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.

Coopting Federalism: Union Day and the Three Main National Causes

Today was Union Day in Myanmar. This is the day that commemorates the signing of the Panglong Agreement in 1947.

It is customary for a government to set out its priorities on this day. The military’s priorities this year share broad similarities with the NLD’s in 2020. Both refer to the Three Main National Causes, both refer to the peace process and both refer to the need to draft a constitution that establishes a democratic federal union.

The references to the peace process and a constitution that reflects democracy and federalism are nothing new, even if the explicit reference to a democratic federal union is a change of tune for the military.

The military’s move is what I have elsewhere called the co-optation of federalism. That is, the military is using federalism, a term that resonates strongly with ethnic minority claims, to coopt these groups into its model of the military-state. It is co-opting the idea of federalism in the same way that the 2008 Constitution co-opts the idea of democracy by reducing it to a partially elected legislature with an omnipresent military.

Even today, the Commander in Chief continues to refer to the need to safeguard the 2008 Constitution. This would suggest that the military doesn’t intend to draft an entirely new Constitution but rather amend the existing one. This would be consistent with the National Ceasefire Agreement (NCA) and the Union Accord, which in effect has already begun to set out revised principles for a new Constitution.

Dating back to 2015 when the military-backed USDP was in control, the NCA uses the language of federalism and democracy (chapter 1a). The NCA states that signatories agree that decisions made by the Union Peace Conference will become the basis for constitutional amendment and legal reform (s 22d).

One reason that any aspirations for federalism are inevitably compromised is because the military is still adhering to the Three Main National Causes. Its important to understand the history of this ideology and the function it has in reinforcing the leading role of the military. In fact, I would almost go as far as to say that this is the most important provision of the Constitution (ss 6a-c). Here is an explanation: (extract from chapter 3, The Constitution of Myanmar A Contextual Analysis)

“The Constitution contains a set of three principles that form the ideological basis of Myanmar’s military-state. I use the term ‘military-state’ to describe the co-existence of civilian and military authorities. The military-state is animated by three principles that are included as explicit written provisions in the Constitution. These principles were originally known as ‘Our Three Main National Causes’, capitalised in English translations. In the 1990s, these principles were announced through military orders. In 1993, the Union Solidarity Development Association (the precursor to the political party known as the Union Solidarity and Development Party), was committed to promoting and preserving the Three Main National Causes.

In official English translations by the government, these three principles are distilled as:

non-disintegration of the Union

non-disintegration of national solidarity

the perpetuation of sovereignty

These principles are living artefacts of direct military rule. By emphasising that these are ‘Our’ causes, the Tatmadaw co-opts the people into its cause. The principles claim priority in terms of their status as the ‘Main’ or preeminent principles of the state. The principles claim an intimate connection to the state as ‘National Causes’, even though it was the Tatmadaw at the time running the apparatus of the state. These principles appear on nine separate occasions in the Constitution.

These directives are included in the Constitution to command the loyalty of the people, political parties, Tatmadaw officers, the administration, the judiciary and legislators. All branches of government, as well as the people individually and collectively, are bound by these principles. These are deeply conservative principles and profess to maintain the status quo. This was a deliberate drafting strategy and aspect of constitutional design.

The first element, non-disintegration of the Union, embodies the territorial unity of the military-state. This principle represents the rejection and denial of the secessionist and separatist demands of ethnic groups. The Tatmadaw has long rallied against groups that oppose the government or take up arms, whether it be communist insurgents, pro-democracy activists or ethnic armed organisations. Independent Burma struggled to contain and control both insurgency by the Communist Party of Burma and the armed struggles of armed ethnic organisations for territory and recognition. The unusual constitutional option of secession for certain ethnic groups after ten years in the 1947 Constitution was never realised, and this became a rallying point for ethnic grievances. The principle of non-disintegration is a reference to the territorial integrity of the country and is anti-secessionist. The principle seeks to combat the perceived risk of anarchy, disunity and chaos with an exhortation to resist and prevent state fragmentation or collapse. The potential threat of the splintering of state territory is designed to invoke fears of crisis and chaos. This is one of the two elements that are cast in the negative. The use of the negative form implies that the Union is already fully integrated and so all that is needed is to maintain this state of affairs.

The second element, the disintegration of national solidarity, overlaps with the first principle but also hints at the idea that there is a certain people or nation that is the subject of the Constitution. This is also cast in the negative and presumes that national solidarity has already been achieved. In Myanmar, the Constitution conceives of ‘the people’ in limited terms as national races. The state recognises 135 ethnic races, although Burmans are the dominant group. The Constitution insists these national races must stand in unity. Recognition as a national race confers legitimacy and inclusion in the state. The absence of recognition as a national race leads to exclusion and marginalisation and, at worse, statelessness. Cheesman suggests that the concept of national races has overtaken and become a precondition for citizenship. National races are based on an arbitrary race matrix. All national races are expected to stand in national solidarity. No national race should attempt to secede from the military-state, according to this principle.

Third, the perpetuation of sovereignty is a reference to the integrity of the state. The need to defend state sovereignty against the risk of foreign interference was a constant source of paranoia for the military regime. This fear of foreignness had multiple manifestations but includes resistance to colonial rule, fear of communist insurgents, fear of the West and of the international community as embodied in the United Nations, and fear of its populous and powerful neighbours, China and India. Some even claim that one reason (among others) for the relocation and building of a new capital in Naypyidaw was to reduce the risk of invasion by foreign powers. The principle of the consolidation and longevity of sovereignty is related to the continuity of the state and its main political actors, that is, the role of the Tatmadaw in protecting national sovereignty.

