Last week I flagged that we were likely to see the military use Section 144 orders. There appear to be rumours that a section 144 order could apply to Yangon tonight.
Its important to understand the history of section 144, how it has been used by the military in the past (1974, 1988, 2012 etc), and how a section 144 order will affect the current demonstrations. In short, section 144 orders: 1.spell an immanent crackdown on mass gatherings; 2.come close to being martial law in practise; 3.have in the past authorised police to shoot on sight (under British colonial rule). These orders are therefore just as important to understand as a declaration of a state of emergency (even if unconstitutional).
Its late, so this is an extract again:
“The power to declare a state of emergency in the 2008 Constitution of Myanmar is extensive and far-reaching, yet I argue that the more immediate, everyday threat is the routine and pervasive use of section 144 of the Code of Criminal Procedure. This source of colonial judicial power has been co-opted by the executive to generate a perpetual sense of the everyday emergency. This is illustrated with reference to administrative responses to the anti-India violence of the 1930s in colonial Burma, and the anti-Muslim violence since 2012 in Myanmar. Section 144 of the Code of Criminal Procedure constitutes the most real, immediate power of executive officials… An emergency in Myanmar is an everyday potential, destabilising everyday reality.
I. Executive Appropriation of Emergency Power
The contemporary legal system of Myanmar draws its origins from British India. The Code of Criminal Procedure (Burma Code, Vol VIII) introduced in July 1898 by British colonial authorities was no exception. Colonial British authorities at times exercised their power to enact new laws to respond to specific instances of emergency, such as the Saya San rebellion of the 1930s. Yet more often they drew on a provision in the general criminal law to respond to situations of social conflict. This is the case with Section 144 of the Code of Criminal Procedure, which falls under Chapter XI entitled ‘Temporary Orders in Urgent Cases of Nuisance or Apprehended Danger’. The text characterises this power as judicial power and as a temporary power. However, this power to issue a Section 144 order has been appropriated by the executive, and is a precursor to the exercise of constitutional power.
On its face, Section 144(1) concerns the power of a judge to respond to a threat to public order. Section 144(1) states that any magistrate may make a written order to:
[D]irect any person to abstain from a certain act or to take certain order with certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury or risk of obstruction, annoyance or injury, to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility, or a riot, or an affray.
Such an order may be against one individual or applicable to the public generally. While the magistrate does not have to serve a notice on the person concerned within a certain time, the magistrate does have to give the person an opportunity for a hearing to explain their behaviour. An order made under this section is only valid for up to 60 days, unless it is a situation that presents ‘danger to human life, health or safety, or a likelihood of a riot or an affray’, in which case the President can extend the order beyond 60 days. The importance of the legal text, however, lies not in what it says but how it is understood and acted upon.
During the early colonial period, the courts were a forum where discussion over the meaning of section 144 took place. Between the late 1890s and early 1900s, a handful of cases were brought before the colonial courts on the use of section 144. These cases provide insight into how this power was understood. In Queen-Empress v Nga Shwe Maung, a case was brought before the court because there had been a failure to comply with the order of a magistrate to remove a dead body out of town (no other details of this mysterious dead body are provided). As it was near the new moon, the magistrate feared that the dead body would be seized by a crowd and taken outside the town in a manner that would disturb peace and require him to exercise power under section 144. In commenting on section 144, the judge noted that ‘The powers conferred by section 144, Code of Criminal Procedure, are intended for the maintenance of the law and not for the purpose of making the law’. This clarified that section 144 gives a magistrate the power to issue an order for stability and social control, but not to exercise legislative power.
In another case, Nga Po Hmi v Mi Shwe Tha, section 144 was used in relation to a land dispute. The court was asked to pass an order that the applicant, Mi Shwe Tha, should retain possession of the land in dispute, and that the defendant Po Hmi should not disturb her right. The sub-divisional magistrate of Shwebo agreed with the applicant and acted under section 144 to pass such an order. It was held that under section 144 a magistrate can proceed to pass an order when one of the parties to a case is found to be in possession of the land. But the court distinguished between section 144 and section 145, following Indian precedent, and noted that section 144 was intended to apply only in situations of grave emergency. Apparently this land dispute constituted a grave emergency.
