Category Archives: Hluttaw

Judicial Corruption report in Myanmar (Myanmar/Burma)

According to The Irrawaddy, the Hluttaw’s Judicial Affairs Committee Chairman Thura Aung Ko has revealed that the committee has received over 10,000 letters of complaints, 90% of which made allegations of corruption. Much of the corruption seems to have involved defendants bringing judges or court staff in order to win favorable outcomes. This is not too surprising given reports of corruption in the judiciary. What is not yet clear is the content of the cases, i.e. if they involve business or human rights disputes. In other words, who is affected most by judicial corruption in Myanmar? Does it have a disproportionate impact in certain types of cases? Hopefully, the committee will release a detailed report containing its full findings.

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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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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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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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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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Hluttaw oversight of courts

Normally, I’m not one to advocate for infringements on judicial independence. However, one of the biggest mistakes with Indonesia’s reformasi period was to give judges independence without accountability, arguable entrenching judicial corruption up to the present day.

In that light, I’m glad to see that Myanmar’s parliament (Hluttaw) has formed a committee to review and assess controversial judicial verdicts. According to two Myanmar Times articles (here and here), the Pyithu Hluttaw Judicial and Legislative Committee has invited defendants who believe their case was decided unfairly to submit complaints. The committee can then request the court to reassess the case.

The committee asks for “irrefutable evidence” of bias, which on its face sounds like an impossible standard. Yet, according to committee chairman Thura U Aung Ko, of the 100 complaints received 69 have been granted. This is not only a high rate of success, but also a clear and bold condemnation of the judicial system, arguable one of the least independent in the world.

Usually, when Myanmar’s leaders talked about judicial reform, it was in the context of cracking down on corruption. This is the first time I can recall when the discussion has seriously turned to independence and impartiality. It’s definitely an encouraging sign. However, judicial reform is a long process and it’s not yet clear to me that it’s getting the attention it deserves. In particular, we’ll need to see more efforts to retrain or even replace current judges with fresh blood.

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Strange bedfellows?

More controversy between Burma’s two Hluttaw chambers. The two chambers are trying to resolve a bill regulating peaceful protests. According to The Myanmar Times, the Pyithu Hluttaw is seeking a stronger bill than the Amyotha Hluttaw. In particular, U Thein Nyunt of Thingangyun argued that protesters should be allowed to carry the national flag, and not just the flag of their organization or party.

A few things strike out at me. From a legal point of view, Thein Nyunt is using the 2008 Constitution to justify his arguments about the bill. It’s fascinating to see that the constitution – so maligned just a year ago – now becomes a platform for rights debates in the Hluttaw.

Politically, the amount of influence Thein Nyunt has over this issue is surprising. He is, after all, a former NLD member and current MP from the National Democratic Force. Yet, he is not only allowed to speak out, but Speaker Thura Shwe Mann approved his objections. I certainly wouldn’t have predicted this a year ago…

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