We the undersigned members of the Australia-Myanmar Constitutional Democracy Project (AMCDP), write to condemn the recent coup and arrests of political and community leaders in Myanmar. We support the people of Myanmar as they peacefully resist the military’s constitutionally improper and wilfully undemocratic imposition of a state of emergency.
The AMCDP is a consortium of legal scholars from a range of universities, formed in 2013. Since then, we have conducted a series of workshops in different centres around Myanmar with lawyers, judges, politicians, journalists, students, activists from civil society, ethnic leaders, and interested members of the public <https://www.law.unsw.edu.au/research/centres-and-institutes/southeast-asia-law-and-policy-forum>. The aim of the workshops has been to foster discussion of the fundamental principles informing constitutional democracy, departing from the premise that constitutional democracy cannot be sustained unless it is built from the bottom up by the people themselves.
Our workshops have been met with enthusiasm, hope, and sustained commitment from hundreds of people. The discussions have been rich and full of creative ideas about how a culture of constitutionalism in Myanmar may be fostered. Now, after the coup of February 1, 2021, all such possibilities are under threat, and the wishes of the vast majority of Myanmar’s people, as expressed in the November 2020 elections, have been ignored and defied.
While the Myanmar military (Tatmadaw) has presented its actions as a declaration of a state of emergency under section 417 of the 2008 Constitution, neither the facts nor the law support this interpretation. The allegations of voter fraud in the November 2020 elections on which the Tatmadaw relied were dismissed by the Union Election Commission. The factual precondition for the exercise of the section 417 power was thus not satisfied. Even if this were not so, the state of emergency should have been declared by Myanmar’s duly appointed President, Win Myint. Instead, it was declared by the Tatmadaw-appointed Vice-President following Win Myint’s unlawful arrest and forced deposition.
The military’s actions therefore have no constitutional, and even less democratic, justification. Instead, what has happened, as one of our members has written separately < https://www.lowyinstitute.org/the-interpreter/myanmar-s-empty-promise-constitutional-reform, ‘was a show of force and power grab by the military, a coup not a constitutional emergency’.
The short and tortured development of Myanmar toward some form of open and democratic society has already been a complex mixture of hope and achievement, tragedy and crime. Re-imposition of military rule can only promise more of the latter and none of the former. For the sake of Myanmar’s fifty-four million people, we are united with them in their fervent wish that this initiative will fail.
Our friends in Myanmar are struggling at great personal risk and cost to make it a free and democratic society. We exhort supporters throughout the world not to forget them and to stand with them.
Nick Cheesman, Fellow, Australian National University
Melissa Crouch, Professorof Law,UNSW, Sydney, Australia
Adam Czarnota, Associate Professor of Law, retired, UNSW, Sydney
Thomas E. Garrett, Secretary General of the Community of Democracies
Andrew Harding, Professor of Law, National University of Singapore
Martin Krygier, Gordon Samuels Professor of Law and Social Theory, UNSW, Sydney
Kishali Pinto-Jayawardena, constitutional lawyer & columnist, the Sunday Times, Colombo, Sri Lanka
Catherine Renshaw, Professor of Law, University of Western Sydney, Australia
Theunis Roux, Professor of Law, UNSW, Sydney
Wojciech Sadurski, Challis Professor of Jurisprudence, University of Sydney
Veronica Taylor, Professor of Law and Regulation, Australian National University
Jeremy Webber, Professor of Law, University of Victoria, Canada