January 29, 2013 · 06:45

Contempt of court bill (Myanmar/Burma)

According to The New Light of Myanmar, the Pyithu Hluttaw passed a contempt of court bill. Unfortunately, no details yet.

Contempt of Court Bill passed for freedom of jurisdiction and public trust in judicature

Nay Pyi Taw, 28 Jan- The Pyithu Hluttaw passed the Contempt of Court Bill at today’s session to ensure freedom of jurisdiction, and public trust in judicature.

Daw Khin Than Myint of Ngaputaw Constituency as regards the bill suggested that legislations which should be known by the general public should be explained widely to the public in simple and comprehensible terms.

As regards the question about if there is any plan to retire the government staff members who have reached 60 so as to give promotion to experienced and skilled staff in respective government institutions, Union Minister at the President Office U Soe Maung replied that some those who have reached 60 were assigned as advisors according to work requirements.

If there are government staff members to be assigned as advisors, it is required to submit to the President Office and the approval is subject to decision of cabinet meeting.

Some of the major reasons behind such appointment are incompetency of the potential substitute and the superior’s lack of confidence in potential substitute’s performance.

In some ministries, a government official is trained to take the duties of higher positions, two levels higher in echelon as well as lower positions, two levels lower in echelon. He suggested that every staff member is to continuously try to perform the assigned duties efficiently.

Quality determines the position, especially those to be promoted to higher positions in technical field are to always try to meet the demands. There will be places for deserving young blood. In the future, those who have reached 60 would not be appointed as advisor but technician, concluded the Union Minister. The questioner U Aye Mauk said if they are appointed as technician and not as advisor, there would be vacancies for the qualified ones, calling for legislation of it if necessary.

U Thein Nyunt of Thingangyun Constituency submitted a proposal urging the Union government to consider the existing rates of court fee and stamp fee adjusted depending on Notification Nos. 122/2012 and 123/2012 of the Finance and Revenue Ministry on adjustment of court fee and stamp fee rates and Legislation Nos. 3 and 5 of the Pyidaungsu Hluttaw which amend the court fee and tax fee laws.

Deputy Minister for Finance and Revenue Dr Lin Aung replied that the rates were adjusted in line with the changing conditions and asked to document the proposal.The proposer agreed his suggestion and the Hluttaw decided to document the proposal. The tenth day session continues tomorrow.-MNA

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January 18, 2013 · 22:27

Freedom of the press? (Myanmar/Burma)

A few days ago, I wrote about the Hluttaw’s amendments to the Constitutional Tribunal Law. Of course, many in Myanmar shared their own thoughts, including a blogger known only as Dr Seik Phwa. Dr. Seik Phwa has issued some very caustic comments about the Hluttaw, including his own proposed amendment to the constitution: “No matter what the constitution says, a decision approved by parliamentary speakers and their colleagues should be adopted.”
While the government has definitely relaxed censorship over the past year, Dr Seik Phwa has been subject to criticism within the Hluttaw. According to DVB, Dr. Soe Yin has even called for a formal investigation into his remarks. 

I guess I should be more careful in what I write on Rule by Hukum!

1 Comment

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January 17, 2013 · 01:19

Flood of complaints (Myanmar/Burma)

According to DVB, Aung San Suu Kyi’s Rule of Law Committee has been flooded with over 3,000 complaints during the past 5 months about land grabs and administrative decisions. Committee secretary Win Myint told reporters that the committee had already forwarded 2,000 cases to relevant ministries.

It would be fascinating to see whether complainants ever receive a response or remedy to their complaints. That will be the real test.

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January 16, 2013 · 13:00

President’s constitutional tribunal comments voted down (Myanmar/Burma)

According to The New Light of Myanmar, the amendments to the Constitutional Tribunal Law are back in the Hluttaw. The president made several comments that have become controversial amongst MPs. Perhaps the most notable change is the proposal to allow the president to nominate all 9 members, and then allow the Pyithu and Amyotha Hluttaw speakers to select three each from the list. This of course would greatly change the nomination process by allowing the president to set the agenda. It isn’t clear from the article if the amendments would have forbidden the speakers from selecting alternate candidates.

