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.

Myanmar coup on the pretext of a constitutional fig leaf

*Note: this article first appeared in The East Asia Forum on 3 February 2020

On 1 February, the world was shocked by a military coup in Myanmar and the arrest of State Councillor Aung San Suu Kyi, President Win Myint and other political leaders. It shouldn’t have been so surprised. Much of the military’s manoeuvres against her National League for Democracy government were predictable. They claim to be acting by the book — the 2008 Constitution, which it wrote. 

This constitutional crisis is about the military’s use of emergency powers as a fig leaf for a coup. It comes in the wake of multiple attempts by the military to bend the Constitution to its will.  

There were indications both before and after the November 2020 elections that the military was willing to fight the results of a National League for Democracy victory — in both constitutional and unconstitutional ways. 

In late 2020, the military began raising concerns about voter lists. As the government pointed out, it should have raised these concerns prior to the election when voter lists were being verified. 

Then, Myanmar’s Union Election Commission received over 280 complaints  disputing the election results. But the military also demanded that the Commission hand over copies of voter lists and results so it could cross-check — a power it doesn’t have. 

On 11 January 2021, the military called the government to convene a special session of the Pyidaungsu Hluttaw, the joint legislative body, under Section 82 of the Constitution. Its petition was supported by 160 military members, 36 Union Solidarity and Development Party members and several minority party members. 

While the Constitution is open-ended as to what matters can be brought to the Pyidaungsu Hluttaw, the Speaker declined to convene a session. He argued that disputes concerning the elections should be handled by the Election Commission, not by Parliament.

The military rallied against the Election Commission in these ways because the power to initiate impeachment of its members lies with the president — another uncomfortable reminder for the military of power that lay out of its grasp.

The other looming constitutional issue was the future of Commander-in-Chief of the Myanmar Armed Forces, Min Aung Hlaing. He is 65 years old and according to law must retire from his post this year. Again, the appointment of the commander-in-chief is in the hands of the president in consultation with the National Defence and Security Council (NDSC).

For a civilian president to have the opportunity to initiate the selection process for the commander-in-chief is unprecedented in Myanmar. It was another reminder of the military’s waning power. 

The military even drew the Supreme Court into its constitutional battles. Several petitioners sought the writ of quo warranto, a constitutional remedy that challenges a person’s right to take office. The cases appear misplaced as they were all brought against the wrong people — the Election Commissioners and the President. The cases should have been brought against a person who won office at the election, and whose right to take office they sought to challenge.

It was uncertain whether the Supreme Court could even accept the case, because the Constitution declares decisions of the Election Commission to be final. Hearing the case would amount to challenging a complaint that had been brought to the Election Commission.

To further complicate matters, the Chief Justice of the Supreme Court is a former military officer. Despite these connections, the military chose not to wait for the outcome of a Supreme Court case, which could have taken weeks.

What are the constitutional issues raised by the events of 1 February?

The military claims it was acting lawfully under sections 417 and 418 of the Constitution. But there are many problems with using constitutional emergency powers as a fig leaf. 

Even if the military had evidence of voter fraud, it is not self-evident that election fraud constitutes an emergency. The Constitution is clear that an emergency is an extraordinary situation that poses a grave threat to the country.

The President was the only person empowered to declare a state of emergency in coordination with the NDSC. The Vice-President, ex-general Myint Swe, became the acting President, although there is no evidence that the President willingly left office.The Constitution does not allow the military-backed vice-president to replace the president at whim. Clear reasons are required such as incapacity or death.,

A meeting of the NDSC was also improbable. 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. It appears that the military has reconstituted the Council with only its military members left, using unconstitutional means to declare a constitutional emergency.

This renders any attempt by the Commander-in-Chief to exercise power implausible, though it hasn’t stopped him. Already the military has appointed a new president and announced the posts of a range of key offices, from the courts to the anti-corruption commission. The effect of these public statements is mostly smoke and mirrors — appointing a National Human Rights Commission and a Peace Talks Commission in the wake of the coup is not reassuring to anyone. 

There is no constitutional emergency in Myanmar. The military is simply using the Constitution as a fig leaf to restore its power. The irony is that while the military doesn’t appear to like how its Constitution works, it continues to proclaim that it is acting constitutionally.

Mega constitutional questions in Myanmar

The coup in Myanmar as thrown up a whole lot of mega-constitutional questions.

