The blog is authored by, Akshay Sharma, penultimate year LLB Honours student of a 5-year integrated law degree program at Institute of Law Nirma University with a keen interest in Public International Law and humanitarian law.
Header Image Credits: Pexels Free Photo
The blog aims to bring to light the real issues associated with the “5 points plan” to restore order in Myanmar, that make it difficult to execute a theoretically viable solution to Myanmar’s crisis. Furthermore, the blog will attempt to suggest some solutions that might be able to bring the nation to stability and peace.
On the morning of 1 February 2021, Myanmar’s military – Tatmadaw deposed the members of the ruling party and declared a state of emergency which resulted in the imposition of military rule. The 2021 coup occurred in the aftermath of the general election on 8 November 2020, in which the NLD won 396 out of 476 seats in parliament, an even larger margin of victory than in the 2015 election. The military’s proxy party, the Union Solidarity and Development Party, won only 33 seats. The army disputed the results, claiming that the vote was fraudulent and that it threatened national security.
Since then, attempts are made by various nation-states and international organizations to have a dialogue with the military in the hope to alleviate the gravity of the situation in Myanmar. Some states like the USA also imposed sanctions in an attempt to daunt the barbaric spirit of despotism displayed by Myanmar’s military.
Amidst these attempts, ASEAN states with Myanmar’s junta chief Min Aung Hlaing reached a five-point consensus on how to tackle the political crisis the country is facing. In a statement announced by ASEAN’s chair, the Sultan of Brunei, the states in their five-point consensus called for 1) the immediate cessation of violence in Myanmar; 2) constructive dialogue among all parties concerned to seek a peaceful solution in the interests of the people; 3) mediation to be facilitated by an envoy of ASEAN’s chair, with the assistance of the secretary-general; 4) humanitarian assistance provided by ASEAN’s AHA Centre and 5) a visit by the special envoy and delegation to Myanmar to meet all parties concerned.
These 5 points seem enough to tackle the chaos and bring order to Myanmar but they aren’t easy to implement in reality. It can be observed by the fact that only two days after the Jakarta meeting, the coup leader Min Aung Hlaing denied Myanmar’s commitment to this consensus, stating any of these points can only be implemented once the junta can ensure peace and stability in Myanmar.
LACK OF REASON TO CURB VIOLENT PRACTICES OF MAINTAINING ORDER
According to the United Nations, more than 1,100 people have been killed since February 2021, the majority of them during security forces’ crackdown on strikes and rallies aligned with Suu Kyi’s deposed regime. Millions of people have flocked to the streets around the country to peacefully protest the military takeover, calling for a restoration to a democratically elected civilian regime. Security personnel has shot on and otherwise used excessive force to disperse and harm demonstrators as part of a broad and systematic onslaught on the citizenry. Over 900 demonstrators and bystanders have been slain by the security forces, more than 100 civilians have been disappeared and many, who are in custody, are tortured and raped.
The belief that the military will curb the violent practices it has employed is utterly misconceived. The only power that an institution like Myanmar’s military has is force. No institution will voluntarily give up the only thing that makes it influential in a state. Furthermore, in a state of constant protests and distress among the masses, the military will choose a command & control approach rather than giving in to the international sentiment of peace and humanity.
CONSTITUTIONAL BREACH BY THE MILITARY
Under the Constitution of Myanmar, the commander-in-chief of Myanmar’s Armed Forces is his own boss. He doesn’t report to the president nor is answerable to anyone. Moreover, even the role and responsibilities of the commander-in-chief often override that of the President. In addition to nominating military candidates for seats in both houses of parliament, the Constitution grants the commander-in-chief “the authority to take over and exercise State sovereign power” in the case of a state of emergency. The constitution also prohibits “retrospective” criminal law, which may have been included to protect the military from prosecution for prior offenses.
