Research Associate job

The position of Research Associate is currently open for applications.

The Research Associate will work with me on the Australian Research Council (ARC) funded research project: ‘Constitutional Change in Authoritarian Regimes: The Case of Myanmar’. Applications close 28 April.

For the full details on the position see the UNSW website here.

What are military tribunals in Myanmar?

*For the Burmese version of this post see here

The military regime in Myanmar has begun to use martial law orders. As I explain here, this represents a serious escalation in the response by the military. One aspect of martial law or military administration is that the Tatmadaw presumes this allows it to establish military tribunals to try civilians.

Military tribunals established during martial law are distinct from courts martial. The Constitution only refers to ‘courts martial’ (ss 293(b), 319), which is courts to try military officers. Distinct from courts martial, the military uses ‘military tribunals’ to try civilians.

[note: if you are reading the English version of today’s military controlled newspapers 16.3.2021, the order incorrectly translates military tribunals as courts martial].

It is important to distinguish between courts martial and military tribunals. Courts martial have the authority to try military personnel. Courts martial are established in the Constitution and these courts do not try civilians.

In contrast, the term military tribunal in Myanmar refers to a temporary tribunal set up by the Tatmadaw to try civilians during a period of martial law or military administration.

This has been a common strategy of the military. It happened in 1948 and again in 1952, the latter in relation to Shan State.

In 1962, a nationwide martial law order introduced special criminal courts as part of the civilian judicial system. These special criminal courts were initially set up to try accused for offences under specific laws, including a range of offences under the Penal Code (122 (1), 123 (1), Article 124-A, 188, 302, 364, 365, 366, 366-A, 372, 373, 376, 392, 394, 395, 396 and 436), as well as offences under the Emergency Provisions Act 1950, the Arms Act, the Opium Act, the Unlawful Associations Act, the Public Property Protection Act 1947, the Essential Supplies and Services Act 1947 and the Public Utilities Protection Act 1947. This scope was so broad that most acts of opposition to General Ne Win’s regime could fall within it. Even so, the jurisdiction of these courts was later expanded to hear any offence.

These special courts had wide powers to issue a punishment of the death penalty, life imprisonment or three years jail for any of these offences. There was still some semblance of checks and balances, with any decision of the death penalty needing to be approved by the (civilian) Supreme Court. The Supreme Court could also hear appeals in cases where the death penalty had been handed down. In 1974, when a new constitution was introduced, the special criminal courts were abolished.

In 1988, after the military takeover, the military decided it did not need courts and closed the courts retrospectively from 1 June 1988 to 31 March 1989.

When martial law was issued in 1989, regional commanders were empowered to try civilians in the existing courts or in military tribunals. The powers of the military tribunals had similarities to the special criminal courts of 1962, except the tribunal was not part of the civilian court system. Military tribunals are entirely under the control of the Tatmadaw. This meant, for example, that an application for revision of a sentence of the death penalty went to the regional commander, rather than a civilian judiciary.

Amnesty International reported that in 1989, 24 people were sentenced to death by military courts. There were also concerns cases were tried in secret very quickly and without a lawyer present.

In 2021, the military has adopted the same strategy of using military tribunals to silence protestors. The Yangon Commander has the choice to try civilians in military tribunals. An accused person is at risk of being tried by a military tribunal that can issue a punishment of the death penalty, life imprisonment or three years jail.

The military tribunals can hear many of the same offences as in 1962, with the exception of laws that no longer exist, have been replaced or offences in the penal code that are not relevant to the present.

The list of offences the military tribunals can hear includes high treason (s122); offences against the government or Tatmadaw or its personnel (s124A, s124C, s124D); offences under section 505 and 505A; and a range of criminal offences such as murder and robbery in the Penal Code. It also includes a range of offences relating to specific sectors or issues such as the media and electronic communications, ward/village tract administration, terrorism, unlawful associations, corruption, drugs and the protection of property. It is not surprise that this list includes the new offences introduced into the Penal Code after the 2021 coup.

Crimes that would not otherwise attract the death penalty or life imprisonment now suddenly do if an accused is tried by a military tribunal.

Military tribunals are distinct from the courts martial for military officers. The courts martial have full jurisdiction over Tatmadaw personnel, not civilians. The courts martial are established under the Defence Services Act and Regulations, not a martial law order.

There have been several examples of the use of courts martial since 2011. For example, in January 2018, it was reported that courts martial found six soldiers guilty of killing three people in Kachin State and sentenced them to ten years in jail. In February 2018, courts martial tried seven soldiers for killing 10 Rohingya in northern Rakhine State.

Separate from courts martial, the military tribunals that may now be established are specifically to try civilians who are alleged to have committed offences within the areas under martial law.

