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The Role ASEAN Could Have Played in the Myanmar Coup

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photo: Wikipedia

Authors: Harsh Mahaseth and Aryan Tulsyan*

The ASEAN’s political strategy has suffered from incoherence because ASEAN and its member states have remained more concerned with creating a unified position against external pressure than on developing a single policy towards Myanmar.The ASEAN Way directs the member states to refrain from all sorts of interventions, including political measures. For example, if the admission of a state into a regional or international organisation is made dependent upon certain terms and conditions, which fall within the competence of the state, and are not stated in the constitutive act of the organisation, could be considered as an unlawful intervention into the State’s political sphere. The policy of the member states to “refrain from making the domestic political systems of a State and the political styles of government a basis for deciding their membership in ASEAN” is one of the fundamental implications of the ASEAN Way. Thus, abiding by the non-intervention principles of the ASEAN, democracy cannot be forced into Myanmar. The ASEAN Way or the policy of non-intervention is undoubtedly a ‘part and parcel of customary international law’. Through the International Court of Justice’s verdict in the Nicaragua case, it can be inferred that although the non-intervention policies are legally enforceable, as the non-intervention policies are codified under various ASEAN documents like the Bangkok Declaration, the Zone of Peace, Freedom, and Neutrality (ZOPFAN) Declaration, and the Treaty of Amity and Cooperation, slight deviations do not destroy its legally binding character, if they are accompanied by a strong opinio juris sive necessitatis. For example, the Chair of the ASEAN Standing Committee had expressed ‘revulsion’ at the Myanmar junta’s violent suppression of protesters in September 2007. Constructive engagement, rather than ostracism, is a more practical solution in the case of Myanmar, as a military regime which is determined to isolate its people from foreign influence is present in the nation.

Legal Issues

The legal grounds used by the junta to justify the coup was invoking section 417 of the Constitution of the Republic of the Union of Myanmar (2008). Section 417 allows the declaration of an emergency if there is sufficient reason for the ‘disintegration of the Union or the national solidarity’ or ‘loss of sovereignty’. The junta alleged a large-scale voter fraud concerning the November 2020 elections, and accused the Union Election Commission of being unwilling to investigate, or actively colluding in it. However, the allegations were not backed by evidence, and even if they were, the question of ‘disintegration of the Union’ or ‘loss of sovereignty’ would be debatable. Furthermore, Section 418 (a) states that the President is to sanction the emergency by transferring control of the Union to the Commander-in-Chief of the Defence Services, General Min Aung Hlaing in this case. Yet, it was not President Win Myint who declared the emergency, but the newly appointed vice president, retired general Myint Swe of the USDP, after President Win Myint was detained and forced to relinquish his position. Thus, the military coup in Myanmar was unconstitutional.

Article 6(2)(c) and 6(2)(d) of the Charter of the Association of South East Asian Nations bases the admission of States into the organisation on the condition that they would be abiding by the Charter, would be able as well as willing to carry out the obligations of the Membership. Myanmar’s deviation from the democratic system violates the Preamble of The Charter, along with Sections 1(4), 1(7) and 2(2)(h). It has been argued that since Myanmar ratified this Charter on July 18, 2008, the ASEAN would be justified in placing sanctions upon nations who violate the Charter. However, imposing sanctions on Myanmar would cause an acceleration of Chinese influence in the country, as China already has free economic reign over the country. The ASEAN Charter has been termed as an ‘aspirational document’, as it promotes certain principles and values, but leaves the implementation and enforcement in the hands of the member states. Furthermore, the ASEAN could aid by instituting channels for dialogue and negotiations between the civilians and the Tadmadaw, and the existence of the ASEAN Way potentially opens the doors to backchannel negotiations with both the sides.

Human Rights and Refugee Issue

Myanmar already has a severe issue pertaining to the Rohingyas, and the military coup is going to stir up this debacle. Although several countries were open to refugees, yet, as the influx rose, additional refugees were denied, and some countries, like Thailand, were forced to repatriate the refugees. In order to safeguard human rights, the ASEAN had created the Working Group for an ASEAN Human Rights Mechanism, but Myanmar was against the recommendation of an enforceable human rights body, and in turn suggested the creation of a non-binding commission on human rights. Myanmar also made the ASEAN leaders withdraw their invitation to the UN Special Envoy Ibrahim Gambari to address the Summit relating to the concerns in Myanmar. Given the dismal human rights situation in Myanmar due to the coup, coupled with the humanitarian problem associated with the Rohingya, the Myanmar case should not be treated by ASEAN and its member states as an “internal or domestic affair,” but rather as a regional concern if not an international quandary that needs ASEAN’s and the international community’s attention.

