4.2

4.2.1

The 2008 Constitution of the Republic of the Union of Myanmar

PREVIEW

Complete the chart.

The 2008 Constitution of the Republic of the Union of Myanmar includes some general articles which could benefit minority groups, related to non-discrimination and equality. 

The 2008 Constitution also mentions some specific minority groups by name and the protection and rights they are entitled to. However, there are also some minority groups it does not mention and it restricts or violates some minority rights as well.

The 2008 Constitution mentions the terms “national races” and “national people”, which are often interpreted as referring to ethnic groups considered to be indigenous in Myanmar. It does not mention non-indigenous groups specifically, but sometimes refers to “people” or “citizens”. 

The protection and rights of ethnic and indigenous minority groups in the 2008 Constitution include:

• The right to elect an Ethnic Affairs Minister for ethnic groups whose population is greater than 0.1 percent of the total population of Myanmar and if they are a numerical minority in the Region, State or Self-Administered Zone or Division where they live.
• The right to have a representative in the government of a Self-Administered Zone or Division for ethnic groups whose population is greater than 10,000 persons in that Zone or Division.
• The right to receive assistance from the government to develop their language, literature, culture, education, health, economy, transport and communication. Ethnic groups may enjoy these rights as long as they do not violate the rights of others. 
• Article 391 grants a right to vote for political candidates who are members of ethnic minority groups.
• The right for outstanding students to receive recognition and assistance from the government without discrimination based on ethnicity.

Restrictions and violations of rights of ethnic and indigenous minority groups:

• The preamble emphasises “national people”, but since this term is often considered to only refer to certain ethnic groups but not others, it excludes ethnic groups not considered to be indigenous.
• Article 37 grants ownership of all lands and natural resources to the government.
• Article 450 identifies Burmese as the single official language.
• Article 365 restricts the right to develop literature, arts, customs and traditions if this is seen to threaten “national solidarity”. 
• There are restrictions on who can access certain leadership positions in the government based on if their ethnicity is considered indigenous and if they have a spouse with Myanmar citizenship.
• There are centralised decision-making practices, including for the appointment of Chief Ministers in States and Regions. 
• Chapter 8, articles 383-390 identify duties for citizens that individuals or groups may disagree with. 

The 2008 Constitution recognises a “special position” of Buddhism,” as the faith professed by a great majority of the citizens” in Myanmar. The constitution also recognises the Animist, Christian, Hindu and Islamic faiths. However, these faiths are not given a “special position,” and other faiths are not recognised at all.

The protection and rights of religious minority groups in the 2008 Constitution include:

• The right for “citizens” to freely profess and practise religion, and to develop their religion as long as they do not violate the rights of others.
• The right to receive assistance and protection of religions from the government.
• Freedom from abuse of religion for political purposes. 
• Freedom from discrimination in being appointed or assigned roles in the civil administration.
• The right for outstanding students to receive recognition and assistance from the government without discrimination based on religion.

Restrictions and violations of rights of members of religious minority groups:

• Article 361 gives Buddhism a “special position” because it is the majority religion.
• The Constitution only recognises Buddhism, Christianity, Hinduism, Islam and Animism by name, which excludes other religions and atheism present in Myanmar.
• The restrictions on the right to freely profess and practise religion are broad and vague, which enables arbitrary interpretations. 
• Persons who mobilise others to vote based on religion are not allowed to become Members of Parliament.
• Members of religious orders are not allowed to participate in politics.

The 2008 Constitution mentions “people” and “citizens” but not “stateless persons” and any rights that this group may have. “People” might refer to the same groups considered as “national races” or “national people” or to everyone inside Myanmar. “Citizens” are defined in article 345 as persons who are either born by parents who are both “nationals” of Myanmar, or who were already recognised as legal citizens when the 2008 Constitution was adopted. However, article 346 provides room for a broader definition of citizenship “as prescribed by law”.

The word used for “citizens” in the 2008 Constitution is the same word used for citizens with Citizenship Scrutiny Cards in the Burma Citizenship Law of 1982. Narrowly interpreted, this may read to imply that full citizens are privileged and associate and naturalised citizens are excluded from accessing some rights declared in articles in the constitution.

Restrictions and violations of rights of stateless persons:

• The use of “citizen” excludes stateless persons living in Myanmar from accessing certain rights.

The 2008 Constitution mentions persons with disabilities. 

One right of persons with disabilities in the 2008 Constitution is:

• The right for persons with disabilities to receive care from the government.

Restrictions and violations of persons with disabilities:

• “Decent living” and vocational training are only specified as rights for persons with disabilities who have worked for the Myanmar Defence Services. 

The 2008 Constitution does not mention SOGIE minority groups or specific rights for these groups.

REFLECTION/DISCUSSION

What rights of SOGIE minority groups and their members might you want to add to the 2008 Constitution?

Educator’s notes

If your learners have difficulty identifying what rights for SOGIE minority groups and their members they would like to add to the 2008 Constitution, you can refer your learners to read subsection 3.3.7. “Human Rights Laws for SOGIE Minority Groups” of chapter 3 in the Learner’s Book.