September 5, 2012 · 22:47

The Constitutional Tribunal strikes back (Myanmar/Burma)

Facing the threat of impeachment, Myanmar’s Constitutional Tribunal has criticized the Hluttaw for appointing 15 MPs, including Chairman Thein Swe, who signed the original petition for impeachment to the new Investigation Board. The tribunal members are of course relying upon the principle that a defendant’s accuser should not also serve as his judge. 
According to the 2008 Constitution, one chamber can initiate impeachment, while the other one conducts the proceedings. However, what happened in this case was that Pyithu Hluttaw MPs signed a petition before the Amyotha Hluttaw formally voted on impeachment. Thus, even though the Amyotha Hluttaw did hold its vote, the Pyithu Hluttaw MPs had already revealed their preferences before the proceedings even started.

Some analysts belief the Constitutional Tribunal is striking back in a deeper way. A former European diplomat quoted in The Financial Times noted that the tribunal’s ruling was “clearly designed to protect the executive against the emerging will of the people represented in parliament. . . What it really says is that ‘the old guard is trying to strike back’.” Unfortunately, the diplomat isn’t quite clear in why he came to this conclusion, but I suspect it’s because the tribunal’s “union-level organizations” decision would reduce the Hluttaw’s ability to subpoena ministries to testify before committee hearings..

Here is the Constitutional Tribunal’s announcement of its complaint against the Hluttaw from The New Light of Myanmar:

Republic of the Union of Myanmar
Constitutional Tribunal of the Union
Announcement No.2/2012
2nd Waning of Wagaung, 1374 ME
(3rd September, 2012)
Remonstration of Chairman of Investigation
Board U Thein Swe and members

1. It is reported that 301 Pyithu Hluttaw representatives at first have signed a proposal and sent it to the Speaker of Pyithu Hluttaw to impeach Chairman of the Constitutional Tribunal of the Union and members. Those representatives are adverse parties in this case.

2. They have no right to be as a chairman and members of the Investigation Board formed by Pyithu Hluttaw. This concept can be seen at Penal Code Section No.556 and paragraph 41 of Services Regulations Manual Book issued by the former State Council Office.

3. PREM’s Law of Habeas Corpus, Certiorari, Mandamus and Emergency Legislation says that “Nobody has the right to make decision in the case in which they get engaged”. This law principle is the prime of fair judiciary in the world.

4. Thus, according to the investigation ways and practices, as those 301 representatives who proposed to impeach the Chairman of Constitutional Tribunal of the Union and members, have no rights to participate in Pyithu Hluttaw Investigation Board, they are objected.

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September 3, 2012 · 15:55

Amyotha Hluttaw joins the fight (Myanmar/Burma

Thus far, the Pyithu Hluttaw has received the most attention for its push to impeach the members of Myanmar’s Constitutional Tribunal. However, there is just as much support for impeachment in Amyotha Hluttaw. In a recent vote, 163 MPs supported impeachment while 53 did not. The vote split directly along civilian-military lines, with the 53 military MPs opposing the measure. According to The Myanmar Times, military MPs have actually taken the lead in defending the court:

“The ruling of the constitutional tribunal is final. Not following [the ruling] is the same as not following the constitution. It’s as if the legislature is trying to position itself above the judiciary,” Lt Col Zaw Moe said.

The irony!

The votes in both Hluttaws have been open votes, meaning MPs must publicly stand up and state their position. However, according to The Myanmar Times, a few MPs in the Amyotha Hluttaw proposed using a secret ballot. Speaker Khin Aung Myint rejected the proposal. Nonetheless, the proposal itself is interesting in that it might indicate dissension within the ranks. It does seem a bit suspicious after all that all civilian MPs support impeachment. It might suggest that the speaker is putting pressure on backbenchers to vote for impeachment.

Finally, The Myanmar Times published another op-ed in which I was interviewed.

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August 31, 2012 · 03:14

Impeachment! (Myanmar/Burma)

Earlier yesterday, Myanmar’s parliament proceeded with impeachment charges against the Constitutional Tribunal members. The Pyithu Hluttaw has formed an investigatory committee under Deputy Speaker U Nanda Kyaw Swa and 14 other members.