Elections

 Prior to 2012, ASEAN had an insignificant role in the regional elections of its member states, and were limited to analysis of reports, but this changed in the case of Myanmar where the ASEAN took an active role in the national elections. ASEAN’s first involvement in the regional elections were in 2010 when the ASEAN urged the junta in power to conduct free and fair elections, a proposal which was rejected by the junta. On 20th March 2012, Myanmar President Thein Sein, on the suggestion of former ASEAN Secretary General Dr Surin Pitsuwan, invited the ASEAN Secretariat, the ASEAN Member States, the European Union as well as the United States to send observer teams to Myanmar to witness and monitor the April 2012 by-elections in the country. The success of ASEAN’s observation of the 2012 elections in Myanmar can be cited as an evidence which supports the success of the force of ‘collective peer pressure’ and its judicial application at the appropriate stress points as a furtherance of the ASEAN Way. The ASEAN’s presence in the 2020 general elections in Myanmar could have legitimized the electoral process, and it could have been used to undercut the Tatmadaw’s claim of voter fraud. The ASEAN could use these non-coercive and low-degree tools of intervention to restore democracy in Myanmar, one such tool being the observation of elections that would supposedly be conducted by the Tatmadaw after the emergency.

The Way Forward: What ASEAN Should Do

ASEAN’s influence in Myanmar’s transition to democracy has been considered as negligible. ASEAN had not set democracy as a condition for its membership, as there were living examples of countries like the Brunei Darussalam, which is an absolute sultanate, and Laos and Vietnam, which are communist states. ASEAN did play two roles in accelerating Myanmar’s transition to democracy. Firstly, the 2014 chairmanship of ASEAN awarded to Myanmar in 2011 provided its reformist government with credibility at a crucial time in the country’s transition to democracy. Secondly, ASEAN acted as a reference group for Myanmar, aiding in its search for models of democratic institutions, as ASEAN is a group of states of proximity, which share geography, histories of colonialism, conflict and difficult (in some cases, incomplete) transitions to democracy.

ASEAN must treat the situation in Myanmar as a matter of utmost urgency, in order to prevent the recurrence of the spill-over effects that political crisis could have on the neighbouring countries. Cross border repercussions would rise if a domestic crisis remained to be unresolved before it rises to unprecedented levels, as evident in the 1988 student protests (“8888 uprising”) and the May 1990 elections. The ASEAN should play an active role in restoring order in Myanmar, and it cannot sit on the fence like it did during the 2014 Thai coup. The ASEAN could constitute a commission to look into the alleged voter fraud, a commission composed of members elected by mutual consensus from both parties to the dispute. Unpopular views like the suspension of Myanmar from the ASEAN has been a part of the popular debate as well, and Bilahari Kausikan, a former senior diplomat from Singapore has even gone on record to suggest that membership in ASEAN should not be taken as a given but ought to be revoked if and when member states behave in ways detrimental to the collective values and interests of the organisation. The military coup is a clear indicator that the ASEAN cannot stick to the non-intervention policy by avoiding punitive actions against member states, and avoid a damage to its reputation at an international level at the same time.

*Aryan Tulsyan is a Law Student at Jindal Global Law School, O.P. Jindal Global University, Sonipat, India.

Harsh Mahaseth is an Assistant Professor and Assistant Dean (Academic Affairs) at Jindal Global Law School, and a Senior Research Analyst at the Nehginpao Kipgen Center for Southeast Asian Studies, O.P. Jindal Global University, Sonipat, India.

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Southeast Asia

Will Indonesia Repeat the History of Population Mobility in Borneo?

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Borneo is now in the spotlight due to the Indonesian government’s impending massive migration. Since the Indonesian government announced capital relocation plans in 2019, many people have been concerned about their mobility in Borneo. Thousands of civil servants and their families will be relocated to East Kalimantan in the first phase of this massive mobility. This mobility necessitates significant resources, both financial and in-depth consideration because people’s mobility is never an easy problem.

Population mobility in Indonesia is not a new phenomenon, according to historical sequences. Patterns and causes such as poverty, inequality, the role of government, the importance of relationships, and gender disparities all have an impact on this activity. The manifestation of success mobility in society is related to how this aspect is manifested. Furthermore, most people associate mobility with inequality. Individuals and communities are forced to relocate from their homes to places where they can find work or where they are ‘pushed’ to work as a result of inequality. As a result, most population mobility occurs voluntarily in search of a better life. However, in the context of capital relocation, the situation is quite different. People are heavily influenced by the context and location of the receiving area, particularly its political, economic, and socio-cultural aspects, as well as its historical context when they mobilize.