The first two principles imply that the goal of national solidarity and integration of the Union has already been achieved, and that all that is left to do now is to ensure that it does not fall apart. Like the first two, the third principle presumes that sovereignty has been attained. All that is left to do is for the Tatmadaw to ensure the maintenance and longevity of this sovereignty.

The Tatmadaw has created a historical narrative to justify these three principles. In the Tatmadaw mindset, the need for these principles arises from the tragedy of colonial rule. The Tatmadaw depicts Burma during the period of colonial conquest (1823-1885) as weak and divided. The narrative goes that Burma lost control of its territory and forfeited its national sovereignty because of its divided and unorganized nature. All blame is placed on British colonisers for suspicions, divisions and antagonisms between different national races. They also blame the British for exploiting natural resources, but in doing so the Tatmadaw’s narrative glosses over the devastation wrought by the socialist regime on the economy and the recent decades of rampant resource exploitation by cronies. The Tatmadaw rallies against British ‘imperialists’ and Japanese ‘fascists’, but never acknowledges the decades of exploitative Tatmadaw rule. The purpose of this re-telling of national history is to cast all blame on a group other than the Tatmadaw and to paint over the complicity of the socialist and military regimes in the demise of the state.

These three principles link to and reinforce the role of the Tatmadaw as leading the country: in silencing secessionist claims and brokering ceasefire deals; in building and promoting a fixed and exclusive idea of national races; and in holding the line against any unwanted interference by foreign powers. These principles are repeated consistently and regularly throughout the Constitution. The principles first appear in the preamble and Chapter I on the Basic Principles of the Constitution. The principles are listed as a core responsibility of the Tatmadaw. Citizens also have the responsibility to uphold and protect these principles. In addition, the principles are contained in the oath sworn by the president and vice-presidents, the oath for all legislators, as a constitutional obligation of all citizens, and as a constitutional requirement that all political parties include these principles in their objectives. The principles are also given a prominent place in legislation, particularly in the laws of 2010 that were drafted by the prior military regime in preparation for the implementation of the Constitution.

These principles embody the constitutionalisation of the Tatmadaw’s vision of the state. This vision was developed over several decades of direct military rule. The principles emanated from every orifice of the state: over the radio, in schools and printed in newspapers. In 1999, the first defence policy issued by the Tatmadaw included reference to Our Three Main National Causes. The principles were required to be printed on the inside cover of every book and publication under the censorship regime enforced by military rule. The principles were listed in the Tatmadaw’s defence policy of SLORC. The Tatmadaw remains an active proponent and promoter of this doctrine. Even today, the Tatmadaw still refers to ‘Our Three Main National Causes’ along with exhortations to protect the Constitution (s 20(f) of the Constitution).

These principles not only limit state institutions, but place limits on other actors – ethnic groups, civil society, political parties, elite political actors, individuals – and calibrate their relationship to the Tatmadaw. The principles do not of themselves constitute a limit on the power of the strongest institution, the Tatmadaw. Although the idea of a constitution as placing limits on public power is prominent globally, many aspects of a constitution are enabling and facilitate the use of power. These principles justify and facilitate the role of the Tatmadaw as the leading body. The Three Main National Causes condition the lived experiences of people in Myanmar’s military-state…”

Statement in support of constitutional democracy in Myanmar

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&gt;. 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

Janelle Saffin, Member for Lismore in the New South Wales Legislative Assembly 

Veronica Taylor, Professor of Law and Regulation, Australian National University

Jeremy Webber, Professor of Law, University of Victoria, Canada

Why section 144 orders are unconstitutional

Now that the Constitutional Tribunal is back, we can presume past court decisions it has made still stand. This is good news for a challenge to section 144 orders.

As demonstrators across the country find creative ways to circumvent section 144 orders, its important to question whether section 144 is constitutional in the way it is currently being used.

I would argue it is not. The Constitutional Tribunal could hear a petition on the following question: does the use of section 144 orders issued by the administration breach section 11a of the Constitution?

Let me explain. Perhaps the most significant case ever decided by the Constitutional Tribunal (ok, so it hasn’t decided that many cases, but still) is the case about section 11a (which Ive referred to elsewhere as the Judicial Power Case). This is the section that mentions three branches of government as separate but then seems to qualify the scope of the separation of powers and checks and balances.

The petition was made by the Chief Justice of the Supreme Court. The petition questioned the constitutionality of a request of the Ministry of Home Affairs to appoint sub-township administrative officers to adjudicate minor criminal cases. Recall that the Minister of Home Affairs is one of the appointments made by the military (s 232b(ii)).

The Supreme Court argued that it should not have to grant the request of the Ministry of Home Affairs to transfer judicial power to administrative officers because that would compromise the separation of powers.

In its decision, the Constitutional Tribunal acknowledged that the previous military regime (pre-2011) had a practise of allowing administrative officers to exercise judicial power by adjudicating minor criminal offences.

The Constitutional Tribunal determined that there is a clear distinction between the previous regime’s practices and the post-2011 constitutional requirement of the separation of powers.

The effect of the Constitutional Tribunal’s decision was that the Ministry of Home Affairs could no longer request that first class magistrates’ power be delegated to the General Administration Department.

The Supreme Court issued a directive following this decision to revoke the authority of township administrators to exercise judicial power, which was understood to revoke the transfer of the judicial powers of a first-class magistrate to the administration.