Some of the big ones include: was the Constitution ever legitimate in the first place? Who gets to have the final say on the Constitution? Has the military actually followed the Constitution, as it claimed? And, to what extent can the Constitution or the courts be used as a way out of this crisis?

I’ll deal with these in turn, along with a few others. Apologies, this is a long post.

Was the Constitution ever legitimate in the first place?

In my book, The Constitution of Myanmar, I argue that the Constitution faces a crisis of credibility. I suggest this is for two reasons – process and substance. The process of drafting the Constitution was fundamentally flawed. Much has been written on this, but it includes the failure to acknowledge the results of the 1990 elections, the control over a constitution-making process that lasted from 1993-2007, and the 2008 referendum despite the tragedy of Cycle Nargis. What I mean is that the origins of a constitution – how and under what conditions it was made, who participated, how it was approved – contribute to the credibility of a Constitution. (see here for thoughts on the absence of genuine public participation as a striking feature of constitution-making in Southeast Asia)

The substance of the Constitution in Myanmar is the other reason that it faces a legitimacy crisis. Again, much has been said about its undemocratic nature. In my book I suggest there are three key logics evident – a leading role for the military, an ideology based on the Three Main National Causes, and an organising logic of coercive centralism. The core of the Constitution – from entrenched military seats in parliament to the highly dependent nature of the relationship between the Union and states/regions – is contrary to the basic demands for constitutional reform that focus on democracy and federalism.

In fact, as I argue in a more recent article, the Constitution can be understood as a form of ‘pre-emptive constitution-making’ (apologies this is stuck behind a pay wall, please contact me for a copy). The military’s purpose in drafting the Constitution was precisely to avoid a complete transition to democracy.

Did the Constitution help build a culture of constitutionalism in Myanmar?

Well, it depends how you look at it. By a culture of constitutionalism I mean a shared way of interpreting the Constitution that leads to generally accepted practises of implementing and working within the Constitution.

In my book, I argue that the legislature was the primary forum for debate and discussion over the meaning of the Constitution and that the courts have not played a major role.

This was for three main reasons: one, the lack of cases brought to the Constitutional Tribunal hampered any possibilities for a leading role for this institution due to its restrictive standing rules and design; two, the self-imposed restrictions on the Constitutional Tribunal such as not being able to review laws pre-2011; and three, because decisions that it did make were not respected by the legislature, leading to questions about whether its decisions were final and binding.

The absence of a final interpreter of the Constitution frequently created problems.

Another problem is that this Constitution was intended to be the final word. As I suggest in my book, it is a codified constitution (p8). By this I did not simply mean it is a written constitution. Rather, I mean that the Constitution seeks to codify pre-existing principles rather than abolish past law (or in this case, past military practise). The Constitution is extremely long, a bit like its distant cousin, the Indian Constitution. It is very detailed and contains matters that would usually be considered less important and ok to leave to the legislature. Rather than give power to the legislature to make laws or to the executive to regulate, the details are mapped out in the Constitution.

Who gets to have the final say on the Constitution?

This is the biggest problem with the current crisis. What is actually happening is the military is claiming to be the institution that has the final say on the interpretation and application of the Constitution. The military has no such powers.

The Constitution does give it the power to safeguard the Constitution (section 20f). This is of course a strange and unusual provision of the Constitution. A Constitution has no need for protection by a military. A military has no role in safeguarding the Constitution.

Section 20F does not give the military the power to interpret the Constitution or enforce its rules. That is the responsibility of the Constitutional Tribunal.

Of course, one problem is the lack of regard for the Constitutional Tribunal itself (for more on the Tribunal see here ).

Another issue is the lack of a shared constitutional tradition of interpretation. As I have explained in my book (p170), a review of cases decided by the Tribunal suggests that there is no dominant approach to deciding and interpreting constitutional cases.

I suggest that there have been at least three approaches that have been taken by the Constitutional Tribunal: a literal approach, a nationalist approach and a restorative approach (see ch 8) (skip this section if you are not interested in constitutional interpretation):

The literal approach to constitutional interpretation treats law as black and white text, clear and unambiguous. This is not originalism, as some foreign scholars have suggested, but rather a continuation and mirroring of the approach to law adopted during the periods of socialist-military rule. In this conception, judges presume the law is clear and undertake a role like that of administrators.

