Category Archives: constitutional tribunal

Irony? What irony? (Myanmar/Burma)

Scrolling through the Myanmar Times website, I noticed an article with the headline “Hluttaw speaker promises independence for judiciary.” Of course, given the Hluttaw’s recent impeachment of the Constitutional Tribunal members, this at first seems ironic, to say the least. I should also note that Shwe Mann is not the only one – in a recent interview with VOA, Daw Aung San Suu Kyi warned investors that Burma lacks an independence judiciary. However, these speeches actually be signaling something else. Here are some possibilities:


– Just a speech

Obviously, it’s possible that Shwe Mann was just giving a speech at a meeting between the Pyithu Hluttaw Rule of Law, Stability and Peace Committee and legal experts in Yangon and needed something to say. After all, he has been on the record for judicial independence before, so his stance isn’t entirely new. Nonetheless, it is still necessary to reconcile his speech with recent events.

– All judges belong to the judiciary… except for those ones


It isn’t entirely clear where the Constitutional Tribunal fits in the wider scheme of Myanmar’s legal system. The constitutional drafters also seemed unsure. Even up to 2007, the drafters squeezed the tribunal in at the end of the constitution in a veritable grab-bag of provisions. The official 2008 version includes the tribunal under Chapter 6, which deals with the judiciary. However, even now, the subsection dealign with the tribunal is somewhat offset from the rest of Chapter 6. The constitution does not call tribunal members “judges”, but rather “members”. The members serve for only five-year terms, which is a de jure limit on their independence.

More broadly, the whole notion of a separate constitutional court under at traditional Kelsenian theory of constitutional review is that the regular judiciary cannot and should not exercise review. However, this is a bit difficult to reconcile into Myanmar constitutional law because Kelsenian theory is aimed at civil law countries, in which the legal code is the supreme source of law. Officially, Myanmar is still a common law country. During the parliamentary era (~1948-62), the Supreme Court could and did exercise constitutional review. 

Shwe Mann’s speech could reflect this ambiguity in that he might associate judicial independence only with the regular judiciary. However, in the same speech Myanmar Times also quotes him as stating that the Supreme Court is superior to all courts except for courts martial and the tribunal. While the Myanmar Times did not reprint an exact quote, it seems clear that Shwe Mann at least does not consider the tribunal a creature apart. 

– Don’t blame me, I’m only the messenger

It isn’t entirely clear whether Shwe Mann actually supported impeachment or merely followed the whims of his caucus. After 301 Pyithu Hluttaw MPs signed the petition to impeach the tribunal members, Shwe Mann asked for time to allow the president to resolve the crisis. His first preference seems to have been to allow the tribunal members to resign voluntarily. Of course, without information from the cloakrooms, we’ll never know. This recent speech could be his way of disassociating himself from the imbroglio.

– Que sera, sera

While the speech itself does not focus on the Constitutional Tribunal, its timing could be a sort of peace offering. In essence, even though the Hluttaw impeached the tribunal, “what’s past is past.” In fact, there are reasons to think that the recent impeachment was unique. First of all, the selection and appointment of the original nine Hluttaw members was conducted in secret. It’s not clear how much of a voice the president and speakers, much less Hluttaw backbenchers, had. Some people complained more about the quality and qualifications of the tribunal members than about the “union-level organizations” case itself. For the record, as many or more people have also praised the tribunal members. My point is simply that some observers justified impeachment as a remedy to a deeper wrong. If Shwe Mann and Daw Suu are among them, then they might feel inclined to give a new Constitutional Tribunal bench greater independence.

– Whoops!

This is based purely on speculation, but one worth mentioning. It’s possible that Shwe Mann and others have either changed their mind or received negative feedback about the impeachment. In particular, the impeachment might have spooked foreign investors, especially given the high-profile article in the Financial Times and Daw Suu’s very public statements to foreign audiences warning businesses that Myanmar lacks an independent judiciary. After all, one of the rationales behind judicial independence is to reassure external stakeholders, especially businesses, that government power is not unconstrained. There is no evidence pointing towards this, but it would be worth seeing whether major business news outlets, such as the Economist, comment on the impeachment in their country reports.

