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.
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.
Kimana Zulueta-Fülscher is the acting head of the Constitution Building Program at the International Institute for Democracy and Electoral Assistance (IDEA), based in The Hague, the Netherlands. She was formerly the head of International IDEA’s MyConstitution Program, based in Yangon, Myanmar.