Note, the four parts of the president’s comments were all rejected along the following vote count:

(1) yes 200 – no 368 – abstain 26
(2) yes 236 – no 332 – abstain 28
(3) yes 210 – no 360 – abstain 25
(4) yes 186 – no 387 – abstain 37

Because there were only 166 military MPs, at least some civilian MPs supported the president’s comments. The original bill is expected to become law within seven days.

Full NLM article below:

Constitutional tribunal will have to settle many disputes in the future
Lack of power to pass final resolution may cause more problems

…


Next, the comments of the President on the Bill amending the Constitutional Tribunal of the Union Law were discussed.

The President ’ s comments on Section (2) (a) of the Bill in which Article 321 of the Constitution says that “the President shall submit the candidature list of total nine persons, three members chosen by him, three members chosen by the Speaker of Pyithu Hluttaw and three members chosen the Speaker of Amyotha Hluttaw, out of them, the nomination for the chairman of the Constitutional Tribunal of the Union should be sought approval from Pyidaungsu Hluttaw. The amendment by the Hlutttaw is contrary to the Constitution, and out of the 22 laws that were enacted in accordance with the Section 443 of the Constitution, those which are not contrary to the Constitution shall remain in force, according to the Section 446 of the Constitution, and if a law is contrary to the Constitution, it would be annulled automatically.

Regarding the Subsection (b) of the Section 2 of the bill, Section 12 of the Constitutional Tribunal of the Union compiles and states the duties of the Constitutional Tribunal.

The additional Sub-section (i) does not include in the constitution, and if it is prescribed, it would harm the judiciary right of the Constitutional Tribunal which is the constitutional highest court, interfering in the judiciary sector.

And, it is also contrary to the judicial principle: to administer justice independently according to law: prescribed in the Subsection (a) of the Section 19 of the Constitution.

Besides, as it is also contrary to the Sub-section (a) of the Section-11 of the Constitution, the additional sub-section should not be prescribed, considering the fact of the essence of the democracy.

Regarding the Section 3 of the bill, if Section 23 and 24 of the Constitutional Tribunal of the Union are amended and substituted, a final decision of the Constitutional Tribunal will relevant only to the decision of a court which is stated in the Subsection (g) of the Section 12 of the Constitutional Tribunal of the Union. It means that decisions of the Constitutional Tribunal of the Union will not be final for the remaining cases and appeals can be made to the decisions. As the
amendment is contrary to the fact that the resolution of the Constitution Tribunal of the Union shall be final and conclusive of the Section 324 of the State Constitution, it will be annulled, according to the Section 446 of the State Constitution.

Regarding the Section 4 of the bill, resolutions of the Constitutional Tribunal of the Union shall take effect the departmental organizations and personnel concerned and areas concerned, according the Section 25 of the Constitutional Tribunal of the Union. The essence of the Section 25 is aimed at not occuring disputes over the effects of the resolutions of the Constitutional Tribunal of the Union. If Section 25 of the Constitutional Tribunal is not prescribed, there would be disputes and defining. Therefore, it is found that the original Section 25 should not be revoked.

U Ye Tun of Hsipaw Constituency said that the tribunal will have to settle many disputes in the future and if the resolution of the tribunal is not final, it would provoke more problems in the future. So, the President’s comment was appropriate, he said. Regarding the section 4 of the Bill, original provision of section 25 was terminated and the comment of the Joint Bill Committee was appropriate.

