Constitutional Tribunal under fire (Myanmar/Burma)

During my trip to Myanmar in May, I’d heard rumors that the government was considering impeaching the Constitutional Tribunal members over the “union-level organizations” decision (Case No. 03/2012). As always with rumors, it’s important to be careful and you can only judge its veracity based on the source. I’d heard the same rumor from at least two different, respected people, so I took it seriously. Nonetheless, several months later I’d seen nothing in the news about such simmering tensions, so I began to wonder.

Now, according to Mizzima, 301 Pyithu Hluttaw representatives signed a petition to impeach the Constitutional Tribunal judges over the “union-level organizations” case. Pyithu Hluttaw Speaker Shwe Mann announced on his official website that he would formally ask the Constitutional Tribunal members to resign by August 21 (one week). He also stated that he is informing the president about how the legislature feels.

While this has been a long time coming, it seems the new Rule of Law and Tranquility Committee is the cause of the latest impasse. Some allege that the committee – headed by Aung San Suu Kyi – is a “union-level organization” and as such contradicts the Constitutional Tribunal’s decision. However, it’s not clear how much Daw Suu herself had to do with the petition. At least one prominent MP from an opposition party, Ba Shein from the Rakhine Nationalies Development Party, was quoted in The Irrawaddy as claiming:

The Constitutional Tribunal is now assuming a position above Parliament that harms its legislative powers… If they continue to exercise their influence in this way, what is left of the role of legislators?

The article doesn’t indicate which parties support the impeachment, but with so many MPs it’s clear that at least a sizable faction of the USDP does. More importantly, 301 out of 440 MPs signed the petition. The 2008 Constitution only requires a two-thirds supermajority (§ 334(c) and § 71(c)), so if the judges don’t resign the risk of impeachment is real.

Neither the article nor the statement explain why the tribunal’s decision was so egregious that the government would ask the judges to resign. My sources said that the government simply had no faith in the members’ competence. Most of the judges aren’t lawyers after all. Also, they were upset that the court went outside of its jurisdiction. Still, this is not a case that threaten’s the new governments core interests so the strong response was somewhat surprising.
Nonetheless, for what it’s worth, I feel compelled to point out that impeachment could set a horrible precedent so soon into Myanmar’s transition. Constitutional courts often face constitutional crises early in their tenures. When the government respects its decision, as in the infamous Marbury v. Madison in the U.S. case, the court survives and has a chance to acclimate the government to constitutional restraints. However, if the government cracks down on the court early in its lifetime, the court will suffer a chilling effect and the government will lose the benefits of having a constitutional review mechanism. In short, constitutional courts succeed when political leaders are farsighted enough to realize that the long-term benefits of constitutional review often outweigh the short-term benefits of overturning a particular decision.
Myanmar’s judicial system has suffered systematic political interference since the 1962 coup, including sacking judges who showed too much independence. Since the 2010 elections, the central government has not overtly attacked the courts, but local elites still use their influence in sensitive cases. Judges need time to update their expectations and behaviors to the new political environment. If judges see the government respond so forcefully in this case, it is impossible to imagine them deciding politically sensitive cases independently in the near future.
There is a better alternative. The Constitutional Tribunal judges only serve for 5 years. The current bench has been seated since March 2011, or almost 1.5 years. This means that, at worst, the government only need tolerate the current bench for 3.5 years, until 2015. It’s hard to imagine the tribunal causing much trouble over that time. The court has only heard about 2-3 cases per year so far and can only receive cases from government officials. Moreover, the Hluttaw and president could agree to simply not submit cases to the tribunal and avoid its jurisdiction. 

Shwe Mann has thus far vocally supported the reformists and Myanmar’s democratic project. I have no reason to doubt his intentions. He seems to hope that the Constitutional Tribunal can still find some way  to resolve the crisis short of impeachment. For the sake of Myanmar’s judiciary, I hope he succeeds.

The New Light of Myanmar ran an article containing proceedings from the Hluttaw, including portions of Shwe Mann’s speech about the Constitutional Tribunal:

Speaker requests patience of parliamentarian; row over Union level organization definition to be sent to President

NAY PYI TAW, 14 Aug-Pyithu Hluttaw regular session continued for 26th day at Pyithu Hluttaw Hall in Hluttaw Complex here at 10.10 am today, attended by Speaker of Pyithu Hluttaw Thura U Shwe Mann, 399 Pyithu Hluttaw representatives, and members of Pyithu Hluttaw Legal Affairs and Special Cases Assessment Commission, and the speakers of Bago Region Hluttaw and Rakhine State Hluttaw as observers.

At today’s session, clarification regarding the parliamentary affairs was made, two questions answered, one new proposal submitted and one bill discussed and reported to the Hluttaw.

The Pyithu Hluttaw Speaker said he received the proposal to impeach the Chairperson and Members of the Constitutional Tribunal of the Union on breach of any of the provisions under the constitution as prescribed in Section 334, Subsection (a) (i) of the constitution and inefficient discharge of duties assigned by law as prescribed in Sub-section (v) of the same section, signed by 301 Pyithu Hluttaw representatives from the Hluttaw Rights Committee for the second time.

Despite reluctance to make such impeachment, the Hluttaw speaker would handle requests and duties assigned fairly by the Hluttaw representatives. The Hluttaw representatives would also have the goodwill not lesser than the Speaker. While alternatives, except the impeachment, are being sought, the Hluttaw representatives should exercise patience.

The Speaker said that after informing the attitude of the Hluttaw representatives to the President, he would take action to prevent defamation of the country, the Hluttaw, the impeached person, and the related organizations and persons. His will is to let the President know of the desire and attitude of the Hluttaw representatives and make appropriate actions.