Aside from reported court cases, the use of section 144 is illustrated in greater detail in the report of the Riot Inquiry Committee of 1939.In 1938, serious anti-Indian riots broke out in several areas across Myanmar. The initial source of the riots was the circulation of a book that criticised Buddhism by Maung Shwe Hpi, a Muslim. The book was first published in 1931, although it was not until the late 1930s that it became cause for concern, and disagreement over this book was the culmination of broader anti-Indian sentiment. From Rangoon, the riots, violence and looting spread across Myanmar. In September 1938, the Riot Inquiry Committee (‘the Committee’) was established to document and investigate the causes of the violence. The findings contained in the Report of the Committee reveal that the judicial power contained in section 144 had been appropriated by executive officers. That is, this state of exception is marked by the confusion of executive and judicial powers.
The Committee listed at least nine instances when section 144 was exercised. There were several different government officials who were responsible for invoking section 144. While some were judges, such as the Subdivisional Magistrate of Paukkaung, Prome District, in some instances the Subdivisional Magistrate was also the Subdivisional Officer, such as in Magwe Township. In other instances, it was not a judge, but the Deputy Commissioner, such as the Deputy Commissioner of Myaungmya District and the Deputy Commissioner of Shwebo. It did not go unnoticed by the Committee that these officers, who had no authority to make section 144 orders, had appropriated this power.
In most of these cases, Section 144 had been invoked by the magistrate or Deputy Commissioner in response to violence, a mass demonstration or an act that might inflame social unrest. For example, on 29 July 1938, in Wakema, Myaungmya District, the Deputy Commissioner banned a demonstration because the protestors carried a photo of a pongyi from a newspaper that was thought to be inflammatory. On the same day in Paungde, Prome District, a group of former students were banned from holding a protest against Maung Shwe Hpi’s book. The protest was banned because of the risk to the population of 1,500 Indians in that area at the time. Even in the area of Taungdwingyi, Magwe Division, which was said to have as few as 300 Indian residents, attempts to hold a demonstration against the book were also stopped using a Section 144 order.
The orders issued under Section 144 were not only to prevent the immediate demonstrations from going ahead, but also to prohibit more than five people from gathering together. For example, on 1 August 1938, after a protest by 250 people in Pakokku turned violent, an order under section 144 was issued to prevent gatherings of more than five people. In other areas section 144 was used to enforce a specific curfew on public gatherings. For example, on 9 August 1938, an order to prohibit gatherings of more than four people between 7pm and 6am was issued in Kanbalu Township. The same order, which was in force for 30 days, also went as far as to note that ‘[a]ll persons are informed that I [the officer] have already given orders to the police to shoot at any person disobeying these orders’. This was also the case in Shwebo, where the District Magistrate issued an order under section 144 that stated: ‘All persons are hereby warned that orders have been given to the police to shoot any person found looting or killing’. This clearly went far beyond the remit of power envisioned by section 144. After the riots, the Committee questioned whether the directions for police to shoot anyone found in breach of the order was a justifiable and legal response to a breach of section 144. The questioning of this power came too late for those targeted in the riots.
The Committee admitted that Section 144 was ‘most imperfectly understood … in some cases it was used too freely. In other cases it was used too late’ and that there was ‘a good deal of vagueness as to what it means’. The Committee appears to attribute its misuse to a lack of knowledge and a misuse of discretionary power. The law itself was also to blame; it was too vague, too difficult to understand. In this respect, no one was at fault but rather it was the law itself that was to blame. The Committee went on to provide its own interpretation of section 144. In this regard the Committee noted that:
Section 144 of the Criminal Procedure Code is a section designed to make it possible to issue temporary orders in urgent cases of nuisance or apprehended danger. It is without a doubt a very useful section which gives power to a magistrate of requisite degree to meet emergencies of just that kind threatening the public tranquillity which Burma has in many different ways been only too familiar in the past few months…
When an order under section 144 of the Criminal Procedure Code is made and a breach of it occurs, the penalty of such breach is in terms provided by section 188 of the Penal Code which says that anyone who knows that, by such order, he is directed to abstain from any act and disobeys such direction, shall, in certain circumstances, be liable to certain penalties… six months in prison or a fine up to thousand rupees.
This reference to the utility or usefulness of a section 144 order indicates the power it placed in the hands of judges. The executive wanted this power for itself. The Committee stressed the fact that this power was only to be used by a magistrate, and that some colonial authorities had clearly ignored this fact in their attempts to respond to the riots. The Committee blamed its misuse on the deficiencies in the knowledge of junior and senior civil officers. It recommended that a manual be written to promote a common understanding among officers and the police force. The attractiveness of a legal handbook, a complete guide to the law, a one-stop explanation, remains a core feature of legal practice in Myanmar today.
