Category Archives: judicial independence

Constitutional Tribunal dispute heats up – even more (Myanmar/Burma)

Pyithu Hluttaw Speaker Shwe Mann’s deadline for the Constitutional Tribunal Justices to resign has come and passed. President Thein Sein rejected the Hluttaw’s call to pressure the justices to resign. Now, MPs are threatening impeachment.

One MP, Ba Shein, from the Rakhine Nationalities Development Party, is quoted in The Irrawaddy as saying:

We don’t have a lot of freedom to make laws, because they [the Constitutional Tribunal] are sitting here in Parliament, breathing down our necks.

According to one MP quoted in Mizzima, the NLD and USDP have the “same attitude” regarding impeachment.

I’ve already written at length my thoughts on the controversy here. One more aspect I’ll point out given this quote is that constitutional courts are supposed to constrain legislatures. I’ve heard the same complaints from MPs in Indonesia regarding the Mahkamah Konstitusi. However, the goal is that, in creating these constraints, the legislature actually empowers its ability to pass laws and govern over the longer term.

The fundamental question Myanmar faces today is whether to impeach the judges and enhance the ability of the Hluttaw to pass reforms over the short-term or to allow the judges to fulfill their term and allow the court to protect legislation over the long-term.

Read on for copies of two recent articles from The New Light of Myanmar:

Constitutional Tribunal of the Union holds press conference

NAY PYI TAW, 20 Aug-The Constitutional Tribunal of the Union held a press conference, at its meeting hall at 1 pm today, attended by Chairman and members of the Constitutional Tribunal of the Union, local and foreign media men, reporters from local-based foreign news agency and guests.

Firstly, Chairman U Thein Soe of the Constitutional Tribunal of the Union explained the purpose of holding the press conference. After that, the Chairman replied to the quires raised by local and foreign media men. The press conference came to an end with concluding speech by the Chairman. After the press release, Constitutional Tribunal of the Union released the statement No.1/2012. The following is the full translation of the statement.

Republic of the Union of Myanmar
Constitutional Tribunal of the Union
Statement No. 1/2012
3rd Waxing of Wagaung, 1374 ME
(20th August, 2012)

The Constitutional Tribunal of the Union gave its final verdict on a letter of submission made by the Union Attorney-General to Constitutional Tribunal of the Union, dated 2-2-2012, on behalf of the President on 28-3-2012.

Under the provisions of the Section 320 of the Constitution, the Constitutional Tribunal of the Union was set up to decide on disputes relating to the Constitution in accord with Basic Principles of Union under Chapter (1) and the Basic Principles of the Constitution. Under the provisions of the Section 322 of the Constitution, the following functions and duties of the Constitutional Tribunal of the Union are conferred.

(a) interpreting the provisions under the Constitution;

(b) vetting whether the laws promulgated by the Pyidaungsu Hluttaw, the Region Hluttaw, the State Hluttaw or the Self-Administered Division Leading Body and the Self-Administered Zone Leading Body are in conformity with the Constitution or not;

(c) vetting whether the measures of the executive authorities of the Union, the Regions, the States, and the Self-Administered Areas are in conformity with the Constitution or not;

(d) deciding Constitutional disputes between the Union and a Region, between the Union and a State, between a Region and a State, among the Regions, among the States, between a Region or a State and a Self-Administered Area and among the Self-Administered Areas;

(e) deciding disputes arising out of the rights and duties of the Union and a Region, a State or a Self- Administered Area in implementing the Union Law by a Region, State or Self-Administered Area;

(f) vetting and deciding matters intimated by the President relating to the Union Territory;

(g) functions and duties conferred by laws enacted by the Pyidaungsu Hluttaw.

In line with the functions and duties conferred by the Constitution, The Constitutional Tribunal of the Union gave its final verdict on a submission made by the President to define the meaning of a Union-Level Organization which is formed in accord with the Constitution. Under the Section 324 of the Constitution and Section 23 of the Constitutional Tribunal of the Union, the resolution of the Constitutional Tribunal of the Union is final and conclusive.

The Constitutional Tribunals in the world countries decide Constitutional disputes while it is decided by Supreme Court in the countries that have no the Constitutional Tribunals. Chairman and members of The Constitutional Tribunals took oath of safeguarding the Constitution, obeying the State’s laws and the loyalty to the Constitution. So, the verdicts on the submissions are being given by the Constitutional Tribunal of the Union in accord with the Constitution in a loyal and fair manner.

