Written by: Averroes
(1.0) Introduction
There are two opposing fronts in the Myanmar political battlefield. This is between the well-renowned National League for Democracy (NLD) party which their principles are based on democratic reforms under a civilian government against the military Tatmadaw, which receives diminishing public opinion. However, the Tatmadaw has a remarkable presence in constitutional terms and a reckoning force to ensure their political survival.
Regardless of Tatmadaw's promises and manifestations, the people do not have much faith in them. As clarified by Commander-in-Chief, Min Aung Hlaing that the government would prosper the nation by building a legitimate, disciplined democratic system that would not alter any economic or foreign policy. He also invited more foreign direct investments (FDI) to expand their businesses and created the State Administrative Council (SAC) with members from various ethnic groups.
Tatmadaw have a track-record of being one of the most kleptocratic state, ranked 180 out of 182 in the world as of 2011 and their notorious actions against their own civilians, violating human rights. The 1982 Law presumes that the Rohinyan Muslims are illegal immigrants from Bangladesh, despite them living there for generations. One statistics shows that 24,000 Rohingyans and 730,000 of the seeking refuge to Bangladesh.
This was not the first time a coup were staged in Myanmar, similar to neighbouring Thailand. The advent stretched back to 1962 and prior to that was a Civil War in 1949, with Suu Kyi's father assassinated. From there, the military controlled the country through a fusion of a Buddhism-Marxism Institution by abrogating democratic values and fundamental liberties.
In 1988 there was a massive pro-democracy rally dubbed the 8888 uprising, which the military had no choice but to form the State Law and Order Restoration Council (SLORC).
This also led a free elections after the 8888 uprising pressured the military junta. Profoundly, the NLD won a landslide victory, led by Daw Aung San Suu Kyi. Despite the victory, the military junta placed Suu Kyi under house arrest and returned the previous form of government under the SLORC.
When we fast-forward to November 2020, it is a recurring event of the past which NLD also won a landslide election victory. The military junta's reluctance acknowledge the NLD as the government caused permeating demonstrations which became terribly violent.
(1.1) Constitutional Vanguards for the Tatmadaw
In 2008, to rampart their presence in the country, the Tatmadaw drafted a military-styled Constitution. Some of the provisions to protect Tatmadaw are as follows;
Clearly, article 141 of the 2008 Constitution stipulates for the Amyotha Hluttaw (Parliament), the number of representatives should consist as of at least 25% for the military while the remaining 75% of votes are from non-military. This would allow a military veto
Also, article 59F of the 2008 Constitution barred Suu Kyi from being the leader of her own political party or President, because her husband is a foreigner. However, Suu Kyi was able to curve around the law by creating the post of State Counsellor. Through this post, she is not the leader of her party, but only a proxy. This in turn enabled her to be the leader of her party. This is a legal and political maneuver implemented by her.
Therefore, in 2016 to 2020, she was the leader of the government until the 2020 election which inflamed into a political turmoil. During her tenure, she repeatedly called to amend the Constitution in the pretense of ousting out the Tatmadaw from their excessive powers in the Constitution.
Also, according to article 417 of the 2008 Constitution, since Tatmadaw claims a fraud in the elections, they used this as a means to declare a state of emergency, 'if there is sufficient reason' and 'the president may... declare a state of emergency'. However, the wordings of sufficient reason was not fulfilled, as international observers conclude that there was no fraud in the elections.
Moreover, section 73 of the 2008 Constitution declared that a Vice President with more votes could serve as an Acting President, if the office of the President falls vacant due to his resignation, death, permanent disability or any other cause.
Here, Myint Swe is the actual President while Suu Kyi only holds proxy powers. The position of Vice-President is nominated by Tatmadaw. Since Myint Swe was detained, this means that the position of President became vacant, allow the Vice-President from Tatmadaw to take power of the country.
Many provisions of the Constitution were impinged, just so that the Vice-President and Tatmadaw could rise to power again. With that, Min Aung would reign for at least a year.
Firstly, Win Myint (the President) was detained without valid reasons which is contrary to article 347 of the 2008 Constitution whereby, "the Union shall guarantee any person to enjoy equal rights before the law and shall equally provide legal protection."