The Tatmadaw has raised the stakes by allowing for military tribunals to try any civilian allegedly guilty of an offence and increased the punishment for those found guilty. This is another sign of the deterioration of the situation in Myanmar.

Note: On 17 March (the day after this post), the military issued a correction in the Global New Light of Myanmar to confirm that the translation should have read ‘military tribunals’ (not courts martial).

What is martial law in Myanmar?

[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).

Did the Myanmar coup install an illegitimate president?

*This post first appeared in The Diplomat on 11 March

In every major city in Myanmar, protestors have denounced the February 1 coup, calling for an end to military rule and the restoration of democracy. Resistance has taken many forms and has been supported by local lawyers who have shown that the coup was unconstitutional.

A key question related to the legality of military rule concerns Australia.

At the time of the coup, the vice president, retired general Myint Swe, claimed he was acting as president and declared a constitutional emergency. The question, however, is whether Myint Swe is legally eligible to hold the presidency under the terms of the 2008 Constitution.

The question of whether or not the coup is legal might appear superfluous to a regime that has just seized control by force and violently cracked down on the protests. But for the rest of the world looking for leverage to pressure the military, the law may offer a sliver of hope.

According to section 59f of the Constitution, there are limits to who can hold the office of president or vice-president in Myanmar. A person cannot hold such office if they have foreign citizenship, or if their spouse, children, or children’s spouses are citizens of a foreign country.

Section 59f has become infamous because it prevented Aung San Suu Kyi from becoming president after her party’s landslide election victory in 2015. Her deceased husband held U.K. citizenship, and her sons also hold foreign citizenship.

Myint Swe may have been acting illegally if he was in fact ineligible to hold office in the first place, for this very same reason.

In 2012, after one of the vice presidents stepped down, the generals initially nominated Myint Swe as vice president. Myint Swe is known as a hardliner and is rumored to be related by marriage to Than Shwe, Myanmar’s former ruler. Myint Swe was also previously placed on the U.S. sanctions list.

However, it was reported at the time that Myint Swe has a son-in-law with Australian citizenship, although this was never confirmed. Whether the citizenship question proved to be an obstacle, or some other issue arose, in the end Myint Swe was not appointed vice president.

In 2016, however, Myint Swe did become one of the vice presidents. By then, Reuters reported, citing anonymous “official sources” without making clear if these sources were from Myanmar or Australia, that Myint Swe’s son-in-law may have surrendered his Australian citizenship. Other reports around the time stated he was “believed to have since been reinstated as a Myanmar citizen,” although no proof was ever provided that the son-in-law had renounced his apparent Australian citizenship.

Why does all this matter? For the following reason: If Myint Swe was in fact ineligible to hold the office of president when he declared a state of emergency, this provides further evidence of the illegality of the military takeover.

Renouncing one’s citizenship is a serious step and in Australia there is a formal process by which a citizen does so. It is highly unlikely that there would be many Burmese nationals who have renounced their Australian citizenship in recent years.

But it is also a challenge to establish precisely who is who in this circumstance. There is uncertainty over the name of Myint Swe’s son-in-law, and Burmese people generally do not have surnames or family names. It is possible that Australian authorities do not know the identity of Myint Swe’s son-in-law.

If there is no record of a Burmese person renouncing their Australian citizenship between 2010 and 2016, and his son-in-law does hold Australian citizenship, then this would be an indication of doubt over Myint Swe’s claim to office. It would suggest that Myint Swe never had the power to hold office as vice-president, nor to take over as acting president, nor to declare a constitutional state of emergency on February 1.

Such evidence would provide further support to those resisting the military coup and to the efforts to show that the military’s actions are illegal.

If Australia does know the status of the son-in-law’s citizenship, it is not saying. I contacted the Department of Home Affairs to ask whether they have records of any Burmese national applying for renunciation of citizenship between 2011 and 2016, and if so, whether this was approved. In response, a spokesperson said the department does not comment on individual cases.

But, Home Affairs did confirm that a person would receive written confirmation of the renunciation if it was approved, and that “this written confirmation can be presented when evidence of renunciation is required.”

While renunciation of citizenship is not publicly disclosed in Australia – as it is in other countries, such as the United States – in Myanmar a candidate for vice-president or president is required by the Constitution to disclose if their family has foreign citizenship.

The military in Myanmar has never provided written confirmation about the citizenship status of Myint Swe’s son-in-law. Given his appointment in 2016, it seems highly unlikely to do so. I also put questions to the Myanmar embassy in Canberra, asking for confirmation that Myint Swe’s son-in-law had renounced his citizenship, and if so, when. I did not receive a response.