Was this followed by the administration? Im not sure but given the disregard with which many institutions treat the decisions of the Constitutional Tribunal, probably not.

But it should have implications for the constitutional validity of section 144 orders exercised by township administrators. The GAD claim that the transfer of section 144 powers from judges to township administrators took place under military rule. Yet post-2011, there is an argument that the exercise of these orders is no longer constitutional.

In an era of the separation of powers under the 2008 Constitution, the administration can no longer issue section 144 orders as it likes but should be required to seek approval from a judge.

The coup and the capture of the courts

Has the coup in Myanmar led to the capture of the courts? In short, yes. Here I want to explain what the changes in judicial benches – specifically the Supreme Court and Constitutional Tribunal – tell us about what is going on and what might come next.

Constitutional Tribunal: After the coup of 1 February, it was initially unclear whether the Constitutional Tribunal existed, due to the absence of any published orders to indicate tribunal members being terminated from their duties or reappointed.

Finally, on 9 February the military appointed a new bench of the Constitutional Tribunal. Only one of the members was on the previous bench. One of the new appointees is the author of a well-known book on the constitutional writs from the 1940s to 1970s.

But this leads to a question – why has the military kept the Constitutional Tribunal and what role could it possibly serve under the current regime?

Lets first think about who can access it and whether there are likely to be any cases filed. As I explain elsewhere, there are two types of access to the court, direct and indirect access (see diagram below, with purple indicating indirect access and gold/brown indicating direct access). The Chief Justice of the Supreme Court (see below) has direct access but is unlikely to bring a case as he has just been appointed by the military.

The legislature has not been allowed to take office, so there are no speakers to bring a case. If 10% of members who were recently elected wanted to bring a case they could try, but this may be difficult as they only have indirect access and require approval of the speaker. It may be an interesting symbolic act if elected members of parliament sought to draw attention to key constitutional issues raised by the coup (even if the likelihood of the Tribunal accepting the case is low).

The president is unlikely to bring a case as he is also a new military appointee. This is the same with the chief ministers and the Union Election Commission.

So ironically we have a Constitutional Tribunal that either has no potential applicants, or is likely to hear trivial petitions.

Access to the Constitutional Tribunal, diagram prepared by Melissa Crouch, 2021

But if there were interested applicants, there are many questions they could raise concerning the coup.

Supreme Court

Perhaps more important than the Constitutional Tribunal for now is the changes to the Supreme Court and High Courts.

Keep in mind there are potentially at least three major types of cases these courts will here: 1.the writs petitions submitted to the Supreme Court just prior to the coup; 2.the criminal charges against Aung San Suu Kyi and U Win Myint, among other key elected officials; and 3. potentially the criminal cases of protestors who have already been arrested or may soon be arrested.

As a prior note, it was telling that on 1 February, no judges were arrested (note: there is unconfirmed news that one member of the former constitutional tribunal may be under arrest). This is a clear indication that the military did not consider the courts as a major source of opposition. It is also in stark contrast to the coup of 1962, when the Chief Justice of Burma was detained.

Nevertheless, there has been some reshuffling in the Supreme Court. Prior to the coup, there were nine Supreme Court judges. Despite the existing bench being confirmed as still in office on the first day of the coup, the situation changed three days later. On 4 February, four judges were terminated from their duties. These were judges who had been appointed under the NLD government, although one NLD appointee remains on the bench. Two High Court judges were appointed to the Supreme Court. This ensured there are seven judges on the Supreme Court, which is the minimum required under the Constitution (section 299(b)). However, several days later another three judges were appointed, meaning there are now 10 on the bench.

This includes the Chief Justice, three judges appointed under Thein Sein, one under the NLD, and five during the coup. At least three (perhaps more) of these judges are former judges advocate of the military.

These changes were made with reference to the Commander in Chief’s power under s419 (which of course, presumes that this was a legitimate state of emergency).

It is unclear whether the Supreme Court will continue to hear the quo warranto writs petition, but if the military wants legal cover for its claims of electoral fraud perhaps it will.

While all criminal cases start in the lower courts, there may be appeals to the higher courts, with the case going to the relevant High Court and then potentially to the Supreme Court.

The military has clearly anticipated cases going on appeal and moved to ensure that it has the upper hand. These changes in the Supreme Court show that the court is captured by the military.

I should note though, it does leave open the possibility for pro-democracy lawyers to bring cases. For example, the Committee Representing the Pyidaungsu Hluttaw (the elected members) has alleged that the military may have breached Chapter 6 of the Penal Code. But they would need the police and prosecutors to be willing to bring a case, which is unlikely.

Overall, we may instead speak of the recapture, rather than the capture, of the Supreme Court. With the Chief Justice as a former judges advocate in the military, there had not yet been any major change on the bench prior to the coup. As Ive mentioned in other writings, the courts have been the branch of government least affected by the post-2011 reforms.

*finally, a brief note of thanks to those sending in questions, comments and clarifications. Please feel free to contact me

Section 144 Orders and the Everyday Emergency

Last week I flagged that we were likely to see the military use Section 144 orders. There appear to be rumours that a section 144 order could apply to Yangon tonight.

Its important to understand the history of section 144, how it has been used by the military in the past (1974, 1988, 2012 etc), and how a section 144 order will affect the current demonstrations. In short, section 144 orders: 1.spell an immanent crackdown on mass gatherings; 2.come close to being martial law in practise; 3.have in the past authorised police to shoot on sight (under British colonial rule). These orders are therefore just as important to understand as a declaration of a state of emergency (even if unconstitutional).

