Myanmar dispatches: updates and analysis from our law student correspondents in Myanmar

JURIST EXCLUSIVE – Our law student correspondents in Myanmar continue to send reports of the latest developments on the ground, along with their perspectives and analysis of the legal issues presented by the February 1 military coup.

This report examines the constitutionality of the military takeover under the 2008 Myanmar Constitution. It has been very lightly edited so as not to unintentionally distort the author’s meaning.

On 1st Feb 2021, the Myanmar military seized power by staging a coup and they have detained our democratically elected leaders including State Counsellor Aung San Suu Kyi and President U Win Myint. It is obvious that the current military coup in Myanmar is unconstitutional and unlawful as it is inconsistent with 2008 Myanmar Constitution and the basic rule of law in Myanmar.

There are a number of reasons why this transfer of power on 1st February has no justifiable basis.

Firstly, the declarations relating to transfer of power to the Commander-In-Chief should have been issued by the legitimate president U Win Myint in accordance with Section 418 of the constitution. Despite this, the vice-president U Myint Swe declared the state of emergency and transferred power to the Commander-In-Chief. As per Section 73(a), the Vice-President cannot take the duties of the acting president if the presiding president is alive and capable of all the duties as president. Since there is no evidence that the Presiding president is not capable or willingly left office, it is illegitimate for the Vice President to declare the state of emergency after the military arrested the President.

Secondly, with regard to Section 201(a) of the constitution, it is unconstitutional for the Vice-President to hold the National Defense and Security Council meeting on 1st February 2021 without five essential members of the NDSC including the president, minister of foreign affairs and speakers of the two houses of parliament. Thus, the decision of the vice-president in NDSC meeting to exercise Section-417 of the Constitution is illegitimate.

Thirdly, the military said the main reason of constitutional emergency was to scrutinize the voters list nationwide. This reason stems from the two claims by the military before the coup such as to transfer the copy of electoral information to the military and to convene a special session of Pyidaungsu Hluttaw. First, the Union Electoral Commission has no legal obligation to transfer the electoral information due to the fact that Section 74,76 of the Evidence Act in military’s claims only applies to all judicial proceedings in or before the court and there are no Laws and Regulations of Hluttaw to request electoral information. Only the president can impeach the UEC in accordance with Section 400 of the constitution. Next, Section 15 of Pyidaungsu Hluttaw law provides the language of necessity that the speaker can convene a special session if it thinks necessary and Section 83 of the Constitution also provides that only the President can recommend the speaker to convene special session. Thus, the speaker and the President can decline to convene special session regarding these electoral disputes. However, there is no reasonable situation to declare the state of emergency such as endangering the lives, shelter and property of the public with regard to Section 412(a) of the Constitution. Therefore, the stated reason “to scrutinize the voters list” is unconstitutional and void.

Thus, all the military actions of coup violate the rule of law and even the constitution that imposed by the military in 2008.