Analysing The State of Emergency in Myanmar: A Constitutional Perspective

“By general law, life and limb must be protected, yet often a limb must be amputated to save a life; but life is never wisely given to save a limb.”

Abraham Lincoln

Introduction

On February 1, 2021, the armed forces of Myanmar, i.e. the Tatmadaw, detained President Win Myint, the State Counsellor Aung San Suu Kyi, and other government officials. Pursuant to Article 73(a) of the Constitution of the Republic of Union of Myanmar, 2008 [“Constitution”] the Tatmadaw nominated the First Vice-President Myint Swe as the Acting President. Myint Swe imposed a year-long nationwide state of emergency by invoking Article 417 of the Constitution. He then transferred legislative, executive, and judicial powers to the Commander-in-Chief, Min Aung Hliang.

Myanmar has been ruled without a Constitution for 36 years—first from 1962 to 1974 and then from 1988 to 2010, with the latter period under direct military rule by decree, although the Tatmadaw claimed to be a transitional government. Article 6(f) of the Constitution enables and sanctions the leadership role of the Tatmadaw in governance of Myanmar. Its national ideology, known as the Three Main National Causes, is protected through Article 6 of the Constitution. Moreover, Article 20(e) vests the duty on the Tatmadaw to uphold this ideology. Article 383 imposes the duty on every citizen to uphold the Three Main National Causes in everyday life. The military gains both direct and indirect structural advantage from the military Constitution. For instance, any amendment to the Constitution as per Article 436 requires the support of military legislators due to the threshold of more than 75 percent approval in the legislature. The Tatmadaw has a considerable influence over the State institutions since often military officers are transferred into civilian positions in judiciary or government ministries. Therefore, the Tatmadaw has designed a constitutional framework that legitimizes its role in national politics and such that the ultimate political leadership rests with the military. It is imperative to note that the Tatmadaw as an autocratic institution is in stark contrast with Corrales’s idea of ‘legalist autocrats’ as leaders who simply abuse law or Scheppele’s proposition that legalist autocrats use law in the name of populism since the Tatmadaw derives its powers from the Constitution itself.

In this article, the author argues that the declaration of emergency in Myanmar is ultra vires and therefore, has no legal force. To substantiate the argument, the author examines the provisions of the Constitution of Myanmar and highlights the grounds on which the declaration of emergency stands null and void. The author concludes by stating that since the invocation of emergency, there have been several radical, repressive changes in the legal framework of the nation, which maybe be permanent in nature.

Analysing the (Un)Constitutionality of the State of Emergency

A bare reading of Article 417 implies that only the President is empowered to declare a state of emergency after consulting the members of the National Defence and Security Council [“NSDC”]. A literal interpretation of the provision also highlights that the NSDC must also ratify the invocation of the emergency proceedings. The NSDC comprises 11 members, with 6 military and military-nominated officials and 5 civilian authorities, as mentioned in Article 201. However, the Tatmadaw had already detained several members of the National League for Democracy [“NLD”], which includes President Win Myint. Although Myint Swe convened a meeting of NSDC on February 1, 2021, only military members were present. Therefore, it is clear that since the consultation procedure has not been in accordance to the protocol enshrined in Article 417, the emergency stands ultra vires.

The nomination of First Vice-President Myint Swe as the Acting President is also void, primarily because the office of President was not vacant at that juncture. Article 73(a) states that the President’s office falls vacant due to ‘resignation, death, permanent disability, or any other cause.’ Win Myint did not sign the resignation letter, and neither did he suffer from any ‘permanent disability’. The term ‘any other cause’ cannot be interpreted to include the illegal removal of the President from his office. The rule of statutory interpretation known as ejusdem generis states that “general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words”. The illegal detention of the President does not fit in the ‘genus’ of ‘resignation, death, permanent disability’. It will also contradict legislative intent and fail to uphold the purpose of the constitution. Hence, the emergency declared by Myint Swe cannot have legal force because his election to the office is void due to illegality.

Furthermore, Article 73(e) creates an obligation on both the Head of Pyidaungsu Hluttaw and the Acting President to hold an election to fill the vacant position of the President as per the procedure laid down under Article 73(d) if Pyidaungsu Hluttaw is not in session. The Acting President is required to provide an intimation to the Head of Pyidaungsu Hluttaw, and within 21 days of such intimation, the Head of Pyidaungsu Hluttaw shall make arrangement to elect the new President. However, in the present circumstance, no such intimation was triggered by the Acting President. Furthermore, pursuant to Article 104 of the Constitution, the power to promulgate an Ordinance is expressly given to the President. Therefore, the Acting President signing an Ordinance that calls for a declaration of emergency violates the spirit of the Constitution coupled with the fact that he did not take any reasonable step to fill the vacant office of the President as mandated by the Constitution.

Pursuant to Article 215 of the Constitution, the President is not answerable to the court of law or the legislature, notwithstanding impeachment proceedings. On February 3, 2021, the President and the State Counsellor were charged under Natural Disaster Management Law and Export and Import Law, respectively. The Tatmadaw may argue that these criminal charges have led to the office of the President falling vacant. However, this argument falls flat on two grounds that (i) these charges were levelled against the President two days after the invocation of Article 73(a) and declaration of the state of emergency and (ii) nothing in the Constitution suggests that the President is accountable to the armed forces. The Union Parliament remains the sole institution to deliberate on the alleged malpractices as mentioned in Articles 71(f) and 71(g). Article 71(a) of the Constitution lists the ground on which the President or Vice-President might get impeached. In the present context, an impeachment proceeding could have been initiated under the head ‘misconduct’ or ‘inefficient discharge of duties assigned by law’. However, a session of the Union Parliament has not been convened, and neither any impeachment proceeding has been initiated.

