuse, or any form of cruel, inhuman, or degrading treatment or punishment, which are all prohibited.

Strengthen civil and political rights

While the draft guarantees freedom of expression, it does not fully define the right, leaving potential for misuse. Article 16(d) should be modified to explicitly prohibit censorship, propaganda for war, and incitement to violence. This recommendation is based on the ICCPR (Arts. 19 and 20) and reflects the formulations used in modern democratic constitutions such as those in Germany (Art. 5) and South Africa (Art. 16).

(d) Freedom of expression, including the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. Any restriction shall only be such as are provided by law and are necessary for respect of the rights or reputations of others, for the protection of national security or of public order or of public health or morals, for preventing propaganda for war, or for preventing advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. No person shall be subject to prior restraint (censorship) on the publication or dissemination of information, opinions, or ideas;

Freedom of assembly

The draft guarantees freedom of assembly but does not comprehensively define the right, potentially leading to misuse. It is essential that law enforcement be required to facilitate peaceful assemblies rather than suppress them. Article 16(f) should be revised, incorporating language from the ICCPR (Art. 21) and drawing on models from constitutions such as those in Spain (Art. 21) and South Africa (Art. 17).

(f) Freedom of assembly and engage in non-violent demonstrations. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals, or the protection of the rights and freedoms of others. Law enforcement agencies shall facilitate peaceful assemblies and shall not use excessive force against protestors;

Freedom of Association

Although the draft protects freedom of association, it lacks explicit guarantees against undue restrictions. To align with international law under the ICCPR (Art. 22) and democratic standards observed in constitutions such as Germany (Art. 9) and South Africa (Art. 18), Article 16(g) should ensure that individuals can freely form and join organisations, including trade unions, political parties, and advocacy groups.

(g) Freedom of association and participation in organisations. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals, or the protection of the rights and freedoms of others. No person shall be compelled to join any association against their will;

Add the right to vote and other missing rights

The draft does not explicitly affirm the right to vote, stand for election, and participate in public affairs, which are essential for democratic governance. Without clear provisions, political rights may be inconsistently applied, and the electoral process remains uncertain. In line with international legal standards, including the ICCPR (Art. 25), and drawing on practices in constitutions such as Germany (Art. 38) and South Africa (Art. 19), a new sub-clause should be added to Article 16.

(k) Participate in the political affairs of the Sagaing Federal Unit, including to vote in free, fair, and periodic elections based on universal and equal suffrage; to stand for public office and to be elected without discrimination; to form, join, and campaign for political parties or organisations;

Right to privacy

Although the draft prohibits searches, data breaches, and some surveillance (Art. 19), it does not guarantee the full right to privacy necessary to protect individuals’ private lives and to enable control over personal data, such as health and financial information. In accordance with the ICCPR (Art. 17) and examples from constitutions like Brazil (Art. 5) and Germany (Art. 10), a new sub-clause should be introduced to Article 16.

(l) Privacy including of communications, family, home, correspondence, and personal data. No person shall be subject to unlawful surveillance, interception of communications, or arbitrary searches;

Media freedom

While the draft provides for freedom of expression, it does not explicitly safeguard media freedom. Without a specific guarantee, future governments may once again use regulatory measures to control the media. A new sub-clause should be added to Article 16, drawing on international standards set forth in the ICCPR (Art. 19) and reflecting formulations found in democratic constitutions such as the Philippines (Art. 3) and Japan (Art. 21).

(m) Media freedom, including the freedom to publish, broadcast, and disseminate information and ideas of all kinds. No person shall be required to obtain a license to work as a journalist or to establish and operate a print or digital media outlet. All broadcasting shall be regulated by an independent commission that guarantees impartiality, diversity, and accountability;

Right to access the internet

In modern societies, access to the internet is increasingly recognised as essential for the full enjoyment of civil, political, economic, social, and cultural rights. The military’s history of internet shutdowns and website blocks since the coup highlights the need for robust connectivity. Although not yet explicitly mandated under international law, adding a right to internet access—similar to Brazil’s Marco Civil (Arts. 4–7)—to Article 16 would affirm Sagaing’s commitment to modernity.

