By: Nitisha Makharia, SVKM’s Pravin Gandhi College of Law

The Myanmar army has a history of meddling with the country’s politics. It all begin with the 1962 coup, in which the democratically elected government of the Prime Minister U Nu was toppled down by the army. The political ambition of the army has always been an impediment in the path of democracy in Myanmar. In 1990, The National League for Democracy (NLD) was prevented from forming a government after its decisive victory in the elections, due to the rejection of the result by the military.

Suu Kyi nearly spent close to two decades in detention, after organizing rallies calling for democratic reform and free election. In 2010, Myanmar ventured into a unique experiment in democracy largely initiated by the army.[i] The military-maintained power by reserving seats in the nations parliament. However, Myanmar has had quite a success in its unique type of democratic experiment, which enabled Aung San Suu Kyi to lead the NLD to build a government after the first openly contested general elections in 2015.

Despite military’s animosity Suu Kyi seemed to have navigated well the country’s democratic brand, creating the illusion that democracy in Myanmar had deeper roots. While in reality, neither the Myanmar society is entirely democratic, nor are the institutions rooted in democratic conditions.

2021 MILITARY COUP: THE FINAL BLOW

The 2020 elections in Myanmar resulted in a landslide victory for the NLD, causing a political turmoil and prompting the military to stage a coup. On 1^st February, just a few hours before the new Parliament were to convene and put forth its candidatures, military cars and trucks were sweeping the road, the press outlets were shut down, internet connections were suspended, and banks and markets closed off.  History is repeating itself and the military is now back in charge and has declared a year-long state of emergency[ii] under Article 417 of the 2008 Constitution.[iii]

Suu Kyi and several NLD MPs are being held at an unknown location facing several charges, including violating the country’s official secrets act, possessing illegal walkie-talkies and publishing information that may “cause fear or alarm”. Tens of thousands of civilians have taken the streets nationwide against the coup. Water cannons were used by the military in an attempt to disperse the protesters, but when the response escalated, rubber bullets and live ammunition were also used. More than 500 innocent civilians have been killed. The military has sunken to a new low, by taking the lives of the innocent people, including children’s.

This is not a sudden development, suspicions about the military overthrowing Myanmar’s democratically elected government have been circulating for several days. The action has been taken because irregularities were not addressed by the Union Election Commission (UEC), where the military claims that the elections held in November 2020 were rigged.

The military claims to have discovered over a million irregularities, indicating potential voter fraud across all the regions. Since the government failed to address the military’s claims of electoral fraud, the NLD’s decision to form a new government and convene a new Parliament amounted to an attempt to forcibly seize state power.

Observers have stated that, the real reason of the military takeover was not the government’s dereliction with regards to the November elections. A total of 390 seats were won by the NLD, while the military-backed Union Solidarity and Development Party, barely managed to win 33 seats. This raised disquietedness among the military that their power would be curtailed by a democratic government. This action clearly reflected that the top military commander, Senior General Ming Aung Hlaing, who was slated to retire in July 2021 did not want the power to be taken away from him.

Aung San Suu Kyi’s silence and aloofness over the issue of displaced Rohingyas has not only stripped off her image, but her defense of the army on the international stage has brought her international disgrace. Ironically, she is now being detained by the army and facing a slew of largely insignificant charges as a result of her actions. It could serve as a lesson for democratic leaders to recognize that making changes that harm democratic values and principles is ultimately futile.

MILITANT CONSTITUTIONAL BACKGROUND

The Myanmar constitution drawn up by the military government in 2008 has a boundless role to play behind this move. The so-called democratic constitution of Myanmar appears to believe only in the “protection, preservation and promotion” of the interest of the military junta. Instead of treating democracy as, “government of the people, by the people, and for the people”.

The military regime ensured itself a leading position in the country’s politics and government, against all democratic values. Some of the provisions that favour the military include reserving 25% of parliament seats (Art. 14)[iv] and reserving the nomination of ministers of defence, internal security, and border affairs (Art.17 b)[v]. The right to seize power in an emergency (Art. 40 c)[vi], as well as the establishment of the National Defence and Security Council as the most powerful body in times of crisis, with military members having the upper hand (Art. 201)[vii].

The constitution stipulates that the Commander-in-Chief of the Myanmar Army is the ultimate military authority that can displace the President. Interestingly, the Constitution allows the Military Chief “the right to take over and exercise State sovereign power”.[viii] This means any event where the democratically elected government does not exercise its authority in the right manner. The legal apparatuses enacted have bestowed vast powers on the military without subjecting it to prosecution. In the past, this has contributed to Tatmadaw’s various coups, including the house arrest of Aung San Suu and the junta’s abstention from the 1990 elections.

INTERNATIONAL REACTION

Several major world leaders quickly condemned the coup, demanding that Myanmar’s military immediately free Ms. Aung San Suu Kyi and the other detained government officials and honour the November election results.[ix]

U.S. President Joe Biden orders sanctions that will allow his administration to freeze 1 billion dollars in assets in the U.S. against the military regime in Myanmar. The new sanction will freeze the assets that benefit the military leaders, while it still supports the areas that is beneficial for the countries people. “The military must relinquish power it seized and demonstrate respect for the will of the people of Burma,” Mr. Biden said.[x]

New Zealand announced suspension of all high-level political and military contacts with Myanmar, as well as travel bans on Myanmar military leaders and suspension of government assistance. Josep Borrell, the European Union’s High Representative for Foreign Affairs, said he would advocate the imposition of targeted sanctions on Myanmar’s military leaders and military-owned undertakings on the European Council.