The Constitutional Tribunal of the Union shall continue to carry out its functions and duties conferred by the Constitution by upholding the interests of the State and people, as they have sworn in.

It is up to two agencies to choose whatever political line of struggle of their own volition as both are independent ones formed in line with the constitution
Speaker of Pyithu Hluttaw sends a message dated 14 August to President
President sends back a message dated 20 August to Speaker of Pyithu Hluttaw

NAY PYI TAW, 20 Aug – The Speaker of Pyithu Hluttaw sent a message dated 14 August, 2012 to the President of the Republic of the Union of Myanmar.

In the message, the Speaker said he sent the message to the President to advise him so that actions would be fair and could be at a least loss to those who concerned as the representatives of Pyithu Hluttaw did not accept the decision of the Constitutional Tribunal of the Union.

The Speaker said that 301 representatives which makes up the majority of the Pyithu Hluttaw, proposed him to impeach the Constitutional Tribunal of the Union through the Pyithu Hluttaw Rights Committee on 8 August, 2012, for the second time as they did not satisfy and accept the decision of the Constitutional Tribunal of the Union over the submission No. 3/Nya Ma (1) 3-1 (92) Na Pa Ta (72) made by the Union Attorney-General, on behalf of the President, on 2 February, 2012, On 26 April, 2012, 191 representatives of Pyithu Hluttaw filed the petition and sought approval from his through the Pyithu Hluttaw Rights Committee at the third regular session of the first Pyithu Hluttaw to submit a proposal to the Hluttaw to impeach Chairman and member of the Constitutional Tribunal of the Union, and he suspended the issue, and he and chairmen of the Pyithu Hluttaw committees and Secretary of the Union Solidarity and Development Party presented the issue to the President. The chairmen of the Hluttaw committees and secretaries retold the representatives about what the President replied to them saying that the President would settle the issue satisfying all. Though negotiations were made with those who were concerned in the issue in an attempt to find the best solution for the issue, still, the issue was not yet settled, he added in the message.

Therefore, 301 representatives of Pyithu Hluttaw filed the petition and sought approval from him to impeach the Constitutional Tribunal of the Union on breach of the provisions prescribed in the Sub-section (a) (ii) of the Section 334 of the Constitution and inefficient discharge of their duties assigned by law as prescribed in Sub-section (v), he added.

He did not want to reach such situation but he assumed that the suitable and best way to settle the issue is to withdraw the submission made by the Union Attorney- General, on behalf of the President, and resigning of the chairman and members of the Constitutional Tribunal of the Union at their own wish by 21 August, 2012, the Speaker said.

Regarding the issue, Legal Affairs and Special Cases Assessment Commission also suggested the Hluttaw that such action was suitable and fair and could be at least loss to the dignity of the State and the Hluttaws and those who were concerned in the issue.

Therefore, he sent the message to the President so that he could review and handle the situation, he said.

Regarding the above the message, the President replied the message to the Speaker of the Pyithu Hluttaw on 20 August.

In his message to the Pyithu Hluttaw, the President expressed his thanks to the Pyithu Hluttaw Speaker for his suggestions for bringing about fair and just actions with least trauma to the personalities concerned as Hluttaw representatives disapproved of the verdict of the constitutional tribunal of the Union.

In his response to the suggestion by the Pyithu Hluttaw to withdraw the proposal submitted by the Union Attorney- General on behalf of him, the President explained the socalled designation of committees, commission and organizations formed by the respective Hluttaws. The government is responsible to manage appropriate financial and administrative matters if those committees, commission and organizations are designated as Union level organizations. Such management needs to be within the framework of laws and rules and regulations. It was asked to the Constitutional Tribunal of the Union to define the meaning of Union level organizations so as to make sure whether committees, commission and organizations formed by respective Hluttaws are under the name of Union level organizations.

That asking the Constitutional Tribunal of the Union to define the provision of the constitution within the framework of regulations is in fact aimed to ensure legal rights and duties of members of the Hluttaw committees, commission and organizations.

As regards to the case, the Constitutional Tribunal of the Union delivered a verdict on 28 March, 2012, deciding that connotation of committees, commission and organizations formed by respective Hluttaws as Union level organizations is not in conformity with provisions of the constitution. It is the final verdict in accordance with Section 324 of the constitution and Article 23 of the Constitutional Tribunal of the Union. The case is not on trial but final verdict has been delivered and thus it is impossible to withdraw the proposal under the tradition and procedures of the courts. The President requested the pardon of Pyithu Hluttaw Speaker asking him to put himself in government’s shoes.