Be that as it may, the legality of the coup has been questioned by many legal scholars and institutions. The International Commission of Jurists found that overthrowing the democratically elected government, the military has violated Myanmar’s constitution since the alleged election irregularities did not warrant the proclamation of a state of emergency in consonance with the Constitution. The military invoked Articles 417 and 418 of Myanmar’s new Constitution as the legal foundation for the military takeover during its statement. However, Article 417 of the Constitution allows only the president of Myanmar to declare a state of emergency after consulting with the National Defense and Security Council (NDSC). No such constitutional procedure was observed during the whole military overthrow and thus, making the coup unlawful.
INTOLERANCE TOWARDS SPECIAL ENVOY
The ASEAN’s five-point consensus also includes the appointment of a special envoy for constructive dialogue with the military Junta. However, this is not as easy as it seems. ASEAN has already taken a long time to appoint Erywan Yusof as the special envoy. The delay took place because the choice of personality, form, and mandate of the envoy, who was to be appointed was different for all member states. Some ASEAN countries wanted the special envoy’s mission to be comprehensive, including mediation and facilitation of the peace process as well as the disbursement of humanitarian supplies, so that the envoy might play a larger role in achieving success. Others argued that the special envoy’s mission should be restricted in its scope to persuade the junta gradually, as the junta will not suddenly accept all the demands posed by the ASEAN.
As expected, Myanmar’s military junta voiced its opposition to Erywan’s appointment as the junta leader preferred a Thai candidate. The biggest obstacle will be the attitude of the military junta, upon whose cooperation the special envoy will depend. The most difficult issue for Erywan as a special envoy may be to guarantee that his accomplishments surpass any benefits that the junta may derive from the diplomatic process. This is because in a simple negotiation process mutual demands are taken into considerations and are sought to be fulfilled. However, in the case of Myanmar’s military, ASEAN states cannot trust the demands of the junta as it is evident from their stance that “maintaining law and order” as they deem fit is of utmost importance. Thus, it is most important to ensure that the envoy is not used as a way to stall pressure on the military and delay solutions. It must impose pre-conditions that include an immediate end to the violence and the release of all political prisoners.
HUMANITARIAN ASSISTANCE & JUNTA’S ORDER
The military coup since February has led to considerable violence and displacement of people. This has in turn led to a stark economic decline and a subsequent uptick in food insecurity. Millions of people presently require humanitarian assistance, and this number is certain to grow if basic humanitarian relief is not provided at its earliest. Significant access constraints are restricting people’s mobility and diminishing employment prospects, livelihoods, and regular access to healthcare. With such constraints, the finance sector has hit a block as people are not able to withdraw cash, and banks, in general, are having a limited operation. The COVID-19 epidemic compounds an already hazardous and complicated situation. With limited access to healthcare, there has been an increase in the daily COVID – 19 cases and deaths in Myanmar.
The spokesperson of the military administration also refused appeals from ASEAN members to allow humanitarian workers to distribute assistance to places where they considered it was most needed.
WHAT NEEDS TO BE DONE?
The five-point consensus is surely the hope of ASEAN member states and the whole world in general. But this plan needs more than simple efforts to establish peace, order, and democracy in Myanmar. The junta is not easy to break as discussed earlier. To guarantee that the requests of ASEAN members are met, the special envoy must move quickly and with skillful diplomacy so that he does not become a player in the junta’s game of pretending to act while retaining its grip on power and subjecting the people to its brutal rule.
Even though it was not included in the five-point accord, the release of political prisoners and thousands of civilians is something that ASEAN should strongly support. The release would attract some goodwill and humanitarian assistance from the international community, which could be channeled through the AHA Centre to the border areas and communities where aid and supplies are badly needed.
While dealing with the military regime in Myanmar, it is more important if the 5-point consensus is backed up with some form of cutting edge tactics like economic sanctions which could demotivate the junta from carrying on its brutal operations in Myanmar. Without such pressure, the plan will be a futile effort.
Views expressed are personal.