Its late, so this is an extract again:

“The power to declare a state of emergency in the 2008 Constitution of Myanmar is extensive and far-reaching, yet I argue that the more immediate, everyday threat is the routine and pervasive use of section 144 of the Code of Criminal Procedure. This source of colonial judicial power has been co-opted by the executive to generate a perpetual sense of the everyday emergency. This is illustrated with reference to administrative responses to the anti-India violence of the 1930s in colonial Burma, and the anti-Muslim violence since 2012 in Myanmar. Section 144 of the Code of Criminal Procedure constitutes the most real, immediate power of executive officials… An emergency in Myanmar is an everyday potential, destabilising everyday reality.

I. Executive Appropriation of Emergency Power

The contemporary legal system of Myanmar draws its origins from British India. The Code of Criminal Procedure (Burma Code, Vol VIII) introduced in July 1898 by British colonial authorities was no exception. Colonial British authorities at times exercised their power to enact new laws to respond to specific instances of emergency, such as the Saya San rebellion of the 1930s. Yet more often they drew on a provision in the general criminal law to respond to situations of social conflict. This is the case with Section 144 of the Code of Criminal Procedure, which falls under Chapter XI entitled ‘Temporary Orders in Urgent Cases of Nuisance or Apprehended Danger’. The text characterises this power as judicial power and as a temporary power. However, this power to issue a Section 144 order has been appropriated by the executive, and is a precursor to the exercise of constitutional power.

On its face, Section 144(1) concerns the power of a judge to respond to a threat to public order. Section 144(1) states that any magistrate may make a written order to:

[D]irect any person to abstain from a certain act or to take certain order with certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury or risk of obstruction, annoyance or injury, to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility, or a riot, or an affray.

Such an order may be against one individual or applicable to the public generally. While the magistrate does not have to serve a notice on the person concerned within a certain time, the magistrate does have to give the person an opportunity for a hearing to explain their behaviour. An order made under this section is only valid for up to 60 days, unless it is a situation that presents ‘danger to human life, health or safety, or a likelihood of a riot or an affray’, in which case the President can extend the order beyond 60 days. The importance of the legal text, however, lies not in what it says but how it is understood and acted upon.

During the early colonial period, the courts were a forum where discussion over the meaning of section 144 took place. Between the late 1890s and early 1900s, a handful of cases were brought before the colonial courts on the use of section 144. These cases provide insight into how this power was understood. In Queen-Empress v Nga Shwe Maung, a case was brought before the court because there had been a failure to comply with the order of a magistrate to remove a dead body out of town (no other details of this mysterious dead body are provided). As it was near the new moon, the magistrate feared that the dead body would be seized by a crowd and taken outside the town in a manner that would disturb peace and require him to exercise power under section 144. In commenting on section 144, the judge noted that ‘The powers conferred by section 144, Code of Criminal Procedure, are intended for the maintenance of the law and not for the purpose of making the law’. This clarified that section 144 gives a magistrate the power to issue an order for stability and social control, but not to exercise legislative power.

In another case, Nga Po Hmi v Mi Shwe Tha, section 144 was used in relation to a land dispute. The court was asked to pass an order that the applicant, Mi Shwe Tha, should retain possession of the land in dispute, and that the defendant Po Hmi should not disturb her right. The sub-divisional magistrate of Shwebo agreed with the applicant and acted under section 144 to pass such an order. It was held that under section 144 a magistrate can proceed to pass an order when one of the parties to a case is found to be in possession of the land. But the court distinguished between section 144 and section 145, following Indian precedent, and noted that section 144 was intended to apply only in situations of grave emergency. Apparently this land dispute constituted a grave emergency.

Aside from reported court cases, the use of section 144 is illustrated in greater detail in the report of the Riot Inquiry Committee of 1939.In 1938, serious anti-Indian riots broke out in several areas across Myanmar. The initial source of the riots was the circulation of a book that criticised Buddhism by Maung Shwe Hpi, a Muslim. The book was first published in 1931, although it was not until the late 1930s that it became cause for concern, and disagreement over this book was the culmination of broader anti-Indian sentiment. From Rangoon, the riots, violence and looting spread across Myanmar. In September 1938, the Riot Inquiry Committee (‘the Committee’) was established to document and investigate the causes of the violence. The findings contained in the Report of the Committee reveal that the judicial power contained in section 144 had been appropriated by executive officers. That is, this state of exception is marked by the confusion of executive and judicial powers.

The Committee listed at least nine instances when section 144 was exercised. There were several different government officials who were responsible for invoking section 144. While some were judges, such as the Subdivisional Magistrate of Paukkaung, Prome District, in some instances the Subdivisional Magistrate was also the Subdivisional Officer, such as in Magwe Township. In other instances, it was not a judge, but the Deputy Commissioner, such as the Deputy Commissioner of Myaungmya District and the Deputy Commissioner of Shwebo. It did not go unnoticed by the Committee that these officers, who had no authority to make section 144 orders, had appropriated this power.