Defence Services Personnel Amyotha Hluttaw Representative Lt-Col Myo Myint Oo discussed that Article 142 of the Constitution of Cambodia states that the Decisions of the Constitutional Council are final; Article 24 (c) of the Constitution of Indonesia states that the Constitutional Court shall possess the authority to try a case at the first and final level and shall have the final power of decision in reviewing laws against the Constitution; Article 79 of the Constitution of Russia states that the Decision of the Constitutional Court of the Russian Federation shall be final and may not be appealed; and Article 167 (5) of the Constitution of South Africa states that the Constitutional Court makes the final decision.

He then discussed that provisions in the original law are still valid. Amending the constitutional tribunal law could make it conflicting with the constitution and may require amendment of the constitution.

Defence Services Personnel Amyotha Hluttaw Representative Maj Tin Aung Moe discussed that the termination of Section 25 in the original law as the amendment bill proposes should be reconsidered by the Hluttaw because it would make the effect of resolutions of the tribunal ambiguous. The original Section 25 suggests that the resolutions of the tribunal affect respective regions instead of government organizations and personnel. U Tun Tun Oo, Deputy Attorney-General of the Union, discussed that the Section 6 of the constitutional tribunal law should not be amended.

As the Section 25 of the constitutional tribunal law should not be terminated because it is a necessary provision for enforcement of the law and not contrary to the constitution despite the fact it is not prescribed in the constitution, he said.

He referred to Section 48 of the constitution which suggests, “The Basic Principles of the Union shall be the guidance in enacting laws by legislature and in interpreting the provisions of the constitution and other laws.”

He said the Basic Principles should be put into consideration. Amendment of a law conflicting with the constitution or prescription of an amendment bill should be made in accord with the provisions in the chapter of Amendment of the Constitution.

Next, Deputy Hluttaw Speaker U Mya Nyein read out the report of the Joint Bill Committee. While seeking the approval of Hluttaw as regard Section (2) (a) of the Bill, the bill was approved as the approval of the Pyidaungsu Hluttaw for the Bill.

While seeking the approval of Hluttaw as regard Section (2) (b) of the Bill, the bill was approved as the approval of the Pyidaungsu Hluttaw for the Bill.

While seeking the approval of Hluttaw as regard Section (2) of the Bill, the bill was approved as the approval of the Pyidaungsu Hluttaw for the Bill.

While seeking the approval of Hluttaw as regard Section (4) of the Bill, the bill was approved by 186 yes votes, 370 abstentions and 37 no votes as the approval of the Pyidaungsu Hluttaw for the Bill.

Today’s session came to an end at 1.05 pm and the third-day session will continue tomorrow.

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January 15, 2013 · 15:58

Sex and the Courtroom (Indonesia)

I’ve always said Indonesians are some of the most creative politicians in the world when it comes to corruption. The DPR is drafting a new bribery law, and several commentators, including Constitutional Court Chief Justice Mahfud MD, argue that the law should include sexual favors within the definition of bribery. According to Mahfud’s comments in The Jakarta Globe, businesses and politicians have employed mistresses and prostitutes as lobbyists.

Mahfud acknowledges that prosecuting “sexual bribery” will be difficult. However, he doesn’t ever suggest that there would be a constitutional problem with including “sexual bribery” in the law. Of course, this raises the question of why Mahfud is commenting on the law. Given public outrage over corruption, one can’t help but wonder if this is another instance of Mahfud positioning himself for a presidential run.

However, some judges are clearly not running for popularity contests. Daming Sunusi, a judge from Banjarmasin, East Kalimantan, recently appeared in the DPR for his “fit and proper” test. According to The Jakarta Post, when asked about the death penalty for rapists, he cautioned, “Both the victims of rape and the rapist might have enjoyed their intercourse together, so we should think twice before handing down the death penalty.” Perhaps it’s wise that U.S. Supreme Court nominees remain absolutely silent when appearing before the Senate.

UPDATE (1/16/12): According to The Jakarta Post, it looks like the Judiciary Commission is not only not recommending Daming Sunusi for the Supreme Court, but also investigating whether he violated judicial ethics with his rape comments.

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