Choudhry, Sujit

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Myanmar’s Military Coup d’État IsUnconstitutionalSujit Choudhry 2021-02-15T19:44:15Early on the morning of 1 February 2021, Myanmar’s military (the Tatmadaw)detained President Win Myint, the State Counsellor Aung San Suu Kyi, andother high-ranking government officials. The Tatmadaw declared that Tatmadaw-nominated First Vice-President Myint Swe was Acting President under article 73a ofMyanmar’s 2008 Constitution. Myint Swe then declared a state of emergency for oneyear, and transferred legislative, executive and judicial powers to the Commander-in-Chief, Min Aung Hlaing.The multilateral response should focus on the constitutionality of the Tatmadaw’sactions. Myanmar’s state of emergency is a military coup d’état, and is flagrantlyunconstitutional. The international community should support Myanmar’sdemocratically elected government by insisting that the constitution be followed, andcivilian authority restored immediately.The two of us have worked in over a dozen countries across the world, for over twodecades, on constitutional reform. What we see in Myanmar deeply alarms us.Myanmar’s state of emergency is unconstitutionalMyint Swe declared a state of emergency under article 417, which authorizes thePresident to do so after consulting the National Defense and Security Council(NDSC). Such a declaration is permitted only if there is a threat to the ‘disintegrationof the Union or national solidarity or the loss of national sovereignty’ due ‘to actsor attempts to take over the sovereignty of the Union by insurgency, violence andwrongful forcible means’.The pretext for the state of emergency was the alleged failure of the Union ElectionCommission to ensure free, fair, and transparent elections on 8 November 2020.The National League for Democracy (NLD) won a landslide victory. The Tatmadawand its allied political party, the Union Solidarity and Development Party (USDP)claim that the election was marred by fraud. They have also faulted the Speaker forrejecting their proposal to hold a special session of Parliament to discuss allegationsof electoral fraud.This argument is legally incoherent and unconvincing. The military has notprovided concrete evidence of electoral fraud despite its repeated public claimsand objections. If there were evidence of fraud, it is highly doubtful that such fraudamounted to a loss of sovereignty. If anything it is the Tatmadaw’s refusal to respectelection results that amounts to a loss of sovereignty, as the votes of the people,who bear sovereign power under article 4, were not respected and given effect to.- 1 -Moreover, the nature of the electoral fraud alleged does not constitute ‘wrongfulforcible means’, because it did not entail the use of force – an interpretation of‘forcible means’ supported by the other enumerated methods for attempting to takeover sovereignty in article 417, ‘insurgency’ and ‘violence’.In addition, the Tatmadaw has taken power unconstitutionally because the procedurefor declaring the state of emergency was breached.First, under article 417, only the President has the authority to declare a stateof emergency. The Tatmadaw has argued that its detention of the President ledto the office of the President falling vacant. However, this argument is legallyquestionable. It is implausible that the detention of the President means that theoffice of the President has fallen vacant. Article 73a refers to a vacancy due to‘resignation, death, permanent disability or any other cause’. ‘Any other cause’should be interpreted to exclude the illegal removal of the President. The Presidentwas detained without any legal basis. He has reportedly refused to sign a resignationletter.On 3 February 2021, criminal charges were brought against the President forbreaching campaign guidelines and COVID-19 restrictions under the NaturalDisaster Management Law. The Tatmadaw might argue these charges have madethe Presidency vacant. However, they cannot, since they were filed on 3 February2021, two days after article 73a was triggered and the declaration of the state ofemergency. Moreover, article 73a should be interpreted in accordance with article71a, which sets out the grounds for impeaching the President that could lead to hisremoval under article 71g. The Union Parliament is the only institution competent toinitiate the impeachment procedure (article 71b) and ultimately decide whether thecharges are substantiated (articles 71f and 71g). The Union Parliament was neverconvened nor consulted in any of the processes undertaken.Second, article 417 provides that the President can only declare a state ofemergency after coordinating with the National Defence and Security Council. TheNDSC is composed of 11 members, including 6 military and military-nominatedofficials and 5 civilian authorities (article 201). Although Myint Swe convened ameeting of the NDSC on 1 February 2021, only military members of the NDSCattended the meeting. Some of the civilian members had been already beendetained. The fact that not all the members of the NDSC attended the consultativemeeting makes the state of emergency unconstitutional.Third, after declaring a state of emergency under article 417, the President mustinform the Union Parliament (article 421a). If the Union Parliament is not in regularsession, the President must summon an emergency session (article 421a). ActingPresident Myint Swe did not make any such efforts.The Tatmadaw may argue that there was no Union Parliament in place on 1February 2021, the day the state of emergency was declared. On 1 February 2021,the new Union Parliament elected during the 8 November 2020 elections had notyet commenced its term. Moreover, on 31 January, the term of the Union Parliament- 2 -elected in the 8 November 2015 elections had just been completed (it ran for 5 yearsfrom the day of its first session, 1 February 2016, until 31 January 2021).The Tatmadaw struck on 1 February 2021 deliberately to fall in between theterms of the 2016 and 2021 Union Parliaments. However, article 421a requiresthe President to inform the Union Parliament. Not doing so renders the state ofemergency unconstitutional. Moreover, article 421a impliedly requires that thenew Union Parliament be brought into session, and its term commenced, and forMyint Swe to inform it of his declaration under article 417 (assuming that MyintSwe is Acting President, and that the NDSC was appropriately consulted). Sincethe effect of a declaration of a state of emergency under article 417 is to vest