Population Mobility in Indonesian History

The Indonesian government declares transmigration as one of the population distribution policy instruments. Transmigration is regarded as one of the instruments of government policy that can help promote public welfare. Transmigration is another kind of population integration required to support national development. History recounts that transmigration in Indonesia began with the Dutch occupation, specifically during the situation of Indonesian politics in 1905. The government’s worry prompted the start of transmigration in Indonesia. The Dutch colonials observed the island of Java’s high population density.

During the New Order era, Kalimantan was the site of a massive project known as “transmigration.” This project aimed to relocate people from overpopulated islands in order to balance demographic development. Java, Indonesia’s main island, was home to more than 70% of the country’s population. Over the course of two decades, 170 million people from Java, Madura, Lombok, and Bali were relocated. Transmigration has a long history; it began in 1950, replicating a Dutch colonial government program, and was later continued by the Indonesian government after 1945, the year of independence. Previously, transmigration served three purposes: (1) to relocate millions of people from the most densely populated islands such as Java, Bali, and Madura to less densely populated islands, (2) to alleviate poverty by providing land and employment opportunities for Indonesians, and (3) to find other resources in those less densely populated islands. However, this program appears to be a failure. The findings are also supported by the report from Forest Peoples Programme which stated that the transmigration process in the “outer islands,” particularly in Kalimantan, has triggered conflict between transmigrants and indigenous people. The native or indigenous people claimed that the national government provides them with limited access, in contrast to the transmigrants. On the other hand, indigenous people appear to have lacked the adequate infrastructure to support their lives (such as roads, health facilities, schools, etc). On the other hand, land ownership status became very important because indigenous people felt that their indigenous government did not give them their rights and land certificate despite having legal evidence of their land. More than 60% of Kalimantan’s rainforests have been cut down for the transmigration program, causing indigenous people to lose their homes and food sources. Without a doubt, the goal of transmigration threatens the lives of indigenous people. Transmigration enabled landless peasants and homeless people from urban Java to escape. However, by doing so, they destroyed the forest and contributed to environmental degradation in Kalimantan. It can be assumed that the transmigration program has so far failed to alleviate population pressure and poverty in Java. There is opposition to the transmigration program because indigenous people believe it violates their rights. According to the migrants, the transmigration program was only about political tools and power.    

The Foresight of Population and Labour Mobility in Borneo

Like the first population mobility in the 1905s, the Indonesian government’s plan to relocate the capital from Jakarta to East Kalimantan has many advantages and disadvantages today. Indigenous peoples, environmental activists, and social scientists are all concerned about the massive plan to transform 200,000 hectares of forest into the country’s new administrative headquarters. This project adds to the existing mining, logging, and oil palm plantation concessions, all of which have had a significant impact on Borneo’s rainforests and forest-dependent communities.

The relocation of the capital could have serious social and economic ramifications for millions of people, particularly Jakarta workers. They don’t know what will happen to them in Kalimantan. Despite the fact that thousands of civil servants and their families will be relocated to East Kalimantan in the first phase of this massive mobility, productive industries that support workers’ lives, such as food and beverage, education, and health services, must not be overlooked in this action. Talking about productive industries entails discussing the labor that went into them. Once they have relocated to a new capital, they should be able to find work or start a new small business. The Indonesian government has not yet prepared for this. Baumann (2016) stated in her book “The Debate about the Consequences of Job Displacement” that workers who have recently relocated to another area (in this case, new capital) are more likely to lose their jobs simply because they have recently begun a new job. These new employment relationships are insecure because they are frequently mismatched and more likely to be terminated prematurely.

To summarize, population mobility is frequently used as a short-term coping strategy rather than an anticipatory adaptation strategy, especially for individuals or households lacking the economic and social capital to relocate. It may also make those moving to new capital more vulnerable. As a result of these factors, the government should devise creative solutions and adequate plans for the people, especially workers. To avoid repeating history and to create a vibrant place in new capital, the government should work with the private sector, civil society organizations, local communities, and academics to develop sustainable infrastructure and basic services, as well as social protection and income-generating opportunities. Finally, massive mobility in Borneo necessitated a more thorough understanding of the need for multi-sectoral and inclusive policies and measures that combined research, planning, design, and capacity building, with a particular emphasis on workers.

