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HomeOpinionThe 2021 military coup killed its own 2008 constitution and the NCA

The 2021 military coup killed its own 2008 constitution and the NCA

Guest contributor

Maung Zarni

Senior General Min Aung Hlaing, the universally despised leader of the deeply unpopular 2021 military coup that ousted the re-elected National League for Democracy (NLD) government, is preparing to hold a grand ceremony for the 8th anniversary of the Nationwide Ceasefire Agreement (NCA), which was signed on Oct. 15, 2015.    

The military leaders and endorsers of the 2021 coup, including Senior General Min Aung Hlaing, are a group of cunning, unprincipled and ruthless individuals, to belabour the obvious. They are not very bright, strategically speaking. They lack foresight. And they are anything but patriots.    

What kind of patriots would plunge their country into the abyss of nationwide violence, reignite the flames of civil war, condemn 30 percent of their fellow people to the worsening conditions of hunger or “food insecurity”, forcibly displace large segments of the population, including the majority Buddhists, order over 2,000 airstrikes in less than two-and-a-half-years against vulnerable civilians in clinics, hospitals, monasteries, resort to its colonial-style scorched earth operations, block the refugees’ access to emergency and humanitarian aid, burn down entire villages in the heartlands of the Bama majority, destroy nearly 80,000 homes across the country, and serially slaughter young men and women from all ethnic and faith backgrounds who staunchly resist the coup.   

I personally know well several of these coup plotters and endorsers, with blood on their hands, including the 3rd ranking coup leader General Mya Tun Oo (his former commander), and ex-Lt.-General Myint Swe who at the time of the coup was vice president in Aung San Suu Kyi’s administration, and Daw Yin Yin Oo (retired Foreign Service official and the military’s counter-intelligence agent) who serves as one of the two key female advisers in the coup regime. Daw Yin Yin Oo’s father the late Dr Maung Maung served as the legal adviser to the late military dictator General Ne Win until the latter’s death under house arrest. [The other woman who has the honour of being an advisor to the coup regime is Dr. Yin Yin Nwe, an ex-daughter-in-law of the late General Ne Win, who trained as a geologist at Cambridge University and worked as the head of UNICEF in China].  

In the morning of the coup, Senior General Min Aung Hlaing instantly made Myint Swe “Acting President”, since the sitting President Win Myint refused to endorse the coup, while literally at gunpoint, as was required by the 2008 constitution. Twisting the military’s own constitutional requirement, Myint Swe play-acted the role of “President” and read out his presidential endorsement to Min Aung Hlaing’s coup.  

No such clause existed in the military’s 2008 Constitution that “the Commander-in-Chief shall instantly make the military’s handpicked Vice President “Acting President” in order to constitutionally endorse the coup in the event the real and sitting president refused to go along with the military’s seizure of power, even if a pistol is pointed to the latter’s head!” 

Joking and my personal assessment of men and women who made the coup aside, I offer my analysis of the coup and post-coup developments from an institutional perspective. Indeed, the Feb. 1, 2021 coup had inadvertently killed several birds with one stone, specifically the NCA and the 2008 Constitution birds. The constitution was the goose that laid the military’s golden eggs, whichever Senior General may serve as the Commander-in-Chief.   

This is precisely the most recent position – and analysis – of the Karen National Union: the coup had rendered null and void both the Constitution of 2008 and the Nationwide Ceasefire Agreement of 2015. 

The Myanmar military under the Commander-in-Chief Min Aung Hlaing was a signatory, to the NCA, alongside the representatives of the parliament and the presidency, as well as eight other armed organizations, including the KNU and the Chin National Front (CNF). Its coup had abolished the parliament and the presidency, while imprisoning the sitting president and leaders of the legislature on trumped up charges, without due process, the KNU argues.    

According to the KNU reasoning, since the military as a key signer of the NCA had behaved in such a way that no other signatory has any moral or legal obligation to honour the otherwise legally binding treaty among the central state actors and the armed resistance organizations which signed the agreement, in good faith.   

The KNU is the country’s oldest pro-democracy and pro-federal union resistance organization founded in 1947 with 70-years of direct military and political experiences in dealing with the military in Myanmar.  During the military-led reform period, the KNU leadership played an instrumental role in pushing for the peaceful political solution to bring an end to the country’s civil war of fluctuating intensities.     