alllegislative, executive, and judicial power in the Commander-in-Chief, and to suspendthe legislative powers of the Union Parliament, dispensing with article 421a wouldsubvert this scheme. Such an interpretation of the Constitution would be absurd.What should the international community do?The international community should take the following steps.1. Affirm the validity of the 2008 ConstitutionFrom a legal perspective, the 2008 Constitution remains in force. As a politicalmatter, there are strategic reasons to affirm the validity of the 2008 Constitution,because it provides a set of institutions, procedures, and substantive norms for theexercise of public power in Myanmar. While it is in place, political conflict can bechanneled, at least to an extent, into institutions and peaceful contestation, withbenchmarks to assess and criticize exercises of public power. By contrast, if the2008 Constitution is set aside, political conflict will solely be a matter of raw powerpolitics, settled by force.Thus far, the Tatmadaw has asserted that it is acting under the 2008 Constitution,and there has accordingly been no rupture in constitutional legality, in orderto legitimize the state of emergency. But this may change, so the internationalcommunity must act quickly to affirm the 2008 Constitution remains in place.Adhering to the 2008 Constitution constrains the power of the military and theCommander-in-Chief. Since the declaration of the state of emergency itself hasbreached multiple constitutional requirements, treating the 2008 Constitution as validand in operation provides the legal basis for demonstrating that the Commander-in-Chief and the forces he controls are acting extra-constitutionally, despite repeatedclaims to the contrary – which in turn is a source of political leverage. The 2008Constitution also provides constitutional limits on the length of the emergency to12 months, with two extensions of six months, or 24 months in total (article 425).Operating under the 2008 Constitution allows other public officials and institutions toattempt to wield constitutional powers and challenge the military.Insisting on compliance with the 2008 Constitution also permits the internationalcommunity to hold Myanmar to account in terms of its own constitutionalcommitments. The fact that it was the Tatmadaw, through its governing structures- 3 -that prepared and led the enactment of the 2008 Constitution, is a powerful responseto any criticism of outside interference.Moreover, the ASEAN Charter supports such an approach, which may also behelpful in engaging diplomatically with ASEAN Member States. Article 2(2)(h) ofthe ASEAN Charter provides that Member States shall act in accordance with theprinciple of ‘adherence to the rule of law, good governance, and the principles ofconstitutional government’. This language provides a basis for regional diplomacy toadvocate for the ongoing validity of, and adherence to, the 2008 Constitution.2. Declare the state of emergency unconstitutional under the 2008 ConstitutionBased on the legal arguments outlined above, the international community shouldstate unequivocally that the state of emergency is unconstitutional, on the groundsset out above.3. Support the exercise of constitutional powers by institutions to counter theTatmadaw and mobilize political supportOne way to counter the Commander-in-Chief would be for other institutions to checkhis authority by exercising their own powers under the 2008 Constitution. Theseactions would seek to undo the state of emergency. This would serve two principalpurposes. First, they would mobilize public support against the state of emergencyand build support for the Union Parliament. Second, by taking the Tatmadaw’sasserted fidelity to the 2008 Constitution at face value, these actions would reinforcethat the 2008 Constitution provides Myanmar’s governing framework, make it morepolitically costly for the Commander-in-Chief to act unconstitutionally, and increasethe political leverage of forces seeking to end the state of emergency.The international community should provide diplomatic support of various kinds tothese actions, by quietly encouraging these steps to be taken, and then to publiclyrecognize them as official acts of government institutions.The major contender for popular legitimacy is the recently elected Union Parliament.On 5 February 2021, the NLD announced the formation of the CommitteeRepresenting the Union Parliament, with 289 elected Members of Parliament (MPs)from the 2020 elections. However, constitutionally, this announcement was not thefirst session of the Union Parliament since article 85a of the Constitution requires theattendance of more than half of the total number of MPs (321) for the session to bevalid.The elected MPs should convene online the first session of the lower house (PyithuHluttaw) with more than half of the total number of members of that chamber(213), in accordance with article 128a. Such a session would start the term of bothchambers of the Union Parliament (articles 119 and 154a). The next step would beto engage the procedure in article 75 to convene the Union Parliament, to administerthe oath of affirmation, and to elect the Speaker and Deputy Speaker. The UnionParliament should then move immediately into a debate on the state of emergency. Itshould declare the unconstitutionality of the state of emergency through resolutions- 4 -and legislation, and assert its authority over the state in accordance with the 2008Constitution. In addition, it should encourage civil servants and state institutionsto accept the authority of the Union Parliament and to reject the unconstitutionalauthority of the Commander-in-Chief.The strategy is to set up the Union Parliament as a competing source of authoritywithin Myanmar. It would serve as a focal point for political mobilization against thestructures established by the Commander-in-Chief, and a rallying point for the publicto call for the restoration of the constitutional order.A civil disobedience movement initiated by doctors and nurses has gained massivesupport among the general public, including civil servants and security officers.The tide is turning. The international community must act decisively to supportdemocracy in Myanmar before the Tatmadaw strikes back with violent force – as itdid in 1988 and 2007.- 5 -

Myanmar’s Military Coup d’État Is Unconstitutional

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Myanmar’s Military Coup d’État Is Unconstitutional

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