Perhaps one of the most striking findings of the Committee’s report was its assessment that the general perception of section 144 was that it amounted to the introduction of martial law. Yet in keeping with the English usage of the term, the reference to ‘martial law’ is vague and undefined. Here the ideas of a temporary judicial order in cases of mere ‘nuisance’ and full military control become blurred. Many of these features — the power of a judge being appropriated by executive officers, the power being misused to authorise shooting on sight, and the power amounting to martial law in the minds of the people — continue to exist in the way that section 144 is used today. Section 144 contributes to a sense of emergency in the everyday. The emergency is a daily affair, and in this respect the everyday emergency has displaced the pre-eminence of constitutional norms.
II. From Executive Order to a Constitutional State of Emergency
Successive regimes in Myanmar have consolidated and expanded administrative power. Under the previous 1947 Constitution of Burma, an emergency was narrowly defined as a threat to the security of the country, such as war, internal disturbance or ‘grave economic emergency’ (section 94). The President had the power to declare an emergency. No time limit was specified, although a declaration of emergency was deemed to have expired after six months if it was not approved by both Chambers of Parliament. The parliamentary period was a time of turmoil as the Rangoon government fought against numerous ethnic-based armies. The government did not hesitate to declare martial law, for example, in 1952, martial law was declared in two thirds of the subdivisions in Shan State.
The socialist and military era (1962–2011) saw increasing resort to Section 144 as an everyday tool for dealing with instability and also to perpetuate it. In 1974, student protests over the refusal of the socialist regime to offer a state burial to U Thant, the former Secretary General of the United Nations (1961–71), was met with brutal force and a section 144 order. On 12 December 1974, no less than four different announcements of military administration and emergency featured on the front page of The Guardian newspaper. The publicity — both orally and in print — of section 144 orders was a routine occurrence in the 1970s and 1980s. A section 144 order was issued for a period of one month, preventing any forms of gathering or protest in Rangoon. At the same time, a state of emergency under section 76 of the Constitution was issued. The 1974 socialist Constitution allowed for a declaration of emergency in a situation that threatened the security of the state. The Council of State, filled with members of the Burma Socialist Program Party, held this power to declare an emergency. The 1974 Constitution did not specify any time limitation, or any other limits on this power. Yet the use of a section 144 order remained pre-eminent, with the constitutional emergency power as an occasional adjunct.
After the 1988 democracy uprising, the military issued numerous orders declaring martial law in parts of the country and issuing curfews and restrictions on public gatherings. In another historic moment, during the uprising of monks in 2007 (often referred to as the ‘Saffron Revolution’), a section 144 order was issued to prohibit public assembly in parts of Yangon. Cheesman observes that there was much less publicity given to the issuing of section 144 orders during this time, although there was still occasional mention in the government-run media. This only heightened the confusion over section 144.
The ambiguity over what section 144 does or is capable of doing is even more pronounced in English-language media and scholarship that rely on English-language reports issued by the military regime. Section 144 has an elastic quality and has taken on many meanings. Reference to section 144 knows no creative bounds. Sometimes the reference will be to the ‘Emergency Act section 144’, ‘section 144 of the Martial Law, or ‘section 144 of the Penal Code’ (the Penal Code is separate from the Code of Criminal Procedure). All of these references are incorrect. These variations on the source of section 144 demonstrate that foreign media and scholarship have fallen for this ambiguity over section 144. This level of obscurity is both a source of mystery and power for section 144 and those who wield it. The use of section 144 continues and has been used in a wide range of situations, particularly in response to protests over land and human rights violations such as the Letpadaung copper mine dispute, and also in response to violent conflict.
Given there was no constitution from 1988 to 2011, Section 144 became the proxy for constitutional emergency powers. One pattern that emerged from 1988 in particular is the use of Section 144 by the General Administration Department.
The General Administration Department was formed by the State Law and Order Restoration Council as a division of the Ministry of Home Affairs. It provides the administrative backbone for the country and exists at many levels of government. It is based on a similar design to that of the Security and Administrative Councils during the Ne Win era (1962–1988). Since 2011, it has morphed to form the nucleus of the Region and State Government offices, yet it remains under the control of the Ministry of Home Affairs. It has a causal chain of links to the military, because the Minister of Home Affairs is one of three ministers appointed by the Commander-in-Chief, according to the Constitution.