In most of these cases, Section 144 had been invoked by the magistrate or Deputy Commissioner in response to violence, a mass demonstration or an act that might inflame social unrest. For example, on 29 July 1938, in Wakema, Myaungmya District, the Deputy Commissioner banned a demonstration because the protestors carried a photo of a pongyi from a newspaper that was thought to be inflammatory. On the same day in Paungde, Prome District, a group of former students were banned from holding a protest against Maung Shwe Hpi’s book. The protest was banned because of the risk to the population of 1,500 Indians in that area at the time. Even in the area of Taungdwingyi, Magwe Division, which was said to have as few as 300 Indian residents, attempts to hold a demonstration against the book were also stopped using a Section 144 order.

The orders issued under Section 144 were not only to prevent the immediate demonstrations from going ahead, but also to prohibit more than five people from gathering together. For example, on 1 August 1938, after a protest by 250 people in Pakokku turned violent, an order under section 144 was issued to prevent gatherings of more than five people.[1] In other areas section 144 was used to enforce a specific curfew on public gatherings. For example, on 9 August 1938, an order to prohibit gatherings of more than four people between 7pm and 6am was issued in Kanbalu Township. The same order, which was in force for 30 days, also went as far as to note that ‘[a]ll persons are informed that I [the officer] have already given orders to the police to shoot at any person disobeying these orders’. This was also the case in Shwebo, where the District Magistrate issued an order under section 144 that stated: ‘All persons are hereby warned that orders have been given to the police to shoot any person found looting or killing’. This clearly went far beyond the remit of power envisioned by section 144. After the riots, the Committee questioned whether the directions for police to shoot anyone found in breach of the order was a justifiable and legal response to a breach of section 144. The questioning of this power came too late for those targeted in the riots.

The Committee admitted that Section 144 was ‘most imperfectly understood … in some cases it was used too freely. In other cases it was used too late’ and that there was ‘a good deal of vagueness as to what it means’. The Committee appears to attribute its misuse to a lack of knowledge and a misuse of discretionary power. The law itself was also to blame; it was too vague, too difficult to understand. In this respect, no one was at fault but rather it was the law itself that was to blame. The Committee went on to provide its own interpretation of section 144. In this regard the Committee noted that:

Section 144 of the Criminal Procedure Code is a section designed to make it possible to issue temporary orders in urgent cases of nuisance or apprehended danger. It is without a doubt a very useful section which gives power to a magistrate of requisite degree to meet emergencies of just that kind threatening the public tranquillity which Burma has in many different ways been only too familiar in the past few months…

When an order under section 144 of the Criminal Procedure Code is made and a breach of it occurs, the penalty of such breach is in terms provided by section 188 of the Penal Code which says that anyone who knows that, by such order, he is directed to abstain from any act and disobeys such direction, shall, in certain circumstances, be liable to certain penalties… six months in prison or a fine up to thousand rupees.

This reference to the utility or usefulness of a section 144 order indicates the power it placed in the hands of judges. The executive wanted this power for itself. The Committee stressed the fact that this power was only to be used by a magistrate, and that some colonial authorities had clearly ignored this fact in their attempts to respond to the riots. The Committee blamed its misuse on the deficiencies in the knowledge of junior and senior civil officers. It recommended that a manual be written to promote a common understanding among officers and the police force. The attractiveness of a legal handbook, a complete guide to the law, a one-stop explanation, remains a core feature of legal practice in Myanmar today.

Perhaps one of the most striking findings of the Committee’s report was its assessment that the general perception of section 144 was that it amounted to the introduction of martial law. Yet in keeping with the English usage of the term, the reference to ‘martial law’ is vague and undefined. Here the ideas of a temporary judicial order in cases of mere ‘nuisance’ and full military control become blurred. Many of these features — the power of a judge being appropriated by executive officers, the power being misused to authorise shooting on sight, and the power amounting to martial law in the minds of the people — continue to exist in the way that section 144 is used today. Section 144 contributes to a sense of emergency in the everyday. The emergency is a daily affair, and in this respect the everyday emergency has displaced the pre-eminence of constitutional norms.

II. From Executive Order to a Constitutional State of Emergency

Successive regimes in Myanmar have consolidated and expanded administrative power. Under the previous 1947 Constitution of Burma, an emergency was narrowly defined as a threat to the security of the country, such as war, internal disturbance or ‘grave economic emergency’ (section 94). The President had the power to declare an emergency. No time limit was specified, although a declaration of emergency was deemed to have expired after six months if it was not approved by both Chambers of Parliament. The parliamentary period was a time of turmoil as the Rangoon government fought against numerous ethnic-based armies. The government did not hesitate to declare martial law, for example, in 1952, martial law was declared in two thirds of the subdivisions in Shan State.

The socialist and military era (1962–2011) saw increasing resort to Section 144 as an everyday tool for dealing with instability and also to perpetuate it. In 1974, student protests over the refusal of the socialist regime to offer a state burial to U Thant, the former Secretary General of the United Nations (1961–71), was met with brutal force and a section 144 order. On 12 December 1974, no less than four different announcements of military administration and emergency featured on the front page of The Guardian newspaper. The publicity — both orally and in print — of section 144 orders was a routine occurrence in the 1970s and 1980s. A section 144 order was issued for a period of one month, preventing any forms of gathering or protest in Rangoon. At the same time, a state of emergency under section 76 of the Constitution was issued. The 1974 socialist Constitution allowed for a declaration of emergency in a situation that threatened the security of the state. The Council of State, filled with members of the Burma Socialist Program Party, held this power to declare an emergency. The 1974 Constitution did not specify any time limitation, or any other limits on this power. Yet the use of a section 144 order remained pre-eminent, with the constitutional emergency power as an occasional adjunct.