The message would be sent to the President to withdraw a submission, which provoked the case, to the tribunal by the Union Attorney-General on behalf of the President made on 2 February, to urge the chairperson and members of the tribunal to resign at their own wish, and to complete these actions by 21 August. The Speaker informed the Hluttaw of his attitude.

He urged the representatives to show their benevolence and sympathy. The tribunal informed the Pyithu Hluttaw on 3 February of the submission made by the President. Deputy Speaker U Nanda Kyaw Swa, vested with authority by the Pyithu Hluttaw, made a clarification over the President’s submission at the tribunal on 17 February. On 28 March, the tribunal passed the resolution that defining committees, commissions and organizations formed by respective Hluttaws as Union level organizations is not appropriate with provisions under the constitution.

According to findings and comments of the Pyidaungsu Hluttaw Joint Bill Committee and discussions of 10 Pyidaungsu Hluttaw representatives at Pyidaungsu Hluttaw session, the attitude of the MPs suggests that the tribunal has no authority to make such resolution on provisions under existing Pyidaungsu Hluttaw Law, Pyithu Hluttaw Law and Amyotha Hluttaw Law which was also made mistakenly beyond the legal framework. The mistake harmed the reputation of Hluttaws and Hluttaws representatives, causing limitations, difficulties and impact on duties of Hluttaws and Hluttaw representatives.

On 26 April, the Hluttaw Rights Committee informed him of the potential submission of the impeachment proposal signed by 191 Pyithu Hluttaw representatives at third regular session of Pyithu Hluttaw, the Speaker said. He suspended the submission and met and urged chairpersons of Pyithu Hluttaw and officials of Union Solidarity and Development Party to make presentation to the President who later informed that the coordination would be made to settle the issue and the submission would be withdrawn if necessary.

The impeachment was suspended for that message. The Speaker said, he made negotiations with President and other officials to avoid impeachment. Since 9 August, the attitude of the Hluttaw representatives had been made clear to the President and he was requested to seek the best possible way, except the impeachment, to settle the issue.

As the issue is unsettled till now, the lawmakers face difficulties in discharging duties. Their annoyance became aroused and submitted the proposal signed by 301 representatives to impeach the chairperson and members of the tribunal.

The Hluttaw representatives were urged to wait for the actions of the President in a time limit upon the message. He requested patience of the representatives to do impeachment only if the case is not settled in the time limit.

Deputy Speaker U Nanda Kyaw Swa said in his discussion that Bill Committee, Public Accounts Committee, Hluttaw Rights Committee and Government’s Guarantees, Pledges and Undertakings Vetting Committee were formed in the first regular session of the Hluttaw and 19 other committees and Legal Affairs and Special Cases Assessment Commission in the second regular session. The Pyithu Hluttaw Law Section 2 (h) defines these committees and commissions as Union level organizations.

The Union Attorney-General Law and the Union Auditor-General Law also prescribes the same provision.

The Chairman of State Peace and Development Council signed and enacted those Union Attorney-General Law and the Union Auditor-General law. The duties, authorities and rights of all committees are the same with four original Hluttaw committees. The deputy speaker elected under the constitution is the chairman of the Hluttaw Rights Committee, the Pyithu Hluttaw Law suggests. The organization led by the deputy speaker, the Union level official, is the Union level organization and the committees and commissions which have the same status with it are inarguably the Union level organizations.

These are inarguably Union level organizations according to both the law and the fact. But, the Union Attorney-General on behalf of the President put forward a submission at the tribunal whether the definition of the Union level organization in Hluttaw Laws is in accord with the constitution. As the tribunal informed the Pyithu Hluttaw Speaker of the submission, the deputy speaker made presentation on the fixed date. Another clarification was made by the deputy speaker, on behalf of the Speaker, on 24 March.

The deputy speaker said he, representing the Pyithu Hluttaw Speaker and 440 Hluttaw representatives, had to stand for about an hour to hear the declaration of the resolution at the tribunal on 28 March.

He had to stand for one hour listening the wrong decision that said that the definition of the Union-level organization prescribed in the laws of the Hluttaws is not in conformity with the State Constitution. He continued to say that it was know to all that the wrong decision is the hindrance to amending the Pyithu Hluttaw Law, the Deputy Speaker said.

On 26 April, about 200 representatives sought approval from the Speaker of the Pyithu Hluttaw through the Chairman of Pyithu Hluttaw Rights Committee to submitt a proposal to the Hluttaw to impeach the Constitutional Tribunal of the Union for not dutiful to the tasks assigned to the committee by the State Constitution and for not abiding by the Transitory Provisions of the Chapter-14 of the Constitution.

The Speaker of Pyithu Hluttaw requested for the patience and the representatives listened to the Speaker.

However, news journals wrongly criticized the Union-level organizations, and some online news attacked the designating the Rule of Law and Tranquility Committee led by Daw Aung San Suu Kyi as a Union-level organization saying that the designation was not in conformity with the State Constitution.

Therefore, over 300 representatives sent the petition to the Speaker of Pyithu Hluttaw through the Chairman of Pyithu Hluttaw Rights Committee for impeaching the Chairman and members of the Constitutional Tribunal of the Union under Section 136 of the Pyithu Hluttaw Law and under section 334 (d) (2) of the Constitution. The Speaker of Pyithu Hluttaw requested the representatives to wait and he would settle the issue at the best of his ability, the Deputy Speaker said.

The Deputy Speaker thanked the representatives for their understanding for two times while waiting until the Speaker would negotiate with the Constitutional Tribunal of the Union.

On behalf of the representatives, the Deputy Speaker reiterated what the Speaker told was the best way was to settle the issue through negotiation first before impeachment and requested the Speaker to translate his words into action.

Afterwards, the Speaker replied that he would send a letter to the President in an attempt to settle the issue and discussed what massages should be written in the letter.

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