Category Archives: constitutional tribunal

August 1, 2012 · 01:54

Myanmar state minister challenges law

[I had meant to post this on July 17, but it apparently was never uploaded. I apologize if this has already become old news]

Myanmar’s Constitutional Tribunal received its third case in 2012, and looks to mark another first for the court. The Mon State Hluttaw Speaker has challenged a law as unconstitutional. This is the first time a state or region official has asked the tribunal to strike down a law. The New Light of Myanmar article doesn’t mention which law is being challenged. All I know so far is that the law is a Mon State law – as expected given that all of the tribunal judges are appointed by the Union government and would be unlikely to rule against the national government. Nonetheless, this will be the court’s first “federalism” decision so it will be interesting to see how it handles the petition.

The full article is reprinted below:

Constitutional Tribunal of the State hears enquiry

The Mon State Hluttaw Speaker has asked through the Pyidaungsu Hluttaw Speaker to the Constitutional Tribunal of the Union to interpret the following: whether the legislation of the State Hluttaw in accordance with Schedule (2) of Section 188 of the Constitution under Section 326 (b) of the Constitutional Tribunal of the Union Law is against the Section 446 of the Constitution or not, or whether the legislation shall be done without violation of the Section 446 of the Constitution; in case some existing laws and some provisions in the existing laws are different from and/or ambiguously confused with provisions in Schedule (2) of the Section 188 of the Constitution, whether these laws and provisions shall be still in effect as they are not revoked or amended yet; if some existing laws and some provisions in the existing laws are different from and/or ambiguously confused with provisions in Schedule (2) of the Section 188 of the Constitution, proceedings can be made only after revoking or amending in accordance with Section 446 of the Constitution. The tribunal comprising Chairman of the Constitutional Tribunal of the Union and all its members heard the document No. 3/2012 at Room No. 1 at 10 am this morning.—MNA

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June 7, 2012 · 08:24

Myanmar Constitutional Tribunal website!

It’s here – the Myanmar Constitutional Tribunal has a new website: http://www.ctmyanmar.org.mm/. Not only that, it has English versions of its 2011 cases as well. As of now, the site is only in Burmese, but an English translation is expected soon. I’ve read both of the 2011 cases and thought they were actually quite interesting and had surprisingly good legal reasoning, especially given the lack of any sort of constitutional jurisprudence in the country for the past 50 years. I’ll write more about the cases at some point in the future – for now, enjoy the new website.

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April 30, 2012 · 23:27

Constitutional Tribunal aftermath (Myanmar/Burma)

A few weeks ago, the Myanmar Constitutional Tribunal issued its third ruling, namely that Hluttaw committees are not union-level organizations. At the time, I was puzzled over the import of the decision. Fortunately, Soe Than Lynn at The Myanmar Times has written a story about the reaction to the decision in the Hluttaw. According to the article:

Lawmakers have interpreted the ruling – and the wrangling that preceded it – as an attempt to reduce parliamentary oversight of government activities.

He also discusses some of the background to the litigation. Some MPs even suggested a constitutional amendment to enshrine the status of committees as union-level organizations.

Unfortunately, the article still doesn’t really explain why the ruling would reduce the Hluttaw’s power. In my earlier post, I’d speculated that the real impact might be that union-level organizations must have their budgets reviewed by the vice-president. Still, it seems that my initial impression was correct in that the tribunal seems to have become a key forum for resolving disputes between the other two branches of government

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April 20, 2012 · 13:21

Don’t swear in public (Myanmar/Burma)

The latest legal controversy in Myanmar has focused around the 2008 Constitution’s requirement that allow Hluttaw MPs swear an oath promising to “protect” the constitution. The NLD, which has publicly stated it intends to push for constitutional amendments, has balked at the prospect. Its members are even threatening to boycott the opening session of parliament.

NLD representatives met with the Constitutional Tribunal asking for a change in the wording of the constitution. It’s not clear whether it will. According to Irrawaddy, NLD Spokesman Nyan Win has so far only said, “[the court] did not say that they will not change” the wording of the oath. The court is not expected to act quickly on the request. However, if the government wants a face-saving way of avoiding a confrontation, the court could “reinterpret” the oath as allowing MPs to swear to “respect” rather than “protect” the constitution.
Two things about this incident strike me as curious:
First, the official English-language translation of  Schedule Four of the Constitution reads:

I ……………. do solemnly and sincerely promise that as an elected representative of the Pyithu Hluttaw/ the Amyotha Hluttaw/ the Region or State Hluttaw, I will uphold  and abide by the Constitution of the Union. I will be loyal to the Republic of the Union of Myanmar and citizenry and hold always in esteem non-disintegration of the Union, non-disintegration of national solidarity and perpetuation of sovereignty. In addition, I will carry out the responsibilities uprightly to the best of my ability.