After the 1988 democracy uprising, the military issued numerous orders declaring martial law in parts of the country and issuing curfews and restrictions on public gatherings. In another historic moment, during the uprising of monks in 2007 (often referred to as the ‘Saffron Revolution’), a section 144 order was issued to prohibit public assembly in parts of Yangon. Cheesman observes that there was much less publicity given to the issuing of section 144 orders during this time, although there was still occasional mention in the government-run media. This only heightened the confusion over section 144.

The ambiguity over what section 144 does or is capable of doing is even more pronounced in English-language media and scholarship that rely on English-language reports issued by the military regime. Section 144 has an elastic quality and has taken on many meanings. Reference to section 144 knows no creative bounds. Sometimes the reference will be to the ‘Emergency Act section 144’, ‘section 144 of the Martial Law, or ‘section 144 of the Penal Code’ (the Penal Code is separate from the Code of Criminal Procedure). All of these references are incorrect. These variations on the source of section 144 demonstrate that foreign media and scholarship have fallen for this ambiguity over section 144. This level of obscurity is both a source of mystery and power for section 144 and those who wield it. The use of section 144 continues and has been used in a wide range of situations, particularly in response to protests over land and human rights violations such as the Letpadaung copper mine dispute, and also in response to violent conflict.

Given there was no constitution from 1988 to 2011, Section 144 became the proxy for constitutional emergency powers. One pattern that emerged from 1988 in particular is the use of Section 144 by the General Administration Department.

The General Administration Department was formed by the State Law and Order Restoration Council as a division of the Ministry of Home Affairs. It provides the administrative backbone for the country and exists at many levels of government. It is based on a similar design to that of the Security and Administrative Councils during the Ne Win era (1962–1988). Since 2011, it has morphed to form the nucleus of the Region and State Government offices, yet it remains under the control of the Ministry of Home Affairs. It has a causal chain of links to the military, because the Minister of Home Affairs is one of three ministers appointed by the Commander-in-Chief, according to the Constitution.

The pervasive reach of the General Administration Department stretches down to the local level, and it takes responsibility for an incredibly broad range of issues. Among its roles are the enforcement of laws, licensing and control over permit schemes, land registration, taxation, and other local general administration matters. It appears to have close relations to all government departments, and with the police and the courts. Its office is usually located in close proximity to the courts, and it has a self-proclaimed ‘judicial role’. Clearly one aspect of this judicial role is the authority to exercise judicial power under section 144 to declare a curfew and restrictions on freedom of movement in the event of an emergency. This is evident in the response of the General Administration Department to the anti-Muslim riots between 2012 and 2014.

Between May and October 2012, a serious outbreak of violence occurred in Rakhine State primarily committed by Buddhists against Muslims. It is estimated that hundreds of people were killed and tens of thousands of people were displaced; most of these were the Rohingya in northern Rakhine State. As a result, the power under section 144 was used by the General Administration Department in several areas. On 8 June 2012, an order under section 144 was issued in Maungdaw Township by the General Administration Department. The order noted that houses had been looted, vandalised and burned, and ‘people’ injured. These people were mostly Muslim, although the order fails to specify this. It stipulates that a curfew was necessary from 6 am to 6 pm, and it bans gatherings of five or more people. The order specifically mentions that no gatherings were to take place in mosques or schools, although it did not also mention Buddhist temples, despite the fact that many of the perpetrators of the violence were Buddhist. In late 2014, the order and curfew limits still appeared to be in operation, regardless of the written 60 day time limit contained in section 144. A similar order was imposed in Buthedaung Township, also in northern Rakhine State near the border with Bangladesh.

Another example occurred two days later on 10 June 2012 when an order was issued under section 144 by an officer of the Sittwe Township General Administration Department. In the interest of public safety and the rule of law, the order declared a curfew from 6 pm until 6 am, and prohibited gatherings of more than five people. Barricades and barbed wire were set up at some mosques, keeping both Muslims and other intruders out. The order specifically mentioned that people were not allowed to congregate at mosques; no mention was made of monasteries. The order did not specify a time limit, but rather claimed to be operative until another order was issued. Section 144, it seems, no longer respects temporal bounds.

In 2013, as the anti-Muslim violence spread to towns across Myanmar, numerous curfew orders under section 144 were imposed. In March 2013, violence against Muslims occurred in the township of Meiktila, Mandalay Division. This led to deaths, property damage and the displacement of several thousand people, and the violence spread to nearby townships. Again, section 144 of the Code of Criminal Procedure was used to prohibit public gatherings and impose a curfew in Meiktila. Section 144 was also used in February in Maubin Township, Ayeyarwady Region; in March in Bago Region; in May in Lashio, Shan State, and Okkan Township, Yangon Region; and September in Thandwe Township, Rakhine State.

Then in July 2014, the violence reached Mandalay. On 2 July 2014, an order under section 144 was made in relation to six townships in Mandalay Division. The order introduced a curfew from 9pm to 5am, and prohibited more than five people from gathering or demonstrating. It also prohibited the carrying of any form of weapon or item that could be used to light a fire. The order stated that these conditions were necessary in order to protect the community and maintain stability. The order was given by the Administrator of Mandalay Division General Administration Department. Many people were detained for breaching the curfew, which was later lifted on 11 August.

The response of Township Administrators from the General Administration Department to the anti-Muslim violence between 2012 and 2014 has been to appropriate judicial power under Section 144. It has become the most immediate and flexible means of exercising executive power. Section 144 has been used to empower the chain of authority that runs from the General Administration Department to the Ministry of Home Affairs to the military.

