The coup in Myanmar came in the wake of two major legal disputes – first, whether the military had the right to demand copies of electoral data, and two, whether the President and Speaker can refuse to convene a special session of the legislature.
The military has raised both of these legal issues in its claims that there were sufficient conditions to warrant a constitutional emergency (see Order 1/2021).
However, the military does not have the right to demand electoral data, and the President does have the power to refuse to convene a special session. Moreover, the declaration of a constitutional emergency itself was illegal. I set out four facts below and end with a few more answers to key questions
Fact 1: The Election Commission has no obligation to hand over documents to the military
In late November 2020, the Tatmadaw True News Information Team demanded that the Union Election Commission hand over a range of documentation, from voter lists to lists of advance votes and receipts.
They claimed that section 74 of the Evidence Act gave them the right to this information as public documents.
On 7 December, the Union Election Commission (UEC) issued a statement clarifying that the Evidence Act only applies to formal complaints that are the subject of investigation by the UEC. It also clarified that neither the laws nor regulations on the Hluttaw specify that there is a right to access to the kinds of documents requested.
The military also raised concerns that because the UEC Commissioners were appointed by the president, they were biased towards the National League for Democracy (NLD) government. This is a strange criticism because it points to a flaw in the system designed by the military – namely the perception of bias in the appointed of commissioners. The commissioners are appointed by the incoming government and serve for the term of the government (s398a). However the perception of bias is not necessarily the same thing as proof of bias.
There are two problems with the military’s request for electoral data. The first is the assumption that all of the different kinds of documents they asked for are public documents. Arguably, many of these documents (like the actual votes) are not public documents. While ideally voter lists should be public documents, there is no central voter registry but 46,000 separate polling station voter lists, based on data extracted from the population registry at the township level (for more on the issue of voter fraud see here).
The second problem is the assumption that the military is a body that is entitled to request such documents. The military has no specific responsibility regarding elections.
The military made other allegations against the UEC, such as that it failed to perform its duties. But only the president has the power to make such allegations by commencing impeachment proceedings against the UEC (section 400).
Based on the above, the UEC has acted properly and was under no obligation to release documents to the military.
Fact 2: The president and speaker have the power to decline to convene a special session of the Pyidaungsu Hluttaw
The military claims that the refusal to convene a special session of the Pyidaungsu Hluttaw is the basis for a declaration of emergency under section 417. However, the decision to decline to hold a special session was constitutional. This decisions is an insufficient reason to constitute an emergency.
On 11 January 2021, the military called on the President and Speaker to convene a special session of the Pyidaungsu Hluttaw, the joint legislative body (according to s 82 of the Constitution). Its petition was supported by 203 members of parliament including unelected military members and elected USDP members.
The petitioners did meet the requirement of support from one fourth of members of the legislature to convene such a special session (s 84). Matters that can be heard in a special session by the Pyidaungsu Hluttaw are matters that require immediate attention and are in the public interest (s 81c).
However the President has the power to recommend to the Speaker that a special session be held (section 83; see also s39 of Union Govt Law). The Pyidaungsu Hluttaw Law also uses the language of necessity, that is, if the president thinks it is necessary, he can recommend to the Speaker that a special session be held (s 15). The military is therefore incorrect to say that the president is required to instruct the Speaker to hold a special session if the one-fourth requirement is met.
The President declined to convene a session because disputes concerning elections are the responsibility of the Election Commission, not the legislature.
The president and speaker acted constitutionally by refusing to hold a special session of parliament on the elections.
Fact 3: There is still a chance that elected members of parliament can take office
In the past few days we saw members of parliament who have not been detained take an oath and declare that they had a right to take office. The question is, is there any chance they can do this in the future? Yes.
The coup was undertaken at a calculated moment in political history – that is, the end of the term of one government and the start of office of a new one. It was as if the military had waited precisely for this day.
Of course, the very fact the coup was planned at this time suggests their seats should still be valid. If there was evidence that military members of parliament were part of the coup, it is arguable that they breached their oath (schedule 4 of the Constitution). That is, failing to honor the results of a democratic election by arresting those who were elected and preventing others from taking office not only undermines the Constitution but also undermines the military’s cherished principles of the Three Main National Causes (or non-disintegration of the union, non-disintegration of national sovereignty and perpetuation of sovereignty as set out in the oath).
On one hand, an emergency under sections 417-418 means that the parliament is automatically dissolved (s74a). But it is not clear whether this is temporary or permanent. Section 423 of the Constitution (and ss 77 of PDH law) suggests in fact that the suspension of parliament is only temporary. If the President receives a report from the Commander in Chief to cancel the state of emergency and the term of the Hluttaw has not expired, then the Hluttaw can in fact recommence and elected members of parliament resume office for the reminder of the term (section 423 of the Constitution, section 77 of PDH law).
This means that even if the emergency lasts for 1 year, the elected members of parliament could in fact take office for another four years after that and serve for the remainder of their term.
Fact 4: The decision of the vice-president to exercise section 417 was unconstitutional
The military claims it is acting under section 417 and onwards of the Constitution. But there are many problems with this claim. The President is the only person empowered to declare a state of emergency in coordination with the National Defence and Security Council (NDSC).
The president can voluntarily resign, but he did not do so. The Constitution lists a range of other reasons that the president’s position may become vacant, such as due to incapacity or death (section 73a). This suggests reasons are required.
The Constitution does not allow the military-backed vice-president to replace the president because the president refused to convene a special session of parliament.
The military claims that after the arrest of the president, the Vice-President became the acting President. There are two vice-presidents in Myanmar, although Vice-president Myint Swe (backed by the military) received the second highest number of votes (behind the president) during the earlier presidential college vote.
But there is no evidence that the President willingly left office. The constitutional provisions on the presidency falling vacant also presume that there is still a civilian elected government in office (ss 73(b-f)). There is no longer any such thing.
There is also a sub-question here about the constitutionality of arresting the president. Section 215 of the Constitution states that the president is not answerable either to the legislature or to the courts, except via the constitutional impeachment proceedings. The section however does not mention whether this includes the military (ie is the president answerable to the military for actions undertaken while in office? arguably not). One reason for the military calling for a special session was perhaps to initiate impeachment proceedings against the president for his role in failing to ask the speaker to call a special session to deal with the allegations of electoral fraud. Nevertheless the military would not have been able to get the two-thirds support required to impeach the president.
Even if section 215 should have protected the president from arrest by the military, it only applies to the president and not other members of parliament.
Coming back to section 417, there was also no possibility that a meeting of the NDSC occurred with all its members. The Constitution mandates that its members include civilian office holders like the president, minister of foreign affairs and speakers of the two houses of parliament (section 201). It appears that the military has reconstituted the NDSC with only its military members left, using unconstitutional means to declare a constitutional emergency.
In effect, the Commander in Chief has jumped to section 419, without going through the right processes to get there.
Does the military have the power to prevent civil servants from taking part in demonstrations?
Some ministries have issued statements to civil servants to remind them that they are to be free from ‘party politics’. This is a reference to Section 26(a) of the Constitution.
It is a reminder of the very difficult position civil servants find themselves in, and how opposition from within the civil service could in fact be crucial. After all, without an administration, it would be difficult for the military to run the country.
The military may potentially use section 26 as an excuse to sanction any civil servant who takes part in the demonstrations.
*For a Burmese translation of this post, see here