 The highlighted section does not read that MPs must swear to protect the constitution. However, my Burmese isn’t quite good enough to appreciate the full connotations of the original Burmese word. Still, I’m wondering where the NLD is getting its translation from.

Second, to my knowledge, this is the first time somebody outside of government has petitioned the Constitutional Tribunal for constitutional review. The fact that the NLD can even approach the court is significant. The constitution grants direct standing to various government officials, but generally other cases must be forwarded by the general courts before the Constitutional Tribunal will hear them. Even if the NLD members were MPs – which they are not yet – petitions from MPs still need the support of 10% of one of the chambers. It seems however that the NLD is getting expedited and informal access to the tribunal.

I’m not quite sure how this is being justified or whether we should expect to see the court engage in more of this sort of informal consultation in the future. However, if things turn out well for the government, this might open the door to more use of the Constitutional Tribunal as a way to diffuse opposition complaints.

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March 29, 2012 · 14:05

Two Myanmar Tribunal Decisions for 2012

Myanmar’s Constitutional Tribunal delivered two more decisions today. Case No. 2/2012 simply reaffirmed the court’s decision in Case No. 1/2012, which held that Region or State National Races Affairs Ministers are eligible as ministers. The other case (No. 2/2012) struck down a definition of Union level organizations that included boards and committees established by the Hluttaw. 

To be quite honest, I don’t yet have a good sense as to what interests were at stake here. Various provisions of the 2008 Constitution give union level organizations the right to submit bills to the Hluttaw, but I imagine that was not the central concern for organizations formed by the Hluttaw. The Constitution also permits such organizations freedom of speech in the Hluttaw and before Hluttaw Committees (hence, the court’s decision that committees can’t also be union level organizations). Finally, I found one interesting provision in § 230(a) that union level organizations must have their budgets vetted by one of the vice presidents and submitted to the Financial Commission. Could the Attorney General have wanted to enforce this requirement?
Hopefully, we’ll learn more about the motives behind this case. In the meantime, I’ve reprinted both the initial New Light of Myanmar article mentioning the initial filing of the case and the later one announcing the final decision.

State Constitutional Tribunal hears Attorney-General’s query

NAY PYI TAW, 24 Feb-The Attorney- General of the Union on behalf of the President has submitted letter No. 1/2012 to the State Constitutional Tribunal, asking the tribunal’s resolution about “whether defining of committees, commission and boards formed by respective Hluttaws as Union level organization in the provisions of the laws of the respective Hlutatws is in line with the constitution (or) whether committees, commissions and boards founded by the Pyidaungsu Hluttaw, Pyithu Hluttaw and Amyotha Hluttaw with the rights vested to them in the constitution can be considered as Union level organization.”

The tribunal heard the proposal submitted according to Article 322 (a) and Article 325 (a) of the Constitution of the Republic of the Union of Myanmar at Room No. 1 this morning.-MNA

Constitutional Tribunal of the State delivers final verdicts

NAY PYI TAW, 28 March-The Constitutional Tribunal of the State inclusive of the chairman and all the members delivered final verdict on proposal No 1/2012 and proposal No 2/2012 submitted the Attorney- General of the Union on behalf of the President at Room No. 1 today.

According to the verdicts, in the proposal No 1/2012, Union level organizations formed under the constitution and the members or personalities of those organizations are members and personalities of Union organizations appointed by the President with the approval of the Pyidaungsu Hluttaw.

Committees, commissions and groups formed by respective Hluttaws are parliamentary organizations.

The additional definition of committees, commissions and groups formed by respective Hluttaws as Union level organizations violates the provisions of the constitution.

In the proposal No 2/ 2012, the Attorney-General of the Union on behalf of the President asked the tribunal to reconsider its resolution made on 14 December, 2011 which defined that provisions of the Article 5 and Article 17 of the Region or State Personalities’ Allowances, Emolument and Insignia Law are not conformity with the constitution because Region or State national races affairs ministers are officially appointed as Region or State ministers of respective Region or States. The tribunal did not accept the proposal as its resolution is final verdict legally.-MNA

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