The President then explained about allowing the chairperson and members of the constitutional tribunal of the Union retire before 21 August, 2012 of their own volition. The provision in sub-para (a) of Section 11 of the constitution is just aimed for possible most separation of three branches of national sovereignty-legislative power, executive power and judicial power and checks and balances. It would be against the law and unfair if the President would force the chairperson and members of the constitutional tribunal of the Union to resignation for the constitutional tribunal of the Union has acted freely to assume its responsibility vested by the constitution. Therefore, it cannot be forced the chairperson and members of the constitutional tribunal of Union to resign.

Members of the constitutional tribunal of the Union are nominated by the President and two Hluttaw Speakers and then appointed with the approval of the Pyidaungsu Hluttaw. The members are legal experts with long judicial experiences, some of whom even dutifully took part in the National Assembly held from 2004 to 2007 for drafting the constitution. It is believed that they would not make reckless decision either by mistake or due to impartiality.

All the Pyithu Hluttaw representatives including the President himself have taken affirmation or sworn in to uphold and abide by the constitution and adhere to the laws of the State in the presence of the Pyithu Hluttaw Speaker.

So, the president has to abide by the verdict of the constitutional tribunal of the Union according to the provisions of Section 324 of the constitution and provisions of the Article 23 of the law of the constitutional tribunal of the Union.

Myanmar has just taken step forward to global stage with infant democracy. So, in order not to impede the strides of reforms undertaken by the legislative, executive and judicial pillars for democracy promotion in Myanmar because of the disagreement at present time, and in consideration of the 60 million population, and in order not to undermine the unity of the three pillars, it is advisable for the Hluttaw to exercise the legal rights vested by Chapter (12) of the constitution rather than pointing a finger at someone. It is supposed to be appropriate approach without causing disadvantages to anyone.

The President in conclusion said that it is up to two agencies to choose whatever political line of struggle of their own volition as both are independent ones formed in line with the constitution.-MNA

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Cowardly Courts?

As I’ve written before, Burma’s judiciary seems not to have reformed at the same pace as the rest of the political system. Several recent articles have highlighted this. The Irrawaddy reports that the Supreme Court dismissed a Kachin woman’s case against a local military battalion without even informing her lawyer! The Guardian notes that judges haven’t been merely passive victims, but rather participants in the network of corruption:

The problem in Burma today is not that judges are struggling to be independent against a heavy-handed regime, but rather that judges are part and parcel of decades of a military governing system. Judges routinely impose unjustified sentences in political cases, allowing them to keep their jobs and access to the benefits of a corrupt system.

As I’ve said before, this reminds me a bit of Indonesia right after Reformasi. There, granting courts judicial independence effectively insulated the system of corruption that existed within the bench and prevented outside actors, such as the Judicial Commission, from forcing reforms. As such I strongly believe Burma should take steps to improve the quality of the judicial system before moving towards robust independence.

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"Shedding Light on Burma’s Judicial System"

Htet Aung, a journalist for The Irrawaddy, has written a fascinating account of a recent case in Burma’s judicial system. Unlike most news articles about courts in Burma, the litigants in this case aren’t high-profile political dissidents but rather farmers and workers. Their only crime was to resist attack from workers whose boss had close connections with Burma’s economic and military elite. The article is striking in that it shows how corruption and cronyism in Burma have filtered down throughout the judicial system. Unfortunately, this is the type of judicial corruption that is particularly problematic to uproot.

Aung Thein, a public interest lawyer associated with the National League for Democracy, was particularly critical of the courts. Htet Aung writes:

President Thein Sein pledged in his first presidential speech that the new government must carry out “clean and good governance.” Asked whether a reform of the judiciary should be one of the first priorities of the new administration, Aung Thein said, “Handing out the maximum sentence is such an easy job. Even a court clerk can do that.”

That highlights a crucial difference between the “rule of law” and “law and order.” The latter simply concerns controling crime, whereas the former requires elites and government officials to subject themselves to the law.

I encourage you to read the entire article here. I hope Htet Aung and his colleagues at The Irrawaddy continue to publish articles like this one about the courts.

