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A thread on #Myanmarcoup & legal aspects. As we know, the army stayed a coup the morning a new Parliament was set to convene on Feb 1. They released a statement announcing a one year state of emergency (SOE) (THREAD)
The document was signed by VP ex-General Myint Swe, as ‘Acting President’. The SOE was declared under sections 417 and 418 of the constitution drafted by the military #Myanmarcoup #Myanmar #Burma (2)
Well, I’ve spoken to constitutional experts on Myanmar, both in and out of the country, and they have all said the SOE declaration is "completely illegal". For the sake of their safety I'm keeping them anonymous but I'm going to relay what they have told me (3)
And what they said is largely supported by the writings of leading constitutional law expert @MelissaACrouch. For the sake of simplicity, I will give a high-level summary but please follow her for more in-depth analysis. And thanks to @saimyintaungmm for some clarifications. (4)
The 2008 constitution allows only the President (ie U Win Myint) to declare a SOE, not the VP or the commander-in-chief (CIC). Military claims ex-General Myint Swe is ‘Acting President’ after they took President U Win Myint (the legality of which also highly questionable). (5)
VP can act on behalf of the President under section 73 “if the office of the President falls vacant due to his resignation, death, permanent disability or any other cause.” U Win Myint has not resigned, died, or suffered from permanent disability. (6)
The constitution does not say what ‘any other cause’ means. However, any questions on the interpretation of the Constitution can only be decided by the Constitutional Tribunal (not the President or the Tatmadaw). (7)
Therefore, ex-General Myint Swe is not a lawfully elected Acting President. The SOE declaration and handover of power to CIC by Ex-General Myint Swe is completely unconstitutional. (8)
Also, Tatmadaw (what the army is called in Myanmar) claims the alleged voter fraud (which observers said did not really exist) constituted an emergency under the constitution. Well, again, the Tatmadaw is using its own interpretation. (9)
In the constitution, Tatmadaw's job is to ‘safeguard’ rather than to interpret, the constitution. If military wants to assert alleged electoral fraud constitutes a state of emergency, it needs to file a case at the Constitutional Tribunal, not arrest lawfully elected MPs (10)
In other words, the military is not abiding by its own 2008 constitution. It is flagrantly flouting the very rules it drafted to give them impunity; the rules that NLD agreed to play by when it re-entered politics and now paying the price. (11)
Time and again, the military has said they will abide by the constitution, most recently on Jan 29 ( https://www.reuters.com/article/us-myanmar-politics/myanmar-military-says-it-will-protect-and-follow-constitution-idUSKBN29Z09L). The coup shows they have not. You may say, the 2008 constitution itself is a problem, so why should we care if the coup is constitutional? (12)
Well, constitutionality greatly influences how countries, especially democratic ones, decide whether to recognise the junta as legitimate government of #Myanmar. If other countries believe Tatmadaw follows the Constitution, they may do so. (13)
Remember the $350mil IMF transferred to Myanmar for COVID-19 response last week? https://www.reuters.com/article/us-myanmar-politics-imf-idUSKBN2A303R That money belongs to the people of Myanmar and is probably sitting alongside billions of Myanmar’s foreign exchange reserves... (14)
in the account of the Central Bank of Myanmar in the US Federal Reserve. Scholars say the military junta cannot actually take the money into their own pockets so long as the US government does not recognise the military junta as the legitimate government of Myanmar. (15)
Let me repeat - That money belongs to the 54 million people in Myanmar, who are suffering from an economic crisis on top of a pandemic. Now we don’t know if that money has already been taken out by the military so that might be a write-off. (16)
Even then, there’s still a chance to get international pressure to bear before the military replaces Myanmar ambassadors abroad and representatives to the UN, I’m told. (17)
Remember all those Myanmar reps to the UN under military rule who offered platitudes & whitewashed any attempts to investigate the junta's terrible conduct against its own people? The voice of Myanmar on the world’s stage could again become the voice of the military. (18)
Under int'l law, a govt must not only control all the national territory, but also must have ‘the obedience of the bulk of the population’, & ‘this control, authority, and obedience should appear to be of permanent character’. To know more, read http://classic.austlii.edu.au/au/journals/MelbJIL/2010/14.html (19)
Which is why the civil disobedience movement (CDM) is crucial. I'm told that for so long as the CDM is ongoing and widespread, there is no way the military junta can meet the legal criteria of a legitimate government under international law. (20)
Which means the government of President U Win Myint remains the legitimate government of Myanmar until the democratically and lawfully elected MPs approve a new government. (21)
This will all sound like technical legal points, but they matter. They matter for 54 million people in Myanmar. It is their lives and future that are at stake. They just want to live without soldiers breathing down their necks. This is beyond NLD or Aung San Suu Kyi. (22)
MPs elected in Nov 2020 polls convened the parliament via Zoom yesterday, ( https://twitter.com/MyatMonMonMyat/status/1357729877152043010?s=09) witnessed by diplomats and released this statement. One expert told me they think this might be one reason for the internet shutdown. (23)
So Zoom meetings out of question now. Again we can dislike 2008 constitution & NLD, but it exists & military said it will abide by it, & as per THAT constitution, the only legitimate representatives of people of Myanmar remain the MPs elected in November general election. (ENDS)