Without clarification, doubts linger as to whether the Myanmar military coup has installed an illegitimate president. This is one of many examples that suggest the military is not abiding by the Constitution, as it claims.

The power of women under Myanmar’s military coup

Why are people in Yangon and elsewhere hanging up women’s skirts?

See cultural anthropologist Melford Spiro’s classic work [Kinship and Marriage in Burma: A Cultural and Psychodynamic Analysis ,1977]:

“In Burma, the primary reason offered for male superiority is the belief that men possess that innate, inborn quality, known as hpoun…[it] is a psycho-spiritual quality, an ineffable essence, which invests its possessor with superior moral, spiritual and intellectual attributes…(p259)

“The vagina…can be a threat to the very source of a man’s strength and power, his hpoun…if the lower part of a woman’s body is higher than a man’s head (the most sacred part of his body), his hpoun can be importantly diminished, if not destroyed” (p236)

“the threat from the vagina is so powerful that the same precautions apply to the woman’s skirt…a man’s hpoun is endangered merely by walking underneath a skirt hanging on a clothesline” (p237)

So the security forces are afraid of walking under a woman’s skirt. Women know who holds the real power in Myanmar.

As some readers have pointed out – for the military, its not simply bad luck to walk under a woman’s skirt but some soldiers believe they may die in battle.

As other readers pointed out, however, the military has lost its moral superiority (or hpoun) long ago, so perhaps male soldiers have no hpoun left to lose?

And finally, so much of what is happening now has resonance with the past. Who could forgot that in 2011, General Than Shwe and his officers turned up to a state dinner in Naypyidaw wearing women’s acheik (longyi, or long skirts worn by women on celebratory occasions) on national television.

While no official explanation was given, this act of cross-dressing was understood to be yadaya, or an act of superstition. To counter the predictions of fortune tellers who believed a woman would one day lead the country, Than Shwe engaged in this ritual to attempt to prevent the misfortune from coming true. Clearly, it didnt work.

Webinar: Constitutional Breakdowns, Coups, Crises and Disruptions: Experiences from the Commonwealth

This webinar will consider the paralysis in governance caused by a constitutional crisis. Is there a legitimating process? To what extent can the principles of separation of powers be invoked as a check and balance on abuse of power? An important feature in this discourse is the role of the Courts as the sentinel of constitutional values and principles of human rights. This event is run by LawASIA, the Law Council of Australia and The Commonwealth Lawyers Association.

Date: 4 March, 4:30-6pm (Sydney) – register here

The speakers include:

Professor John Hatchard, Emeritus Professor | University of Buckingham, Vice President | Commonwealth Legal Education Association

Andrew Khoo, Co-Chair, Constitutional Law Committee | Malaysian Bar

Graham Leung, Former President | Fiji Law Society, Former Vice President | LAWASIA

Jayampathy Wickramaratne, Attorney-at-Law, President’s Counsel

Professor Melissa Crouch, UNSW Faculty of Law and Justice

After Myanmar’s coup: Can the military hold a new election?

*This article first appeared in the University of Melbourne’s Election Watch, 26 February 2021

Elections hold a controversial place in politics in Myanmar.

In 2010, after decades of military rule, first under the guise of socialism and then through martial law, the military chose to reintroduce multi-party elections and to honour the results of the election. This is in contrast to 1990 when the military allowed a multi-party election but failed to honour the results.

Under the 2008 Constitution, three elections (plus by-elections) were held – 2010, 2015 and 2020. The results of the 2020 elections are now at risk of being annulled arbitrarily by the military following the coup of 1 February.

The reasons for the coup, claim the military, are alleged voter fraud and issues with voting lists of the November 2020 elections.

While ideally voter lists should be public documents, there is no central voter registry but rather 46,000 separate polling station voter lists, based on data extracted from the population registry at the township level (see here).

A group known as The Insights has produced a report systematically addressing the claims the military has raised and explaining why these claims have no basis.

Here I want to consider what comes after the coup and why the military doesn’t have the power to hold a new election.

The electoral system introduced under the 2008 Constitution was significant for a number of reasons. Political parties were able to contest the elections. This may sound trivial but it was hugely significant in the light of political history in Myanmar.

The National League for Democracy (NLD) has now won the 1990 election, the 2015 election and the 2020 election. It refused to contest the 2010 election. In both 1990 and now in 2020, they were prevented from holding office.

The concern now is that the military plans to hold a new election after the coup is over (or after what it is alleging is a state of emergency).

The military’s approach contradicts what the Constitution anticipates, assuming that the rules concerning a state of emergency are actually being followed.

The Constitution allows for elected members of parliament to resume office at the end of a state of emergency for the remainder of their term. This means that if the coup ended in one year, the incoming members should be able to serve for another four years.