The second approach is a nationalist approach, where the Tribunal reads the Constitution in a way that emphasises the rights of official national races to the exclusion of outside groups. The nationalist approach to interpretation is both about the choice of an interpretation that will enhance the outcome for national races but also about the insistence of adopting an ethno-nationalist lens to the interpretation of the Constitution. For example, in the Ministers of National Races Affairs case, the Tribunal found that these ministers are equal in status to other ministers, even though this does not appear to have been anticipated in the Constitution (see Chapter 7). Another example of the nationalist approach is the Citizenship case, in which the Tribunal read the word ‘person’ restrictively to mean associate or naturalised citizen, and not a temporary identity card holder (see Chapter 4). This was an anti-rights case, in the sense that the applicants were arguing (contrary to past political practise) that the right to vote in a constitutional referendum (and by implication, elections) should only be given to citizens, and not to groups with temporary identity cards such as the Rohingya. In both these cases, the Tribunal’s decision reflects populist ethno-nationalist sentiment and arguably goes beyond the plain wording of the Constitution or the intention of the constitution-drafters.

The third approach to constitutional interpretation has been to return to the 1947 Constitution and the principles of interpretation that were expounded by the Supreme Court at that time. This mode of interpretation is a form of ‘restorative jurisprudence’, that is, the Tribunal adopts a past approach to interpretation (restoring past jurisprudence) under a previous court and constitutional era. This is a revivalist approach to constitutional law, involving the adaptation of past constitutional principles under a former constitution to an entirely new constitutional context. This approach was evident in a case in 2017 where the Tribunal deliberately turned back to principles of statutory and constitutional interpretation of the 1950s, citing jurisprudence of the former Supreme Court of Burma. The Tribunal used past jurisprudence to emphasise that the Constitution should be given an expansive and not a restrictive meaning. It did so in order to find that legislative committees could be formed by the Pyidaungsu Hluttaw, even though this is not mentioned in the Constitution. This demonstrates a willingness on the part of the Tribunal to draw on the history of constitutional law to attempt to forge a new jurisprudence in Myanmar beyond the literal or nationalist approach. This was significant because the applicants were 50 military representatives, and so the Tribunal indicated that it is willing to rule against military legislators.

There are many reasons for these varied approaches, or a lack of a dominant approach to interpretation. The 2008 Constitution came after two distinct periods of rule without a constitution. This means there is a need to rebuild a culture of constitutional interpretation.

Further the Constitution is a patchwork of ideas from three main sources: one, the 1947 Constitution, two, the 1974 Constitution, and three, military propaganda and ideas from the 1990s. For this reason, I suggest the Constitution dates from the 1990s, rather than from its inception in 2011. But this patchwork of constitutional ideas complicates how we understand the Constitution as it does not fall neatly within any one constitutional tradition. This is precisely the difficulty with hybrid constitutions.

What were the constitutional issues in the lead up to the coup?

The legality of refusing to convene a special session of the Pyidaungsu Hluttaw

On 11 January 2021, the military called on the Speaker to convene a special session of the Pyidaungsu Hluttaw, the joint legislative body, under Section 82 of the Constitution. Its petition was supported by 160 military members, 36 Union Solidarity and Development Party members and several minority party members. 

The Constitution requires support from one fourth of members of parliament to convene such a special session (section 84). It is open-ended as to what matters can be brought to the Pyidaungsu Hluttaw (section 80), but the President has the power to request the Speaker to convene a session.

The President declined to convene a session because disputes concerning the elections should be handled by the Election Commission, not by Parliament.

The military could not bring impeachment proceedings against the Election Commissioners because the power to do so lies with the president (section 400a).

The role of the Commander in Chief, when he has to resign and who gets to appoint the next one

The other looming constitutional issue prior to the election was the future of the Commander-in-Chief of the Myanmar Armed Forces, Min Aung Hlaing. He is 64 years old and according to law must retire from his post once he turns 65 mid-year.

If the intention was for Min Aung Hlaing to continue in this office, the military could have amended the law to extend the age limit to 70 years old. The coup suggests that his ambitions go far beyond the office of Commander in Chief.

If Min Aung Hlaing had willingly retired this year, the president has the power to appoint the commander-in-chief in consultation with the National Defence and Security Council (NDSC) (section 342). It is unprecedented for a civilian president (with no prior military background) to have the opportunity to initiate the selection process for the commander-in-chief in Myanmar. This has been missing from much analysis of the situation.

