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The Struggle for Legitimacy in Post-Coup Myanmar

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The Struggle for Legitimacy in Post-Coup Myanmar
Kimana Zulueta-Fülscher

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Democratic reform in Myanmar has suffered a grave setback. The EU’s response to the military coup must be strong enough to reverse the political crisis and restore and renew democracy in Myanmar.


Myanmar’s incipient transition to democracy ground to a halt on February 1, 2021. That day, the Tatmadaw—Myanmar’s armed forces—took power. They detained President U Win Myint, State Counselor Daw Aung San Suu Kyi, and other high-level government officials; impeded the first session of the newly elected parliament; and had the first vice president—now acting president—declare a year-long state of emergency.


As a result of this state of emergency, all executive, legislative, and judicial powers were transferred to Myanmar’s commander in chief, General Min Aung Hlaing. The question of whether he and his aides are abiding by the country’s constitution quickly became the center of their struggle for legitimacy. The EU needs to rethink its engagement with Myanmar’s stakeholders in this post-coup scenario.

Myanmar’s Constitution and Recent Political Turmoil

Myanmar’s current constitution, in force since 2008, is exceptional. The document not only took effect after a fifty-year-long military regime but was also drafted by individuals close to the Tatmadaw. As a result, while it represents a certain level of progress toward multiparty democracy and the rule of law, the 2008 constitution also ingrains the Tatmadaw in Myanmar’s state institutions.


The commander in chief can appoint three key ministers—those for the interior, defense, and border affairs—placing the entire security apparatus under military rather than civilian control. He also appoints at least 25 percent of the seats in national, regional, and state legislatures, giving the Tatmadaw an effective veto over constitutional amendments, which need the approval of more than 75 percent of members of the Union Parliament—the national legislature—to pass. Beyond this, the judicial system places courts that adjudicate cases involving defense personnel under the sole responsibility of the commander in chief.


The National League for Democracy (NLD) was established in 1988 after widespread student-led demonstrations against Myanmar’s military regime. The party and its leader, Daw Aung San Suu Kyi, represented a significant part of the democratic opposition to the regime until the party won its first general election in 2015. The NLD had boycotted the 2010 election, which was won by the military-backed Union Solidarity and Development Party (USDP). Daw Aung San Suu Kyi was under house arrest at the time of that election and was only released a few days afterward. However, encouraged by former Myanmar president Thein Sein’s conciliatory approach toward it, the NLD ran in by-elections in 2012 and won the 2015 and 2020 general elections, each time by a landslide.


The 2015 election was the first time since 1960 that Myanmar’s voters had been able to elect a parliament that would form a civilian government. This newly elected executive had no previous government experience and faced structural constraints. The constitution provided for a power-sharing arrangement between the government-elect and unelected Tatmadaw representatives. Beyond the military regime’s ability to block constitutional amendments, the Tatmadaw’s consent was also needed in the ongoing peace process, in which it is a major stakeholder. Myanmar’s lack of progress on urgent reforms can be partly attributed to the Tatmadaw’s ubiquity in all of these transition processes.


Notwithstanding these constraints, the November 2020 election showed that an overwhelming majority of Myanmar’s voters decided to trust the NLD again. Despite the coronavirus pandemic, turnout was high at 71.6 percent, and the party won 79.5 percent of the elected seats in the parliament. The USDP and the Tatmadaw rejected the results, alleging fraud and irregularities that undermined the credibility and fairness of the electoral process and its outcomes. However, the Union Election Commission—Myanmar’s electoral management body—rejected these accusations, stating that any errors were not on a scale that could discredit the election results. National and international observers, including the U.S.-based Carter Center, issued statements and reports indicating that the election had been conducted in accordance with international standards and principles.


Unhappy with the election results, the commander in chief assumed power on February 1, 2021, and the battle has since been about the constitutionality of his actions. As the commander in chief did not suspend the constitution, he seems to be seeking legitimacy by claiming that his actions were legal and justified by election irregularities. But despite obvious gaps in the constitution, most—if not all—actions taken by the military regime have no constitutional or legal grounding.


