Myanmar’s military declared a state of emergency and seized power on Feb. 1, 2021, the day the newly elected Upper House and Lower House were set to convene. The coup brought down the curtain on a decade-long attempt at democratic transition.
Myanmar people and the international community have slammed coup leader Senior General Min Aung Hlaing for the coup and subsequent violence. While Western countries have imposed economic sanctions, Myanmar people have opposed military rule in various ways including armed resistance.
However, it appears that both the people and the international community are unaware of the role U Myint Swe, the acting President, played in Min Aung Hlaing’s coup.
Min Aung Hlaing has long dreamed of the presidency. This was revealed when he placed the Hti umbrella atop Bagan’s ancient Htilominlo Temple in 2020.
Before the 2020 general election, he seemed to believe that the National League for Democracy (NLD)’s popularity was waning. As the military is guaranteed 25 percent of parliamentary seats by the army-drafted 2008 Constitution, he thought that the military’s proxy Union Solidarity and Development Party (USDP) and its allied parties would win at least 26 percent of seats to form the government so that he could take the presidency.
However, after the USDP and its allied parties suffered a resounding defeat to the NLD in the voting, Min Aung Hlaing canceled the election results, citing electoral fraud.
Min Aung Hlaing however is not as fearless as his predecessors General Ne Win and General Saw Maung, who blatantly seized power and justified their coups by accusing civilian governments of incompetence. Min Aung Hlaing only dared to seize power by taking cover under the 2008 Constitution.
Min Aung Hlaing ordered the USDP to organize rallies targeting the results of the 2020 general election. Using those small rallies as a pretext, he pressed demands that Daw Aung San Suu Kyi could not yield to. Finally he declared a state of emergency under Section 417 of the 2008 Constitution while the newly elected Parliament was set to convene.
There is only one weakness in the political ploy of Min Aung Hlaing. Only the President is authorized by the Constitution to declare a state of emergency. Under Section 417, the President shall convene a National Defense and Security Council (NDSC) meeting, issue a decree and declare a state of emergency to hand over power to the military chief.
Min Aung Hlaing pressured the NLD government’s President U Win Myint to declare a state of emergency. When U Win Myint refused, Min Aung Hlaing ordered his arrest on Feb. 1, 2021. As the acting President, U Myint Swe declared a state of emergency and handed over legislative, administrative and judicial powers to the military chief.
Section 73 (a) of the 2008 Constitution says, “One of the two vice presidents who has won the second-highest [number of] votes in the presidential election shall serve as acting president if the office of the President falls vacant due to his resignation, death, permanent disability or any other cause.” So, the military took advantage of the “any other cause” clause in the provision, and argued the presidency was now vacant because it had detained U Win Myint. It is similar to a robber taking the key to the safe after hitting the house owner. It is unacceptable to anyone who is rational.
U Myint Swe however accepted the irrational and unreasonable justification given by Myanmar’s military. He took over as the acting President and handed the three branches of power to Min Aung Hlaing. If U Myint Swe had refused to declare the state of emergency, Min Aung Hlaing would not have been able to implement his political ploy by manipulating the Constitution.
The declaration of a state of emergency under Section 417 authorizes the military chief to exercise the three branches of power on behalf of the President and the Parliament. Even so, the military chief is still required to report to the NDSC, led by the President, about how he is exercising emergency rule. And if the Parliament’s term has not yet ended, he is also required to report to the Union Parliament. And as the Constitution is still in effect, the President takes precedence over all other persons across the Union, according to Section 58.
When the regime held a cabinet meeting on Feb. 2, 2021, Min Aung Hlaing was seen sitting at the top of the table, with U Myint Swe to one side. U Myint Swe has rarely been seen since.
Min Aung Hlaing organized events and dinners to mark Independence Day and Union Day, which are traditionally organized by the country’s President. He even spent billions of kyat to hold a military review while the country is spiraling downward into poverty. And junta-controlled media honor him by describing him as head of state.
Legally speaking, the head of state is acting President U Myint Swe, while Min Aung Hlaing is just assigned to lead the government during a state of emergency.
