How the military perverts rule of law to oppress citizens
Image: Original art of Maung Maung Tinn, refugee from Myanmar, from “Born Free and Equal”
“When protestors refuse to listen to our orders to disperse, we shoot at the protestors in accordance with the law.”
These are the chilling words of a Tatmadaw soldier. Unfortunately, they are not isolated ones, and they show how the idea of “law” has been perverted to justify both the Feb. 1, 2021 military coup and the deplorable violence that has followed. The word “law” (or “upaday” in Burmese) has long been a tenuous concept in Myanmar. After decades living under a military dictatorship, in which laws were used as tools of oppression and could change at the whim of those in power, the people of Myanmar have, understandably, little trust in law. The recent actions of Min Aung Hlaing and the current junta have only further affirmed this perception. The concept of law and the related idea of the rule of law have been warped and manipulated by soldiers and police officers, many of whom believe they are enforcing the “law” to uphold order when they crack down on protests against the coup.
At a recent military tribunal, the “law” was weaponized as a tool to instill fear by issuing unappealable death penalty sentences to 19 young protestors for one soldier’s death even though there were no eye witnesses to the alleged crime. In telling contrast, since early February, nearly 800 unarmed civilians have been killed at the hands of Tatmadaw. It is difficult to imagine a version of Myanmar further away from rule of law than this one. There instead needs to be an all-out effort to strengthen the true meaning of the rule of law in Myanmar by both returning the country to civilian rule and undertaking constitutional reforms to enshrine democratic rights instead of using the military-drafted 2008 Constitution as a tool protecting military might.
“In Accordance with the Law”
Phrases like “in accordance with the law” or “in accordance with democracy” have frequently been used by Tatmadaw leadership to justify their illegitimate coup. Major General Zaw Min Tun, spokesman for the ruling military council, has said:
We will abide by laws that do not supersede the Constitution. Many laws have to be taken into consideration in executing political processes. We will not do anything that is not in accord with the law…. Police and other security personnel are carrying out their responsibilities in accordance with their manuals.
When a reporter asked whether the junta planned to arrest reporters, Zaw Min Tun continued: “All I can say it we will act according to the law. I will not say we will arrest nor not arrest someone. But we will act according to the law as necessary.” These empty claims are then parroted back by soldiers as they terrorize civilians across the country.
Since 1962, Myanmar’s successive dictators have used the military as the commander-in-chief’s personal army while the courts have been used to protect that army from any serious accountability. To the extent there has been any court action, the leniency of sentences only helps show the special treatment afforded the military. In one high-profile example, soldiers who massacred Rohingya civilians were released after less than a year of imprisonment, while journalists reporting on the atrocities have spent more time in jail than the perpetrators.
Today’s military junta is attempting to operate the same way, believing it is above the law, changing laws to suit their needs, and suppressing human rights defenders, activists, journalists, and anyone daring to challenge them. All of this has led to injustice and pervasive lawlessness whereby Tatmadaw soldiers are acting as if they can do what they please in the name of upholding an ill-defined concept of the “law” while the gloss of legality is used to silence any and all forms of dissent.
For instance, the military added new restrictions in February to the existing telecommunications law to “legalize” military interception of all communications, including text messages and social media. The military also amended the code of Criminal Procedure by adding a new section 505(A) to enable the arrest of anyone expressing dissent about the coup or the military and to render such criticism, whether online or public protest, a criminal offense subject to imprisonment. Hundreds of activists including celebrities have been arrested without warrant under 505(A) since its adoption on Feb. 16, 2021.
Since Feb. 1, soldiers and police can march into any household to search and seize anything or anyone at will without a warrant. Arbitrary detentions happen daily; anyone can be held by military or police for any length of time without reason or charges. Security forces searching homes and businesses have been reported stealing cash and valuables including rice, cooking oil, sunglasses, shoes, and smartphones while holding residents, including children, at gunpoint. In one instance, security forces broke into a phone shop to steal smartphones; the shop owner stated that he did not report the incident because reporting a crime committed by security forces would land the person who reported it in jail. Likewise, unarmed civilians waiting at bus-stops have been kidnapped by police for ransom of 300,000 kyat (~USD 200) to be released. Civilians are left wondering who to call to report violence and theft when it is the authorities attacking and robbing them. With the exception of desertion, misconduct by security forces has again become acceptable behavior “in accordance with the law” – at least in the eyes of military senior leadership.
Many elected representatives and civil society leaders are now in hiding, hunted by the military and police in the name of the law. Security forces have been committing extrajudicial killings of dissidents. Representatives from the National League for Democracy (NLD), the party that won a landslide majority of democratic votes, have been arrested, tortured, and killed.
Under this same guise of upholding the “law”, soldiers have met peaceful protests with brute force and indiscriminately shooting, wounding protestors and bystanders alike. Sexual abuse of women protesters has also been well documented by women’s organizations in Myanmar. Journalists reporting on gross human rights violations have been arrested and the licenses of independent media have been revoked in the name of keeping peace.