The Tatmadaw detained U Win Myint, Daw Aung San Suu Kyi, and other high-level government officials without presenting charges against them. Charges were only brought against the president and the state counselor after their detention. If the charges amount to grounds for impeachment, according to the constitution only the Union Parliament can initiate an impeachment procedure. But the parliament was illegally hampered from holding its first session, scheduled for February 1, as security forces kept members of parliament in their residences.


Myanmar’s president was immediately replaced by the Tatmadaw-nominated first vice president, U Myint Swe, as acting president. U Myint Swe then convened the National Security and Defense Council—with only military members attending—and declared a one-year state of emergency. He also transferred all executive, legislative, and judicial powers to the commander in chief. The constitution stipulates that the president has to inform the Union Parliament of a decision to declare a state of emergency. If the parliament is not in session, the president must call an emergency session. This did not happen. Hence, the state of emergency—and all decisions made on that basis—can only be regarded as unconstitutional.


As a result of the power grab, a civil disobedience movement was launched, and massive demonstrations were organized in cities such as Yangon, Mandalay, and Naypyidaw. On February 5, 289 elected NLD members of parliament (MPs) announced the establishment of the Committee Representing the Pyidaungsu Hluttaw (Union Parliament), or CRPH. The committee claimed that it was Myanmar’s sole representative body, declared U Win Myint the country’s lawful head of state and government, and initially expressed its commitment to the 2008 constitution. On February 26, Myanmar’s ambassador to the UN pledged allegiance to the committee, as have an increasing number of ambassadors since. Although the CRPH did not reach the necessary quorum to constitute the first session of the new parliament, it has increased its membership over time and negotiated with armed ethnic groups to establish a government of national unity. On March 31, the committee released Myanmar´s Federal Democracy Charter, including a new interim constitutional arrangement for Myanmar, meant to supersede the 2008 constitution.

Rethinking the EU’s Engagement

On February 22, the EU Foreign Affairs Council declared that the results of Myanmar’s November 2020 election had to be respected and the legitimate civilian government restored. The council also expressed its concern for—and commitment to support—civil society, human rights defenders, and journalists. Furthermore, the EU threatened “those directly responsible” with sanctions but left the door open for collaboration with “those willing to support democracy, the rule of law and good governance.” These were all steps in the right direction.


At the same time, the EU did not explicitly recognize the CRPH. The EU has positioned itself against acknowledging Myanmar’s military rulers as the country’s government but has shied away from formally recognizing the CRPH as the legitimate representative body. Several members of the European Parliament have in the meantime expressed their support for the CRPH after meeting some of its representatives.


Since 2012, the EU has been committed to helping Myanmar advance in its multiple transitions. The EU suspended its sanctions on the country in recognition of Sein’s efforts to reform and promised more development cooperation to enable governmental and nongovernmental organizations in their journeys toward democracy, sustainable peace, and inclusive development. The EU’s bilateral funding allocation to Myanmar for 2014–2020 significantly increased from that for 2007–2013, with total commitments rising threefold to approximately €688 million ($817 million). Priority sectors for bilateral cooperation included rural development, agriculture, and food and nutrition security (€241 million or $285 million); education (also €241 million); governance, the rule of law, and state capacity building (€96 million or $113 million); and peacebuilding (€103 million or $122 million).


The EU has announced that it is ready to support dialogue with all stakeholders who wish to solve the situation in Myanmar in good faith. But the EU has also repeatedly threatened those directly responsible for the coup—and the unwarranted killings of civilians afterward—with targeted sanctions. Beyond this, the EU needs to decide what it is willing to do to help Myanmar’s democrats harness this critical juncture as a stepping stone for reform.


Myanmar’s civil society, human rights defenders, and media have been united since the coup. The EU needs to support these actors in their immediate struggle against the increasingly violent military takeover. But this will not be enough. The EU should also issue a statement on the unconstitutionality of the Tatmadaw’s actions, including any future elections organized by the newly established electoral management body. Pressure on the commander in chief and his aides must come from other actors, too, including defense personnel who disagree with decisions made to date and developments on the ground. The EU needs to find ways to engage with these actors, either directly through its past work with Myanmar’s security sector or indirectly through individuals or organizations with a direct line to the Tatmadaw.


