Constitutional implications of Myanmar’s Coup on 1 February 2021

Claiming election fraud in Myanmar’s November 2020 election results, the Tatmadaw arrested President U Win Myint and other leading civilian officials, and invoked s.417 of the Myanmar Constitution to declare a one-year state of emergency. Analysis of the emergency provisions in Myanmar’s 2008 Constitution, however, reveals that the far-ranging powers now claimed by the Tatmadaw rest on shaky constitutional interpretation, which may have enduring constitutional consequences – writes Andrew Harding.

Emergency declared

The truth is, we all saw it coming, but as the days ticked by and the rhetoric was ramped up, it seemed the likelihood of a coup was receding. Nonetheless in the early morning of 1 February 2021 the Tatmadaw fulfilled what had been threatened, by arresting President U Win Myint and other leading civilian officials, including State Counsellor Daw Aung San Suu Kyi. An emergency was declared, expressed to be under s.417 of the Constitution, and the President detained, leading to a purported hand over of all powers by the military-nominated Vice-President to the Commander-in-Chief General Min Aung Hlaing.

The arrest of the president and civilian officials Is properly described as a military coup rather than an emergency.

At the conceptual level this act, properly described as a military coup rather than an emergency, was sought to be justified as a response to the refusal by the Election Commission and the NLD government to countenance an attempt to overturn the November 2020 election results, which the Tatmadaw claimed to be fraudulent. There may well be difficulties with the voters’ list, but there is no evidence that the result could possibly have been affected even if the allegations were true, given the overwhelming support shown for the NLD in the election. The very factual basis for these actions is simply absent.

Unconstitutional moves even under pro-military constitution

The Tatmadaw’s action is very clearly unconstitutional, even by the terms of the 2008 Constitution, designed as it was to provide the Tatmadaw with powers unequalled in any ‘constitutional’ system of government, and amounting essentially to a praetorian rather than fully democratic constitution.

First, under s.417 there must be a reason for declaring an emergency 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 or even been cited, except for the dispute with the Election Commission, a matter which in most systems – but not in Myanmar - is resolved by the courts and other appropriate bodies, as recently occurred in the United States. The stated issue, again, does not exist, and even if it did would not support the coup that has occurred.

Another problem is that the power to declare an emergency rests with the President, after coordinating with the National Defence and Security Council (NDCS). While the Tatmadaw called for an NDSC meeting, only the Tatmadaw members attended. Far from what is envisaged in s.417, the Tatmadaw 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 installed as Acting President. But nothing justifies the assumption of office by the Tatmadaw-nominated Vice-President. At best, I suggest, there might be a rather tenuous argument based on necessity; but again, there is nothing necessary about this coup in the first place.

It seems the Tatmadaw have set out to rule Myanmar for between one and two years. But who knows?

Apart from this, the Tatmadaw has no power to arrest the officials detained. 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). So it seems the Tatmadaw have set out to rule Myanmar for between one and two years. But who knows? It seems any inconvenient provision can be just ignored or breached with impunity, as we have already seen, so this too could be ignored. Presumably this period will be used to somehow have the election results overturned. Yet the Election Commission’s decision on the election results is final under the Constitution – another inconvenient provision. That is something worth revisiting at some point.

Drastic consequences of s.417 state of emergency

For the purposes of what follows, let us assume the emergency declaration and Tatmadaw rule are valid. The drastic consequences of a s.417 emergency, on this assumption, are extreme. Of course they could be even more extreme if the Tatmadaw reverts to a military coup justification for their actions.

The declaration of a state of emergency involves the transfer of all legislative, executive and (astonishingly) even judicial powers to the Commander-in-Chief.

First, it involves the transfer of all legislative, executive and (astonishingly) even judicial powers to the Commander-in-Chief. 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). Here lies another inconvenience, because clearly the Tatmadaw did not want Parliament to sit, having forestalled its sitting at the last minute. The transfer would no doubt be torn to pieces by Parliament. The clear implication of s.421 is that the transfer of powers must be put before Parliament and debated, and if Parliament is not sitting then it must be called as an emergency measure – that is, I suggest, straight away. After all, MPs were expecting to sit anyway on 1 February. Since the ‘emergency’ has not been declared for reasons relating to the pandemic, as has occurred in Malaysia, there should be no bar to Parliament meeting. But, again, the Tatmadaw’s adherence to the Constitution is in question, and one assumes another unconstitutional act/omission will occur in failing to follow 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)). This is another provision suggesting that the Tatmadaw cannot simply ignore the elected officials.

