Dominic J. Nardi, Jr.

In retrospect, I’m actually a bit surprised the tribunal members haven’t already been replaced. After all, it’s already been 3 months since the resignation of the original bench. However, even when it was active, the tribunal only heard 2-3 cases per year, so I could see why it might not be considered a priority for lawmakers.

What isn’t clear to me yet is whether there’s a strategic reason behind the delay. In other words, are lawmakers actively delaying the appointment of new members because they want to avoid constitutional review? There’s no provision in the constitution specifying how quickly tribunal members must be replaced. 

Of course, I’d like to think MPs are taking so long because they’re thinking carefully about the arguments I raised in my Myanmar Times op-ed back in September. But, then again, that might be wishful thinking.

Republic of the Union of Myanmar
Information Team
Press Release No. 8/2012
26 November, 2012
(13th Waxing of Tazaungmon 1374 ME)
President’s message to Pyidaungsu Hluttaw Speaker for reconstitution of Constitutional Tribunal of the Union

1. The chairperson and members of the Constitutional Tribunal of the Union have handed in their resignations to the President of their own volition on 31 August, 2012 and their resignation was accepted on 6 September 2012. With regard to this, the President sent a message describing the full account with reference to legal provisions as follows:

“1. The chairperson and members of the Constitutional Tribunal of the Union have submitted their resignation letters to me (President) of their own volition on 31 August 2012. Their resignation was accepted in line with Section 331 of the Constitution and provisions in the Section 28 of the Constitutional Tribunal of the Union.

2. Here, message is sent asking to take action under Sections 332 and 333 of the Constitution and, Sections 4, 5 and 30 of the Constitutional Tribunal of the Union.”

2. In addition, another message was sent to the Pyidaungsu Hluttaw Speaker asking to work with his legal mandate to fill the vacant positions in Constitutional Tribunal of the Union on 16 October 2012. The full context of the message is as follows:

“1. The chairperson and eight members of the Constitutional Tribunal of the Union formed and appointed with order No. 2/2012 and order No. 11/2012 dated 30-3- 2011 of the President Office handed in their resignations of their own volition and their resignation was accepted on 6 September 2012.

2. Here, message is sent asking to fill the vacancies of the chairperson and members of the Constitutional Tribunal of the Union under Sections 332 and 333 of the
Constitution and, Sections 4 and 5 of the Constitutional Tribunal of the Union.”

3. Provisions that were referred to in two messages are publicized as follows:

(a) Constitution

(1) Section 331: If a member of Constitutional Tribunal of the Union wishes to resign on his own volition from office before the expiry of his term due to any reason, he may do so, after submitting his resignation in writing to the President.

(2) Section 332: If a position of a member of the Constitutional Tribunal of the Union is vacant for any reason, the President may appoint a new member of the Constitutional Tribunal of the Union in accord with the provisions under the Constitution.

(3) Section 333: The President, the Speaker of the Pyithu Hluttaw and the Speaker of the Amyotha Hluttaw shall select from among the Hluttaw representatives or among those who are not Hluttaw representatives with three members each who has the following qualifications:

(a) person who has attained the age of 50 years;

(b) person who has qualifications, with the exception of the age limit, prescribed in Section 120 for Pyithu Hluttaw representatives;

(c) person whose qualification does not breach the provision under Section 121 which disqualify a person standing for election as Pyithu Hluttaw representatives:

(d)

(i) person who has served as a Judge of the High Court of the Region or State for at least five years; or

(ii) who has served as a Judicial Officer or a Law Officer at least 30 years not lower than that of the Region or State level; or

(iii) who has practiced as an Advocate for at least 20 years; or

(iv) who is, in the opinion of the President, an eminent jurist;

(e) who is not a member of a political party;

(f) who is not a Hluttaw representative;

(g) who is well acquainted with political, administrative, economic and security affairs;

(h) who is loyal to the State and citizens.

(b) Constitutional Tribunal of the Union Law

(1) Section 4: (a) The President, the Pyithu Hluttaw Speaker and the Amyotha Hluttaw Speaker shall nominate three members each who, either Hluttaw representatives or not, meet the following qualifications:-

(i) who has attained the age of 50 years;

(ii) who meets qualifications of Pyithu Hluttaw representatives prescribed in Section 120 of the constitution except the age limit;

(iii) who is not subject to reasons for disqualification of Pyithu Hluttaw representatives prescribed in Section 121 of the constitution;

(iv) (aa) who has served as region or state high court judge at least five years; or (bb) who has served as a Judicial Officer or a Law Officer at least 30 years not lower than that of the Region or State level; or (cc) who has practiced as an Advocate for at least 20 years.

(v) who is well acquainted with political, administrative, economic and security affairs;

(vi) who is loyal to the State and citizens.

(b) The president shall nominate, in his opinion, an eminent jurist even if he/she does not meet qualifications prescribed in Sub-section (a) Sub-paragraph(iv).

(c) As Section 333 Sub-section (e) requires members not to be member of a political party and Sub-section (f), not to be Hluttaw representative, the member shall not take part in its party activities if he/she is a member of a political party and shall be deemed to have resigned as Hluttaw representative in accord with Section 330 of the constitution. He/she shall be deemed to have retired from the Civil Services.

(2) Section 5: The Pyithu Hluttaw Speaker and the Amyotha Hluttaw Speaker shall submit the name list of members they nominate in accord with Section 4.

(3) Section 28:

(a) If the chairman wishes to resign on his own volition from office before the expiry of his term due to any reason, he may do so, after submitting his resignation in writing to the President.

(b) If a member wants to resign from office in accord with sub-section (a), the member may do so after submitting the written resignation to the President through the Chairperson.

(4) Section 30: If the office of the chairperson or the member becomes vacant due to a particular reason, the President shall appoint the new chairperson or member who has qualifications prescribed in Section 4 in accord with the provisions of the Constitution.

4. It is learnt that the President is vested duties to carry out the matter regarding the reconstitution of the Constitution Tribunal of the Union in accordance with the following law and provisions.

(a) Constitution

(1) Section 321: The President shall submit the candidature list of total nine persons; there members chosen by him, three members chosen by the Speaker of the Pyithu Hluttaw and three members chosen by the Speaker of the Amyotha Hluttaw, and on member from among nine members to be assigned as the Chairperson of the Constitutional Tribunal of the Union, to the Pyidaungsu Hluttaw for its approval.

(2) Section 327: The President shall appoint the Chairperson and members of the Constitutional Tribunal of the Union approved by the Pyidaungsu Hluttaw.

(3) Section 328: The Pyidaungsu Hluttaw shall have no right to refuse the persons nominated for members of the Constitutional Tribunal of the Union by the President unless it can clearly be proved that they are disqualified.

(b) Constitutional Tribunal of the Union Law

(1) Section 6: The President shall submit the candidature list of total nine persons chosen in accordance with Section 4, and one member from among them to be assigned as the Chairperson to the Pyidaungsu Hluttaw for its approval.

(2) Section 10: The President shall appoint the Chairperson and members of the Constitutional Tribunal of the Union approved by the Pyidaungsu Hluttaw.

5. As the Chairperson and all members of the Constitutional Tribunal of the Union resigned on 6 September 2012 on their own volition in accordance with the law, the functions of the Constitutional Tribunal of the Union came to a halt. It is required to reconstitute the Constitutional Tribunal of the Union in accordance with the law as it is the constitutional supreme court of the State.