U Myint Swe appeared again when an NDSC meeting was held to extend the initial one-year state of emergency by six months. Lower House lawmaker T Khun Myat attended the NDSC meeting, but Vice-President 2 Henry Van Thio was absent on health grounds. U Myint Swe accepted the military chief’s proposal and extended the state of emergency for six months.
Considering these moves, it is clear that U Myint Swe shares equal responsibility with Min Aung Hlaing for the deaths and human rights violations that happened after Feb. 1, 2021.
U Myint Swe however still has two opportunities to avoid going down in Myanmar’s history as a villain. If he is willing to take those opportunities, he must have the courage to exercise his constitutional rights as the President.
The first opportunity will present itself in August, when the current state of emergency ends. Section 425 of the Constitution says, “The NDSC may, if the military chief submits the extension of the prescribed duration by giving reasons why he has not been able to accomplish the assigned duties, on the expiry of the term of Pyidaungsu Hluttaw [Union Parliament], normally permit two extensions of the prescribed duration for a term of six months for each extension.”
It is important to note the wording here. The section says “may”, so it is clear that the NDSC does not need to agree whenever the military chief asks for a renewal. And constitutional provisions about the NDSC do not say a vote is necessary to make a decision at an NDSC meeting. The decision made by the President is final. So, U Myint Swe can decide not to allow the extension, no matter what the military chief and other NDSC members say.
Min Aung Hlaing would be faced with a political crisis if U Myint Swe refused to allow an extension of emergency rule. While the majority of Myanmar’s people and the international community are strongly opposed to the coup, Min Aung Hlaing has to rally the support of military personnel and their families, and a few USDP supporters, based on the excuse that “by declaring a state of emergency, the takeover is in line with the Constitution.” So, the loss of U Myint Swe’s support would come as a serious blow to Min Aung Hlaing.
For this to happen, U Myint Swe needs to bravely exercise the rights granted by the Constitution to the President.
The second opportunity will come on Jan. 31, 2023 when it will be time to renew the state of emergency for the second time. Under the Constitution, a state of emergency can be only renewed twice, for six months each time, after the initial year of emergency rule. Once the term of emergency rule ends, a general election shall be held within six months, according to Section 429.
Under Section 427 of the Constitution, the NDSC can exercise the three branches of power for the period after the expiry of the state of emergency and before the parliaments are formed.
In so doing, it shall exercise legislative power by itself and transfer the executive and judicial power to appropriate bodies that have been formed at the Union, region or state and self-administered area levels. To put it simply, after emergency rule ends, Min Aung Hlaing can’t continue to hold the positions of State Administration Council chairman and prime minister of the interim government. But the NDSC led by acting President U Myint Swe shall establish Union, region and state governments and form the Union Election Commission and other bodies.
So, U Myint Swe could fully exercise his presidential authority and form a coalition government that includes the NLD, which would help establish national reconciliation. He could also form an independent election body to hold a free and fair election, and reject the proportional representation electoral system that the regime and military-backed parties are pushing forward.
Though he may not be able to amend the 2008 Constitution, he can prevent the USDP from taking office, and prevent Ming Aung Hlaing from taking the presidency.
If the NLD and ethnic parties were to contest an election held by a coalition government, Min Aung Hlaing would not be able to use his political formula of 25 percent of parliamentary seats held by the military plus 26 percent of seats to be secured by the USDP.
If Min Aung Hlaing were unable to take power, opportunities would emerge to solve the current political crisis.
Min Aung Hlaing will surely use every trick in the book to gain power and the presidency. At the same time, U Myint Swe is a former lieutenant general, and was widely regarded as an aide of ex-military dictator Than Shwe. He also served as Yangon Region chief minister in the previous military regime. So, it is unlikely that he will turn against Min Aung Hlaing. On the other hand, if he does reject Min Aung Hlaing, it will be a wake-up call to military personnel, and result in their political awakening.
This could be a turning point for Myanmar’s politics. U Myint Swe now has two options before him. One is to remain as the puppet president and go down in Myanmar’s history as a villain along with Min Aung Hlaing. The second is to exercise his presidential authority in accord with Constitution and help find a political exit.
Khin Tun is a Myanmar-based political analyst.
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