First, a word about the 2008 constitution, which served as the basis of the NCA.  

To borrow the American lingo, it was the constitution of, for, and by the military. It was designed chiefly by the retired Senior General Than Shwe, who served as a young infantry officer under the command of my late great uncle the late Lt.-Colonel Ant Kywe over half a century ago. Than Shwe’s 2008 constitution was, for all intents and purposes, amendment proof and thus anti-democratic. That is to say, it was designed not to accommodate popular will or public opinion of the electorate as they “mature” or become more democratic and progressive.  

It contained no sunset clause for the military to allow itself to be phased out over a period of transitional electoral cycles, typical of all constitutions found in countries in a genuine democratic transition from the decades of military rule to a progressively democratic system (Indonesia, for instance). 

Furthermore, it also elevated the Ministry of Defence (or the Armed Forces) above any other institutions in society: the two other branches of the government, the legislature and judiciary, were to have no real control over the military, nor does the executive branch of which the military/Ministry of Defence was merely a component, theoretically. No political parties that enjoy a popular mandate from the people can influence the military’s policies or behaviour. It vested the power in the Commander-in-Chief to re-take power on any occasion which the number one soldier deems “a national emergency”.

It gave the military, not just the Commander-in-Chief, the veneer of political legitimacy, and made lawful any future seizure of power even before such anti-democratic move took place. Alas, in a stroke of strategic genius, the military had killed both the NCA and its own constitution.    

When I was growing up during General Ne Win’s one party military dictatorship (1962-88), with the veneer of the “Burmese Way to Socialism”, the military propagandists had put in circulation that the Burma Socialist Programme Party (BSPP), the political wing of the military, was a good system, badly administered by “bad” party cadres, taking and executing dictates from the erratic number one, that is, Ne Win. Those 26 long years had passed, and General Ne Win and his deputies are now fertilizer.    

The post-BSPP era (1962-88) in Myanmar has seen two military-drafted constitutions (1974 and 2008) while the control of the state has been passed on from one crop of generals to another. The names of the ruling military cliques – usurpers really – have changed. But the military has remained as the most corrupt, incompetent, mafia-like, economy-wrecking actor, not to mention it being the spearhead of Rohingya genocide, crimes against humanity and war crimes against Kachin, Rakhine, Karen, Shan, Chin, Mon, Muslims, Christians and defiant Buddhist Mons.   

Enter the State Law and Order Restoration Council (SLORC) with Senior General Saw Maung and General Khin Nyunt as Chairman and Secretary (1988-1992), the State Peace and Development Council (SPDC) presided over by Senior General Than Shwe (1992-2010), the Union Solidarity and Development Party (USDP) from 2010-15 and the National Security Council (controlled by Senior General Min Aung Hlaing, and his deputies who headed the ministries of Defence, Home Affairs and Border Affairs) from 2015-2021, which constitutionally and effectively clipped the reformist wings of the NLD government of Aung San Suu Kyi, in a two-tiered system of power-sharing until it decided that the military could no longer tolerate the NLD’s directions and speed of the economic, legal and institutional reforms.     

To be sure, there are arguments that see some values and space for reform and federalism in the military’s 2008 constitution and some life in the NCA. They point out that the NCA and the constitution recognize the political nature of military conflicts in Myanmar – now in their 8th decade! And the constitution mandates the president – as opposed to the Commander-in-Chief – to seek peaceful solutions to these armed conflicts at the dialogue table.    

No one in their rational mind would argue against resolving political differences and ending violent conflicts and wars through negotiations, especially when the war is not going in your favour. In my recent visit to Neuengamme Concentration Camp Museum on the outskirts of Hamburg, Germany, I discovered that Heinrich Himmler, the dreaded head of the Nazi SS, of all the Nazis, was trying to incentivize the “neutral” Swedish government to reach out to Britain on its behalf for a ceasefire with the Allies: he freed 3,000 Norwegian and Danish inmates which the Swedish Red Cross came with white buses to fetch as the Nazi defeat was becoming apparent – to the SS leadership.   

Engulfed in the war at home with the society – and the popular resistance movements in virtually all regions throughout Myanmar, Min Aung Hlaing and the coup regime has shown no inclination for suing for peace, NCA or not.   

