Here’s an article I recently published in the Pacific Rim Law & Policy Journal about Myanmar’s Constitutional Tribunal. I argue that the first bench of members used tetualist and originalist approaches to interpreting the 2008 Constitution. I also speculate that this might have made it more difficult for them to relate to the political changes occurring in Myanmar, and at the least did not reduce the risk of impeachment. You can read it on SSRN here. Enjoy!
Category Archives: constitutional tribunal
PRL&PJ Article about Constitutional Tribunal
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The court is now in session (Myanmar/Burma)
It’s official!! President Thein Sein has appointed the members, including making Mya Thein the chief justice. Official announcement from The New Light of Myanmar below:
Republic of the Union of Myanmar
President Office
(Order No. 12/2013)
Fullmoon day of Tabodwe, 1374 ME
25th February, 2013
Appointment of Chairman and members of Constitutional Tribunal of the Union
In accordance with Sections 327 and 332 of the Constitution of the Republic of the Union of Myanmar, the following persons have been appointed as Chairman and members of the Constitutional Tribunal of the Union.
(1) U Mya Thein
(Retd Director-General,
Supreme Court of the Union)
Chairman
(2) U Myint Win
Member
(3) U Than Kyaw
Member
(4) Daw Hla Myo Nwe
Member
(5) U Mya Thein
(Advocate)
Member
(6) U Myint Lwin
Member
(7) U Tin Myint
Member
(8) Daw Kyin San
Member
(9) U Myo Chit
Member
Sd/ Thein Sein
President
Republic of the Union of Myanmar
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And the justices come rolling in… (Myanmar/Burma)
Almost six months after the Constitutional Tribunal members resigned, Myanmar looks like it will get new tribunal members. The President, Pyithu Hluttaw, and Amyotha Hluttaw have submitted nominations. The list includes:
- Retired Attorney-General’s Office Deputy Director-General U Myint Win (P);
- Legal Advisor to the President U Than Kyaw (P);
- Deputy Director-General of the Ministry of Foreign Affairs Daw Hla Myo Nwe (P);
- Retired Director-General of the Union Supreme Court U Mya Thein (PH);
- Notary Public Advocate and Supreme Court advocate U Mya Thein (PH);
- Notary Public Advocate and Supreme Court advocate U Myint Lwin (PH);
- Retired Director-General of Union Attorney-General’s Office U Tin Myint (AH);
- Retired Deputy Director-General of Union Attorney-General’s Office Daw Kyin San (AH);
- Retired Director of the Union Attorney-General’s Office U Myo Chit (AH).
According to Radio Free Asia, the first Mya Thein will likely be the court’s chief justice (although RFA’s article lists him as a former Supreme Court chief justice, so I would treat its report with some skepticism). RFA does quote a Pyithu Hluttaw MP as stating that the (first) Mya Thein should become the new chief justice due to his experience managing the Supreme Court.
While we’re awaiting more details about the nominees’ backgrounds, it seems that each nominating branch had very specific standards for its nominees. The president nominated executive branch officials, including an official from the Ministry of Foreign Affairs. The Pyithu Hluttaw seems to have sought individuals with experience in the Supreme Court, while the Amyotha Hluttaw nominated individuals who served in the Attorney-General’s office.
As expected, the president drew heavily from the executive branch, but why did the two chambers of the legislature differ so drastically in their appointments? Did the speakers of the Amyotha and Pyithu Hluttaw coordinate their nominations, or do the nominations represent the different institutions of the two chambers? Perhaps we’ll learn more once the tribunal begins functioning again.
The last case on the tribunal’s docket was a petition from the Mon chief minister. We’ll see if the tribunal takes that case up again.
Here is the original New Light of Myanmar article:
Proposed members of constitutional tribunal unveiled
Nay Pyi Taw, 21 Feb-Thura U Shwe Mann, Speaker of Pyithu Hluttaw, notified the parliament of the President’s message to the Pyidaungsu Hluttaw Speaker on formation of the Constitutional Tribunal of the Union.
The proposed members-three by the President, three by the Pyithu Hluttaw Speaker and three others by the Amyotha Hluttaw-of the new tribunal are retired Attorney-General’s Office Deputy Director-General U Myint Win, Legal Advisor to the President U Than Kyaw, Deputy Director-General of the Ministry of Foreign Affairs Daw Hla Myo Nwe, Retired Director-General of the Union Supreme Court U Mya Thein, Notary Public Advocate U Mya Thein, Notary Public Advocate U Myint Lwin, Retired Director-General of Union Attorney-General’s Office U Tin Myint, Retired Deputy Director-General of Union Attorney-General’s Office Daw Kyin San and Retired Director of the Union Attorney-General’s Office U Myo Chit.
Parliamentarians are to file complaints, if any, with firm evidences by 23 February afternoon.-NLM
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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!
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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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Dominic J. Nardi, Jr. 
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