Again, this was another reminder to the military that without control of the office of the president, their powers are limited.

Attempts to bring a writs case against the Election Commission and President in the Supreme Court

In the lead up to the coup, other constitutional issues were raised in the Supreme Court. Several petitioners sought the writ of quo warranto, a constitutional remedy that challenges a person’s right to take office (section 378a(4)).

The cases appear misplaced as they were all brought against the wrong people — the Election Commissioners and the President. The cases should have been brought against a person who won office at the election and whose right to take office they sought to challenge.

It was uncertain whether the Supreme Court could accept the cases because the Constitution declares that decisions of the Election Commission are final (section 402). Hearing the cases would potentially amount to challenging a complaint that had been brought to the Election Commission.

The Chief Justice of the Supreme Court is a former military officer. Despite these connections, the military chose not to wait for the outcome of a Supreme Court case.

These are just some of the key constitutional issues before the coup, but the events of 1 February raise further constitutional questions.

Has the military actually followed the Constitution, as it claimed?

Before I answer the question, its useful to remember that constitutional powers have been used before in Myanmar. There are three types of emergencies under the Constitution. Constitutional emergency powers have been used within the limits set by the Constitution before in Myanmar.

Under president Thein Sein, who was in office from March 2011–2016, a constitutional state of emergency was declared at least three times — in response to anti-Muslim violence in Rakhine State and Meiktila, and fighting in the Kokang area between government and Kokang insurgent forces. In these instances, it was the powers under section 412 and 413 (a) (what I have elsewhere referred to as ‘type 2’ emergencies) that were used.

The effect of this type of emergency on human rights is that the President has ultimate power to ‘restrict or suspend’ any right (section 414(b)). The President is required to specify the time period, although the default is 60 days because any declaration requires the approval of the Hluttaw within this time.

This type of emergency was declared in 2012 in Rakhine State, and in Meiktila District in 2013. On 10 June 2012, this power was first exercised by the President who declared a state of emergency in Rakhine State. Violence against Muslims spread across the country, leading to a humanitarian crisis and widespread displacement.

In the following year, severe conflict against Muslims in Meiktila broke out and led to an emergency administrative response. On 22 March 2013, the President exercised his powers to declare a state of emergency in four townships in Meiktila District, although no time limit was specified.

On 20 May 2013, a special session of the Union Parliament was held to debate the extension of the declaration of the state of emergency in Meiktila. There are no legislative checks on the initial act of declaring an emergency, although the Pyidaungsu Hluttaw is required to approve an extension of a state of emergency within 60 days.

No grounds are specified as to the conditions that must be fulfilled to extend an emergency. The key debate that emerged was how long the extension should last. The issue was whether it should remain open-ended as the President had proposed, or whether it should be subject to a 60-day time limit. The majority voted in favour of a 60-day time limit, which indicates that some members of parliament from the Union Solidarity and Development Party, the military-backed political party, voted against the proposal of the President.

On 20 July 2013, the state of emergency in Meiktila was official brought to an end by the president.

In 2015, the president declared a constitutional state of emergency in the response to fighting in Kokang Self-Administered Zone in Shan State, bordering China.

This is the way constitutional emergency powers should work. These powers need to be exercised by the right people, under the right circumstances and according to the right procedure as set out in the Constitution.

So, to return to my question, is the military’s claim to be using emergency powers really constitutional?

The military claims it is acting lawfully under sections 417 and onwards of the Constitution. But there are many problems with this claim. 

Even if the military had evidence of voter fraud, it is not self-evident that election fraud constitutes an emergency. The Constitution suggests that an emergency is an extraordinary situation that poses a grave threat to the country (section 417). This is the kind of question you need a Constitutional Tribunal for (ie what constitutes an emergency according to the Constitution?)

The President was the only person empowered to declare a state of emergency in coordination with the NDSC. The Vice-President, ex-general Myint Swe, became the acting President, although there is no evidence that the President willingly left office. The Constitution does not allow the military-backed vice-president to replace the president at whim. Reasons are required such as incapacity or death (section 73(a)).

The provisions on the presidency falling vacant also presume that there is still a civilian elected government in office (ss 73(b-f)).

There was also no possibility that a meeting of the NDSC occurred. 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 Council 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.

