The Myanmar military says the takeover is constitutional, but there has been gross sleight-of-hand
Myanmar’s military has seized control of the country after detaining de facto leader Aung San Suu Kyi, President Win Myint, and other politicians in a pre-dawn raid yesterday morning.
The power grab by the army follows months of heightened tension between the military and the civilian government in the aftermath of last November’s election. This tension escalated significantly during the past week, with the country hurtling headlong into a serious confrontation.
Since the middle of last week, there have been substantial troop movements in the capital Naypyidaw and the main commercial city Yangon. Tanks and armoured vehicles have been patrolling both cities. Routes out of Yangon and Naypyidaw have been blocked off at times. Both cities experienced large, rowdy demonstrations of pro-military supporters over the weekend.
Ostensibly, this was a conflict over the election results which are being strenuously disputed: The NLD convincingly won the election according to the body that oversees the election -- the Union Election Commission (UEC) -- but the military and its political partners are alleging vigorously that the vote was rigged. Two pro-military parties -- the Union Solidarity and Development Party (USDP) and the Democratic Party for National Politics (DPNP) -- have even taken their case to the Supreme Court to get redress for their complaint.
On Friday, they applied to the Supreme Court for writs against the UEC on the basis of their evidence of election fraud. After hearing opening arguments, the court deferred its verdict for two weeks.
There is no doubt that the electoral process -- especially the voter lists -- was significantly flawed. Although local and international monitors agreed that the election was poorly run, they believe the outcome was legitimate. The military is alleging that they have evidence of over 10 million cases of voter irregularities and fraud in November’s polls, and is demanding the election commission release the electoral roll for cross-checking. According to the military, there are more people registered on the country’s voter lists than the total population.
The army has declared a state of emergency in reports and video messages broadcast on the army’s own TV channel Myawaddy. It also announced the creation of a caretaker government, led by the current vice president, former general Myint Swe -- a military stalwart who was appointed by the army to the post back in 2016 -- who has also been named as the new president: The transfer of all executive, judicial, and legislative power to the commander-in-chief for the next 12 months; after which there would be fresh elections, and the interim government would hand over power to the winner of that election.
Despite this draconian move, the army continues to insist it is acting legally and according to the constitution. Its statement cited article 417 of the constitution, which permits a military takeover in the event of an emergency that threatens Myanmar’s sovereignty, or that could “disintegrate the Union” or “national solidarity,” which the army contends prompted it to act.
As a pretext, the military is using the UEC’s alleged failure to address the “huge irregularities” in the November election, which the Tatmadaw said endangered the “sovereignty of the people.” The statement also claimed that the wide-spread protests -- largely in support of election fraud claims, much of which was instigated by the military -- were “threatening national stability.”
But this is flawed, for while the military says the takeover is constitutional, there has been a gross sleight-of-hand: Section 417 is supposed to be initiated by the president in consultation with the National Defense and Security Council (NDSC). The section says: “The president may, after coordinating with the National Defense and Security Council, promulgate an ordinance and declare a state of emergency.” But even then there are ambiguities, as the constitution vaguely suggests it only has a coordinating role in regard to states of emergency.
Officially, the NDSC is made up of the president, two vice presidents -- one from the military -- the speakers of the two houses, the foreign minister, the army chief and his deputy, and the three military-appointed ministers -- border affairs, defense, and home affairs, giving the military the majority in a vote.
But the army’s claim that the NDSC -- in a meeting yesterday morning -- approved the state of emergency is spurious. The meeting in fact only included the six military representatives, chaired by Vice President Myint Swe in the president’s absence. The vice president can only deputize for the president in the event of his resignation, death, permanent disability, or any other cause. Given that he has been detained, and his whereabouts are unknown, this is stretching legal niceties.
Sources close to the NLD say the party is contesting the legality of Myint Swe’s elevation to president, suggesting he has no legal power to revoke President Win Myint’s authority and cannot legitimately be president.
Suu Kyi’s letter
Aung San Suu Kyi left a hand-written letter -- prepared in anticipation of her detention -- with other leaders of the NLD, according to senior party members, Kyi Toe and Win Htein. In it, she urged her supporters not to accept the situation and protest peacefully against the coup. She suggested the military’s actions returned the country to a dictatorship. She insisted that the Tatmadaw clearly contravened their own constitution, the election results, and the will of the people.
So although as yet the new military junta has not outlined its proposed plans for the next 12 months, nor appointed a Cabinet, it has made clear its priorities. The Tatmadaw will govern to protect the economy, manage the Covid crisis, and finalize the peace process, according to its latest statement.
“The intention is to restore normality to people’s lives as quickly as possible: Reopen factories, businesses, restaurants, and schools,” said a source close to some senior military figures. “The idea is to de-dramatize the situation, and show how much more effective a government it is to the NLD.”
Larry Jagan is a specialist on Myanmar and a former BBC World Service News editor for the region. This article previously appeared in The Bangkok Post and has been reprinted by special arrangement.