In ISEAS’ first hybrid in-person/webinar event of 2022, Prof Andrew Harding and Ms Khine Khine Zin discussed the legal implications of the Myanmar coup, with an eye on what the rule of law means in Myanmar, for people, businesses, and for external engagements.
Myanmar Studies Programme Webinar
On Tuesday, 22 March 2022, the ISEAS Myanmar Studies Programme convened a hybrid seminar under Chatham House Rule inviting Professor Andrew Harding, a leading scholar in the fields of Asian legal studies and comparative constitutional law and Ms Khine Khine Zin, an Associate at Rajah & Tann Singapore LLP. Professor Harding recently published an edited volume in 2017 titled “Constitutionalism and Legal Change in Myanmar” which is the first book on constitutionalism in Myanmar since the 1960s. Ms Khine Khine Zin has been advising multinationals on applications to the Myanmar Investment Commission, market entry and labour law.
The seminar, which attracted the interest of 108 attendees, was moderated by Dr Oh Su-Ann of the ISEAS Myanmar Studies Programme. The discussion sheds some insights into what the rule of law means in Myanmar and the resistance movement’s efforts to make a new constitution. As the result of the ‘battle’ over the representation of Myanmar internationally and regionally, Myanmar in 2022 engendered many concerns not only for the people but also for the trade and investment climate. The key discussion points presented both macro and micro perspectives.
Macro perspective:
- The past, present and future of Myanmar’s legal scenarios and structure require a macro-level assessment.
- Discussing the legal implications of the coup may be moot, as the coup itself is illegal and unconstitutional, even though the military claimed and still claims that their actions are legal and constitutional according to the emergency clause under the 2008 Constitution. In actual fact, the emergency arose only after the military takeover.
- It is important to constantly challenge the assertion by the State Administration Council (SAC) military regime of the legal basis for transferring power of the three branches of government to the military commander-in-chief. This is because once such a narrative is established, gullible or self-interested people will follow that narrative.
- Up to the time of this panel, the SAC had issued over 200 orders were issued by the State Administration Council (SAC) replacing executive, legislative and judicial roles and positions.
- A problem habitually found in history regarding the continuity of government is validating policies and promises that predecessors have made whilst in power. Future administrations in Myanmar will need to confront this issue in relation to the military rule by State Administration Council, and also to the National League for Democracy’s years in government.
- The status of the 2008 Constitution is also in a peculiar state of limbo. The military still holds onto the 2008 Constitution, to provide a veneer of legality. It may yet be possible to call the military to be accountable under that framework. The Committee Representing Pyidaungsu Hluttaw (CRPH), the National Unity Government (NUG), and opposition forces have been incorrectly reported as revoking the 2008 constitution and replacing it with the Federal Democracy Charter. This may not carry legal weight, as the current constitution may still be considered to be in force even when a new constitution has been drafted.
- However, in Myanmar today, no one seems to be complying with the 2008 Constitution. The NUG can plausibly claim that they represent the elected government of Myanmar based on the 2008 Constitution. But the NUG is not physically complying with the 2008 Constitution, as that constitutes a politically incorrect position.
- The status of the 2008 Constitution is thus ambiguous at the moment. Even were the constitution considered valid, the military’s current actions cannot be justified under any legal term.
- The military’s power takeover has resulted in uniting the ethnic armed organisations (EAOs) and the democratic opposition are on the same side for the first time in Myanmar’s history. Since 1947, the peripheries held a deep lack of trust towards the centre and authorities in the seat of power at the centre. There is now a possibility to overcome that lack of trust.
- However, there are more difficult questions related to Myanmar’s legal future, including the features and provisions of the future constitution of Myanmar, and how to iterate the process of consulting key stakeholders on this new constitution. There are some difficult political questions that depend on numerous variables. Overcoming these hurdles to draft a Federal Democracy Charter (FDC) will thus contribute to a firmer political grounding for the future with the FDC as a roadmap.
- Myanmar’s future federal system cannot be centralised in a manner similar to Malaysia’s or India’s. Myanmar’s history and current circumstances require considering a loose federal system which guarantees minority rights, local language and culture, local devolution of fiscal powers, and a firm policing role of constitutional tribunal.
Micro perspective:
- On-ground realities in Myanmar today require assessing the legal implications from three micro viewpoints: 1) legislative changes since the coup, 2) how businesses in Myanmar will navigate/are navigating these changes, and 3) longer-term considerations for current and future investors.
- As the military commander-in-chief has taken over decision-making authority on all legal and regulatory changes, the usual parliamentary processes to pass a bill no longer apply in Myanmar today. Bills can be passed into legislation more expediently, such as the draft cyber security law.
- Businesses thus have to pre-empt their past compliance and regulatory obligations, and seek to understand the new obligations required by the State Administration Council (SAC) regime.
- For example, the draft cyber security was circulated in 2020 (by the National League for Democracy government) for comments related to regulating cyberspace including online services. Businesses had then raised concerns and queries as it could encompass the provision of any service online since the definition of “online service provider” is vague and hard to comply with. Businesses also raised concerns about personal data protection. In mid-February 2021, the SAC incorporated personal data protection requirements into the electronic transactions law, and has turned to the type of services that will be regulated. This is an illustration of how quickly the SAC can come up with a draft and pass it into legislation.
- For many businesses, stability is still the key for continuity. Banks are now starting to resume lending operations, but the withdrawals of foreign aid have affected the microfinance and agriculture sectors. There are also added risks regarding foreign exchange controls/regulations. After the February 2021 coup to date, there is only a minimal return to normalcy. People have resumed their daily lives in major commercial centres, cities and urban areas, but violence and armed conflicts are still widespread in contested regions.
- Many are also anticipating the resumption of international flights from 17 April 2022 onwards, to assess their business continuity. A survey report by the Japan External Trade Organisation (JETRO) found that 70 per cent of businesses tended to remain in Myanmar with a long-term view. Bridge construction projects with Japanese and Korean investments have resumed activity. These developments do not indicate a return to pre-coup situation but seem to give some minimal hope to businesses regarding the future of doing business in Myanmar.
- The SAC maintains its narrative that foreign investments are welcome. Myanmar investment laws and legislative framework for investors have not changed. However, no one would approach investing in Myanmar with the same attitude before February 2021.
- Operating in times of the highest uncertainty, future investors might need to put extra effort into doing due diligence. Research needs to be done more extensively and comprehensively not also who the counterparts are but also on whose land the investment will be sited. The scope, time, expenses and resources spent on due diligence will also depend on the level or amount of information readily accessible.
The question-and-answer section that followed the speakers’ remarks further probed into Myanmar’s representation at the ASEAN table, implementation of ASEAN agreements when the legitimacy is in limbo, ASEAN’s take on legal ambiguity, specifics into the cyber security bill, the role of NUCC and Federal Democracy Charter, as well as incentives for EAOs to join the new constitution.