Beyond such diplomatic interventions, funding and on-the-ground support are needed as well. In the longer term, the EU must ramp up its capacity-building efforts for civil society organizations, including not only the media but also ethnic groups. Such support will, hopefully, prepare these stakeholders for the time after the coup, which, if pressure continues to mount, may come earlier than many expect.


It is understandable that the EU has had to temporarily suspend capacity-building projects that supported state institutions such as the Union Election Commission or the Union Parliament. However, the EU should recognize that the CRPH is the main contender to the Tatmadaw’s quest for legitimacy. The EU would be well advised to help the CRPH become more representative and continue strengthening its capacity as well as to start building a coalition of governments and regional organizations willing to recognize and support the committee. The CRPH is keen for external support and is already working to deepen its societal links and legitimacy. The EU will also need to decide whether to confirm the accreditation of Myanmar’s current or any new ambassador to the EU.


Myanmar’s state of emergency is unconstitutional and needs to be reversed as soon as possible. The longer it takes for this to happen, the greater the danger of instability and violence in the country, with implications for all neighboring states. The Charter of the Association of Southeast Asian Nations (ASEAN) provides that the organization and its member states, which include Myanmar, must act in accordance with the principles of “adherence to the rule of law, good governance, . . . democracy and constitutional government.” This stipulation, and the strategic partnership that the EU signed with ASEAN in 2020, could be an additional basis for the EU to engage with the association. ASEAN is well placed to stress the need for the Tatmadaw to adhere to the 2008 constitution.

Conclusion

Democratic reform in Myanmar has suffered a grave setback. The result of the 2020 election, in which parties close to the military suffered significant losses, motivated the commander in chief and his aides to take decisionmaking into their own hands by going beyond the existing constitution and engaging in a massive and violent crackdown against popular discontent. The struggle is one for legitimacy. The fact that the commander in chief did not formally suspend the 2008 constitution gives the EU more opportunity to hold him and his aides to account. The EU has rightly denounced the Tatmadaw’s actions but now needs to decide whether it will lead or follow other potential members of the international community in a response strong enough to reverse the coup and restore and renew democracy in Myanmar.


This article is part of the European Democracy Hub initiative run by Carnegie Europe and the European Partnership for Democracy.

Coup puts Myanmar’s crippling military capitalism in the spotlight

Coup puts Myanmar’s crippling military capitalism in the spotlight

Protesters gather in Yangon, main, as security forces continue to crack down on demonstrations against the coup. (AFP)


  • Travel bans and asset freezes since February’s coup draw attention to the generals’ sway over lucrative segments of the economy
  • Western countries likely to impose further sanctions on Myanmar, but Asian neighbors may be reluctant to follow suit
BERNE, Switzerland: Myanmar’s economy has long been shaped by the Tatmadaw — the nation’s powerful armed forces — and by the shifting whims of geopolitics, which together fashion the country’s global trade relations, particularly those concerning its large infrastructure projects.

Since the Feb. 1 coup, which overthrew Aung San Suu Kyi’s National League for Democracy (NLD) government, and the violent suppression of protests which has left more than 600 dead, momentum has been building behind efforts to impose sanctions on the junta.

To date, the US and UK have placed sanctions upon Myanmar’s two big military-owned conglomerates. Several OECD countries have also issued travel bans and asset freezes on army officers involved in the coup.

Pressure is building on companies with investment in the country to sever ties with its military-owned entities. For example, pension funds are pushing South Korean steel giant POSCO to break with its army-owned Burmese joint venture partner.



Meanwhile, Japan’s Kirin Beer, which had invested upwards of $1.7 billion in a joint venture with a military-owned holdings company, has split with its partner — although it plans to continue selling beer in the country.

Not all Western multinationals are on board. Total CEO Patrick Poyanne recently said the company must continue producing gas in order to maintain the country’s power grid and guarantee the safety of its workforce.

However, the oil giant said it would not pay its taxes to the military and instead intends to donate the equivalent sums to human rights organizations.

The Tatmadaw’s tentacles are wrapped so tightly around the levers of the economy, it is almost impossible for firms to do business in Myanmar without cooperating with at least one military entity.
Two organizations with direct links to the Tatmadaw hold immense sway over the economy. One is the Myanmar Economic Corporation (MEC), the other is Myanmar Economic Holdings Limited (MEHL).

