Whats wrong with the rights in Myanmar’s Constitution

I hesitate in writing this post, as I have with many others. Explaining how an authoritarian constitution works is a separate matter from endorsing it, but often the two can get confused. To be clear, I do not agree with Chapter VIII on rights and duties in the Constitution, but I want to explain how it works with reference to the recent restrictions on rights by the Commander in Chief.

Can the Commander in Chief or the military restrict rights?

In theory the Constitution allows the military to restrict rights, however the recent orders purporting to restrict rights are unconstitutional.

Last night, the State Administration Council, the body that has been put in place by the Commander in Chief, issued an amendment to Law 5/2017 on the protection of privacy and security of citizens (the Privacy Law).

The order was issued by the Commander in Chief under section 419 and with reference to section 420. This is the first time the Commander has explicitly acknowledged he is acting to restrict the rights of people under section 420.

The order purports to annul sections of the law that require authorities to have an order or warrant before they can undertake searches, surveillance or arrests. This is essentially a reversion to past practises and legitimates the kinds of night raids we are seeing taking place across the country.

While section 420 allows the Commander in Chief to restrict rights, this presumes the situation is a legitimate state of emergency, which it is not (see my former post).

The Commander in Chief can only restrict rights if this is a legitimate state of emergency. This means that the use of section 420 now is unconstitutional.

Of course, ideally, there should not be such a clause in a Constitution, or at least it would recognise that rights such as the right to life are non-derogable.

Unfortunately, there are other ways the military could have justified limiting rights. If the military can show it is in the interests of public order and security to limit rights, they can (section 382 – note the official English translation of this section is muddled)

Are there any protections in the existing law, aside from the Privacy Law?

Yes of course [I draw here on Thiha Thaw Zin’s facebook post]

Although the military claims to have revoked section 5 of the Privacy Law, similar provisions exist in the Criminal Procedure Code (s 103) and the Police Manual 1706. For example, these provisions require any search to be done in the presence of two witnesses.

While the military has revoked section 7 of the Privacy Law, a similar provision exists in the Criminal Procedure Code (s 61). This section prohibits a police officer from detaining a person without a warrant for more than 24 hours.

The military has revoked section 8 of the Privacy Law, yet similar provisions exist in some other laws. For example section 8a on authorities not having permission to enter private residence is similar to section 54 and 96 of the Criminal Procedure Code. Section 8d on demanding data from telecommunications operators is similar to section 69 of the Telecommunications Law, although section 75 allows the government to obtain information in the interests of national security if it does not infringe individual rights. Section 8e prohibiting authorities from opening a person’s private correspondence has similarities to the Post Office Act 1898 (ss 52-55). Section 8f on unlawful interference with a person’s personal or family matters or reputational harm is also protected by the defamation sections of the Penal Code. Section 8g on unlawful seizure and/or destruction of property also has equivalents in property law.

In short, the military would need to do more than amend the Privacy Law to authorise the night raids they are conducting.

Do the rights in the Constitution offer protection for individuals?

Unfortunately, the rights in the Constitution offer little support against breaches of rights such as the right to privacy.

Chapter VIII is simply not your ideal rights chapter. In fact, its an anti-rights chapter.

I’ve prepared this chart as a way of understanding Chapter VIII (much of the discussion below is from chapter 8 of my book).

Chapter VIII has several main features

  • Citizens duties
  • Citizens rights
  • Persons rights
  • Remedies for breach of rights
  • Restrictions on rights
  • State obligations, recognition and prohibitions

For this post, I’ll only focus on citizens duties, citizens rights and restrictions on rights.

The Preeminence of Duties

…The claims of the Constitution concerning rights are relative and conditional. There are no rights without duties. The pre-eminent duty is to uphold the three main national causes of the military-state, which are conceptually prior to any right… One reason for the emphasis on citizen’s duties over rights is that even citizens are treated with suspicion and perceived as enemies (see Callahan)…

Citizen’s Duties and Limitations on Rights

Most constitutions today do not mention citizens’ duties, with the exception of socialist-inspired constitutions such as Vietnam and African states such as Zambia, Ghana, Gambia and Uganda. In 2011, in a submission to the Constitutional Tribunal in Myanmar, the Attorney General’s Office commented on the interrelated nature of rights and duties and emphasised that there are no rights without duties.

Rights are conditional and dependent on the observance of duties as defined in the 2008 Constitution. Given the power of government over citizens, this inverts the common assumption that a constitution is intended to restrain the state. There is an explicit constitutional requirement that all citizens must uphold and comply with the Constitution.

Most constitutions simply presume that all people will follow the Constitution, however socialist constitutions mandate this. The Constitution of Myanmar demonstrates a noticeable preoccupation with ensuring that its citizens comply with its terms.

All citizens are responsible for upholding the territorial unity, sovereignty and independence of the country. This obligation binds all citizens to the three meta-principles of the military-state, particularly the exhortation to territorial sovereignty. This is accompanied by a specific prohibition: all citizens must not act in a manner that negatively affects or diminishes national solidarity and the unity of national races.…

…The courts have not published decisions that articulate how these provisions on citizens’ duties are to be read and under what conditions citizens’ duties would trump any rights considerations. Some of these citizens’ duties are taken straight from the 1974 socialist Constitution, while other duties reflect the mantras of the SPDC or mirror the Basic Principles in Chapter I of the Constitution.

Limitations on rights

The rights provisions are subject to significant limitations according to law; limitations in the Tatmadaw’s interests of public order and security; limitations during a state of emergency, and limitations according to other provisions of the Constitution.

The phrase that a right shall be enjoyed according to the law or as prescribed by the law arises frequently in the Constitution.

This means that the legislature can further define and impose conditions on the content of the right. …The legislature is given full power and discretion to set the limits of those rights. This means that rights do not exist unless and until the legislature passes a law regarding these rights….

The Tatmadaw can limit any rights to ensure public order and maintain security. [This is one of the most troubling provisions of the entire Constitution]. Limitations can also be placed on the opportunity to seek protection of a right or a remedy during a time of emergency or internal or external conflict. Finally, rights are limited by other provisions of the Constitution….”

To conclude, Chapter VIII is an anti-rights chapter. It emphasises the duties and responsibilities of citizens. These duties are conceptually prior to the granting of any rights. Rights are subject to the will of the legislature.

This is why the amendments to the Privacy Law yesterday are so disturbing. It shows the military both knows that rights do exist in law, but can also be abolished by law.

If the 2008 Constitution is here to stay, any meaningful protection of rights and steps to restore democracy would need a complete rewrite of Chapter VIII and the removal of section 382.