The 2008 Constitution is the best protective shield for the military
The reason why the military council declared its illegal seizure of power as “takeover” was due to the 2008 Constitution. The civilian government was sheer in name whilst the military became ostentatious by taking refuge in the 2008 Constitution. However, not only the legal experts but the ordinary civilian population knew the coup of February 1 2021 was totally unconstitutional. The military acted lawlessly and ruthlessly like gangsters. They accused the NLD of electoral fraud, but not only Myanmar but the whole world knew that this was a baseless accusation. At the dawn of the first day of the new Hluttaw to be scheduled by the winning party in the near end of the previous Hluttaw terms, the President, Daw Aung San Suu Kyi and other government leaders were apprehended. The light of democracy was put out, and the country was plunged into darkness.
The position of the military and some of its attitudes
In accord with the 2008 Constitution, the first general election was held in 2010 and the Union Solidarity and Development Party (USDP) led by the former military elites won. Under the President U Thein Sein, the Commander-in-Chief was somewhat quiet. After the NLD won in the second general election of 2015, and in the early time of U Htin Kyaw’s presidency, he remained stable. Senior General Min Aung Hlaing spoke officially to the media that he would corporate with the leadership of President U Htin Kyaw for the national reconciliation and perpetual peace, he believed to achieve ever-lasting peace and talked with Daw Aung San Suu Kyi to work together for peace. The Commander-in-Chief also stated that he would not retire even though he was over 60 and would think about retirement only around 2020, and that he had submitted the draft of conscription law to the former president U Thein Sein who had said it had not been the right time so he had dropped the plan until the peace process was achieved, but if it was needed, he would submit it to President U Htin Kyaw.
With these obedient words and constructive outlook on the NLD-led government, the Commander-in-Chief also explained about the constitutional reform and the role of the military in Myanmar politics. The official speeches will never decay or disappear, but remain as records, instead.
He admitted that since no law was perfect, he agreed with the constitutional change and after achieving peace and when everything became normal, 25% of the military seats in the Hluttaw could be addressed and moreover, the solution should meet the desire of the people.
Deterioration of the civil-military relationship
The civil-military relationship was seemingly smooth in the beginning of the NLD-led government, but with times, frictions arose. On the other hand, Daw Aung San Suu Kyi with her policy on reconciliation kept herself distant from some democratic forces. Many people even thought she was having a good compromise with the military. Internal frictions were not publicly known, or officially publicized. While some of the local political forces started to have negative views on their relationship, the Rohingya crisis also fueled it up. The international community condemned the military for its excessive use of force and scorched earth policy. Later, Daw Aung San Suu Kyi went to the ICJ for defending the military’s atrocities so her international support gradually dwindled and eventually the situation ended up by the coup.
The 2008 Constitution is the best protective shield for the military. They have a political power and can monopolize the economy as well. No one can audit the military expenditure, and the military judiciary system is kept separate.
Although there was a change in presidency during the NLD-led government, the National Defence and Security Council meeting was never convened.
The closer the 2020 election, the more nervous the Commander-in-Chief became. Once after the election, he ignited issues targeting the Union Election Commission. Some thought there might be a coup, but some were wrestling if the military was not that stupid to stage a coup since they were privileged. In accord with the Constitution, a state of emergency should be declared only with the approval of the president. However, the military leaders did realize the way they wanted.
Orchestrating a coup based on misinformation
Once after the coup, the Commander-in-Chief himself gave an explanation to the country, and other military leaders visited various battalions, brigades and division headquarters and explained. Here, a brigadier general was quoted as saying:
“This is not a coup, just “takeover” and lasts only one year. After one year we will hold the election. It’s due to the NLD’s electoral fraud. Don’t criticize the Tatmadaw leaders about this on social media at all. Our leaders know much better than you do. Maybe the CIA and OIC are behind the case of the NLD’s electoral fraud. These are the reasons why the Tatmadaw play a villainous role to hold the power. We never receive any positive feedback, but it’s the duty of our Tatmadaw to do what we should. And I want you to bear it in mind, also.”
The military council began with a pledge of the election in one year, but later as you all know they changed to two years as stated in the Constitution, and eventually the election would be possible only in 2023 August. The military top brass seemed to be overconfident in their assessment based on misinformation. Soon after the coup, the military had to encounter a strong resistance of the people. The military leader Min Aung Hlaing himself admitted that it was far beyond their expectation. Another thing the military leader miscalculated was that the NLD lost a public support as some democratic forces had principally different from the NLD, and that some even waged No Vote campaign against the 2020 election. In fact, the military chief made his own one-sided conclusion and showed his political incompetence. The Vice-President nominated by the military illegitimately was appointed as President Pro-Tem. Then, the president Pro-Tem U Myint Swe declared in his capacity under the Constitution a state of emergency and transferred the power to the Commander-in-Chief of the Defence Services.