[….]

Section 144 has contributed to a culture of the ‘everyday emergency’. In Myanmar, emergency powers are used to target opposition groups and minorities, such as Muslims, ethnic groups fighting against the military, and land rights activists, among others. It is the obscurity and infamy of section 144, rather than the elaborate Constitution, which secures the pre-eminence of this emergency power. This suggests that our understanding of the importance and use of constitutional law in Myanmar needs to shift to incorporate the broader colonial legal legacy and the ways this legal framework is reinterpreted by the executive to exert control over particular communities, and ultimately legitimise a perpetual sense of emergency.

[Note: this was written before the lines of accountability of the GAD were transferred]

Extract from Melissa Crouch (2017) ‘The Everyday Emergency: Between the Constitution and the Criminal Procedure Code in Myanmar’, in A Harding (ed) Constitutionalism and Legal Change in Myanmar. Hart Publishing. pp 157-172.

For another excellent source, see Maitrii Aung-Thwin, ‘Discourses of Emergency in Colonial and Post-colonial Burma’ in VV Ramraj and AK Thiruvengadam (eds), Emergency Powers in Asia: Exploring the Limits of Legality (Cambridge, Cambridge University Press, 2009) 187–212


The Illegality of Myanmar’s Coup

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

State of emergency powers as a threat in Myanmar

We are now in the second day of protests amidst an internet blackout in Myanmar.

Its important to keep in mind that the military has used the threat of a state of emergency in the past.

Here is a reflection from my fieldwork in 2014 at a rally for constitutional amendment and the threats by the military to declare a state of emergency at that time:

“The morning was hot, the traffic crowded. I arrived by taxi at Bo Sein Hman sports ground in Tamwe Township, Yangon. The rally was due to start at 8:30 am, and the sports ground was already crammed full of people when I arrived. They must have arrived very early as people were already sitting on the ground, huddled close together. The crowd was a mixed group of people, young, old and in-between, with the odd journalist and foreigner here and there. I wondered if members of the Special Investigation Branch were also here — probably.

The sports ground sloped down to one end where a large platform had been erected. The crowd all faced the large platform, and behind the platform was an enormous sign several metres high proclaiming the reason for the demonstration: the National League for Democracy (NLD) and the 88 Generation had joined forces to call on the government to amend section 436 of the Constitution. Section 436 contains the amendment procedure to change the 2008 Constitution.

This has to be one of the most constitutionally literate people in the world, I thought to myself. In how many other countries would this many people actually know or care about the amendment provision of their Constitution?

The gates to the ground had already been closed by the time I arrived, so people spilled out onto the surrounding sideways and footpaths, peering through the iron fence. To the left of the grounds several small food stalls had popped up. The food vendors were clustered near some card tables where people handed out NLD pamphlets and fliers, and encouraged people to sign the petition to amend the Constitution.

Many people in the crowd proudly displayed their political allegiance by wearing NLD paraphernalia — t-shirts, headbands, and arm bands. Just two years ago this was unthinkable. At the road to the back of the grounds, some people had climbed trees while others stood on the back of a utility vehicle parked on the road, in an attempt to get the best view of the stage. To the right side of the stage, there was a large group of people, as that spot offered the closest and most unobstructed view of the stage. Some young NLD volunteers who wore security badges formed a human chain in an attempt to keep people off the road and keep the traffic flowing around the crowd. The traffic crawled by slowly but patiently, car fumes choking the early air morning.

On stage sat the Lady, Daw Aung San Suu Kyi, member of parliament and chairperson of the NLD. To her left, sat U Tin Oo, founder of the NLD, and Min Ko Naing, 88 Generation leader. All three had been political prisoners for their pro-democracy activities during the post-1988 military period. While Daw Aung San Suu Kyi was clearly the favourite, the crowd listened with the same rapture and level of respect for all speakers. I wondered how many rallies this was now for Daw Aung San Suu Kyi — from the weekly talks that she gave outside her gate in the early 1990s, to the talks she gave around the country when released from country arrest, particularly since 2010.

One of the most unusual aspects of the rally was the silence that prevailed when the speeches were being made. The atmosphere was surreal. There were thousands of people around me, and yet I could not see anyone talking or whispering to each other, nor was anyone on their phone. Some media reports later estimated the event to have drawn a crowd as big as 20,000 people. Even though it was still early morning, the heat was oppressive and stifling, yet few people moved. All eyes were glued to the stage, as if their lives depended on the words of the speakers. At times when one of the speakers made a particularly impassioned plea on the necessity of constitutional amendment and democracy, the crowd would cheer and applaud, but then it would inevitably fall respectfully silent again. It was perhaps the most orderly and controlled rally that I have ever been to.

The demonstrations that took place across Myanmar from May to July 2014 focused on the need for constitutional amendment, although it also attracted threats from the government [the USDP military-backed government] that it would declare a state of emergency.

The constitutional rally that I attended in May 2014 refused to conform to government expectations. Leading up to this event, the Union Election Commission had even issued a written warning to Daw Aung San Suu Kyi to the effect that she must be careful not to breach section 6 of the Political Parties Registration No 2/2010, which requires registered political parties to safeguard the Constitution.

This was not the first rally that the NLD had held that specifically focused on the amendment provision, section 436 of the Constitution.