Finally, no analysis of prospect for peace and reconciliation will be complete without a cursory glance at the military’s historical record at such endeavours. Whoever is the Commander-in-Chief, Myanmar’s single largest military force – out of roughly two dozen such armed organizations which are mostly ethnically organized, and thus so-named as Ethnic Armed Organizations (EAOs) – has an unenviable record of failures after failures in making peace and seeking “negotiated settlements” in resolving political disputes.    

The ceasefire and peace negotiations did not begin in 2013, the year considered the origin of the NCA which the coup regime is trying to resurrect. The first coup regime of General Ne Win – the Revolutionary Council government with its BSPP wing – had held “peace talks” with “insurgent groups”, then less than six, including the Karens, Shan, Mon and Burmese communists – in 1963, 1972, and 1980. They all collapsed, with no exception as the Burmese generals attempted to make peace and negotiate ceasefires on their own terms, without addressing the root causes – the denial of basic human rights, the refusal to accept ethnic group equality and the need for the military to strictly adhere to the national defence, as opposed to meddling in the messy business of democratic nation-building.  

Throughout the last half-century, Myanmar’s resistance organizations have consistently sought peaceful resolutions with or without external support.   

In his letter addressed to Richard von Weizsacker, then President of the Federal Republic of Germany (West Germany) dated Oct. 25, 1987 with the subject line “Regarding the Civil War in Burma”, M. Brang Seng, the late Chairman of the Kachin Independence Organization (KIO) and an authorized spokesman for the National Democratic Front, the then largest alliance of the 10 ethnic resistance organizations, wrote: As you are well aware, Burma has been plagued by civil war for the past forty years. The civil war (has) intensified since General Ne Win seized power in 1962, and established a totalitarian, centralistic and one party system of government….We have repeatedly called upon General Ne Win’s regime to solve the nation’s problem politically at the conference table. But he has responded to us with his armed forces only in the battle field ….  

Therefore, we, of the National Democratic Front, wish to earnestly request to you, the President of the Federal Republic of Germany, to kindly help us find ways to peace negotiations between us and the Burma government. We have been and are willing still to end this forty year long drawn(-out) civil war to an end on the conference table.”   

Chairman M. Brang Seng was on a visit to West Germany at the time.   

Likewise, one of the leaders of the Shan resistance, the late Chao Tzang Yawnghwe, who commanded the 1st Military Region of the Shan State Army (1969-1972) and served as a peace negotiator in General Ne Win’s 1963 peace talks, expressed his fervent desire for ending the civil war in Myanmar.    

In his book “The Shan of Burma: Memoirs of a Shan Exile” (first published in 1987, by the Institute of Southeast Asian Studies, Singapore), Chao Tzang wrote: “a military victory will not bring about any kind of nationhood, or lasting peace and stability. Uprisings will end and rebel armies disappear if and only if Rangoon accepts objective realities and gets down to the real business of providing the peoples of Burma, both the Burmese and the non-Burmese, with the kind of leadership which the country badly needs in the spirit that was displayed before independence of gained.” He was referring to the spirit of democracy, ethnic equality and federated union of independent Myanmar. 

Alas, ceasefire, peace, and reconciliation are a far cry in the country where the single largest military force – Myanmar military that seizes power at the whim of the senior military clique of the day, abolish or subjugate all constitutive institutions of the state – including executive, judiciary, and legislature – locking up democratic leaders, summarily executes dissidents, slaughters its own citizens in mass killings, burns down entire villages wantonly, and perpetrates the gravest crimes under domestic and international law.      

After six decades in power, the Myanmar military has proven itself to be no partner in peace. Its conduct is guided by neither principles of fairness, justice, equality or basic rights nor abiding sense of patriotism. It takes two hands to make the sound of peace. Even Himmler’s Nazi SS desperately sought an honourable exit, despite its heinous crimes. Not so with the coup-making military of Myanmar.     

Let that sink in.   

Maung Zarni is Burmese dissident in exile with 30-years of non-stop involvement in the country’s political affairs, an admit to the Officers Training Corps In-Take Number 10 in 1980 and a former advocate of dialogue and reconciliation with Myanmar military.


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