The pervasive reach of the General Administration Department stretches down to the local level, and it takes responsibility for an incredibly broad range of issues. Among its roles are the enforcement of laws, licensing and control over permit schemes, land registration, taxation, and other local general administration matters. It appears to have close relations to all government departments, and with the police and the courts. Its office is usually located in close proximity to the courts, and it has a self-proclaimed ‘judicial role’. Clearly one aspect of this judicial role is the authority to exercise judicial power under section 144 to declare a curfew and restrictions on freedom of movement in the event of an emergency. This is evident in the response of the General Administration Department to the anti-Muslim riots between 2012 and 2014.
Between May and October 2012, a serious outbreak of violence occurred in Rakhine State primarily committed by Buddhists against Muslims. It is estimated that hundreds of people were killed and tens of thousands of people were displaced; most of these were the Rohingya in northern Rakhine State. As a result, the power under section 144 was used by the General Administration Department in several areas. On 8 June 2012, an order under section 144 was issued in Maungdaw Township by the General Administration Department. The order noted that houses had been looted, vandalised and burned, and ‘people’ injured. These people were mostly Muslim, although the order fails to specify this. It stipulates that a curfew was necessary from 6 am to 6 pm, and it bans gatherings of five or more people. The order specifically mentions that no gatherings were to take place in mosques or schools, although it did not also mention Buddhist temples, despite the fact that many of the perpetrators of the violence were Buddhist. In late 2014, the order and curfew limits still appeared to be in operation, regardless of the written 60 day time limit contained in section 144. A similar order was imposed in Buthedaung Township, also in northern Rakhine State near the border with Bangladesh.
Another example occurred two days later on 10 June 2012 when an order was issued under section 144 by an officer of the Sittwe Township General Administration Department. In the interest of public safety and the rule of law, the order declared a curfew from 6 pm until 6 am, and prohibited gatherings of more than five people. Barricades and barbed wire were set up at some mosques, keeping both Muslims and other intruders out. The order specifically mentioned that people were not allowed to congregate at mosques; no mention was made of monasteries. The order did not specify a time limit, but rather claimed to be operative until another order was issued. Section 144, it seems, no longer respects temporal bounds.
In 2013, as the anti-Muslim violence spread to towns across Myanmar, numerous curfew orders under section 144 were imposed. In March 2013, violence against Muslims occurred in the township of Meiktila, Mandalay Division. This led to deaths, property damage and the displacement of several thousand people, and the violence spread to nearby townships. Again, section 144 of the Code of Criminal Procedure was used to prohibit public gatherings and impose a curfew in Meiktila. Section 144 was also used in February in Maubin Township, Ayeyarwady Region; in March in Bago Region; in May in Lashio, Shan State, and Okkan Township, Yangon Region; and September in Thandwe Township, Rakhine State.
Then in July 2014, the violence reached Mandalay. On 2 July 2014, an order under section 144 was made in relation to six townships in Mandalay Division. The order introduced a curfew from 9pm to 5am, and prohibited more than five people from gathering or demonstrating. It also prohibited the carrying of any form of weapon or item that could be used to light a fire. The order stated that these conditions were necessary in order to protect the community and maintain stability. The order was given by the Administrator of Mandalay Division General Administration Department. Many people were detained for breaching the curfew, which was later lifted on 11 August.
The response of Township Administrators from the General Administration Department to the anti-Muslim violence between 2012 and 2014 has been to appropriate judicial power under Section 144. It has become the most immediate and flexible means of exercising executive power. Section 144 has been used to empower the chain of authority that runs from the General Administration Department to the Ministry of Home Affairs to the military.
Section 144 has contributed to a culture of the ‘everyday emergency’. In Myanmar, emergency powers are used to target opposition groups and minorities, such as Muslims, ethnic groups fighting against the military, and land rights activists, among others. It is the obscurity and infamy of section 144, rather than the elaborate Constitution, which secures the pre-eminence of this emergency power. This suggests that our understanding of the importance and use of constitutional law in Myanmar needs to shift to incorporate the broader colonial legal legacy and the ways this legal framework is reinterpreted by the executive to exert control over particular communities, and ultimately legitimise a perpetual sense of emergency.
[Note: this was written before the lines of accountability of the GAD were transferred]
Extract from Melissa Crouch (2017) ‘The Everyday Emergency: Between the Constitution and the Criminal Procedure Code in Myanmar’, in A Harding (ed) Constitutionalism and Legal Change in Myanmar. Hart Publishing. pp 157-172.
For another excellent source, see Maitrii Aung-Thwin, ‘Discourses of Emergency in Colonial and Post-colonial Burma’ in VV Ramraj and AK Thiruvengadam (eds), Emergency Powers in Asia: Exploring the Limits of Legality (Cambridge, Cambridge University Press, 2009) 187–212