(n) Access a universal, affordable, and secure internet without network shutdowns or arbitrary blocks.

Add fair trial protections

While the draft includes some fair trial protections (Arts. 21–23), it lacks several key safeguards to prevent arbitrary detention, unfair trials, and coercive practices. In order to fully comply with the ICCPR (Art. 14) and to reflect constitutional standards found in India (Art. 21) and Japan (Art. 31), new sub-clauses should be added to Article 21.

(c) No person shall be subjected to arbitrary arrest or detention;

(d) Every detained person has the right to be promptly informed of the charges against them in a language they understand;

(e) No person shall be held in incommunicado detention, and all detainees shall have the right to inform a family member or third party of their detention;

(f) Every person charged with a criminal offence has the right to a fair and public hearing by an independent and impartial tribunal;^[2]

(g) Every person charged with an offence has the right to examine witnesses against them and present evidence in their defence;

(h) Every person shall be presumed innocent until proven guilty beyond a reasonable doubt;

(i) No person shall be compelled to testify against themselves or confess guilt under coercion or duress;

(j) No one shall be convicted of an offence for an act or omission that was not a criminal offence at the time it was committed.

Protect judicial independence

The draft requires that judges must have participated in the revolution. Although the term “revolution” may encompass various groups, this criterion risks politicising judicial appointments and undermining judicial independence. Judicial selection should be based solely on merit, legal expertise, and impartiality rather than on political affiliation. In line with the ICCPR (Art. 14) and inspired by democratic practices in India (Art. 124) and Indonesia (Art. 24), Article 124(b) should be removed and Article 124 amended accordingly.

124. Judges of the Sagaing Federal Unit shall be appointed by an independent and transparent judicial commission, chosen based on competency, independence and impartiality, and shall not be removed except through due process. Judges mustmeet the following criteria:

Void conflicting laws and establish judicial review

The draft lacks an explicit provision to ensure that all legislative and executive actions conform to the Constitution, leaving a large gap in the protection of constitutional rights. Judicial review is essential for empowering the courts to invalidate any law, regulation, or governmental action that contradicts the Constitution, thus upholding the supremacy of the constitutional text. A new provision should be added drawing on international human rights standards and inspired by the broad approach established in the Indian Constitution (Art. 13).

[**new**] Every executive, legislative, and administrative action inconsistent with this Constitution shall be null and void. The courts shall have the authority to review and determine the constitutionality of all executive, legislative, and administrative actions.

Restrict emergency powers

The draft refers to emergency powers (Art. 198.hh) but does not provide explicit safeguards against their abuse, potentially allowing for the arbitrary suspension of fundamental rights. The military’s Constitution (2008) similarly lacks proper limitations, often justifying indefinite restrictions on civil liberties and undermining the rule of law. Drawing on the ICCPR (Art. 4) and practices in the constitutions of the Philippines (Art. 7) and Thailand (Art. 195), a new article should be introduced.

[**new**] Emergency powers restricting fundamental rights shall be subject to parliamentary approval and oversight, be necessary and proportionate, and be defined clearly by law, specifying their scope, duration, and conditions for renewal. Articles 16(a), (b), (j), and 21(c) shall not be subject to derogation under any circumstances.^[3]

Conclusion

The draft Sagaing Federal Unit Interim Constitution represents a significant step forward from past military-drafted frameworks by referencing international law and upholding human rights. 

However, to fully meet international democratic standards, key amendments are needed: abolish the death penalty, ban all forms of cruel, inhuman, or degrading treatment, guarantee essential rights such as voting and privacy, enhance fair trial safeguards, secure judicial independence, and impose strict limits on emergency powers. 

Human Rights Myanmar urges stakeholders to adopt these recommendations to lay a solid foundation for a future federal constitution that fully upholds the rights and dignity of all people.

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Footnotes

The PDF version of this legal analysis includes a translation of the draft constitution.

^[1] The text in bold is in the current draft. The text in italics is the recommended change to the provision.

^[2] Although Art. 120 requires public trials, this provision gives people the right to a public trial.

^[3] The right to life; Legal recognition as a person; the prohibition of slavery, forced labour, torture, cruel, inhuman, or degrading treatment or punishment; freedom from arbitrary detention.