Statement by Myanmar civil society organisations on the unconstitutionality of new “laws”

We, representatives of Myanmar civil society organisations, assert that all “laws”, “amendments” or suspensions that are “adopted” by the State Administration Council are unlawful and unconstitutional under the 2008 Constitution.

The 2008 Constitution – written by the military – has multiple flaws in its basic respect for the rule of law and international human rights standards. While many of us have advocated for its amendment, we have abided by it as a sign of respect for the transitional process. The State Administration Council has not.

Article 417 of the Constitution provides that only the President may declare a State of Emergency and only in the limited circumstances of “the disintegration of the Union, the disintegration of national solidarity, or the loss of sovereign power”. No such circumstances have arisen, and the State of Emergency was declared by the Vice-President only after the President was unlawfully detained. Article 40(c) states that the Commander-in-Chief may take over power but only if there is a State of Emergency, only in the limited circumstances listed above, and only in accordance with the Constitution, which includes Article 417.

Therefore, the State of Emergency is patently unlawful under Article 417. Any measures carried out under the State of Emergency – including acts under Article 40(c) and the “adoption” of “laws” and “amendments” under Article 419 – are unlawful accordingly.

Furthermore, Article 418(a) provides that the Commander-in-Chief may only carry out “necessary measures” to restore the “original situation in the Union”. The State Administration Council has justified their unlawful State of Emergency on the basis of voter fraud with the aim of restoring the original pre-coup situation through holding elections within one year. Therefore, any measures that the State Administration Council takes must be necessary to achieve their stated aim of holding elections. Any measures – such as “laws”, “amendments”, or suspensions – that limit human rights or erode the rule of law cannot be regarded as either necessary or compatible with the aim of holding elections, and are consequently also unlawful under Article 418(a).

Any doubts regarding Articles 40(c), 417, 418(a), or how the government addressed voter fraud should have been settled in accordance with the 2008 Constitution, namely through the Constitutional Tribunal and the Courts. The State Administration Council did not do so. Moreover, the State Administration Council has since used powers under Article 419 to reconstitute the Constitutional Tribunal and the Supreme Court with newly appointed members, destroying the institutions’ legitimacy. Given that the State of Emergency is patently unlawful, any measures taken under Article 419 such as the appointment or dismissal of judges is accordingly unlawful.

We call on the State Administration Council to immediately:

  1. Cease the “adoption” of “laws” and “amendments”, and suspensions of laws,
  2. Respect the election results, return power to the elected parliament and government, and support constitutional reforms to establish a federal democratic union,
  3. Unconditionally release all those detained, 
  4. Restore and maintain full internet connectivity, and
  5. Refrain from all acts of violence and punishment, including against protesters, resolute MPs, and those participating in civil disobedience.

We also call on the international community – including the governments of China, Russia, and our ASEAN neighbours – to:

  1. Unconditionally condemn the coup, 
  2. Support the restoration of the government and parliament elected on 8 November 2020, and support constitutional reforms to establish a federal democratic union,
  3. Stop all cooperation with and assistance to the military, and
  4. Support those at risk during the coup, including those participating in civil disobedience.

This statement is the second statement published jointly by Myanmar civil society organisations, the first statement was entitled “Statement by Myanmar human rights organisations on Myanmar coup”.

Signed by,