By Daniele Rumolo
Daniele Rumolo is a human rights practitioner with over a decade of field work experience in the Balkans, Middle-East, and Asia with the United Nations and other international organizations.
An unlawful seizure of power
In the early hours of 1 February, the Myanmar Army – known as the Tatmadaw – detained the country’s political leadership ahead of the swearing in ceremony of the new parliament following the political elections held in November 2020. Among others, the Tatmadaw detained President U Win Myint, State Counsellor Aung San Suu Kyi, and all previous Ministries and parliamentarians of the National League for Democracy (NLD). Following the designation of the military-appointed Vice President Myint Swe as Acting President in accordance with article 73 of the Constitution, Myint Swe declared a state of emergency pursuant to article 417 of the Constitution and transferred legislative, judicial, and executive powers to the Commander-in-Chief for an initial period of one year.
Several authors and organizations, including the United Nations Office of the High Commissioner for Human Rights, University of New South Wales’ Professor Melissa Crouch, University of South Australia’s Senior Lecturer Dr Adam Simpson, and the International Commission of Jurists, have exposed the fallacies of the legal justifications put forward by the Tatmadaw to give legitimacy to their unlawful seizure of power. One of their most central critiques is that there was no emergency, constitutionally defined as an attempt “to take over the sovereignty of the Union by wrongful forcible means” resulting in “disintegration of the Union” or “disintegration of national solidarity”. The Tatmadaw staged the coup on the basis of electoral fraud without presenting any plausible evidence of their claims that over 10 million votes (approximately one third of the electorate) were fraudulent.
On the contrary, preliminary conclusions of international observers (here and here) recognized compliance with international standards and the Union Electoral Commission (UEC) violated Covid-19 regulations certified the results. The NLD was certified to have won 399 seats of the 664-seat bicameral Union Parliament, which includes the 166 unelected military seats granted to the Tatmadaw by the 2008 military-drafted Constitution. Therefore, even if the claims by Tatmadaw had held ground, the NLD would still maintain a majority of sets that could be contested during elections. Lacking a legally valid state of emergency, the actions by the Tatmadaw aimed at overthrowing an elected Government are unlawful.
The Civil Disobedience Movement
The opposition to the Tatmadaw materialized immediately after the arrest of the NLD politicians, with hundreds of thousands of people taking the streets to express their opposition to military rule and support for the continuous democratic development of Myanmar, request the unconditional release of the elected leaders, and demand a future based on the rule of law, respect of human rights, and fair economic development. Peaceful acts of protest continued in the night with people banging pots from their balconies given the imposition of curfews by the Tatmadaw in a failed attempt to halt the wave of opposition.
A strong signal to the Tatmadaw came from doctors and nurses, who decided to go on strike despite a still-troubling COVID-19 situation. However, the doctors stressed that Myanmar’s health system is underdeveloped due to decades of neglect during military rules and it relies mostly on external support. Therefore, the consequences of the coup – including possible sanctions, cutting of political ties with foreign countries, and interruption of delivery of aid and vaccines – may impose even more dramatic consequences on the population of the country. The decision of the medical personnel was shortly followed by other civil servants, including teachers, public transport sector, and occasionally police officers, as well as employees of private businesses such as banks and, most recently, monks.
Based on the example of other recent protests in the region, including Hong Kong and Thailand, the leaderless Civil Disobedience Movement continued to grow in size and creativity despite the great personal risks. While initially it was principally ethnic Bamar-based, the protests quickly obtained the support of minority ethnic groups. These protests show a solid cohesion of the Myanmar society against the military. Women, men, boys, and girls are peacefully demonstrating day after day and represent the last stronghold against an abusive military. They ask the world for actions rather than words and reiterate their readiness to give everything they have to prevent the military from returning the country to the black days of isolation regardless of personal risks.
On 9 February, police opened fire on peaceful demonstrators, critically injuring a 19-year-old woman who later became the first victim of this coup. While incidents have remained limited albeit there has been an increase in recent days, the Tatmadaw and security forces have not yet made systematic use of force to silence dissent. However, memories of the Tatmadaw’s brutal actions to suppress the student movement in 1988 and the monk-led Saffron Revolution in 2007, coupled with decades of ruthless military campaigns in the ethnic States including Kachin, Shan, Karen, and Rakhine, have led to the belief that a violent suppression of dissent is inevitable. On 16 February, the United Nation Special Rapporteur on the Human Rights situation in Myanmar launched a preventive appeal to all who could potentially have some influence on the Tatmadaw to call for calm and continued respect of the right of the people of Myanmar to peacefully demonstrate and express their dissent. This was preceded by a statement from 14 embassies in Myanmar calling on security forces to refrain from violence and condemning the ongoing arrests.
How has the Tatmadaw responded so far?
Upon seizing control, the Tatmadaw took swift actions to cement their power by establishing a State Administration Council (SAC) headed by the five generals composing the top of the military chain of command. This body immediately replaced judges at the Supreme Court as well as judges in State and Regional courts. The lack of independence of the Myanmar judiciary, both civil and military, had already been repeatedly highlighted as one of the main obstacles to a genuine democratic advancement of the country – these military appointments will likely result in a farcical display of justice by the Tatmadaw to support their pretenses of legality. The politicization of the judiciary and the processes brought before the military-appointed courts is already evident with the laughable charges brought against the President – having violated Covid-19 regulations for waving at a NLD convoy in the electoral period – and the State Counsellor – having illegally imported walkie talkies and violated Covid-19 regulations – which may lead to imprisonment. Convictions will bar them from running in the future elections announced by the Tatmadaw at the end of the emergency period. Their exclusion will likely be certified by the UEC, whose members have also been replaced in full with military appointees and whose first task was annulling the results of the elections by withdrawing the letters of accreditation issued to the elected members of Parliament.
