Constitutional implications of Myanmar’s Coup on 1 February 2021

Coups are an ancient political tradition in Myanmar. The country’s military pursued this tradition on February 1, 2021, ousting an elected government. Constitutionnet revisits the constitutional implications of the coup. Here is an excerpt of the article:

The Tatmadaw’s action is very clearly unconstitutional, even by the terms of the 2008 Constitution, designed as it was to provide the Tatmadaw with powers unequalled in any ‘constitutional’ system of government, and amounting essentially to a praetorian rather than fully democratic constitution.

First, under s.417 there must be a reason for declaring an emergency that may disintegrate national solidarity or loss of sovereignty. No such reason exists and no commentator has at any point warned of this, except to say that it might occur in the event of a coup initiated by the Tatmadaw. Secondly, this reason must be due to acts or attempts to take over the sovereignty of the Union by insurgency, violence and wrongful forcible means. This description fits exactly what the Tatmadaw itself has done, but no other similar acts or attempts by any party have occurred or even been cited, except for the dispute with the Election Commission, a matter which in most systems – but not in Myanmar – is resolved by the courts and other appropriate bodies, as recently occurred in the United States. The stated issue, again, does not exist, and even if it did would not support the coup that has occurred.

Another problem is that the power to declare an emergency rests with the President, after coordinating with the National Defence and Security Council (NDCS). While the Tatmadaw called for an NDSC meeting, only the Tatmadaw members attended. Far from what is envisaged in s.417, the Tatmadaw arrested the very person who is empowered to declare an emergency. To maintain a veneer of legality the Vice-President nominated by the Tatmadaw under Myanmar’s electoral college system is installed as Acting President. But nothing justifies the assumption of office by the Tatmadaw-nominated Vice-President. At best, I suggest, there might be a rather tenuous argument based on necessity; but again, there is nothing necessary about this coup in the first place.

Read the full article here.