[Burmese version available here]
The military regime has recently declared martial law orders in some townships of Yangon. Its important to understand what this means and how it differs from section 144 orders.
The declaration of martial law now is a sign of a rapid deterioration of the situation and the beginning of direct military rule in those areas. Martial law is different, and more serious, than section 144 orders.
First, its important to note what martial law is not. Section 144 of the Criminal Procedure Code is not martial law. The media (specifically international media) often wrongly reports a declaration of a section 144 order as martial law. Section 144 orders do often impose curfews and restrict gatherings and freedom of movement.
These restrictions may be similar to restrictions under martial law, but it is not martial law itself. Section 144 has morphed into an administrative form of quasi-emergency powers that is part of the normal criminal procedure law.
So what is martial law? The military seems to use two terms interchangeably – military administration and martial law (the Burmese spelling of the latter is simply of the English loan word – ma-she-law, see below).
There have been periods of military administration and martial law throughout Myanmar’s history. For example, in 1952 the government declared martial law in most of Shan State.
From 1988 onwards, the military used the term martial law to explain its actions. The period from 1988 to 2010 was one of direct military rule without a constitution. See for example the cover of this book containing laws, rules, orders and martial law from 1989.
But what about the 2008 Constitution? Does it allow for martial law?
In recent news issued by the military, the Tatmadaw suggested that the reference to military administration in section 413 of the Constitution is in fact martial law. However section 413 is part of a specific kind of state of emergency.
A declaration of emergency under section 412 must first be issued before section 413(b) can be used. Then, if necessary, a declaration of military administration can be made under section 413(b), which transfers executive and judiciary power to the Commander in Chief.
While section 412 has been used before on several occasions under the Thein Sein government (2011-2016), section 413(b) has only been used once in relation to conflict in the Kokang region in 2015.
Importantly, on 1 February, the military did not declare an emergency under section 412, but instead under section 419. This means section 413(b) does not apply.
The order issued by the military on 14 March cited section 419 of the Constitution, which is the power of the Commander in Chief to exercise all power or to delegate power (which presumes the process for declaring a state of emergency has been followed, which it has not).
From 14 March, the Commander in Chief has used martial law orders to delegate administration of these areas to the Commander of the Yangon Commander (this currently includes the following townships in Yangon: Hlaing Thar Yar, Shwepyitha, North Dagon, South Dagon, Dagon Seikkan and North Okkalapa).
Effectively, martial law means that the military has complete control over these areas, rather than working through civilian administrators or judges.
Martial law allows the military to hold special tribunals with Judges Advocate General (rather than civilian judges) for the trial of those accused of offences committed in these areas during the period of military administration.
It is possible that in coming days and weeks the Tatmadaw’s strategy of declaring military administration is applied to other areas.
The use of martial law is extremely troubling and indicates that military commanders are taking over from civilian administrators. The declaration of martial law represents a significant decline in the situation in Myanmar.
The use of martial law orders should be a cause for great concern. The effect is more serious and consequential than section 144 orders. Martial law represents and enables direct military rule.
Finally, what about the consequences for actions undertaken by police or military personnel in areas under martial law? Although there are reports of grave breaches of human rights, it is unlikely military personnel will face any consequences. Because the martial law order was allegedly exercised under section 419, it is likely the Tatmadaw would claim that section 432 of the Constitution applies (granting immunity for actions taken during a state of emergency).