To respond to the protests, the Tatmadaw first shut down Facebook, which is the most commonly used source of information in Myanmar. When users migrated to Twitter, it shut down that service as well, before ultimately switching off the internet for almost three full days. Currently, connectivity has been restored, although shutdowns occur during the night, with some speculating it is due to firewall upgrades carried out by Chinese companies on the overall Myanmar network structure. The Tatmadaw also approved a Cyber Security Law which imposes serious restrictions on online freedom of expression, and whose vague provisions allow for arbitrary interpretation and application with the scope of silencing dissent by imposing medium and long-term imprisonment penalties. During the NLD government, obsolete laws on defamation that lacked any clarity on the extent of their coverage were systematically used to shield politicians and Tatmadaw from criticism. There are therefore serious concerns that this Cyber Security Law will negatively impact the enjoyment of fundamental rights and freedoms, as voiced in an unusual statement opposing the passing of the bill issued by a telecommunication company registered in Myanmar.
This law, and above all its potential application, is perfectly consistent with the approach of repression that the Tatmadaw uses when faced with opposition. As of 16 February, 426 people have been arrested, including members of the Parliament, UEC, and NLD civil society organizations, as well as students, activists, civil servants, reporters, artists, monks, and lawyers. Human Rights Defenders and members of civil society reported that the military and the police, in some cases supported by unidentified thugs, carried out door-to-door night raids to take people away. Complaints were made that the internet shutdown imposed through the night was instrumental to prevent information and alerts sharing. Residents of the areas where these raids took place have reportedly organized themselves to patrol streets and defend themselves. While the need to respond to these kidnapping-like operations is more than comprehensible, the creation of area-based patrol groups in a country characterized by tens of different armed groups with various degrees of control over various territories is nonetheless a concerning development once more caused by the Tatmadaw.
From a human rights perspective, according to the findings of the monitoring activities of the United Nations Office of the High Commissioner for Human Rights, most detainees are held incommunicado without having access to lawyers of family members. The secrecy of military processes and actions, and to an extent the complete disregard for the rule of law by the Tatmadaw, make it unclear if any form of due process has been respected, including being brought before a court to hear the charges leading to the arrest, or if the treatment of prisoners, including freedom from torture or ill or degrading treatments and access to medical assistance, has been in compliance with national and international laws. The UN office warns that if circumstances of detention, including locations of deprivation of liberty, are not timely clarified, these acts may amount to enforced disappearances.
What is next?
It is nearly impossible to predict what will happen in the coming days in Myanmar. What is certain is that the Civil Disobedience Movement will continue to oppose a return to military rule that, over approximately 70 years, has only brought poverty and injustice to Myanmar. History indicates that the Tatmadaw feel no remorse in killing thousands, as they did in the so-called 8888 Uprising. The people of Myanmar are fully aware of it. However, for the seventeenth day now, they fearlessly and peacefully demand their right to have their vote respected.
The international community is toothless. The United Nations Security Council remains a hostage of its veto system that allows permanent members like China and Russia to protect the Tatmadaw. On 4 February, falling short of issuing a resolution, the members of the Security Council released a statement in which they expressed concern and emphasized the need for the continued support of the democratic transition in Myanmar. The United Nations Human Rights Council held a special session on 12 February producing an incredibly weak resolution, at least from the point of view of the substantive action the people of Myanmar are asking for. The Secretary-General’s Special Envoy for Myanmar warnedthe Tatmadaw of possible severe consequences in case of violent repression of the demonstrations. However, she failed to qualify her statement or indicate any consequence. The first country taking a strong position was New Zealand which cut diplomatic ties with Myanmar. The United States was the first to impose sanctions and it redirected 42 million USD allocated to the Government to civil society organizations. Canada and the United Kingdom also have imposed targeted sanctions while the European Union is still considering the matter.
The Association of Southeast Asian Nations (ASEAN), which is theoretically the only body that could exert some influence on the Tatmadaw, is unlikely to take any action, in compliance with its principle of non-interference in domestic matters, with a number of its members having described the coup as “an internal affair” On 1 February, ASEAN’s Chairman issued a statement calling to adherence to the principles of its charter, including democracy, the rule of law and good governance, respect for and protection of human rights and fundamental freedoms. No other information has been made available on any other action, diplomatic or otherwise, that ASEAN may have taken with the Tatmadaw.
Talks of sanctions, which appear to be the only measure at disposal, have pros and cons, but have been heavily criticized by several analysts and Myanmar experts. Private companies could play an important role by ceasing any engagement with military companies and their affiliates, as strenuously recommended by the Independent International Fact-Finding Mission on Myanmar, while continuing deals with non-military businesses after implementing thorough human rights due diligence processes.
Politically, it is unlikely the Tatmadaw will willingly relinquish power and restore the situation they have disrupted. The risk is that they will stall until the interest of the international community will fade away and they will have to reluctantly engage to an extent with the Tatmadaw. Meanwhile, the Tatmadaw will have free hand to arrest and terrorize the population of Myanmar by adopting and selectively implementing undemocratic laws without any compliance with international norms and principles. Once they feel secure enough, they may call for elections in which only military approved candidates will participate to pursue, in the words of the Commander-in-Chief, “discipline-flourishing democracy and development of the country”.
Therefore, the only solution is to support in any possible way the Civil Disobedience Movement and their demands for democracy and respect of the electoral results. While the Tatmadaw will seek some form of international recognition, it becomes imperative that the level of attention and advocacy on Myanmar remains on everybody’s agenda, including states, international and non-profit organizations, academia, and civil society movements at large. Avoiding long-term adaptation to the status quo appears to be the most feasible response in an effort to uphold democratic and human rights principles.