MEC is involved in manufacturing, infrastructure, steel, coal and gas. While its raison d’etre is supplying the armed forces with raw materials, it also holds the monopoly over Myanmar’s insurance industry.

MEHL, meanwhile, is involved in banking, mining, agriculture, tobacco, and food manufacturing. Its revenues flow directly back to the military, which shields MEHL from civilian oversight. The MEHL owns Myawaddy Bank and the military’s pension fund.
The military controls much of the country’s banking sector, which was left badly underdeveloped following years outside the international financial system under sanctions targeting the 1962-2011 military regime.

The NLD government had intended to issue banking licences to foreign banks by 2021 — an effort thwarted by the coup.
Combined, MEC and MEHL own more than 100 businesses. They benefited greatly from privatization efforts in the 1990s and 2000s by picking up entities at fire sale prices.

Business practices in Myanmar are opaque to say the least — considered the very definition of crony capitalism. In 2018, Transparency International’s Corruption Perception Index ranked it 130th out of 180 counties.


The first NLD government (2015-20) tried to curb the power of the military by opening several sectors to competition, but refrained from going toe-to-toe with the all-powerful Tatmadaw.
The NLD did, however, succeed in transferring power over the General Administration Department (GAD) from the military-dominated Interior Ministry to the civilian government in 2018.
This was an important step in demilitarizing the governance of the country. Given the wide-ranging powers of the GAD, from land administration and service delivery to tax collection, it was evident that taking power away from the military would eventually have ramifications for the Tatmadaw’s stranglehold over the economy.
In the 2020 election, the NLD government ran on a ticket of increased transparency and the transfer of power away from central authorities and the military — a move that would have been felt in the generals’ wallets.

Although boosting competition and transparency would no doubt have liberalized the economy and attracted foreign investment, it would also have threatened Myanmar’s long-established power structures.

Fortunately for the generals, the Tatmadaw has powerful external friends. Myanmar is geopolitically important to many countries, who will cooperate with whoever holds power. These countries do not care who holds power; they just want to advance their political and economic interests.

Myanmar is strategically important to China, offering the rising superpower a land-bridge to the Bay of Bengal and an anchor country for its Belt and Road Initiative.

Until 2011, the Chinese government had a good working relationship with the junta, and had also come to an arrangement of sorts with the NLD government.

During his visit to Myanmar last year, Chinese President Xi Jinping revived the China-Myanmar Economic Corridor (CMEC) with no fewer than 33 memoranda of understanding.

The oil and gas pipeline linking China with the Bay of Bengal, the development of the deep-water port of Kyaukphyu, and the railroad linking Yunnan province to the Indian Ocean are all integral facettes of CMEC.

It is said to include projects worth $21 billion, in which the MEC and MEHL will no doubt hold substantial stakes. The NLD government, however, had concerns over China’s rising influence and Myanmar’s ballooning debts related to the CMEC.

India, meanwhile, sees Myanmar as an important bulwark against its rival, China. As such, the Indian firm Adani is involved in the construction of the port at Yangon. Delhi feels increasingly encircled by China’s Belt and Road Initiative.

The Association of Southeast Asian Nations (ASEAN) is Myanmar’s largest trading partner, accounting for 24 percent of its business, followed by China with 14 percent and the EU with 10 percent.
Fellow ASEAN member Thailand is Myanmar’s fourth-largest trading partner and an important source of foreign currency, sent in remittances by the millions of migrant workers employed there.
The excellent transportation infrastructure connecting Thailand’s northern city of Chiang Rai to the Burmese border highlights the importance of trade (both legal and illicit) between the two countries. Furthermore, both countries are now run by military regimes whose generals have social, economic, and political ties.

Lastly, Russia has a long-standing relationship with the Burmese military. In 2007, Moscow entered into an agreement with Naypyitaw to establish a nuclear research center and the two countries signed a defense cooperation agreement in 2016.

Russia also supplies the Tatmadaw with weapons. It was conspicuously the only country to send a ministerial-level delegate, Deputy Defence Minister Alexandr Fomin, to attend Myanmar’s armed forces’ day on March 27.