None of this is to justify the impeachment, but it does alleviate my worries about the precedent it set. Nobody has publicly claimed that the judiciary must follow the “will of the people” – something occasionally heard even in America. Nobody has explicitly claimed that judicial independence does not apply to the Constitutional Tribunal. However, with the precedent of impeachment looming over the bench, the political leadership is going to have to take extra precautions to reassure the tribunal members.*

* To learn what those are, read next week’s issue of Myanmar Times.

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Not for the money (Myanmar/Burma)

Yesterday, I posted an article by Aung Htoo claiming that the Hluttaw was so adamant about the Constitutional Tribunal’s “union-level organizations” decision because it denied the opportunity to claim the same emoluments and privileges as ministers. It seems like Hluttaw members have responded through The New Light of Myanmar. U Stephen of Kengtung Constituency asked whether any MPs have claimed ministerial emoluments or privileges. Secretary of Pyithu Hluttaw Rights Committee Dr Soe Yin responded that none had done so thus far. The article (reprinted below) then goes on to attack critics (presumably including Aung Htoo) who had claimed the Hluttaw only impeached the tribunal members because they wanted a higher salary. 

The justices might be gone, but the debate has only begun. I’m sure we’ll hear if any MPs do claim ministerial emoluments and privileges.

No representative has so far claimed the Union minister level rights and emoluments

NAY PYI TAW, 6 Sept- …

U Stephen of Kengtung Constituency asked whether the Pyidaungsu Hluttaw representatives have claimed Union minister level rights and emoluments, whether Pyidaungsu Hluttaw committees, commission and board are acting like intervening in functions of ministries, and what form of intervention if there is any, whether the Pyidaungsu Hluttaw knows that the various forms of deliberate attack designed to defame the Hluttaws and Hluttaw representatives in deed mean an insult to the people and if the Pyidaungsu Hluttaw knows, how the Hluttaw views those actions and how the Hluttaw views the crucial role of legislature for flourishing of genuine democracy as the role of the legislature needs to be stressed if the country is really to be built democratic nation.

Regarding the first question, Secretary of Pyithu Hluttaw Rights Committee Dr Soe Yin replied that no representative has so far claimed the Union minister level rights and emoluments. Hluttaw representatives are serving the interests of the nation, country, people, undertaking legislative works in the Hluttaw and ensuring checks and balances in cooperation with executive and judicial branches without party attachment, racism, dogmatism, sectarianism, sacrificing self-interests, under the leadership of the Pyithu Hluttaw in accordance with provisions of the constitution.

They enjoy the parliamentary rights as vested by the Hluttaw and are not claiming for Union level status because they want to enjoy the emoluments of Union level personalities. The Hluttaw committees, commission and board, in exercising three branches of the sovereignty of the nation namely, legislative power, executive power and judicial power separately and undertaking checks and balances, need to have the Union level status, only then can they make checks and balances like executive and judicial institutions. That is why they want to define those agencies as Union level status.

Regarding the second question, The Pyidaungsu Hluttaw committees, commission and boards are not acting like intervening in functions of the ministries and have no intention to intervene. Under the constitution, they only make checks and balances and monitoring together with the ministries as assigned by the legislature.

They are making coordination to be able to enact necessary laws and comprehensiveness of provisions according to democracy practices. In so doing, it is critically required to carry out with mutual understanding and trust under equal status. The democracy of the country is still in its infancy with little experiences. It is required to enhance the capacity in practising democracy system. It would be required to effectively implement mutually beneficial systems and works in undertaking checks and balances along with the increased capacity. Collaborative efforts must be made for interests of the nation, country and people and emergence and perpetuation of democratic nation, building mutual understanding and trust. Particularly, administrative institutions need to monitor to ensure that works are implemented under the legislations enacted by the Hluttaw.

Likewise, the Hluttaw committees need to monitor the works of ministries in implementing plans and projects with public finance to ensure minimization of wastes. Committees are undertaking above-mentioned tasks and are not intervening in rights and functions of the ministries.