Though, article 420 of the 2008 Constitution does mention that during a state of emergency, the Commander-in-Chief may "restrict or suspend, one or more fundamental rights of the citizens in the required area." It is vague as to the level of proportionality, which counters international human rights law (IHL).
For instances, the 1861 Penal Code of Burma was amended to allow extensive action, under the guise of rebelling or protesting against the military junta. It transgresses IHL as they provide for lengthy prison sentences, based on the likings of Tatmadaw. Moreover, laws such as the Ward or Village Tract Administration Law and the Law Protecting the Privacy and Security of Citizens clearly violates IHL too.
Secondly, the military tried to rationalise the arrest by stating that the President was arrested for violating COVID-19 regulations, due to his campaign rally with his wife and daughter in front of the Presidential Palace.
According to article 215 of the 2008 Constitution, "The President shall not be answerable to either any Hluttaw or to any Court for the exercise of the powers and functions of his office or for any act done or purported to be done by him in the exercise of these powers and functions in accord with the Constitution or any law." The President is immune as long as in this situation, he only held a rally.
Lastly, under article 375 of the 2008 Constitution prescribes, "An accused shall have the right of defence in accord with the law" in which the President did not have a lawyer and was dragged to court secretly."
(2.0) The 2020 Commotion
The events in the past had materialised again. The military on TV announced that there was fraud during the general elections. This was the reason made by the military to cede power to them. It was in their perspective impossible to garner that much support in Parliament of 82% seats by NLD and their proxy Union Solidarity and Development Party (USDP).
Under this cloak, it was to remain in power for Tatmadaw for her success. Many of the ministers were replaced with the preferences of Tatmadaw, including the Ministers for Health and Sports, Planning, Finance and Industry.
Before the 2020 trouble ensued, Suu Kyi herself attempted to poise together with the Tatmadaw by refusing the military's culpability by not recognising the Rohingyan crisis as a national issue, supported the arrest of journalists who were in possession of evidence related to the military's undoing. She even defended Tatmadaw back in 2019 in the International Court of Justice. Was this all to remain in power and appease the military?
As a result, she lost her humble and aspiring recognition as a human rights advocate in the eyes of the world. As the country grew more intense, the military shut down cellular data access across the country on 1st February 2021 to prevent dissemination of news through Facebook, Instagram, Twitter and Whatsapp.
The Civil Disobedience Movement (CDM) and the Committee Representing Pyidaungsu Hluttaw (CRPH) pledged to fight for the rights of the people against the military junta. They went on strikes across the country and demanded reforms and to uphold basic human rights of all communities. The military in response committed acts of terror against the CDM members in their rallies.
The protestors were detained without evidence, hauled to jail without legal proceedings and refused them to be represented in court. Many were killed and arrested in the brutal crackdown by the military. The force inflicted by the military were unnecessary and disproportionate. Even live ammunition were used, together with tear gas, water cannons and rubber bullets.
(3.0) Solutions?
Diplomacy and Mediation:
Perhaps, it is time for ASEAN to take stronger commitments to loosen their grip on the norm of non-intervention and supplant the spirit of 'communal' values under the ASEAN Charter and the 1967 Bangkok Declaration. This would translate as a means for ASEAN countries to assist in de-escalating any internal conflicts of another country, by also establishing a mediation process. This involves domestic and international groups for a proper forum or discussion on the issues at home.
This may be a radical or may strain the relations between Myanmar and other ASEAN countries, but if circumstances were to aggrandize into violence and bloodshed, suspending Myanmar's membership temporarily in ASEAN is one method. This would last, until the Tatmadaw suppresses their acts and be in unison with the 'communal' values of ASEAN.
If not, we would be neglecting our commitments based on the Treaty of Amity and Cooperation which aims to vouchsafe a foreign policy of maintaining a region free from external intervention and promoting peace and stability. This may also expose the region for alien intervention outside ASEAN and represents an image to other countries globally of the weak relevancy of ASEAN.