Here’s the key points of the Ordinance no. 1/2021 of the President’s Office.
The legislative, judiciary and executive powers are transferred to the Commander-in-Chief of the Defence Forces for the period of one year to address the purported irregularities in the general elections including verifying the voter lists in accordance with law. The failure to address electoral fraud, denial to postpone the Hluttaw and unjust seizure of the State power are the reasons for the declaration of the state emergency.
Volunteer staff and supervisors at voting stations were teachers from the ministry of education. And their response was crystal clear during the Spring Revolution when all of them took to the streets against the coup and participated in the CDM until the entire education sector stopped functioning. Another thing was that the military council detained the national and subnational level chairpersons and members of the Election Commissions for months without any sound reasons. A chairperson of a township election commission retold that there was little interrogation and mainly just to cut off from the outside world, and no torture. However, he refused to say under what agreement he had been released, but said he had been scared to be put in jail with false charges.
Why have the people chosen armed resistance?
Each and every political means came to an end with the coup. In the beginning of the Spring Revolution, there began a peaceful and non-violent anti-coup movement and the people went out to the streets. However, as brutal crack-downs and atrocities of the military became worse day after day, the people decided to choose armed resistance. Consequently, there have been a strong composition of PDFs and LDFs all across the country.
The military staged a coup with false conclusions and with no prudential wisdom. The military might have cheaply thought that the election pledge like in 1988 was able to slow down the resistance. The military and their followers didn’t probably consider differences in times and responses. An election was the hope for the future of the general public of 1988 who had been under the military dictatorship in disguise of socialism. However, for the general public of 2021 who enjoyed the two consecutive terms of parliamentary democracy under the civilian governments, PR system and elections are not their future. Most of the people who have denied to kneel down under the military boots based on both historical and personal experiences have been the youth of Generation Z. The ethnic people have relied on and supported the Generation Z until today. The military council might have thought that the people would lose protection and savior and would doubtlessly follow the way they paved once they axed Daw Aung San Suu Kyi and the NLD. That’s why they voiced to hold the election after one year of the coup.
The military council included only their supporters in military, economy and politics, and excluded the others. They changed or abolished laws as they wished. The worst thing was cancellation of Article 5, 7 and 8 which protect the individual rights and safety of the citizens. Although it was said to restrict or suspend during a state of emergency, it was a cancellation, indeed.
Here, let’s have a look at the Article 420 of the 2008 Constitution:
The Commander-in-Chief of the Defence Services may, during the duration of the declaration of a state of emergency, restrict or suspend as required, one or more fundamental rights of the citizens in the required area.
Now it can be seen clearly how dreadful the power was bestowed in the military. There might be more restriction and suspension as required. Under these circumstances, it is out of the question to have a free and fair election.
Fiddled and illusive peace call of the military council
The NLD and democratic forces were excluded from the political process on the one hand, and the NUCC, NUG, PDFs and local revolutionary forces were declared terrorists and omitted from the peace call on the other hand.
On April 22 2022, the military offered a peace talk with a registration deadline on May 9 in which the military chief Min Aung Hlaing himself would be meeting with the EROs delegations and promised a positive outcome. The EROs that agreed to meet with the military chief were the United Wa State Party (UWSP), the National Democratic Alliance Army (NDAA), the Restoration Council of Shan State (RCSS), the Shan State Progressive Party (SSPP), the Arakan Liberation Party (ALP), the New Mon State Party (NMSP), the Karen Peace Council (KNU/KNLA PC), the Democratic Karen Benevolent Army (DKBA), the PaO National Liberation Organization (PNLO) and Lahu Democratic Union (LDU). Most of these 10 EROs have no longer had any armed conflicts with the military for decades.
The EROs such as KNU, KIO, KNPP and CNF refused the offer and have currently been fighting with the military council. This was also the time of arising a military tension with the Arakan Army (AA). Let’s listen to their voices:
“The military leader cannot tolerate new resistance forces emerging with the coup, and the truest solution will be the military to walk out of politics.” (Padoh Saw Taw Nee, the KNU spokesperson)
“In our country, we’ve had to survive under the authoritarianism and military dictatorship of over 70 years. We don’t want to go on with it. We will build a federal democratic union and create a society where the people from our state can live safely and peacefully.” (U Aung San Myint, the KNPP spokesperson)
The KIO/KIA released a statement saying: “The offer is not inclusive of all stakeholders who should be included or with no intention to find a solution to the country’s affairs. That’s why we will participate only in all-inclusive setting with politically equal footing.” The CNF urged in a joint-statement together with the KNU and KNPP for an immediate stop of the military offensive, and to have an all-inclusive talk.
Before the registration deadline closed, when the leader of the Arakan Army (AA, General Twan Mrat Naing launched an open challenge against the regional commander, a military tension arose. At a press briefing of the military council, Major General Zaw Min Tun threatened, “If there arises a problem about what’s happening now in Rakhine, don’t blame on the Tatmadaw.”