Regarding the third question, the secretary said that the entire Pyidaungsu Hluttaw and all Pyidaungsu Hluttaw representatives understand the one-sided criticisms in forms of comments leading to misunderstanding of the true situations and facts of the works the Hluttaw undertakes under the law, descriptions and remarks blackening the image of the Hluttaws and Hluttaw representatives, misguided writing that MPs want to have the rights of Union level personalities through State-owned newspapers, media and internet websites. Those writings are designed to create misunderstanding between people and the legislature and people and MPs. The role of the Hluttaws is cornerstone of the new democratic nation. All MPs understand that attempts to ruin the image of the Hluttaws mean attempts to destroy the dignity of democratic nation. The Hluttaws represent the population of 60 million people. So the Pyidaungsu Hluttaw views the attacks to blacken its image as an insult to the people. The people also have the same opinion. They would be punished by the people for their actions.

Regarding the fourth question, he replied that it is an opportune time to establish a new democratic nation. That is why constitution was promulgated and approved as well as Hluttaws established. Only when, the Hluttaws enact necessary laws and abide by those laws for emergence of democratic nation, will the new nation emerge. In the view of Pyidaungsu Hluttaw, it is necessary to consider that whether a new nation would really be built through democratization process or not. If the new democratic nation is really built, it is necessary to accept the Hluttaw committees, commission and boards as union level organizations in order to implement Hluttaw affairs. As such, check and balance tasks can be carried out executive, judicial and legislative sectors, and the new democratic nation will be built with development in perpetual existence.

The Speaker of Pyithu Hluttaw said that he is worried about misunderstanding of people and Hluttaw representatives over attitudes of Committees, Commission and Boards constituted by Hluttaws asking their status as Union level included in the report of the secretary of Pyithu Hluttaws and Pyithu Hluttaw Rights Committee. The provision that states commission, committees and boards formed by Hluttaws are at the Union level is included in the Pyidaungsu Hluttaw, Pyithu Hluttaw and Amyotha Hluttaw.

That includes in Pyithu Hluttaw and Amyotha Hluttaw laws. Complaining that Committee and Commission and organizations are not union level, it can not accomplish rights of Hluttaw and Hluttaw representatives and its duties.

Likewise, the Deputy Minister for Information is urged to release complete news on the media like yesterday coverage.

The Pyithu Hluttaw Speaker said that 34th session of Fourth Regular session of First Amyotha Hluttaw held on 28 August, 2012, decided to impeach chairman and members of the Constitutional Tribunal of the Union under the section 334, sub-section (a), paragraphs (2) and (5) of the constitution, and Amyotha Hluttaw’s resolution was sent to Pyithu Hluttaw to take actions under sections 71 and 334 of the constitution.

Pyithu Hluttaw formed a 15-member investigation board on 29th August, 2012 to take action against chairman and members of the Constitutional Tribunal of the Union under the section 71 and 334 of the constitution, and duties have been assigned to the board to present the report to the Speaker of Pyithu Hluttaw on the findings not later than 5th September, 2012.

Concerning the Constitutional Tribunal of the Union’s case, members of the investigation board U Ngon Maung and U Win Myint read out board’s report, and Representative U Saw Hla Tun from ChaungU Constituency seconded it.

Representative U Than Myint from Salingyi Constituency presented committee’s findings on Hluttaws and investigative board undertakings for impeaching chairman and members of the Constitutional Tribunal of the Union.

Chairman of Pyithu Hluttaw Rights Committee U Nanda Kyaw Swa explained the follow-up programme and presented original signature list of Hluttaw representatives to the Hluttaw Speaker.

Hluttaw took vote to decide investigation board’s comments, and more than two-thirds of representatives agreed on the impeachment.

The Speaker of Pyithu Hluttaw said that investigation board’s comments have been approved with the vote of more than three-thirds of representatives.

A total of 408 of 429 Pyithu Hluttaw representatives- 101 Defence Service Personal representatives and 307 people’s representatives including the Speaker attended today’s session to impeach the chairman and members of the Constitutional Tribunal of the Union under the section 334, sub-section (a), paragraph (2) and (5) and to sent it to Pyithu Hluttaw to take necessary actions after decision has been made by Amyotha Hluttaw.