I could be wrong, but the long delay and lead-up to the impeachment charges could suggest some hesitancy on the part of Hluttaw leaders. After all, the Hluttaw voted last week to ask the tribunal to apologize, suggesting that MPs would be satisfied with simply reversing the decision. Over the next few weeks, we’ll see if either the tribunal or president can find an acceptable “way out” for the legislature, if the MPs are indeed looking for one.

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August 28, 2012 · 01:20

Reps move towards impeachment (Burma/Myanmar)

Last week, I posted news about the constitutional crisis in Myanmar, in which the lower chamber of the legislature, the Pyithu Hluttaw, passed a resolution to impeach the Constitutional Tribunal members. On Friday, 162 MPs in the Amyotha Hluttaw passed a similar resolution. Notably, the votes in both chambers surpassed the two-thirds threshold necessary to impeach the judges.

However, it appears the legislature is still trying to give the tribunal members a way to back down. On Monday, A joint session of both chambers voted 447-168 (around 73%) calling upon the tribunal members to admit that they made a mistake in deciding that committees formed by parliament did not count as union-level organizations.

While Xinhua News did not provide a party-line breakdown of the vote, it seems that a broad coalition of MPs supports the impeachment drive, including Pyithu Hluttaw Speaker Shwe Mann and Aung San Suu Kyi. In fact, it appears the only large bloc against impeachment seems to be the military appointees. However, under § 334 of the Constitution, impeachment only requires a two-thirds vote, so the military does not have veto power.

The Myanmar Times interviewed me about the situation yesterday about the situation. I expressed my hope that the parliament could settle the dispute without impeachment because these sorts of constitutional crises tend to have long-term effects on judicial independence. However, perhaps more remarkable than the fact that a Burmese news journal decided to interview me is the fact that media are covering this dispute in depth and quite thoughtfully. Foreign-based experts like me can perhaps play a small role by informing the people of Myanmar about the experiences of courts from other countries.

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August 22, 2012 · 21:05

Constitutional Tribunal dispute heats up – even more (Myanmar/Burma)

Pyithu Hluttaw Speaker Shwe Mann’s deadline for the Constitutional Tribunal Justices to resign has come and passed. President Thein Sein rejected the Hluttaw’s call to pressure the justices to resign. Now, MPs are threatening impeachment.

One MP, Ba Shein, from the Rakhine Nationalities Development Party, is quoted in The Irrawaddy as saying:

We don’t have a lot of freedom to make laws, because they [the Constitutional Tribunal] are sitting here in Parliament, breathing down our necks.

According to one MP quoted in Mizzima, the NLD and USDP have the “same attitude” regarding impeachment.

I’ve already written at length my thoughts on the controversy here. One more aspect I’ll point out given this quote is that constitutional courts are supposed to constrain legislatures. I’ve heard the same complaints from MPs in Indonesia regarding the Mahkamah Konstitusi. However, the goal is that, in creating these constraints, the legislature actually empowers its ability to pass laws and govern over the longer term.

The fundamental question Myanmar faces today is whether to impeach the judges and enhance the ability of the Hluttaw to pass reforms over the short-term or to allow the judges to fulfill their term and allow the court to protect legislation over the long-term.

Read on for copies of two recent articles from The New Light of Myanmar:

Constitutional Tribunal of the Union holds press conference

NAY PYI TAW, 20 Aug-The Constitutional Tribunal of the Union held a press conference, at its meeting hall at 1 pm today, attended by Chairman and members of the Constitutional Tribunal of the Union, local and foreign media men, reporters from local-based foreign news agency and guests.

Firstly, Chairman U Thein Soe of the Constitutional Tribunal of the Union explained the purpose of holding the press conference. After that, the Chairman replied to the quires raised by local and foreign media men. The press conference came to an end with concluding speech by the Chairman. After the press release, Constitutional Tribunal of the Union released the statement No.1/2012. The following is the full translation of the statement.

Republic of the Union of Myanmar
Constitutional Tribunal of the Union
Statement No. 1/2012
3rd Waxing of Wagaung, 1374 ME
(20th August, 2012)

The Constitutional Tribunal of the Union gave its final verdict on a letter of submission made by the Union Attorney-General to Constitutional Tribunal of the Union, dated 2-2-2012, on behalf of the President on 28-3-2012.

