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.

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

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.

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

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

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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

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