Thirdly, all fundamental rights are subject to restriction or suspension by the Commander-in-Chief (s.420). This aspect is decidedly worrying, given that unbridled legislative power is given to the Commander-in-Chief under the Constitution, and it requires little imagination, given current allegations against the Tatmadaw, to see how fundamental rights are now very much at risk, even more perhaps than they have been.

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). Despite the ‘ouster clause’ mentioned and the transfer of judicial powers, it may still be open to the courts to make rulings, as they are still in operation. The ouster clause is actually weakly drafted and leaves a large lacuna. It does not say that the declaration of an emergency itself cannot be challenged; nor does it expressly preclude examination of legislation (as opposed to ‘actions’) passed pursuant to the ‘emergency’. Even acts in theory protected by this provision could be construed to include only ‘lawful’ acts, or acts broadly within the scope of emergency powers. At the very least the courts would in theory at least be able to decide these jurisdictional issues for themselves, even if they decided discretion to be the better part of valour and support the constitutionality of what has occurred by reference to some devious constitutional logic involving concepts such as ‘necessity’, ‘diversion’, or perhaps ‘salus populi suprema lex’, or the general provisions of chapter 1 of the Constitution. This is a choice that often does confront courts in a coup situation. They are far from powerless, as they control the disbursement of legitimacy, and even if compliant they can still impose conditions and requirements as part of their justification for compliance.

Fifthly, 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. But, yet again, everything depends on the validity of the ‘emergency’. If the acts of the Tatmadaw are invalid constitutionally, then the election results are preserved. Perhaps here there is scope for some kind of face-saving compromise involving scrutiny of the election results, although this issue probably does not represent the Tatmadaw’s true interest in mounting this coup.

Tatmadaw may have set itself a constitutional trap

A coup d’etat always raises important constitutional questions. In its attempt to find a middle road between military rule and constitutional democracy, the Tatmadaw may have set itself a gigantic elephant trap. Comparison with Thailand may be instructive here. There have been 12 coups in Thailand since 1932, and on each occasion the existing constitution has been overthrown (the most recent examples are those of 1997 and 2007, overthrown in 2006 and 2014), and an Interim Constitution instated by a decree, signed by the King, and providing immunity for the military. The reason for this rather drastic method is that the military does not want to be tied up in arguments as to the validity of their acts, which could even result in a trial for treason. Hence the clean constitutional break.

By pretending that their actions carry constitutional legitimacy, the Tatmadaw has opened up arguments about that very question, and their case in law is frankly extremely weak.

By pretending that their actions carry constitutional legitimacy, the Tatmadaw has opened up arguments about that very question, and their case in law is frankly extremely weak. Constitutional history suggests that legitimacy of a coup is extremely important, and can be weaponised or at least used as a bargaining chip. One might say that this does not really matter when the Tatmadaw have all the tanks and guns, but they are nonetheless faced with a dilemma. Are they to endure the slings and arrows (to change the military metaphor) of legal or legitimation arguments, or avoid those by a further ‘autogolpe’ (a coup against oneself, so to speak) which has no such pretence of being constitutionally valid? This latter, Thai-style, option may be tempting, but weakens their political argument further.

At the end of the arguments that will follow, it was the Tatmadaw that emplaced the extraordinary mechanism of s.417 in order to cancel their ‘discipline-flourishing’ democracy, if need arose. S.417 is the ultimate weapon by which this ‘discipline’ is enforced. If even this absurdly draconian law is inadequate for their ambitions, then one wonders why 17 years were spent drafting one of the world’s most undemocratic, self-serving constitutions only to overturn it as being insufficiently authoritarian. Matters would in such case revert to where they were in 1990, but the problems (including the sanctions that led to reform) would be worse and the population even more angry. Commentators have already pointed out the enormous changes in Myanmar society. Reports indicate that 70 hospitals are refusing to work, and other forms of direct action may follow.

The best (but of course not most likely) option would be now to admit the illegal nature of their actions, apologise to the people of Myanmar, and negotiate a compromise with the elected NLD government in the form of an outcome that reverses the current position and facilitates further reforms, unblocking the Tatmadaw’s grip before further damage results.

Andrew Harding is a leading scholar in the fields of Asian legal studies and comparative constitutional law and is based at the Centre for Asian Legal Studies, Faculty of Law, National University of Singapore.