Under the provisions of the Section 320 of the Constitution, the Constitutional Tribunal of the Union was set up to decide on disputes relating to the Constitution in accord with Basic Principles of Union under Chapter (1) and the Basic Principles of the Constitution. Under the provisions of the Section 322 of the Constitution, the following functions and duties of the Constitutional Tribunal of the Union are conferred.

(a) interpreting the provisions under the Constitution;

(b) vetting whether the laws promulgated by the Pyidaungsu Hluttaw, the Region Hluttaw, the State Hluttaw or the Self-Administered Division Leading Body and the Self-Administered Zone Leading Body are in conformity with the Constitution or not;

(c) vetting whether the measures of the executive authorities of the Union, the Regions, the States, and the Self-Administered Areas are in conformity with the Constitution or not;

(d) deciding Constitutional disputes between the Union and a Region, between the Union and a State, between a Region and a State, among the Regions, among the States, between a Region or a State and a Self-Administered Area and among the Self-Administered Areas;

(e) deciding disputes arising out of the rights and duties of the Union and a Region, a State or a Self- Administered Area in implementing the Union Law by a Region, State or Self-Administered Area;

(f) vetting and deciding matters intimated by the President relating to the Union Territory;

(g) functions and duties conferred by laws enacted by the Pyidaungsu Hluttaw.

In line with the functions and duties conferred by the Constitution, The Constitutional Tribunal of the Union gave its final verdict on a submission made by the President to define the meaning of a Union-Level Organization which is formed in accord with the Constitution. Under the Section 324 of the Constitution and Section 23 of the Constitutional Tribunal of the Union, the resolution of the Constitutional Tribunal of the Union is final and conclusive.

The Constitutional Tribunals in the world countries decide Constitutional disputes while it is decided by Supreme Court in the countries that have no the Constitutional Tribunals. Chairman and members of The Constitutional Tribunals took oath of safeguarding the Constitution, obeying the State’s laws and the loyalty to the Constitution. So, the verdicts on the submissions are being given by the Constitutional Tribunal of the Union in accord with the Constitution in a loyal and fair manner.

The Constitutional Tribunal of the Union shall continue to carry out its functions and duties conferred by the Constitution by upholding the interests of the State and people, as they have sworn in.


It is up to two agencies to choose whatever political line of struggle of their own volition as both are independent ones formed in line with the constitution
Speaker of Pyithu Hluttaw sends a message dated 14 August to President
President sends back a message dated 20 August to Speaker of Pyithu Hluttaw

NAY PYI TAW, 20 Aug – The Speaker of Pyithu Hluttaw sent a message dated 14 August, 2012 to the President of the Republic of the Union of Myanmar.

In the message, the Speaker said he sent the message to the President to advise him so that actions would be fair and could be at a least loss to those who concerned as the representatives of Pyithu Hluttaw did not accept the decision of the Constitutional Tribunal of the Union.

The Speaker said that 301 representatives which makes up the majority of the Pyithu Hluttaw, proposed him to impeach the Constitutional Tribunal of the Union through the Pyithu Hluttaw Rights Committee on 8 August, 2012, for the second time as they did not satisfy and accept the decision of the Constitutional Tribunal of the Union over the submission No. 3/Nya Ma (1) 3-1 (92) Na Pa Ta (72) made by the Union Attorney-General, on behalf of the President, on 2 February, 2012, On 26 April, 2012, 191 representatives of Pyithu Hluttaw filed the petition and sought approval from his through the Pyithu Hluttaw Rights Committee at the third regular session of the first Pyithu Hluttaw to submit a proposal to the Hluttaw to impeach Chairman and member of the Constitutional Tribunal of the Union, and he suspended the issue, and he and chairmen of the Pyithu Hluttaw committees and Secretary of the Union Solidarity and Development Party presented the issue to the President. The chairmen of the Hluttaw committees and secretaries retold the representatives about what the President replied to them saying that the President would settle the issue satisfying all. Though negotiations were made with those who were concerned in the issue in an attempt to find the best solution for the issue, still, the issue was not yet settled, he added in the message.

Therefore, 301 representatives of Pyithu Hluttaw filed the petition and sought approval from him to impeach the Constitutional Tribunal of the Union on breach of the provisions prescribed in the Sub-section (a) (ii) of the Section 334 of the Constitution and inefficient discharge of their duties assigned by law as prescribed in Sub-section (v), he added.