All representatives gave no objection to investigation board’s report. So, the Speaker will have to give yes vote when the number of Yes vote and No vote are same. The Speaker would get 306 votes even if he does not vote. The decision was approved that 286 of 429 representatives voted it.

There would be more yes vote including twelve representatives who missed the today’s session. Two Hluttaws’s impeachments in accord with the constitution of Chairman U Thein Soe of the Constitutional Tribunal of the Union and members Dr Tin Aung Aye, Daw Khin Hla Myint, U Soe Thein, U Tun Kyi, U Khin Tun, U Myint Kyaing, Daw Mi Mi Yi and U Hsan Myint, for breaching the provisions of the Section 334, Sub-section (a) and paragraph (2) of the Constitution and for lack of capability to discharge their duties vested in line with section 334, sub-section (a) and paragraph (5) of the constitution, are true. So, the Chairman and members should not continue to discharge their duties.

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Why did it happen? (Myanmar/Burma)

So, Myanmar’s Constitutional Tribunal has been impeached. Despite this, it’s still not entirely clear why the legislature was so adamant in pursuing impeachment. Why did it matter so much that legislative committees be considered “union-level organizations”?

Aung Htoo, a human rights lawyer affiliated with the Burma Lawyer’s Council, argues in a DVB op-ed that:

… MPs would like to earn allowances on par with union ministers. They would achieve this if the affairs committees of the Hluttaws were recognised as constitutional institutions on the union level in accordance with a new law. If this were to happen, then the state would have to cover the enormous expenditure incurred by the operations of the 30 affairs committees. 

Another concern that people have is that these committees include not only MPs, but also non-MPs as members – for example, Toe Naing Mahn (Shwe Mann’s son). As a result, the number of affairs committee members is influx [sic]. Thus, the state would be forced to cover all the expenses and allowances for those members on the same level as government ministers.

In some ways, this fits what one might expect in a transitioning political system coming out of the shadows of a corrupt military regime. However, I don’t buy the expectation quite yet. First, the petition for impeachment received the support of almost all non-military MPs, including the NLD and ethnic minority parties. Thus, each of those groups must have had some motivation to support impeachment, even though not all MPs serve on committees.

Second, it is a bit hard for me to imagine Aung San Suu Kyi and the opposition joining the USDP going along with a money grab. This most recent crisis was reignited when Daw Suu beam chairperson of the rule of law committee. Other people I’ve talked to have said MPs thought the tribunal decision would have weakened the ability of committees to subpoena ministers.

Even though the justices have been removed, we’re only just beginning to understand what happened. I hope one day somebody writes a definitive history on this.

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Constitutional Tribunal – we hardly knew ye (Myanmar/Burma)

Well, it looks like the threat of impeachment finally got to the members of Myanmar’s Constitutional Tribunal. According to Xinhua news, all nine members “voluntarily” resigned on September 6. Now the parliament and president will have to choose members to replace them.

A good day for  parliamentary supremacy in Myanmar, but a bad day for judicial independence.

UPDATE (9/7/12):

The official announcement of the tribunal members’ resignations:

Republic of the Union of Myanmar

President Office
Order No. 29/2012
5th Waning of Wagaung, 1374 ME
(6th September, 2012)
Resignations of Chairman and members of Constitutional Tribunal of the Union allowed


According to provisions on Section 331 of the Constitution of the Republic of the Union of Myanmar and Section 28 of the Constitutional Tribunal of the Union Law, resignations of the following chairman and members of the Constitutional Tribunal of the Union were allowed of their own accord.

(1) U Thein Soe
Chairman

(2) Dr Tin Aung Aye
member

(3) Daw Khin Hla Myint
member

(4) U Tun Kyi
member

(5) U Soe Thein
member

(6) U Khin Tun
member

(7) U Hsan Myint
member

(8) U Myint Kyaing
member

(9) Daw Mi Mi Yi
member

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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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