Melissa Crouch on Myanmar’s Coup and the Rule of Law

Recent Features

Interviews | Politics | Southeast Asia

Melissa Crouch on Myanmar’s Coup and the Rule of Law

“What the military’s assertion of political power on February 1 has done is expose the inherent bias and undemocratic nature of the 2008 Constitution.”

Melissa Crouch on Myanmar’s Coup and the Rule of Law
Credit: Wikimedia Commons/Htoo Tay Zar

The Myanmar military’s seizure of power on February shocked the world and immediately unleashed a wave of anger from the country’s public, threatening a protracted political crisis. The junta has claimed, however, that its takeover is consistent with the letter of the country’s Constitution, and has since taken pains to justify its fierce crackdown on the basis of the law.

Melissa Crouch, a professor at the Faculty of Law & Justice at the University of New South Wales, and the author of a recent book on Myanmar’s Constitution, speaks with The Diplomat about the legality of the coup in Myanmar, and the various ways in which the junta is using (and abusing) the law in order to legitimize its seizure of power.

The Myanmar junta claims that it its takeover was carried out strictly in line with the 2008 Constitution. In your view, is there any legal validity to the military’s claims?

The military’s claims to legal validity are hollow. They do not have a constitutional mandate to rule. The military claims that the failure of the Union Election Commission and the parliament to investigate and consider allegations of electoral fraud provide a justification for declaring a state of emergency. Section 40(c) and 417 of the Constitution suggests that one reason to declare a state of emergency is if there is an insurgency or an attempt at taking over power unlawfully and by force. The military claims that allowing the incoming elected government to take office meets this criteria. This is not possible. There was no insurgency or violence, and the intention of the incoming parliament to hold the first session of the Pyithu Hluttaw wasn’t going to be done through force. The UEC is the appropriate body to hear electoral complaints and it would have presumably done this in February if it had been given time.

Aside from this, the military detained the president, which is a breach of the Constitution because the only action that can be taken against the president is impeachment proceedings (section 215). The president did not step down willingness and the vice-president did not have a legitimate reason to take over as acting president.

Further the vice-president, if validly acting as president, was required to make a decision in consultation with the National Defense and Security Council. It could not do this, because most of the civilian members of that Council were not present.

In sum, the military has jumped to the powers the Commander in Chief is given under a state of emergency without going through the legitimate process to get there. The actions of February 1 are best understood as a coup, not a constitutional state of emergency.

Few people inside Myanmar seem to have accepted the Tatmadaw’s argument that the coup was legal, not least because most probably recognize that the Constitution was written by the military specifically to preserve for itself a central role in the country’s politics. To what extent, then, do you think the legality of the coup is relevant? And why do you think the military felt the need to veil its actions in the vestments of law?

We see now on the international stage that whether this is a coup or a state of emergency is highly relevant. In coming weeks and months the United Nations may have to decide whether it recognizes the Committee of Representatives of the Pyidaungsu Hluttaw (CRPH) or whether it will recognize the military’s claim. This means the international community has an important role to play and needs to fully appreciate the illegal nature of this coup and the military’s actions. It is not appropriate or warranted for the international community to recognize the military’s claims to rule.

You’ve written a book on the 2008 Constitution and studied its history in depth. What is most notable about this specific constitution and how it was drafted, compared to the country’s earlier constitutions?

Like many post-colonial contexts, Myanmar has had multiple constitutions as well as period of unconstitutional rule. The previous two post-colonial constitutions – 1947 and 1974 – were each based on a particular legal tradition. Broadly, the 1947 Constitution is similar to the Indian Constitution with its emphasis on social democracy and a parliamentary system. The 1974 Constitution borrowed from the socialist tradition. The 2008 Constitution is unusual because it mixes aspects of both of these sources, as well as includes military propaganda and slogans from the 1990s.

Several key features of the Constitution have been underappreciated by international observers. For example, the constitution says that sovereign power rests with citizens, rather than a broader ‘we the people’ type phrase. This is problematic because citizenship in Myanmar is based on a narrow and exclusionary criteria that has often left groups out like the Rohingya.  Also, the Constitution gives immunity to the former military regime, as well as complete immunity to the military during a state of emergency. Such a lack of accountability is glaring.

Overall, the protestors since 1 February have been clear that while many may hope that power is transferred back to the elected government as an interim solution, the 2008 Constitution is no longer a legitimate political framework.

That is, the coup has ruptured the fragile political settlement that the 2008 Constitution mandated. The military can no longer claim that its Constitution is an appropriate framework for the future of Myanmar. Not only was it drafted in an undemocratic manner and in an atmosphere of repression, but now the military has failed to comply with its terms.

Many protestors are now calling for the 2008 Constitution to be abolished.

How has the junta used law and legal procedures to cement its hold on power since February 1? And does this reflect broader trends in Southeast Asia, or globally?

The military has used a whole raft of legal mechanisms. Several days into the coup it declared section 144 orders in 146 townships and this meant these townships had a curfew and there were restrictions on gatherings of 5 or more people. This has not stopped protestors from coming out onto the streets.

The military has then used its media mouthpieces, such as Myanmar Alin/The Global New Light of Myanmar, to warn and threaten people. For example, it has issued repeated warnings to civil servants and doctors to return to work. It has issued warnings to the Committee of Representatives for the Pyidaungsu Hluttaw claiming that it is guilty of high treason under the Penal Code. It has also issued warnings to protestors not to be involved in the Civil Disobedience Movement. It has issued warnings that people found breaching section 144 curfew or assembly orders could be punished with several offenses under the Penal Code. It has also just declared the CRPH as an unlawful association.

Across Southeast Asia we are seeing worrying trends in the misuse of law for political gain or explicitly to target regime critics. For example, a cybersecurity law is being imposed in Myanmar that borrows ideas from China, and a similar model is also proposed in Cambodia. Across Southeast Asia there are major issues for the media and journalists, with serious restrictions on freedom of expression. This is also the case in Myanmar, where all newspaper outlets except the state-run papers have been closed.

In Myanmar’s modern history, it seems reasonable to argue that political power (usually that of the military) has shaped law more than law has shaped power. Do you agree? And what do you think this might suggest about the future of Myanmar’s constitutional order, if the military junta should somehow survive the current wave of protests?

I think that law continues to shape power, even if at times political power overwhelms law or makes it redundant. It is clear that people in Myanmar want a legal framework that is democratic and federal. The CRPH has said that it will commit to working towards a democratic federal constitutional system.

The military is holding on to its 2008 Constitution, but itself may make attempts to amend the Constitution to revise the electoral rules for a future election. In particular, we may see proportional representation introduced in an attempt to reduce support for the NLD and increase support for the USDP.

What the military’s assertion of political power on February 1 has done is expose the inherent bias and undemocratic nature of the 2008 Constitution. No political system can afford to have a military that is unaccountable. In Myanmar, people no longer want the military to be part of the political system and they want it, like other power holders, to be held accountable for their actions.