Its also worth noting, to go back to my first point, that the substance of the Constitution contributes to its lack of credibility. The chapter on emergency powers was already one of the most inappropriate, convoluted and poorly drafted sections of the Constitution. Ive tried to distil it here. The immunity clause in section 432 is a case in point, but that’s just one of many problems with this chapter.

But, to what extent can the Constitution be used as a way out of this crisis? Are the courts of any help?

The Constitution provides for the writ of habeas corpus, which should in theory be available to challenge the detention of Aung San Suu Kyi and others. Of course, the problem is that in times of constitutional emergency (if this is a section 417 emergency), the writ remedies do not appear to apply (section 296(b) and 379).

The Constitutional Tribunal again could be helpful here to decide on issues like – how do we reconcile the differences in the wording of section 296 (b) and section 379? Do the writs not apply in any emergency, or only in some kinds of emergencies?

The only option here is to fall back on Myanmar as a common law legal system. What I mean is, even if the constitutional writs are not available, the common law still exists and it is arguable that courts can still issue habeas corpus based on the common law.  But as Ive shown elsewhere (here and here), reference to the common law is often more talk than substance. The common law is often translated as ‘Ingaleik Ubade’ or English law, which hints at the misunderstanding. As Ive tried to explain many times, the common law, as it is understanding by a global audience, is in fact law made by judges. It’s the understandings and conventions and decisions about law that are confirmed through court processes. Yet in Myanmar, the common law is often non-existent.

What else are we likely to see happen from here legally? What is section 144?

Section 144 powers have been a favourite of the regime for a long time. If the military plans to impose curfews on people, or revise the existing section 144 orders that continue in some places due to covid 19, it will use section 144 powers. Ive written about section 144 powers here, here and shorter comments here.

In brief, while this is supposed to be an order approved by a judge, the military claims this power was transferred to the General Administration Department.

That’s all for now, I may update or revise this as the situation changes

For those interested, the Burmese version of the book, The Constitution of Myanmar, is available here

Myanmar’s empty promise of constitutional reform

*This article was first published here in The Interpreter on 3 February 2020

Myanmar’s transition in 2011 was only ever partial. After all, the country transitioned from direct military rule without a constitution, to a constitutional system where the military reserved for itself unelected seats in parliament.

The National League for Democracy (NLD) was well aware of the privileges the military had carved out for itself.

The last five years of the NLD’s term as government help us to appreciate that the threat of a coup was always a possibility. The difficulties of attempting to rule a civilian government under such a threat are enormous.

In many ways the story goes back to at least the 1990s, when the NLD won an electoral victory but was never allowed to take office. For a long time, the NLD hung onto the view that the military should have allowed them to form government, rather than commence an arduous process of drafting a constitution.

The bitter years of military rule were marked by the harassment and detention of many members of the NLD as well as of other political parties, minority ethnic groups and pro-democracy student groups.

In 2010, the military finally decided to hold elections. But the NLD and some other minority parties refused to participate as a matter of principle.

Suspicions remained high. They did not want to legitimate the system the military had created and did not believe the claims to political transformation were credible.

The NLD finally entered the political system by agreeing to run in the by-election in 2012. They won all seats they contested, a clear show of its popularity. The NLD became a vocal minority voice in parliament from 2012 to early 2016.

Yet even the entrance of NLD members into political office was contested. The NLD members initially refused to swear the parliamentary oath because it required them to be loyal to the Constitution as drafted by the military.

After a stand-off, they eventually took the oath as the then military-backed government would not allow the NLD to enter parliament any other way.

The events of 2015 dramatically changed the political context. The NLD won the election, forming government for the first time and holding a majority in parliament, despite the 25 percent of seats with military officers. The loss was felt sorely by the military-backed political party, the USDP.

The NLD went into government with their eyes wide open as to the risks, personal and political. Many, after all, are former political prisoners themselves.

The NLD faced hostility from the outset. The NLD created the Office of State Councillor, a position specifically for Aung San Suu Kyi in light of her inability to become President. This was strongly opposed by military members of parliament who refused to vote on the legislative proposal.

Things became very serious for the NLD in 2017 when prominent lawyer and legal advisor to the NLD, Ko Ni, was assassinated in broad daylight at Yangon International Airport.

The risks of opposing the military-created political regime by advocating for reform of the Constitution were suddenly validated.

