Category Archives: constitutional tribunal

PRL&PJ Article about Constitutional Tribunal

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!

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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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Is that your final answer? (Myanmar/Burma)

A few weeks ago, the Hluttaw voted to amend the Constitutional Tribunal Law. Unfortunately, I haven’t seen an English-language translation of the changes. Fortunately, we now have an insight into the debates through an op-ed by U Ye Tun, Pyithu Hluttaw MP from the Shan Nationalities Democratic Party for Hsipaw in northern Shan State. Ye Tun wrote in The Myanmar Times explaining his decision to vote against amendments to the Constitutional Tribunal Law.

Ye Tun spells out two complaints. First, the amendments require the Tribunal members to report to the president, Pyithu Hluttaw speaker, and Amyotha Hluttaw speaker about their activities. Ye Tun fears that this would make the Tribunal members responsive to the bodies that appointed them. Rather, Ye Tun would have preferred language simply requiring the members to submit a formal message that would allow the members to keep their distance from the politicians.

Second, Ye Tun worries that the law will undermine the finality of Constitutional Tribunal decisions. The way he interprets the changes, the Tribunal decisions will only be final if they reached the court on appeal from the ordinary courts through § 323 of the Constitution. In other words, cases submitted by the president, speakers, etc. would not constitute the final word on the constitution.
U Ye Tun’s concerns are very real and potentially troubling. If the Constitutional Tribunal’s independence is undermined and the finality of its opinions questioned, then it will not be able to play an impartial adjudicatory role between the branches. Members might be viewed primarily as agents of their appointing bodies rather than as neutral arbiters. In short, as Ye Tun warns, the Tribunal might become more controversial without becoming more effective.

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Thein Sein to Hluttaw: Get a move on it! (Myanmar/Burma)

The New Light of Myanmar has published an official announcement by President Thein Sein urging the Hluttaw to push ahead with reconstituting the Constitutional Tribunal. While couched in diplomatic language, the president  reminded the Hluttaw of its role and the need for a tribunal. 

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.

(The following is an unofficial translation of the Press Release No (8/2012).-Ed)

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.

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