Although Western countries are likely to press ahead with sanctions on Myanmar, its Asian neighbors may be more reluctant to follow suit for myriad reasons, ranging from geopolitical considerations to neighborly and profitable business ties. Some ASEAN countries may also want to avoid being seen interfering in the internal affairs of a neighbor.

The Tatmadaw may therefore get away with overthrowing the NLD government and can go on accumulating wealth and economic clout. Likewise, many foreign entities will be willing to engage with the junta at a business level, both because it is profitable and as it is perceived to be in their own governments’ geopolitical interests.


ASEAN’s Myanmar Crisis

An anti-coup protester walks past burning tires after activists launched a garbage strike against the military rule, in Yangon, Myanmar March 30, 2021.

An anti-coup protester walks past burning tires after activists launched a "garbage strike" against the military rule, in Yangon, Myanmar March 30, 2021. Stringer/Reuters
Joshua Kurlantzick
April 14, 2021



With the situation in Myanmar disintegrating into chaos, and Myanmar possibly becoming a potential failed state, some regional powers, including the United States and Australia, have taken significant actions against the junta government. Australia has suspended military cooperation with the Myanmar military, and the Joe Biden administration has implemented a broad range of targeted sanctions against the junta and many of its businesses. Taiwan, which has significant investments in the country, has passed a parliamentary motion condemning the situation in Myanmar and calling on the junta to restore democracy. (Japan, historically reticent to take a tough approach toward Naypyidaw, has taken a more passive approach, calling on the Myanmar junta to restore democracy and having its defense head join a call rejecting the coup but so far not taking stronger moves.)

But Southeast Asian states, which have some of the greatest leverage over Naypyidaw—and certainly among the most to lose if Myanmar becomes totally unstable, with refugees flowing out of the country and conflicts possibly spanning borders—have done little about the crisis. Many regional states have remained silent on the coup and the atrocities, or have expressed mild concern. Indonesia has been an important exception, with President Joko Widodo condemning the violence and pushing for an emergency Association of Southeast Asian Nations (ASEAN) summit, which seems in the works, but with no fixed date yet even as Myanmar unravels.


Regional states claim they want to keep communication lines to Myanmar open, which is reasonable, but they have taken few other measures to address the crisis. As in many other crises, ASEAN remains torn, and with so many of its states now run by outright authoritarians or illiberal leaders who came to power in democratic elections, most of the region does not want to take a tough approach to the crisis.



The Association of Southeast Asian Nations could suspend Myanmar, as some analysts like Elina Noor have suggested, because of the coup—the African Union has suspended countries like Mali after coups—but ASEAN is highly unlikely to take such a step, and is unwilling to abandon its principle of noninterference. If ASEAN does not suspend Myanmar, many leading democracies may decline to join meetings with ASEAN, like the East Asia Summit, where Myanmar junta representatives attend. The organization will seem powerless to affect events in its region, a further sign of ASEAN’s diminishment—even though, as others have noted, many countries outside Southeast Asia have looked to ASEAN to mediate in the crisis and help come up with solutions.


There are virtually no signs the situation in Myanmar is going to improve any time soon. The junta recently refused to allow the UN special envoy for Myanmar to visit the country, the civilian death toll is spiraling, and a new criminal charge has been laid against Aung San Suu Kyi. The prospect of a national civil war, much broader than the existing conflicts in Myanmar, seems high. This is now almost surely ASEAN’s greatest crisis since the war in then-East Timor in the late 1990s and the financial crisis that rocked Southeast Asia at around the time. Since then, ASEAN has had triumphs, like building the ASEAN Economic Community. If individual ASEAN member-states, and the organization, continue to do virtually nothing as Myanmar becomes a failed state, what credibility will the organization have left?

 
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casual

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EU has no leverage here and should just stay out. The junta has successfully terrorized it's population from going out on the streets to protest so at least things are stable right now in the population centers. The civil disobedience movement from the protesters are still going on so the economy is in freefall. ASEAN diplomacy might workout some type of early election but until then the country will go back to it's poor isolated self a decade ago.
 

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