Ko Ni’s death had a chilling effect on discussions about constitutional reform, which had been one of the election platforms of the NLD. Ko Ni had been vocal in speaking publicly about the Constitution, its shortcomings and the possibilities of changing it.

His shocking death was perceived by the NLD as a strong warning. Many wondered if they were now also at risk.

Lawyers and civil society advocates were also concerned about the impact his assassination had on any prospects for democracy.

There was a prolonged court trial of those accused of carrying out the assassination. Yet up until today it is said that the main person behind the assassination remains at large.

Ko Ni’s death has not received any official commemoration. There is no memorial at Yangon airport. On 29 January each year, it is left to civil society to organise an annual event to commemorate his life.

The early years of the NLD’s first term, 2016-2017, also saw a dramatic worsening of the Rohingya crisis. A major military offensive caused over 700,000 Rohingya to flee to Bangladesh.

This was one of the quickest and largest displacements of people in recent history. Later, credible accounts of massacres in some villages emerged.

The NLD faced significant criticism for its complicity in the crisis or at the least its unwillingness to differentiate its position from that of the military. Yet at the same time tensions between the NLD and military remained high, with real concerns there may be a coup.

The NLD has also struggled to make progress on the peace process. This was always going to be a difficult task.

Yet coming into the November 2020 elections, support for the NLD remained strong, and this was reflected at the ballot box. In many ways, the people knew of the risks the NLD faced every day.

It seems that the overwhelming support for the NLD at the elections was the final straw. Ever since, the military has hotly contested the validity of the elections, claiming voter fraud.

What happened this week was a show of force and power grab by the military, a coup not a constitutional emergency.

This has left those who sought to play by the rules of the Constitution, despite disagreeing with its terms, deeply disillusioned.

It is also a reminder that the risks for pro-democratic actors of trying to change a Constitution drafted by a military regime are high. This is not just about risks to prominent individuals, as Ko Ni’s assassination demonstrates. But also the wider political risk of a complete coup.

It is hard for those of us in places where there is no threat of a coup to appreciate the real dilemmas the NLD and other pro-democracy actors faced. Dilemmas about whether or when and how far to compromise, and on what issues.

The coup this week reminds us that the risks of changing a constitution mandated by the military are real, especially when the military has no intention of retreating from politics.

Why Myanmar’s Military is Wrong: This is not a Constitutional Emergency

*This article was first published in The Age as ‘The power and ambition behind Myanmar’s coup’ on 2 February 2020

Aung San Suu Kyi is back in familiar territory, under arrest. Early Monday morning she, along with the president and many others, were arrested in a cunning move by the military.

So far, at least 30 people have been arrested, possibly more. No news on their whereabouts has emerged.

This coup was well-planned by the military. They knew all key politicians would be gathered in Naypyidaw, the capital city built by the military, for the start of the parliament and inauguration of the new government.

But from the perspective of the military, this is a constitutional emergency. Or is it? The military claims it is not only right, but that it is acting according to the Constitution.

The military claims that there was large-scale voter fraud at the 2020 elections and that parliament should have been postponed until the matter was resolved.

It says that the vice-president, retired general Myint Swe, has become the acting president. This appears to imply the president – willingly or unwillingly – has relinquished his office.

The military also  declared that a constitutional emergency is now in place. This state of emergency places the Commander in Chief squarely in charge. Parliament has ceased to exist.

Moreover, it gives the Commander in Chief all power for an entire year, including the power to limit rights. This means we could see curfews or other restrictions imposed on the people of Myanmar in the coming days.

The state of emergency only comes to an end when the Commander in Chief says so to the acting-president, General Myint Swe.

However, there are big flaws in the military’s claims.

This is a manufactured emergency. The military has provided no evidence of voter fraud. Its assertions have no basis without evidence.

What we do know is that the Commander in Chief, Min Aung Hlaing, had ambitions to be president. To do that, he needed the military backed political party, the USDP, to win at least one third of the votes. They didn’t, and his presidential ambitions lie in tatters.

He was also in a bind because he is required to retire from his post as Commander in Chief at the age of 65, this year. It is still unclear whether he will step down or whether the military will change the law to expand the age limit to allow him to stay in office longer.

Its also not clear at all that the president has willingly left office. In fact, he is under arrest and presumably had no intention of stepping down.

