Category Archives: constitutional tribunal

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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(Myanmar/Burma)

According to The New Light of Myanmar (see below), the Hluttaw has discussed and (according to some reports) passed amendments to the Constitutional Tribunal Law. Unfortunately, I don’t yet have a copy of the amended law.

Bill amending the Constitutional Tribunal Law discussed

Nay Pyi Taw, 15 Nov- 



U Tin Yu of Yangon Region Constituency No.11 seconded and discussed the proposal urging Amyotha Hluttaw to discuss the bill amending the Constitutional Tribunal Law submitted by U Mya Nyein of Yangon Region Constituency No.7, and Hluttaw approved to discuss it. Members of Amyotha Hluttaw Bill Committee U Soe Myint submitted the Committee’s report on the b i l l ame n d ing th e Constitutional Tribunal Law. Two representatives held discussion on it.

On behalf of the Union Government, Deputy Attorney-General U Tun Tun Oo explained the bill. Whether the bill should remain unchanged as approved the Bill Committee was put to vote and the majority voted in favour of approved bill of the bill committee.

Next, U Mya Nyein of Yangon Region Constituency No. 7 proposed the Hluttaw to approve the bill amending the Constitutional Tribunal Law, and U Tun Myint,
member of Hluttaw Rights Committee seconded the proposal.

The Hluttaw Speaker sought approval of the bill by the Hluttaw. As no MP raised objection, the bill was passed as approved by the Bill Committee.

U Saw Tun Mya Aung of Kayin State Constituency No. 5 put forward a proposal urging the Union government to make preparation in cooperation with teams made of local national people for ensuring accuracy in issuing citizenship scrutiny cards and household registration certificates and no misspelling of the names of tribesmen and tribeswomen. Ten MPs discussed his proposal. Deputy Minister for Immigration and Population U Win Myint said plans have been laid to help surveyors cooperate with local tribesmen in taking national census in 2014 for correctness of the name of tribesmen. The majority of the Hluttaw voted in favour of the proposal and the session came to an end in the noon.-MNA

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Blog post summarizing Constitutional Tribunal dispute (Myanmar/Burma)

I have a post for Tom Ginsburg’s new I-Connect Constitutional Law blog about the Myanmar Constitutional Tribunal impeachment saga. It’s basically just a summary of recent events for American constitutional law scholars who might not have followed news in Myanmar closely. Here is the link:

http://www.iconnectblog.com/2012/10/will-democracy-and-constitutionalism-mix-in-myanmar/

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Who mourns for the Constitutional Tribunal? (Myanmar/Burma)

Myanmar Times published an interesting collection of interviews with Hluttaw MPs. Several MPs expressed regret that the debate over “union-level organizations” led to impeachment. Here are a few highlights:

“… The impeachment of the Constitutional Tribunal was carried out according to the law, even if it was not a great development for the hluttaw. It was done according to parliamentary procedures but all MPs felt sorry about the result,” said U Aye Mauk, the Pyithu Hluttaw representative for Ma-laing and a member of the Union Solidarity and Development Party (USDP).

 

But U Win Htein, the NLD representative for Meiktila, said he was only 50 percent satisfied with the parliament’s activities over the past three months, as he had wanted the Constitutional Tribunal dispute to be resolved through dialogue rather than impeachment. The dispute, which saw hluttaw representatives remove the tribunal’s nine members on September 6, was widely interpreted as the parliament asserting its independence from the government. 

“We followed the law in the case of the tribunal but I think it was more appropriate to resolve it with dignity, as our leader, Daw Aung San Suu Kyi, had recommended. I am not happy that we argued on whether [committees] are union-level bodies or not,” U Win Htein told The Myanmar Times.

 

[U Khat Htein Nan, the Amyotha Hluttaw representative for Kachin State’s constituency 1 said] “But the [impeachment of the Constitutional Tribunal] was a very wearisome issue and I felt sorry about it because it took up a large amount of our time.” 

U Khine Maung Yee, the National Democratic Force Pyithu Hluttaw representative for Ahlone, agreed the tribunal issue had dominated the hluttaw’s activities. 

“We all had to deal with it even though we felt sorry and had to take a long time. Eventually we resolved it, even if the result was not the one we wanted,” U Khine Maung Yee said.

It’s worth reading the whole article, especially to hear how USDP MPs feel about their NLD colleagues.

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