Rohingya 11 GENOCIDE DAY Section 144 is a key provision under chapter 11 of the Criminal Procedure Code, entitled “Temporary Orders in Urgent Cases of Nuisance or Apprehended Danger.” It provides that a Magistrate may “[d]irect any person to abstain from a certain act or to take certain order with certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility, or a riot, or an affray.” The powers of Judges (Magistrates) under section 144, a carry-over provision from colonial-era criminal law, have in practice been appropriated by the executive and are now exercised by the District Administrator or the Township Administrator of the General Administration Department, part of the Ministry of Home Affairs. The invocation of section 144 orders does in itself not constitute a state of emergency. What would a state of emergency look like? Pursuant to article 40 and chapter 11 (comprising articles 410 to 432) of the 2008 Constitution, the President, in coordination and with consent from the National Defence and Security Council, may declare a particular area to be under a temporary state of emergency. The Constitution contemplates three states of emergency: 1. The Constitution empowers the President to temporarily appropriate executive and legislative powers from lower levels of government, in a particular geographical area (articles 40(a) and 410), 2. The President may request temporary support from the Tatmadaw to perform its functions in a particular geographical area (article 413 a) or may issue an ordinance temporarily transferring executive and judicial powers to the Tatmadaw in a particular geographical area (article 413 b), 3. The full nationwide transfer of executive, legislative and judicial powers to the Tatmadaw for a period of one year (article 417). In each instance, a declaration by the President is required to enact a state of emergency. States of emergency were declared on three occasions under the Union Solidarity and Development Party-led Government, led by President Thein Sein from 2011 to 2016. Each of these was a ‘type two’ emergency, under article 40(b) of the Constitution; no ‘type one’ or ‘type three’ emergency under the 2008 Constitution has ever been declared in Myanmar. The most recent state of emergency was declared in February 2015 and covered the conflict-affected Kokang Zone of Shan State. To date, under the NLD-led government, no constitutional state of emergency has been declared in any part of the country, and the prerequisite formal meeting of the National Defence and Security Council has not been convened under the NLD-led government. The President’s reported designation of parts of northern as a ‘military operations area’ does not constitute a state of emergency declared pursuant to the Constitution. What rules govern the conduct of security operations? The State is always required to take all necessary measures intended to prevent deprivations of life, including planning security operations so as to minimize the risk to human life. Where police powers are exercised by military authorities or by other State security forces, such military or other forces are subject to the relevant international standards for law enforcement officials on matters such as use of force and respect for human rights. The Tatmadaw’s long history of gross and systematic violations of international human rights law and serious humanitarian law violations where there is armed conflict demonstrates that any rules of engagement and codes of conduct for Myanmar’s security forces have in practice failed to curtail, or have even facilitated or effectively authorized, gross human rights violations against people throughout the country. There has been a chronic lack of accountability for security personnel committing or contributing to these crimes.