The declaration of emergency on February 1 was a strategic move on the part of Tatmadaw because  the Union Parliament in Myanmar was not in session on that day. In Myanmar, the term of Union Parliament is for five years. The term of Union Parliament elected through November 2015 elections expired on January 31, 2021. On the other hand, the new Union Parliament elected through November 2020 elections was about to commence its term on February 1, 2021. Therefore, it is clear that Union Parliament had no ‘due authority’ to exercise its powers on the day of the declaration of emergency. It is imperative to note that for the emergency to be declared under Article 417 and Article 418, it is mandatory under Article 421(a) for the President to inform the Union Parliament regarding the transfer of sovereign power to the Commander-in-Chief of the Defence Services. If the Union Parliament is not in session, the President may summon a session of the Union Parliament. In the present factual matrix, the new Union Parliament was yet to be duly constituted on the day of the declaration of emergency, and therefore, the question arises whether the President is exempted from informing the Union Parliament about the state of emergency under the Constitution? The answer is negative because in these circumstances the Article 421(a) mandates the President to call an emergency session of the Union Parliament. No attempt so far has been made to call for an emergency session of the Union Parliament, and therefore the declaration of emergency stands ultra vires on this count as well.

However, there exists one aspect of this emergency that needs to be highlighted in the present context. For the sake of argument, if we assume that the nomination of Myint Swe as the Acting President is legitimate and the NSDC has been adequately consulted, as per Article 417 after the declaration of the emergency, all the legislative power vests with the Commander-in-Chief and therefore, he is well within his rights to suspend the legislative power of the Union Parliament, thereby bypassing the requirement mandated under Article 421(a) of the Constitution.

The fundamental argument in favor of the declaration of emergency is the alleged failure to hold a free and fair election on November 8, 2020, by the Union Election Commission [“UEC”]. The NLD won 346 seats, a lot more than the magic figure, i.e. 322 seats. Since then, the military-backed opposition demanded a re-run of the election. The UEC rejected the claims of electoral fraud and declared the election valid. A close reading of Article 402 implies that resolutions and decisions of the UEC are ‘final’ and ‘conclusive’, which means that there is a degree of finality granted to the UEC. Therefore, in light of Article 402, the result of the November 2020 election stands valid. Furthermore, the Tatmadaw has unable to provide any substantial evidence to support their claim for electoral fraud. Even if we assume that there was state-sponsored voter fraud in the November election, it cannot be argued that electoral fraud amounts to ‘loss of sovereignty’ or an ‘attempt to take over the sovereignty by insurgency, violence and wrongful means’. Ironically, the Tatmadaw’s refusal to respect the election result amounts to the loss of sovereignty, considering under Article 4 the sovereign power of the Union vests with the citizens, and elections are nothing but the representation of the will of the people.

Conclusion

Considering the above discussion, it is clear the emergency declared by the Tatmadaw is ultra vires and, therefore, has no legal force. Even though the 2008 Constitution safeguards the authoritarian interests and ideologies of the Tatmadaw, it also provides certain checks and balances on the powers of the military, as highlighted in the essay. Additionally, the Constitution also provides committees and commissions to maintain parliamentary oversight of the government’s activities.

It is believed that the legal and institutional changes during the emergency are transitional. However, often the Sovereign brings about permanent changes in the constitutional structures. For instance, despite the reversal of most provisions through the 44th Amendment Act, a major chunk of the 42nd Amendment Act (which was passed during the 1975 emergency in India) remains a part of the Indian Constitution.  For instance, the 42nd Amendment Act laid down fundamental duties for the citizens, which are non-justiciable. However, recently the Madhya Pradesh High Court denied comedian Munawar Faruqui’s bail plea for hurting religious sentiments. The court relied on Article 51(e) of the Indian Constitution, which mandates citizens “to promote harmony and the spirit of common brotherhood”. As Samuel Moyn argues that “the rhetoric of duties has often been deployed euphemistically by those whose true purpose is a return to tradition won by limiting the rights of others”. Similarly, there have been a number of sweeping changes in the legal framework of Myanmar, which the author believes may be long-lasting.

On February 13, the military junta suspended Sections 5, 7, and 8 of the Law Protecting the Privacy and Security of Citizens, 2017, thereby removing basic protections, including freedom from arbitrary arrest and detention and the right to be free from surveillance and seizure. On February 15, the military junta amended the Electronic Transactions Law, 2004, thereby allowing the confiscation of personal data. It also allows the government machinery to control the free flow of information on the internet and empowers them to label any information as ‘fake news’.

The international community must explore diplomatic channels to ensure an effective resolution of this constitutional crisis. Civil society also has a huge role to play in restoring normalcy in Myanmar. This episode of constitutional exceptionalism must remind nations how States can degenerate in a state of chaos and despair by the rise of the extra-constitutional actors.  

 

[Sourav Paul is a first year student at West Bengal National University of Juridical Sciences]

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