The army chief would meet with 10 EROs on a separate basis, and Major General Zaw Min Tun said the meetings would take around two months.
Here, at this point, let’s listen to the attitude of the army chief Min Aung Hlaing to know whether the peace talks work or not.
“At first the KNU wanted to participate, but later they decided not to. We see some of the KNU, KIA and KNPP local units in their areas have relations with PDFs and CRPH whom we have currently announced terrorists. Besides, we know these groups have relations with foreign countries. We came to know that’s why they made statements saying “NO” to the peace talk. It’s really hard to restore peace and stability in the country as long as there’s a foreign interference on the political and internal affairs. Actually, the Myanmar’s affairs will have to be decided by the Myanmar people.”
The army chief who’s himself been seeking foreign backing
Despite the critics on foreign interference, the military leader himself has particularly relied too much on China. He has built a good relationship with India, taken assistance from Japan, and approached the ASEAN as well. China itself on which Min Aung Hlaing is relying very much has agreed on an all-inclusive dialogue. India has also shared the same idea, but maintained the relationship. Refugees from Chin State have fled to Mizoram of India. Although the Mizoram State government accepted them, the central government of India has still refused to accept or assist them. A dialogue with all parties concerned was included in the ASEAN’s five-point consensus. The United Nations also wanted it to happen. The United States stressed the importance of the ASEAN centrality and had discussions with Thai authorities to establish a safe humanitarian corridor in order to provide humanitarian assistance. Thailand’s appointed a special envoy to Myanmar to specifically address the cross-border refugee issues.
Japan’s intervention for peace has been quite successful, and it’s had a good relationship with the military leaders. Although he is not a state-level representative, a peace facilitator Mr. Sasakawa really achieved success. Lay Kay Kaw, the new town set up as a symbol of peacebuilding in Kayin State is a fruit of Mr. Sasakawa’s effort. He was also grateful for succeeding an informal cease-fire between the Arakan Army (AA) and the military. Mr. Sasakawa urgently visited Malaysia and met with its foreign minister who has been very active for Myanmar affairs and a strong critic of the military council. The Malaysian national news agency, Bernama said an all-inclusive approach in seeking solutions to the Myanmar crisis and an establishment of a safe corridor for humanitarian assistance were the key focuses of his meeting with the Malaysian foreign minister.
Magway and Sagaing are the strongest local resistance whilst their villages are burned
down to ashes day after day as the ruthless military council set them on fire with no reasons.
Peace or more armed conflicts?
The military leader has planned an election. The EROs that didn’t answer the peace call of the military leader haven’t said “NO” to a dialogue. They urged an all-inclusive setting according to the Un, ASEAN and international community. The transfer of power to the Commander-in Chief by the President Pro-Tem came to an end of one year, and it’s now nearly half of the six month extension. The military council would have another six-month extension only. The Constitution says the election shall be held within six months once the commander-in-chief reports to the president the completion of the state of emergency.
The military is seemingly not able to suppress the local resistance forces which have mushroomed not only in the EROs areas, but in almost all urban and rural areas. Magway and Sagaing are the strongest local resistance whilst their villages are burned down to ashes day after day as the ruthless military council set them on fire with no reasons.
After the US-ASEAN summit, U Yee Mon, the Minister of Defence of the NUG urged the arms support from the Western countries during the interview with the Reuters.
No matter how the military council keeps saying of a building of a federal democratic union, it will never work as long as the military firmly holds the Article 6 (f) of the Constitution which says “Enabling the Defence Services to be able to participate in the National political leadership role of the State.”
Since the coup, the military has committed arrests, murders, lootings and destruction of the properties of the people like bandits, rape of women and setting fire on local communities day after day. The key reason why the military leaders and their forces have cared for no one and acted like gangs is the 2008 Constitution. The Article 432 says,” The legitimate measures of any administrative body or any of its members, any Civil Services body or any of its members, and any military body or any of its members assigned powers and duties to take measures as required in order to speedily restore the security, stability, community peace and tranquility and prevalence of law and order to its original state on behalf of the President while a declaration of emergency is in operation or during the duration the sovereign power is being exercised by the Commander-in-Chief of the Defence Services or during the duration the sovereign power is being exercised by the National Defence and Security Council, shall be valid. No legal action shall be taken on such legitimate measures.”
To conclude, the 2008 Constitution is the stronghold of the military, and they have yet to withdraw or give up. The people and the revolutionary forces turned their back completely towards the 2008 Constitution and have vigorously kept marching forward to a federal democratic union.
Latt Yone Nyi
References
- The statements of the Ethnic Resistance Organizations (EROs)
- The constitution of the Republic of the Union of Myanmar, 2008
- The orders issued by the military council
- News and interviews of the Malaysian National News Agency, Reuters, Irrawaddy, DVB, RFA, PVTV
- Press briefings of the military council
- The author’s personal notes