The recent radio message of President Thein Sein gave a hint—political dialogues would be in the vain hope unless a nationwide ceasefire deal could be signed. Consequently, if the political dialogues were not able to go ahead (if there had been political instability), it was sure that 2015 elections would be unlikely to be held, I suppose.
In this state, if 2015 elections can’t be held, who will continue administering the country? Many uneasy questions are arising among the people as to whether or not President Thein Sein will continue holding the power. Who to continue administering the country is a problem. It had better assess this problem depending on the 2008 Constitution.
If the 2015 elections can’t be held on the pretext of political instability, President Thein Sein must declare a state of emergency in accord with Section 417 prescribed in the 2008 Constitution after coordinating with the National Defence and Security Council along with the specified duration of one year from the day of promulgation.
After that the President shall declare the transferring of legislative, executive and judicial powers of the Union to the Commander-in-Chief of the Defence Services to enable him to carry out necessary measures to speedily restore its original situation in the Union. In other words, the army does not intentionally need to seize the State’s power, the President will have to transfer it to the Commander-in-Chief of the Defence Services. It shall be deemed that the legislative functions of all parliaments (Hluttaws) and leading bodies shall be suspended from the day of declaration. It shall also be deemed that on the expiry of the term of the said Hluttaws, the relevant Hluttaws have been dissolved automatically in accord with the Section 418 (a).
The significant point is the Section 418 (b). It said that notwithstanding anything contained in the Constitution, commencing from the day of transfer of the sovereign power to the Commander-in-Chief of the Defence Services, it shall be deemed that the members appointed and assigned duties by the approval of the relevant Hluttaws in accord with the Constitution, Self-Administered Division Leading Bodies or the members of Self-Administered Zone Leading Bodies, with the exception of the President and the Vice-Presidents, have been terminated from duty.
In other words, all government members except the President and the Vice-Presidents have been terminated from duty from the day that the President transferred the power to the Commander-in-Chief of the Defence Services.
If the Commander-in-Chief submits the extension of the prescribed duration by giving reasons why has not yet been able to accomplish the duties assigned to him, the President may normally permit two extensions of the prescribed during for a term of six months for each extension, stated in the Section 421 (b). The matter relating to the extension shall be reported to the emergency session of the Pyidaungsu Hluttaw (Union parliament) by summoning it. If the Commander-in-Chief submits the extension of the prescribed duration by giving reasons, he has not been able to accomplish the assigned duties, on the expiry of the term of the Pyidaungsu Hluttaw, the National Defence and Security Council normally permit two extensions of the prescribed duration for a term of six months for each extension.
But, the Constitution does not clearly mention that if the emergency session of the Pyidaungsu Hluttaw is timed to coincide with the relevant Hluttaws that will be dissolved automatically in accord with the Section 418 (a), on the expiry of the term, who shall summon the emergency session of Pyidaungsu Hluttaw.
The Section 422 promulgated that if the Commander-in-Chief submits a report of accomplishing his duties assigned before the expiry of the term of Pyidaungsu Hluttaw, the President shall declare the annulment of the ordinance transferring the sovereign power to the Commander-in-Chief by convening an emergency session of the Pyidaungsu Hluttaw. If the Commander-in-Chief submits it in time of Hluttaw expiry, the President shall declare the annulment of the power vested to him (the Commander-in-Chief of Defence Services) after coordinating with the National Defence and Security Council under Section 418.
An important thing for consideration is that 2008 Constitution does not say anything about what if the commander-in-chief would cling on the power in such situation, and refuse to return it to three pillars of executive, legislation and judiciary.
The constitution does not include any article on how to balance to avoid such kind of clinging on power. Since the Commander-in-Chief is also a human-being, it would doom the country if he had gripped the power for various reasons and abolished 2008 Constitution. In other words, Myanmar does not have a history of successful practice of the constitution’s Section 422 and so it is a big concern for the people to successfully follow the Section 422 in practice.
So, the Section 422 can be seen as a way out for transition from military rule to civil rule. Only if the Commander-in-Chief returns power to the three pillars, the National Defence and Security Council will be able to initiate a transition to civil rule. It means there will not be transition to civil rule unless the Section 422 is successfully practiced.
According to the Section 429, the National Defence and Security Council shall hold the general election in accord with the provisions of the Constitution within duration of six months commencing from the day on which the ordinance transferring the sovereign power to Commander-in-Chief is annulled.
Incumbent President Thein Sein and two Vice-Presidents shall remain in their office until the new President and the new Vice-Presidents have been elected in accord with the Constitution. However, they will have power. Similarly, parliament speakers Shwe Mann and Khin Aung Myint shall be in their office till the new Speaker of Lower House and the new Speaker of Upper House have been elected, according to the Section 424.
To make it clearer, there will be two parties holding the sovereign power if the 2015 election does not come about. The first one is the military led by Commander-in-Chief who will be transferred all power of the three pillars. After submission of a report that the Commander-in-Chief has accomplished the duties assigned, the National Defence and Security Council shall hold sovereign power during the time between the annulment of the ordinance transferring the sovereign power to Commander-in-Chief and the general election.
In other words, if the 2015 election does not bring about, Commander-in-Chief and the National Defence and Security Council shall rule successively. Although the President theoretically leads the National Defence and Security Council, six out of eleven members come from the military. It means the military has default veto power. So, the military will have influence to a lesser or greater extent until the time the National Defence and Security Council is holding sovereign power.