—Andrew Harding, Centre for Asian Legal Studies, Faculty of Law, National University of Singapore
In the early morning of 1 February 2021 the Myanmar military, the Tatmadaw, fulfilled what had been threatened for several days, by arresting the President and other leading civilian officials, and declaring an emergency and their taking over of the country. This was a response to refusal by the Election Commission and the NLD government to countenance an attempt to overturn the November 2020 election results, which the Tatmadaw said were fraudulent. While the voters’ list can be impeached, there is no evidence that the result could possibly be affected even if the allegations are true, given the overwhelming support shown for the NLD .
Despite the Tatmadaw’s invocation of s.417 of the 2008 Constitution, this coup is in fact unconstitutional, even by the terms of that Constitution, designed as it was to provide the Tatmadaw with powers unequaled in any ‘constitutional’ system of government.
Specifically, the all-important s.417, which has always been mentioned as a controversial section justifying the ‘praetorian’ description of the Constitution, states as follows.
If there arises or if there is sufficient reason for a state of emergency to arise that may disintegrate the Union or disintegrate national solidarity or that may cause the loss of sovereignty, due to acts or attempts to take over the sovereignty of the Union by insurgency, violence and wrongful forcible means, the President may, after co-ordinating with the National Defence and Security Council, promulgate an ordinance and declare a state of emergency. In the said ordinance, it shall be stated that the area where the state of emergency in operation is the entire Nation and the specified duration is one year from the day of promulgation.
It will be noted first that there must be a reason that may disintegrate national solidarity or loss of sovereignty. No such reason exists and no commentator has at any point warned of this, except to say that it might occur in the event of a coup initiated by the Tatmadaw. Secondly, this reason must be due to acts or attempts to take over the sovereignty of the Union by insurgency, violence and wrongful forcible means. This description fits exactly what the Tatmadaw itself has done, but no other similar acts or attempts by any party have occurred. The conditions for a constitutional emergency declaration simply do not, by any interpretive standard, however loose, exist.
It will also be noted that the power to declare an emergency rests with the President, after coordinating with the National Defence and Security Committee, and that the emergency operates over the entire nation for a period of one year. Far from what is envisaged by this provision, the Tatmwadaw did not engage in coordination but arrested the very person who is empowered to declare an emergency. To maintain a veneer of legality the Vice-President nominated by the Tatmadaw under Myanmar’s electoral college system is nominated as Acting President. Clearly this aspect of s.417 has also been breached, and the Tatmadaw has no power to arrest these officials, who include the President, the other Vice-President, and the Sate Counsellor Daw Aung San Suu Kyi. It seems as though the President was compelled to resign as is allowed by s.71, but such resignation must be voluntary. The only way in which the Constitution has been observed is in the limitation of the emergency to the whole of Myanmar for one year; but this period is also subject to possible extension, twice, for six months (s.421(b), s.425). Presumably this period will be used to somehow have the election results overturned (the Election Commission’s decision on the election results is final under the Constitution).
The drastic consequences of a s.417 emergency, were it a valid one, would be extreme.
First, it involves the transfer of all legislative, executive and even judicial powers to the Commander-in-Chief, General Min Aung Hlaing. In this situation the legislative functions of Myanmar’s union and state/regional legislatures all stand suspended, although the transfer of all powers to the Commander-in-Chief is to be put before parliament, if necessary in an emergency session (s.421).
Secondly, by virtue of a s.417 emergency all executive office-holders at all levels of government are also automatically terminated, with the exception of the President and Vice-Presidents (s.418(a)).
Thirdly, all fundamental rights are subject to restriction or suspension by the Commander-in-Chief (s.420).
Fourthly, judicial powers may be transferred to anyone the Commander-in-Chief chooses, although in any event no actions under an emergency can be subjected to legal challenge (s.432).
Lastly, and even more alarmingly, a general election must be called by the NDSC within six months of the revoking of the emergency ordinance (s.429). This means that the landslide election of the NLD just a few weeks ago can be easily avoided by the Tatmadaw.
This coup is a cynical and self-serving abuse of power that has no constitutional basis whatsoever. It has of course long been recognized that the 2008 Constitution was drafted to serve the needs of the Tatmadaw rather than genuine democratic transition. Ultimately, for the Tatmadaw, democracy was always an experiment that it has now judged, without any foundation, to have failed.
Suggested citation: Andrew Harding, The Tatmadaw’s 1 February Actions are not an Emergency but a Coup, Int’l J. Const. L. Blog, Feb. 1, 2021, at: http://www.iconnectblog.com/2021/02/the-tatmadaws-1-february-actions-are-not-an-emergency-but-a-coup/