The current coup has prompted the regional body, the Association of Southeast Asian Nations (ASEAN) and its members to take matters into their respective own hands, which is quite remarkable, considering the fact that ASEAN is not known to deal with the domestic affairs of the Member States. While the Bay of Bengal Initiative for Multi – Sectoral Technical and Economical Cooperation (BIMSTEC) has remained deafeningly silent since  the coup, considering the fact that the Republic of the Union of Myanmar holds membership.

INDIA AND CHINA’S POSITION IN THE COUP

India and China, two neighbouring states of Myanmar have different position in the coup.

A steady stream of people who refuse to follow the Junta have crossed the Myanmar frontier and entered the northeastern India state of Mizoram. Amongst them are the police men who refuse to obey the Junta’s order to shoot the activists protesting against the military coup. The Myanmar government has asked India to repatriate the police officers back to Myanmar as a friendly gesture. However, India has not departed them yet.

New Delhi, on the other hand, has made it clear that Myanmar nationals fleeing to India are not welcome. The border with Myanmar has been sealed and the paramilitary Assam Rifles, guarding the border between the two countries, is on an increasing vigil.

‘We believe that the rule of law and the democratic process must be upheld. We are monitoring the situation closely,’ said Ministry of External Affairs[xi]. India’s current caution cannot be ignored, while the world’s largest democracy has clearly expressed its support to the democratic transition, but at the same time it has also avoided criticizing the military. It does not want to undermine and jeopardize its close rapport with Tatmadaw that it has built up for more than 2 decades.

 India’s purposeful and deliberate outreach through its Act East Policy has improved defense and trade relations between the two nations and led to India launching major infrastructural initiatives, such as the Kaladan Multi-Modal Transit Transport Project and the India-Myanmar-Thailand Trilateral Highway, which are intended to compete with China’s massive projects under the Belt and Road Initiative. India is amongst few countries that have provided Myanmar with more than $1 billion in support for the re-enhancement of its democratic processes, facilities and technical and infrastructure support to develop its healthcare and education services.

While China’s influence over Myanmar cannot be underestimated. For decades, the Chinese Communist Party and its military leaders had a strong relationship with the Myanmar army, and without consultation with Beijing the army would not have done so. While the friendly relations with China had been sustained by Suu Kyi, a democratic government would have reduced Beijing’s ability to manoeuvre for the long term. At the same time, PRC’s popularity in Myanmar was growing. India distancing itself from the present political turmoil in Myanmar would provide space for the dragon to grow its influence.

CONCLUSION

The ongoing situation in Myanmar highlights the shaky democratic system’s proclivity for prioritizing and appeasing the needs of the significant “other”. Especially, when we look at Rohingya Muslims exclusion from the citizenship. The Rohingyas are not only subjected to restricted freedom of movement but also denied, state education and civil service jobs in the Buddhist majority Myanmar.

 Moreover, Myanmar as a nation state, failed to create the necessary democratic transitions that would have allowed democratic structures and parties other than the NLD to flourish.

Much is expected out of the Myanmar citizens for ultimately the onus of making democracy successful in any state finally lies with the citizens of the state. Citizens as voters are to be vigilant, not only while exercising their voting rights, as well as afterwards.  It is crucial that the youth of Myanmar, rise up to the opportunity and protest freely without fear.

It appears to be very relevant that the development of democratic institutions and democratic culture is necessary for democracy to flourish. Only such actions will transform Myanmar into a resilient democracy. Although the military’s political hegemony exists and thrives, it is important to monitor whether or not any talks between the military and civilian government take place, or whether Myanmar reverts to the dark ages.

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[i]https://indianexpress.com/article/opinion/columns/derailment-in-neighbourhood-7171976/ last visited on 22/4/2021 at 19:29 IST.

[ii] https://www.bbc.com/news/world-asia-55902070 last visited on 22/4/21 at 19:40 IST.

[iii] Article 417, Constitution of Republic of The Union of Myanmar.

[iv] Article 14, Constitution of Republic of The Union of Myanmar.

[v] Article 17 (b), Constitution of Republic of The Union of Myanmar.

[vi] Article 40 (c), Constitution of Republic of The Union of Myanmar.

[vii] Article 201, Constitution of Republic of The Union of Myanmar.

[viii] https://www.orfonline.org/expert-speak/will-myanmar-return-back-to-the-dark-ages/ last visited on 22/4/21 at 20:05 IST.

[ix] https://www.nytimes.com/article/myanmar-news-protests-coup.html last visited on 22/4/21 at 20:05 IST

[x]https://www.thehindu.com/news/international/joe-biden-orders-sanctions-against-myanmar-after-military-coup/article33805522.ece last visited on 22/4/21 at 20:10 IST

[xi] https://www.thehindu.com/news/national/india-expresses-deep-concern-over-military-coup-in-myanmar/article33714231.ece last visited on 30/4/2021 at 20:53 IST.