The junta’s declaration of martial law in Hlaing Tharyar, Shwepyithar, South Dagon, North Dagon, Dagon Seikkan and North Okkalapa townships in Yangon and parts of Mandalay townships only increased the military’s control and systemic violence. Such developments are terrifying. Under the Tatmadaw’s martial law, a military tribunal can issue an unappealable death penalty to anyone living in these townships—protestors, activists, and journalists included— who is accused of committing one of 23 offenses, which range from sedition and treason to spreading “false” news, drug abuse, and vandalism, all “in accordance with the law” without any civilian oversight. These military tribunals can also impose indefinite jail sentences, hard labor, and other extreme punishments for the same offenses.
The Constitutional Roots of Lawlessness – and a Response to Uproot that Lawlessness
The Tatmadaw’s sheer domestic might and tight control over its ranks enable it to commit even flagrant violations of the law and the Constitution without consequences. Military forces enjoy vast legal impunity under the military-drafted 2008 Constitution: Article 445 of Chapter 14 grants blanket immunity to members of the military government, protecting them from legal accountability.
But that position has now been challenged. The Committee Representing Pyidaungsu Hluttaw (CRPH), a political body formed by democratically elected members of Myanmar’s parliament to challenge the Tatmadaw’s illegitimate claims to power, publicly voided the 2008 Constitution on Mar. 31, 2021 and put forward an interim Federal Democracy Charter to replace it. Other political actors have also supported the CRPH’s position. The CRPH and others argue that the 2008 Constitution – already widely considered to be an illegitimate tool of military control before the coup – was rendered functionally obsolete when the Tatmadaw violated the document’s core purpose and disrupted the nation’s democratic processes to seize control.
On Apr. 16, 2021, the CRPH announced a further step in the response to lawlessness – the formation of the National Unity Government (NUG). The NUG cabinet includes the lawmakers elected in the 2020 election, members of the ethnic nationality groups, and key figures in the anti-coup protest movement. The NUG – with is wide representation of the people of Myanmar – stands in striking contrast with the military’s State Administration Council.
The Path Ahead: Achieving Genuine Rule of Law
There are many ways the junta can be pressured. The Civil Disobedience Movement has made great strides in weakening the military’s control over the State already—but the international community also has a key role to play in any successful effort to establish lasting democracy in Myanmar. Targeted sanctions at the bilateral and multilateral level have the potential to deprive the military of essential economic resources. A global arms embargo is also necessary to prevent the Tatmadaw from obtaining additional weapons that have been and will be used to oppress the people of Myanmar. A global jet-fuel embargo is needed to ground the military’s jet fighters from being able to conduct airstrikes against civilians.
In addition, the international community has an ongoing role to play in seeking accountability for past and current gross violations of human rights in Myanmar. There are already proceedings underway at the International Court of Justice (ICJ) and investigations at International Criminal Court (ICC) seeking to hold Myanmar accountable for violations against ethnic minorities. However, the current ICJ case is limited only to violations of the Genocide Convention and the ICC investigation is limited to atrocities committed against Rohingya Muslims relating to illegitimate forced displacement to Bangladesh. As the last three months have made painfully clear, the Tatmadaw has violated the human rights of civilians across the country, and international accountability must capture the full gamut of these crimes. The international community must ensure accountability at the highest levels of the military, but taking action against the top brass alone is not enough. Perpetrators from the officer corps and foot soldiers should also be held accountable.
In tandem with international accountability processes, the State of Myanmar will need to be rebuilt, including creating an impartial legal system for the country. As part of this process, the U.N. and international community must recognize the NUG as the legitimate government representing the people of Myanmar. It is fundamentally necessary that the rebuilding process has a strong constitutional foundation, and with support, the NUG can begin that process.
Because Myanmar has had such a dubious relationship to the law for over fifty years, there is a need for international assistance from constitutional law experts. Through input from constitutional law scholars, human rights lawyers, and other brilliant legal minds, Myanmar can design a constitution of its own that protects the people. Such a constitution would establish a federal democracy with equal rights for all people of Myanmar, guarantee citizenship for all ethnic and religious communities, and declare an end to military impunity. Protecting civic space and rebuilding the legal system to serve as an essential check on those in power will also be crucial. Within a functioning domestic legal system, impartial courts could eventually investigate and prosecute security forces internally, further building trust in the judiciary and leaving military impunity firmly in the past.
With these broad reforms in place, the cultural shift toward genuine rule of law could finally begin in earnest. International legal organizations, institutions and scholars could work with legal educators in Myanmar to ensure access to high quality legal education and produce well trained lawyers and advocates. Encouraging young students to critically engage with the law would start to shift public perception of the law as a tool of enshrining people’s rights rather than a tool of the powerful.
For decades, the sight of men in uniform has sent fear down the spine for the general public, and instead of houses of justice, courtrooms have been places of persecution of innocent civilians and political activists. Our hope is for a future where those in uniform are not to be feared but instead serve and protect every citizen by upholding an impartial rule of law for all of Myanmar and its people.
© 2021 Just Security