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.
