Myanmar’s Marbury v. Madison? (Myanmar/Burma)

A few weeks ago, I mentioned news about Daw Kyin Htay’s attempt to use a constitutional writ to challenge her dismissal from the University of Yangon faculty. Here’s a brief follow-up.

Daw Kyin Htay filed a petition for writ of mandamus under § 377 of the Constitution. This explains how the Supreme Court had jurisdiction in the first place, even though the Constitutional Tribunal has exclusive jurisdiction over constitutional issues. 

 
Earlier this month, the Supreme Court decided the case in Daw Kyin Htay’s favor, striking down the Ministry of Education’s order (see the official order here). The Myanmar Times has an article discussing the outcome here.

Daw Kyin Htay’s lawyer claims this is the first Supreme Court case to overrule a decision by a Union minister, which is significant. However, before we all start calling this Myanmar’s Marbury vs. Madison, it is worth recalling China’s Qi Yuling case from 2001, in which China’s Supreme People’s Court found a constitutional right to education. A flurry of law review articles proclaimed that China’s Marbury vs. Madison moment had arrived, but there was little follow-up and in December 2008 the Supreme People’s Court withdrew the opinion

I will be interested in reading the Supreme Court’s decision when it comes out in order to understand the legal reasoning in the case. I’m still a bit unclear as to the constitutional right in question here (it seems to be a sort of due process claim under § 375 of the 2008 Constitution). In any case, a fascinating development.

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