He did not want to reach such situation but he assumed that the suitable and best way to settle the issue is to withdraw the submission made by the Union Attorney- General, on behalf of the President, and resigning of the chairman and members of the Constitutional Tribunal of the Union at their own wish by 21 August, 2012, the Speaker said.

Regarding the issue, Legal Affairs and Special Cases Assessment Commission also suggested the Hluttaw that such action was suitable and fair and could be at least loss to the dignity of the State and the Hluttaws and those who were concerned in the issue.

Therefore, he sent the message to the President so that he could review and handle the situation, he said.

Regarding the above the message, the President replied the message to the Speaker of the Pyithu Hluttaw on 20 August.

In his message to the Pyithu Hluttaw, the President expressed his thanks to the Pyithu Hluttaw Speaker for his suggestions for bringing about fair and just actions with least trauma to the personalities concerned as Hluttaw representatives disapproved of the verdict of the constitutional tribunal of the Union.

In his response to the suggestion by the Pyithu Hluttaw to withdraw the proposal submitted by the Union Attorney- General on behalf of him, the President explained the socalled designation of committees, commission and organizations formed by the respective Hluttaws. The government is responsible to manage appropriate financial and administrative matters if those committees, commission and organizations are designated as Union level organizations. Such management needs to be within the framework of laws and rules and regulations. It was asked to the Constitutional Tribunal of the Union to define the meaning of Union level organizations so as to make sure whether committees, commission and organizations formed by respective Hluttaws are under the name of Union level organizations.

That asking the Constitutional Tribunal of the Union to define the provision of the constitution within the framework of regulations is in fact aimed to ensure legal rights and duties of members of the Hluttaw committees, commission and organizations.

As regards to the case, the Constitutional Tribunal of the Union delivered a verdict on 28 March, 2012, deciding that connotation of committees, commission and organizations formed by respective Hluttaws as Union level organizations is not in conformity with provisions of the constitution. It is the final verdict in accordance with Section 324 of the constitution and Article 23 of the Constitutional Tribunal of the Union. The case is not on trial but final verdict has been delivered and thus it is impossible to withdraw the proposal under the tradition and procedures of the courts. The President requested the pardon of Pyithu Hluttaw Speaker asking him to put himself in government’s shoes.

The President then explained about allowing the chairperson and members of the constitutional tribunal of the Union retire before 21 August, 2012 of their own volition. The provision in sub-para (a) of Section 11 of the constitution is just aimed for possible most separation of three branches of national sovereignty-legislative power, executive power and judicial power and checks and balances. It would be against the law and unfair if the President would force the chairperson and members of the constitutional tribunal of the Union to resignation for the constitutional tribunal of the Union has acted freely to assume its responsibility vested by the constitution. Therefore, it cannot be forced the chairperson and members of the constitutional tribunal of Union to resign.

Members of the constitutional tribunal of the Union are nominated by the President and two Hluttaw Speakers and then appointed with the approval of the Pyidaungsu Hluttaw. The members are legal experts with long judicial experiences, some of whom even dutifully took part in the National Assembly held from 2004 to 2007 for drafting the constitution. It is believed that they would not make reckless decision either by mistake or due to impartiality.

All the Pyithu Hluttaw representatives including the President himself have taken affirmation or sworn in to uphold and abide by the constitution and adhere to the laws of the State in the presence of the Pyithu Hluttaw Speaker.

So, the president has to abide by the verdict of the constitutional tribunal of the Union according to the provisions of Section 324 of the constitution and provisions of the Article 23 of the law of the constitutional tribunal of the Union.

Myanmar has just taken step forward to global stage with infant democracy. So, in order not to impede the strides of reforms undertaken by the legislative, executive and judicial pillars for democracy promotion in Myanmar because of the disagreement at present time, and in consideration of the 60 million population, and in order not to undermine the unity of the three pillars, it is advisable for the Hluttaw to exercise the legal rights vested by Chapter (12) of the constitution rather than pointing a finger at someone. It is supposed to be appropriate approach without causing disadvantages to anyone.

The President in conclusion said that it is up to two agencies to choose whatever political line of struggle of their own volition as both are independent ones formed in line with the constitution.-MNA

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