Another flaw in the military story is that the president, or acting president, can only declare an emergency after consulting with the National Defence and Security Council. The military claims there was a meeting of the Council, but this is impossible.

Although half of the Council are military officers, the other half are not. The Council includes the second (civilian) vice-president, and the speakers of the upper and lower house, who do not appear to have been arrested on Monday morning.

It seems that the military members of the Council, plus the retired general Myint Swe, are now its only members.

What the military did do is prove that they are above the Constitution. They are the fourth branch of government. They are a supra-constitutional entity. The rules don’t always apply to them.

The Constitution matters, except when it applies to the military.

What happens from here? The military rules by decree. No parliament. No free media. And possibly increasing restrictions on individuals and potentially more arrests.

The military could rule for a year, as it says, and then hold a fresh election. Such an election is likely to be highly orchestrated by the military. And would they really let the NLD run against them again? Its unlikely.

Another alternatively is that the Commander in Chief prolongs the state of emergency beyond the year.

What is clear is that the military was wrong to claim this is a constitutional emergency. This is a coup.

And this is not what people in Myanmar want or need right now. There have been around 140,000 cases of covid-19 and over 3,000 deaths. The economic costs of covid-19 have been just as severe.

For a younger generation who have not lived through a coup, they are angry and frustrated and scared. A coup is narrow-minded, selfish and arrogant during a global pandemic.

For the older generation who lived through the events of 1988, there is a troubling sense of dejavu. Can the military even be trusted to return to civilian rule after disregarding the 1990 election results and holding onto power until 2010?

The military has just lost any shred of respect its people had left for the institution. The military can’t both claim to act according to the Constitution and act outside of it.

The risks of constitutional change in authoritarian regimes

In a recent book chapter I analyse the risks that democratic actors face if they seek to reform a constitution drafted by an authoritarian regime – taking Myanmar as the case in point.

Melissa Crouch (2020) ‘Authoritarian Straightjacket or Vehicle for Democratic Transition?: The Risky Struggle to Change Myanmar’s Constitution’ in Tom Ginsburg and Aziz Huq (eds) From Parchment to Practise: Implementing New Constitutions. Cambridge University Press. Available for download here

Abstract: How hard is it to change a constitution that was drafted by an authoritarian regime? What strategies might democratic actors adopt to change such a constitution, and what risks may they face? These dilemmas face democratic actors in Myanmar who seek to change the 2008 Constitution. In this chapter I introduce the contours and practice of Myanmar’s Constitution as a political order set in place by the former military regime. I identify and explore the different strategies that have been used to change the 2008 Constitution – formal constitutional amendment proposals in 2013-2015; informal constitutional change through judicial interpretation in the Constitutional Tribunal; and informal constitutional change in the form of the legislative innovation of the Office of the State Counsellor. These attempts at constitutional reform come with particular risks to democratic actors, personal, political and institutional. I suggest that the risks of constitutional change are heightened during the first period of a constitution, particularly if the constitution has been designed to protect the interests of the former authoritarian regime.

Emergency Powers in Myanmar

Emergency Powers in Myanmar are complicated. Here is my take on how emergency powers in the Constitution are supposed to work – see here

A few brief notes – the president has the power under section 417 to declare an emergency in consultation with the National Defence and Security Council. All power is transferred to the Commander in Chief. The Commander in Chief may suspend rights as he sees fit. The constitutional emergency lasts for one year.

Women and the Judiciary in the Asia-Pacific

Melissa Crouch (edited volume, Cambridge University Press)

The judiciary is an important institution in efforts to overcome and address issues of inequality, discrimination and gender injustice for women. The feminisation of the judiciary – both in its simple meaning of entrance into the profession as well as its more substantive forms of realising gender justice – is a core part of the gender equality agenda. Acknowledging both the diversity of meanings of the feminisation of the judiciary as well as the complexity of its social and cultural realisation, this volume enhances the literature on women and the courts from the perspective of the Asia-Pacific. Containing the first-ever empirical studies for many of the jurisdictions covered, this book offers deeply grounded research of the past and present challenges women face to entering the judiciary and progressing their career, as well as advocating for women’s issues. From individual stories of trailblazing women to sector-wide studies of changes in gender composition of the judiciary over time, the original empirical research in this book offers a timely reflection on the feminisation of the judiciary in the Global South more broadly.