Academics condemn unconstitutional attack on democracy in Myanmar

Academics from UNSW Sydney have joined international colleagues in condemning this month’s military coup in Myanmar, saying the justifications for the action are not supported by events or the constitution.

The UNSW Law academics – Professor Melissa Crouch, Professor Martin Krygier, Professor Theunis Roux and Associate Professor Adam Czarnota – have joined other members of the Australia-Myanmar Constitutional Democracy Project (AMCDP) to oppose the recent coup and arrests of political and community leaders in Myanmar.

The AMCDP is a joint enterprise of a number of law schools and has been led by UNSW since 2014. The objective of the project is to expand the democratic political space during a critical time in Myanmar’s transition towards constitutional democracy.

In a statement released yesterday the academics said they ‘’support the people of Myanmar as they peacefully resist the military’s constitutionally improper and wilfully undemocratic imposition of a state of emergency”.

The AMCDP has conducted a series of workshops in different centres around Myanmar with lawyers, judges, politicians, journalists, students, activists from civil society, ethnic leaders, and interested members of the public.

“The aim of the workshops has been to foster discussion of the fundamental principles informing constitutional democracy, departing from the premise that constitutional democracy cannot be sustained unless it is built from the bottom up by the people themselves,” the statement says.

“Our workshops have been met with enthusiasm, hope, and sustained commitment from hundreds of people. The discussions have been rich and full of creative ideas about how a culture of constitutionalism in Myanmar may be fostered. Now, after the coup of February 1, 2021, all such possibilities are under threat, and the wishes of the vast majority of Myanmar’s people, as expressed in the November 2020 elections, have been ignored and defied.

“While the Myanmar military (Tatmadaw) has presented its actions as a declaration of a state of emergency under section 417 of the 2008 Constitution, neither the facts nor the law support this interpretation. The allegations of voter fraud in the November 2020 elections on which the Tatmadaw relied were dismissed by the Union Election Commission.

“The factual precondition for the exercise of the section 417 power was thus not satisfied. Even if this were not so, the state of emergency should have been declared by Myanmar’s duly appointed President, Win Myint. Instead, it was declared by the Tatmadaw-appointed Vice-President following Win Myint’s unlawful arrest and forced deposition,” the statement says.

“The military’s actions therefore have no constitutional, and even less democratic, justification. Instead, what has happened, as one of our members has written separately, “was a show of force and power grab by the military, a coup not a constitutional emergency”.

“The short and tortured development of Myanmar toward some form of open and democratic society has already been a complex mixture of hope and achievement, tragedy and crime. Re-imposition of military rule can only promise more of the latter and none of the former. For the sake of Myanmar’s 54 million people, we are united with them in their fervent wish that this initiative will fail.

“Our friends in Myanmar are struggling at great personal risk and cost to make it a free and democratic society. We exhort supporters throughout the world not to forget them and to stand with them.”

The signatories to the statement are:

• Nick Cheesman, Fellow, Australian National University
• Melissa Crouch, Professor of Law, UNSW Sydney, Australia
• Adam Czarnota, Associate Professor of Law, UNSW Sydney
• Thomas E. Garrett, Secretary General of the Community of Democracies
• Andrew Harding, Professor of Law, National University of Singapore
• Martin Krygier, Gordon Samuels Professor of Law and Social Theory, UNSW Sydney
• Kishali Pinto-Jayawardena, constitutional lawyer & columnist, the Sunday Times, Colombo, Sri Lanka
• Catherine Renshaw, Professor of Law, Western Sydney University, Australia
• Theunis Roux, Professor of Law, UNSW Sydney
• Wojciech Sadurski, Challis Professor of Jurisprudence, University of Sydney, Australia
• Janelle Saffin, Member for Lismore in the New South Wales Legislative Assembly 
• Veronica Taylor, Professor of Law and Regulation, Australian National University
• Jeremy Webber, Professor of Law, University of Victoria, Canada.