But the government nevertheless tried to make an analogy between the anti-government protests in Thailand, which in 2014 had led to the declaration of a state of emergency and then martial law, and the constitutional rallies planned by the NLD and the 88 Generation.

These references to developments in Thailand were used to engender a sense of instability and fear that a state of emergency might be declared and allow the military to take control. The threat that a constitutional state of emergency may be declared hovers over the post-2011 reform process.”

Extract taken from Melissa Crouch (2017) ‘The Everyday Emergency: Between the Constitution and the Criminal Procedure Code in Myanmar’, in A Harding (ed) Constitutionalism and Legal Change in Myanmar. Hart Publishing. pp 157-172

How Japan matters to Myanmar

It was big news yesterday when Japan’s Kirin announced that because of the military coup it would end its joint venture partnership with Myanma Economic Holdings Public Company Limited, a military owned company.

Here is an extract of some brief reflections of Japan’s role in law and development in Myanmar.

“The largest donor by far to Myanmar is Japan, yet the efforts of Japan or other countries such as China in terms of their development impact in the region and around the globe are often overlooked…

The Japanese have a history of providing aid to Burma, and since 1962 Burma has relied heavily on it. In 1987, aid from Japan made up 20 per cent of Burma’s national budget. After the coup of 1988, Japan was the first country to recognise the military government and continue aid relations (Oishi and Furuoka 2003: 898). Japan was the only government to continue providing scholarships to civil servants to study in Japan during the military regime. It has even been said that in 1998 SLORC released Aung San Suu Kyi in part to please the Japanese, who had promised a significant amount of aid and financial assistance (Fink 2009: 78). Japan was among the first to establish ties with the University of Yangon Law Department, and to set up a Myanmar-Japan Legal Resource Centre on campus, with a particular focus on business law reforms. JICA has negotiated physical desk space in a range of government ministries, from the Union Attorney General’s Office to the Ministry of Mining… While the involvement of Japan in development is less well-known (but see Inada 2014), it is clearly one of the major foreign actors in the business of transition because of its long-term commitment and strong relationships it has fostered among the civil service in Myanmar.

Extract from The Business of Transition: Law, Economics and Development in Myanmar. Cambridge University Press (2017).

Demonetising the currency and the Constitution in Myanmar

Today the military tried to reassure people with a public announcement citing section 36(e) of the Constitution. This is the provision that prohibits the government from demonetising the currency. I have often said to people that this is one of the few provisions of the Constitution with which all people in Myanmar would agree upon. Now, this is small reassurance, as the military cannot just pick and chose which parts of the Constitution it will follow.

Here is an extract on what I refer to as the constitutional commitments to a market economy from The Constitution of Myanmar A Contextual Analysis, pp 114-116)

III.       Constitutional Commitments to a Market Economy

…..The Constitution is important for its economic and financial commitments. The Constitution is a public guarantee that the government cannot resort to the past strategies of the Tatmadaw that crippled the economy. The three key constitutional promises concerning the economy are the guarantee of a market economy (rather than a socialist economy), the promise not to demonetise the currency and the commitment not to nationalise industries (Constitution, ss 35, 36(d)-(e)).

The Constitution requires the country to be based on a market economy, closing the door on remnants of the policies and practices under socialist rule. A tendency towards socialist economics was evident in the early post-colonial years and was a means of ensuring the economy would be in Burmese control, rather than foreign control, be they British, Indians or Chinese. While efforts to reorient toward a market economy pre-date the Constitution, this provision plays a role in reinforcing the principle of a market economy. It stands as a constitutional guarantee that no future government can demonetise the currency again. The demonetisation decisions of the 1960s and 1980s had a devasting impact on people across the country, many of whom lost their savings without warning. The explicit mention of a market economy in the Constitution distinguishes it from its predecessor, the 1974 socialist Constitution that enshrined a socialist economy. The period of socialist rule from 1962 to 1988 ended in economic ruin. Myanmar joins a growing number of countries from Afghanistan to Cambodia and Romania that explicitly enshrine the market economy in the constitution. The inclusion of a ‘market economy’ provision in a constitution is an overt effort to distinguish economic reforms from the past and to embed the concept of the market economy in the Constitution, as a form of ‘higher’ law.

In the 1990s, the Tatmadaw made some legislative commitments to a market economy as a deliberate turn away from socialist era policies, but this did not take off due to Tatmadaw control of the economy, a growing black market and the effect of Western sanctions. The Tatmadaw’s monopoly of many sectors and industries narrowed who could participate in the economy and how. An extreme example is that some ministries were nicknamed after the area of the regional commander who was the Minister, such as the ministry of Agriculture being labelled the ‘Ministry of Southwest Command’. This is one indication of how ministries were run like a corporation under the personal control of the minister who was a military regional commander.

…Distinctive to Myanmar is the constitutional promise not to demonetise the currency, as previous regimes had done in the 1960s, and most recently in 1987–88, with devastating consequences. It was the demonetisation policy of the late 1980s that was part of the tipping point that lead to widespread protests for democracy and against the socialist regime. Many of the protestors in the 1988 demonstrations were students who had lost their savings and been unable to pay for the coming year’s university tuition fees. The anxiety and trauma of demonetisation has arisen in relation to debates related to monetary policies. For example, in 2017, the Pyithu Hluttaw received a proposal from an NLD member that the image of General Aung San (the father of Aung San Suu Kyi and independence hero) should be printed on currency notes. During the discussion, another NLD member referred to section 36(3) of the Constitution to endorse the proposal because it does not in any way intend to demonetise the currency.