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Reining in Emergency Powers in Myanmar

This article first appeared in the East Asia Forum, 3 November 2016

In October 2016 serious concerns were raised about the situation in Myanmar’s northern Rakhine State after reports surfaced that nine police officers had been killed in the region. But the state’s precarious situation continues to be shrouded in mystery. Speculation over the motives of the perpetrators and unsubstantiated claims that it may be linked to Islamic terrorism has taken attention away from another pressing threat: the potential abuse of executive power.
 The curfews in the Rakhine State townships of Maungdaw and Buthedaung have been increased, with limitations on freedom of movement from 7pm until 6am. Yet there has been little questioning of why this curfew — instated under Section 144 of the Criminal Procedure Code — has remained in place for so long or whether the extension of the curfew is justified. One of former president Thein Sein’s acts in his final days of power was to declare an end to the state of emergency in Rakhine State. But emergency powers have now become a nefarious weapon of the new military government administration. Section 144 orders are a clear precursor to a constitutional state of emergency, yet in many ways these orders are in fact the more powerful tool. Under Thein Sein, who was in office from March 2011–2016, a constitutional state of emergency was declared at least three times — in response to anti-Muslim violence in Rakhine State and Meiktila, and fighting in the Kokang area between government and Kokang insurgent forces. In each case, extensions of these emergency orders could only be made with the approval of the national parliament. While all three emergencies have since ended, Section 144 orders remain in place in some areas. The continued existence of these orders constitutes a troubling misuse of executive power by the General Administration Department (GAD) and remains unchecked by the parliament. The GAD is the backbone of government administration in Myanmar and the coalface of interactions between ordinary citizens and the state. But as part of the Ministry of Home Affairs, it is also under the leadership of a military-appointed minister. GAD has acquired enormous power by stealing it directly from the judiciary. For instance, over many decades GAD has appropriated the Section 144 power — and with it the ability to declare curfews in the event of social disturbance — for itself, effectively cutting out the judiciary as a check on its power. From 2011–2015, GAD township officials declared numerous Section 144 orders across the country to enforce curfews and restrict freedom of movement. These include in Maungdaw and Buthedaung in 2012, in Thandwe, Lashio, Ma-ubin, Bago and Okkan in 2013 and in Mandalay in 2014. All of these Section 144 restrictions were imposed after serious anti-Muslim violence. But Section 144 orders have also been used at other times in response to smaller demonstrations and protests — such as in relation to land disputes. Since 2016, when the National League for Democracy (NLD) came into government, there has been speculation about changes to the 2008 Constitution that stacks ultimate power in favour of the military — including in an emergency. Yet if Aung San Suu Kyi is truly serious about building rule of law, one concrete step that the NLD-led parliament could take is to restore the power to declare a Section 144 order to the judiciary. This would mean that the judiciary could once again act as a check on the power of the executive — approving applications for such orders rather than watching on the sidelines as curfews and restrictions on rights are imposed at whim. Despite the revocation of the constitutional state of emergency, a Section 144 order remains in force in northern Rakhine State and has recently been extended and expanded. Instead of ensuring the safety of locals, the order poses serious risks to some groups in the region. There have even been disturbing reports of Rohingya women sexually assaulted by state security forces. Rather than pushing for constitutional change to emergency powers, the president or the parliament could pass a law to revoke GAD’s unilateral power to declare Section 144 emergencies. This would set the NLD government apart from past regimes and signal the beginning of a new role for the courts. It would send a clear message of zero tolerance for the abuse of executive power — a welcome step after decades of abuse of Section 144 emergency orders. 

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