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Southeast Asia

Reclaiming our future

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The Asia-Pacific region is at a crossroads today – to further breakdown or breakthrough to a greener, better, safer future.

Since the Economic and Social Commission for Asia and the Pacific (ESCAP) was established in 1947, the region has made extraordinary progress, emerging as a pacesetter of global economic growth that has lifted millions out of poverty.

Yet, as ESCAP celebrates its 75th anniversary this year, we find ourselves facing our biggest shared test on the back of cascading and overlapping impacts from the COVID-19 pandemic, raging conflicts and the climate crisis.  

Few have escaped the effects of the pandemic, with 85 million people pushed back into extreme poverty, millions more losing their jobs or livelihoods, and a generation of children and young people missing precious time for education and training.

As the pandemic surges and ebbs across countries, the world continues to face the grim implications of failing to keep the temperature increase below 1.5°C – and of continuing to degrade the natural environment. Throughout 2021 and 2022, countries across Asia and the Pacific were again battered by a relentless sequence of natural disasters, with climate change increasing their frequency and intensity.

More recently, the rapidly evolving crisis in Ukraine will have wide-ranging socioeconomic impacts, with higher prices for fuel and food increasing food insecurity and hunger across the region.

Rapid economic growth in Asia and the Pacific has come at a heavy price, and the convergence of these three crises have exposed the fault lines in a very short time. Unfortunately, those hardest hit are those with the fewest resources to endure the hardship. This disproportionate pressure on the poor and most vulnerable is deepening and widening inequalities in both income and opportunities.

The situation is critical. Many communities are close to tipping points beyond which it will be impossible to recover. But it is not too late.

The region is dynamic and adaptable.

In this richer yet riskier world, we need more crisis-prepared policies to protect our most vulnerable populations and shift the Asia-Pacific region back on course to achieve the Sustainable Development Goals as the target year of 2030 comes closer — our analysis shows that we are already 35 years behind and will only attain the Goals in 2065.

To do so, we must protect people and the planet, exploit digital opportunities, trade and invest together, raise financial resources and manage our debt.

The first task for governments must be to defend the most vulnerable groups – by strengthening health and universal social protection systems. At the same time, governments, civil society and the private sector should be acting to conserve our precious planet and mitigate and adapt to climate change while defending people from the devastation of natural disasters.

For many measures, governments can exploit technological innovations. Human activities are steadily becoming “digital by default.” To turn the digital divide into a digital dividend, governments should encourage more robust and extensive digital infrastructure and improve access along with the necessary education and training to enhance knowledge-intensive internet use.

Much of the investment for services will rely on sustainable economic growth, fueled by equitable international trade and foreign direct investment (FDI). The region is now the largest source and recipient of global FDI flows, which is especially important in a pandemic recovery environment of fiscal tightness.

While trade links have evolved into a complex noodle bowl of bilateral and regional agreements, there is ample scope to further lower trade and investment transaction costs through simplified procedures, digitalization and climate-smart strategies. Such changes are proving to be profitable business strategies. For example, full digital facilitation could cut average trade costs by more than 13 per cent.

Governments can create sufficient fiscal space to allow for greater investment in sustainable development. Additional financial resources can be raised through progressive tax reforms, innovative financing instruments and more effective debt management. Instruments such as green bonds or sustainability bonds, and arranging debt swaps for development, could have the highest impacts on inclusivity and sustainability.

Significant efforts need to be made to anticipate what lies ahead. In everything we do, we must listen to and work with both young and old, fostering intergenerational solidarity. And women must be at the centre of crisis-prepared policy action.

This week the Commission is expected to agree on a common agenda for sustainable development in Asia and the Pacific, pinning the aspirations of the region on moving forward together by learning from and working with each other.

In the past seven-and-a-half decades, ESCAP has been a vital source of know-how and support for the governments and peoples of Asia and the Pacific. We remain ready to serve in the implementation of this common agenda.

To quote United Nations Secretary-General Antonio Guterres, “the choices we make, or fail to make today, will shape our future. We will not have this chance again.”

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Southeast Asia

Return of the Marcos and Great-Power Competition

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PNA photo by Joey O. Razon

Ferdinand Marcos Jr., more commonly known as “Bongbong,” won an outright majority in the recent presidential election in the Philippines. Son and name-bearer of former Philippine dictator Ferdinand Marcos paved the way for the country’s most notorious political dynasty’s shocking return to power. In the words of Filipino columnist Benjamin Pimentel, “It’s as if Kylo Ren emerged and the Empire is back in power.”