The military argues that because the incoming parliament is required to meet within 90 days of the election, and that period has now expired, the members are no longer able to take office.

This is an absurd claim. The 90 day rule needs to be understood as a practical rule designed to guide an incoming government and ensure no undue delays to taking office. The rule should not be used as a weapon against elected members who have been physically prevented by the military from forming government because many of them are under arrest.

Another concern is whether the military will have the audacity to amend the Constitution and the laws in relation to the elections. Specifically, there are concerns the military may try to introduce a system of proportional representation.

Myanmar currently has a first past the post system.

The debate over proportional representation has featured repeatedly since the 1990s. As I explain in my book, often it has been minority political parties who have advocated for this change.

Over time, the military and the military-backed political party, the USDP, have also warmed to the idea of proportional representation as they perceive it as a way to dilute the influence of the NLD at the ballot box.

While it may reduce the NLD’s success slightly, it is possible the NLD may still be able to form government. The question is whether they could gain enough votes to be able to appoint the president in the presidential electoral college vote. The vote is for three positions – the president and two vice-presidents.

There has been debate about whether the Constitution allows for a system of proportional representation or whether this would require constitutional amendment.

In November 2014, the Pyithu Hluttaw (House of Representatives) sought the advice of the Constitutional Tribunal. It asked the Tribunal which of eight different electoral voting systems, including first-past-the-post, were constitutional. In an advisory decision issued by letter to the Pyithu Hluttaw, the Constitutional Tribunal held that only first-past-the-post is constitutional, and the other seven options (including proportional representation) were not constitutional.

It is the generally understood that a shift to proportional representation would therefore require constitutional change, even though the Constitution does not specifically mention the first past the post system.

But constitutions should not be amended in a state of emergency (or a coup, which this is). It would look highly suspect if the military amended the Constitution now.

The military may also try to ban the NLD or at least take out its key actors by charging them with spurious criminal charges that would potentially see them in jail for several years. Already the president and Aung San Suu Kyi, among others, are facing such charges.

There is resistance from the Committee Representing the Pyidaungsu Hluttaw (CRPH), which is a group of elected representatives who have not yet been arrested and who are symbolically asserting their right to hold office.

It is also likely that an attempt to hold a fresh election by the military would be boycotted by the NLD and possibly some other political parties.

We have always known that democracy in Myanmar was thin and fragile. The very representativeness of the system is limited by the unelected military members in parliament. It has never been a fully representative system.

The military should not amend the Constitution during a coup just so it can attempt to tilt elections in its favour. Arguably the military doesn’t have the power to change the Constitution.

If it does change the electoral rules, this would only demonstrate how desperate the military is to revise the rules in its favour. Ironically, the rulebook it created for a multi-party system hasn’t worked as intended.

Decoding the amendments to the Penal Code

The Penal Code and Code of Criminal Procedure are more familiar to many people in Myanmar than the Constitution itself. This is because of the use, overuse or misuse of these laws. By amending these laws, the military is revealing its own vulnerabilities and insecurities.

Orders 5 and 6 issued by the military make several key changes to these laws. Section 121 of the Code is expanded to prohibit any attempts to overthrow the institutions of the state by unconstitutional means.

The offence of contempt is expanded to specifically prohibit contempt towards the Defence Services and its personnel (s 124A). Two new offences are added: sabotage or obstruction of the Defence Services or other law enforcement authorities (s124C); and disruption to the Defence Services or government employees (s124D). These are non-bailable offences.

Several other offences have been created, including a. causing fear, b. spreading fake news or c. committing an offence against a government employee (s505A) and attract a potential jail term of 3 years. Authorities can arrest people without a warrant for these offences.

Order 6 fails to specify what court (or which class of judges) can try these offences. Given the very broad definition of these crimes, I suspect we will soon find out.

Again, can the Commander in Chief make these changes? Only if the section 417 declaration of emergency was constitutionally valid, which it was not.

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.

Who has the power to release prisoners?

On 12 February, the military released thousands of criminals from prison (note: this is not unusual, on the same day last year, the former president pardoned 25,000 prisoners).

The Commander in Chief claimed to be exercising presidential power under section 204(a) of the Constitution (Order 58/2021).

This is an example of the Commander in Chief breaching the Constitution. The vice-president Myint Swe was appointed as acting president. If an acting president is appointed during a state of emergency, then the acting president should be the one exercising presidential powers as set out in the Constitution.

The Commander in Chief can only exercise powers under to section 419 (or s420, more on that later). While it does allow the Commander in Chief to exercise executive power, this is presumably only to the extent that he does not delegate these powers to others.

The Commander in Chief cannot both delegate power to the president and exercise the powers of the president.