Dialogue:
There were attempts to tranquilise the situation in Myanmar, especially on the issue of the Rakhine State and Rohingyans, an international humanitarian crisis. This was done through the virtual Informal ASEAN Ministerial Meeting (IAMM) with exchange of flares by Indonesia and Brunei. Hopefully, since Myanmar trusts ASEAN members more as compared to the United Nations, the West and US, this would serve as a starting point for more diplomatic interactions with them.
Within ASEAN, countries such as Cambodia, Vietnam and the Philippines have refused to nose into domestic matters of Myanmar. However, Brunei, Malaysia and Indonesia are strong dissent of the acts committed by the Tatmadaw regime. By the lack of proactive measures to bring a solution to the table and passively recognising the Tatmadaw's presence in ASEAN, we are in a way relying on great powers such as China and the US to solve it, rendering ASEAN countries as 'vassals'.
Financial and Economic Penalties:
Apart from that, there were calls for International Financial Institutions (IFIs) to freeze existing loans, recall prior loans. Also, this solution was careful to consider sanctions on Tatmadaw only, but not the whole country. This would affect military entities, and does not affect small-medium enterprises (SMEs) in the state. It is not fair to punish the whole populace of Myanmar. Those involved in the sanction list also includes family members and cronies.
Foreign companies and corporate partners are also retracting themselves away from the Tatmadaw, such as companies from Japan, Australia and Korea. Many investments were cancelled off and many products are being halted to be imported to Myanmar. Cooperations and agreements with Tatmadaw would be annulled. When referring to Myanmar, the prominent businesses linked with Tatmadaw are MEHL and MEC conglomerates. These businesses then support the military junta, allowing them the resources for continued oppression, especially the Rohingyan Genocide.
(4.0) Conclusion
The military junta or coup in Myanmar is not unfamiliar there as many successful attempts allowed the Tatmadaw to become the ruling government. Putting high leverage on the 2008 Constitution, the Tatmadaw's excessive power and presence allows them to trample over democratically elected members of Parliament (Amyotha Hluttaw) and take over at their own convenience, through their own interpretation of the Constitution. This demonstrated when they detained the President, allowing their own-nominated Vice-President to take over on the pretense of COVID-19 violations and declaration of emergency, in relations to the landslide victory of NLD in the 2020 General Elections which they 'believed' was tainted with fraud.
Leniently allowing the Tatmadaw contributes to various breaches of international human rights law and the persecution of the innocent Rohingyan people who have lived in the country for generations. International support, especially from ASEAN must change their perspectives under the 1967 Bangkok Declaration and ASEAN Charter for more interventionism for serious humanitarian crisis that is incurring, while not relying on foreign powers. Economic sanctions should be incurred onto the Tatmadaw Regime, while not devastating the locals and their SMEs. Before that, discussions and diplomatic mediations must a priority first.
(5.0) References;
Yongwook Ryu, Bernard Minn, & Myat Myat Mon. (March, 2021) The Military Coup in Myanmar: Time to Prioritise ASEAN Centrality and Communal Values. ISEAS Yusof Ishak Institute. 27, 1-8. Retrieved from, https://www.iseas.edu.sg/wp-content/uploads/2021/02/ISEAS_Perspective_2021_27.pdf
Charney, M. (February, 2021) Myanmar coup: how the military has held onto power for 60 years. Retrieved from, https://eprints.soas.ac.uk/34733/1/Charney%202021%20Myanmar%20coup%20how%20the%20military%20has%20held%20onto%20power%20for%2060%20years.pdf
Altsean Burma. (2021) BURMA COUP WATCH: URGENT ACTION REQUIRED TO PREVENT DESTABILIZING VIOLENCE. Retrieved from, https://www.acaps.org/sites/acaps/files/products/files/20210429_acaps_briefing_note_myanmar_impact_of_1_february_coup.pdf
Dunst, C. (2021) The Myanmar Coup as an ASEAN Inflection PointJournal of Indo-Pacific Affairs. 37-45. Retrieved from, https://media.defense.gov/2021/Aug/26/2002840264/-1/-1/1/DUNST.PDF
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