In announcing his desire to work for all people, Ferdinand Marcos Jr. said the world should judge him based on his presidency, not his family’s past.

“To those who voted for Bongbong, and those who did not, it is his promise to be a president for all Filipinos. To seek common ground across political divides, and to work together to unite the nation.” saidVictor Rodriguez, spokesperson for Marcos, in a statement.

However, the pragmatic words seem to have failed to sway the opposition as he faces countless accusations of election irregularities. Their opponents are horrified by Marcos’ brazen attempt to reinvent historical narratives from his family’s era in power. A protest against Marcos was staged by approximately 400 people outside the election commission on 10th May, primarily by students.

Human rights group Karapatan urged Filipinos to reject Marcos’ new presidency, which it sees as a product of lies and disinformation designed “to deodorise the Marcoses’ detestable image”.

HISTORY OF MARCOS: People Power” Uprising

Ferdinand Marcos Jr is not a new name in the Philippines’ political scenario. The “bloodless revolution” of 1986 in the Philippines that ousted the infamous dictator Ferdinand Marcos, was none other than Ferdinand Marcos Jr.’s father.

The world leaders at the time praised the mass demonstration after hundreds of thousands marched along EDSA streets to protest a fraudulent election. Through the People Power” Uprising, Filipinos proved that a peaceful uprising can challenge a ruthless dictatorship and overthrow military rule.

Marcos Jr and his family escaped to Hawaii following the rebellion and after his return to the Philippines in 1991, Marcos Jr served in congress and the senate. With his return to the Malacañang Palace in 2022, the world anxiously watches whether history will repeat itself or democracy will prevail as Marcos Jr. relentlessly defends his father’s legacy, refusing to apologise or acknowledge the atrocities, plunder, cronyism, and extravagant living, which resulted in billions of dollars of state wealth disappearing during the dictatorship.

MARCOS JR’S FOREIGN POLICY: Continuity or Change?

Considering his political alignment with Rodrigo Duterte, the outgoing President, who has been exceedingly vocal about his anti-Washington, pro-China stance, it is no secret Marcos Jr. favours Beijing. According to Richard Heydarian, a South China Sea observer and professor of political science, “Ferdinand ‘Bongbong’ Marcos Jr. is the only candidate who has signalled almost perfect continuity with the incumbent populist pro-China president in Malacañang.”

However, Marcos Jr seems to be a President that might play the game more strategically compared to his successor. Among Marcos’s many accolades for his father, one was maintaining a strong security alliance with Washington. Even though, he is politically aligned with Duterte who sought to pivot away from the United States and towards China, Marcos will seek a balancing act. Philippines under Marcos will continue engaging with China, in-line with Duterte’s Pro-China Policy but at the same time will engage, and even bolster a closer tie with the USA, to safeguard Philippines’ sovereignty amidst an aggressively rising China.

When asked if he would ask the American’s help in dealing with China, Marcos Jr said, “No. The problem is between China and us. If the Americans come in, it’s bound to fail because you are putting the two protagonists together.” This statement shows a sense of maturity and solid understanding of the ground realties of the region. Marcos Jr. seems to be the President that keeps his country’s national interest at the very core of all his decisions. He understands how easy it is for a small country to be stuck in the middle of a great-power competition, and that more often and not, it harms the small country’s interests. He envisions Manila as neither heavily dependent on Washington for its security needs nor become a pawn in China’s greater geopolitical ambitions. He wants to have an independent foreign policy, regardless of deepening U.S.-Chinese competition. One that predominantly benefits his country, Philippines.

In contrast to Duterte, Marcos Jr has a very warm and embracing approach towards the USA. Being treaty allies, Marcos Jr refers to their alliance as “a very important one.” He maintained that the alliance “has stood us in good stead for over a hundred years and that will never disappear from the Philippine psyche, the idea and the memory of what the United States did for us and fought with us in the last war.”

Marcos Jr seems to be a realist who understands that in International Politics, states must “engage whenever possible, and contain wherever necessary.” On asked about Chinese assertiveness in the South China Sea, he argued that “Philippines will not cede any one square inch to any country, particularly China, but will continue to engage and work on our national interest.”

To summarise, Marcos will, in all probability, modify Duterte’s foreign policy in a way that maximizes the strategic benefits for the Philippines and avoids confrontation with the USA and China.

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