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Filed under Burma, corruption, judicial independence, Myanmar

Commit thyself to the Truth

What do you do if your judicial system is notoriously corrupt and lacks any semblance of independence? One option would be to engage in a massive overhaul of the judicial system, but this entails risks and, as Indonesia has demonstrated, can prove difficult. Another option is to blame the judges.
For several years now, Burmese political leaders have lectured judges on the need to rule in accordance to the law and avoid corruption. The implication in several of these speeches has been that many judges have lapsed and they need to reform their ways. Now, the new Chief Justice, U Tun Tun Oo, seems to be carrying forth the same message – if a bit less harshly. Here is an excerpt from a recent article in The New Light of Myanmar:

“All citizens will be under the protection of law to enjoy equal rights and the judicial pillar will be strengthened,” vowed Union Chief Justice U Tun Tun Oo at a meeting with judges, law officers and court staff at Yangon Region High Court here this morning.

The Union Chief Justice noted that judicial system stands to settle rows and conflicts among citizens, bringing about stability of the nation.

Righteousness, fairness, calmness and sobriety are strength of judiciary. Judges should be committed to truth and thus are to do away with corruption and bribery, pointed out the chief justice, urging them to safeguard the judicial system.

There are a few things to note. First, the chief justice did not say that all citizens will be under “the equal protection of the law,” although admittedly this could simply be a matter of translation. More significantly is his portrayal of the judiciary as settling conflicts among citizens. Nowhere does he mentioned conflicts between the state and the citizen. As I mention in my recent article about Myanmar’s new constitution, citizens do not have standing to bring suits directly before the Constitutional Tribunal. Thus, most claims between the citizens and state will have to be handled in the regular judiciary.

Finally, and perhaps most worryingly, Chief Justice U Tun Tun Oo made no mention of judicial independence. In the past, Burmese political leaders have claimed some role for judicial independence, but also stated that judges must cooperate “in harmony” with other branches. The constitution also takes that approach, saying the judiciary is independent so far as possible (a qualifier, but judicial independence is always a relative rather than absolute concept). Whether or not this omission is significant is hard to tell at this point. What I can say is that the chief justice’s speech does not represent a sharp break from the past.

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No order in the court

Every good law drama has at least one scene in which the judge resorts to banging his gavel and yelling, “Order in the court!” Of course, such scenes only make sense if the underlying assumption is that judges control their courtrooms. However, a recent Supreme Court decision from Burma suggests Burmese judges have no such luck. The justices decided that judges cannot decide who can – and, more importantly, cannot – attend a court hearing held inside a prison. Burma is notorious for conducting trials of political prisoners in prisons such as Insein and forbidding family from attending. This recent decision has received a good deal of press coverage (DVB has an article here). What’s unclear to me is whether this holding has any value as precedence for trials held outside prisons. The 2000 Judiciary Act grants judges wide discretion on whether to hold trials in camera. If the Supreme Court’s decision affects regular courts as well, it seems it would directly contradict the act. Alas, it wouldn’t be the first time Burma’s government fails to follow both the letter and spirit of the law.

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Thai Judicial Politics – from a SAIS alum

One of my fellow SAIS alums, Seth Kane, has written a fantastic piece in Asia Times on the current state of judicial politics in Thailand. It covers some of the same ground my (now obsolete) New Mandala articles on the judiciary and constitutional court, but with an insider’s perspective on the Thai political scene. Seth also provides a useful contrast to much of the commentary by pointing out instances in which the courts have not sided with the Yellow Shirts. I encourage readers to check it out here. Congrats Seth!

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Filed under judicial independence, Thailand, Thaksin

Book Review: Supreme Power

Once again, this isn’t a book that concerns Southeast Asia directly, but does raise a lot of important judicial politics/rule of law questions…

In Supreme Power: Franklin Roosevelt vs. the Supreme Court, Jeff Shesol manages to do something rare: combine excellent research and a gripping narrative. (For those familiar with Rick Perlstein’s Before the Storm: Barry Goldwater and the Unmaking of the American Consensus, I think the writing style and amount of detail are similar). The book deals with Franklin D. Roosevelt’s attempt to pack the Supreme Court with extra justices in 1937 – an attempt that ultimately failed and, unfortunately, few people remember today. Shesol brings this important episode in our history to life. 

First of all, Shesol resists the temptation of many historians to make the past prologue. He doesn’t recite the whole history of the U.S. Supreme Court, nor does he stretch historical analogies to draw “lessons” or “comparisons” for today. Rather, Supreme Power stays focused like a laser on the subject of the book, beginning in 1932 with FDR’s election. This allows Shesol to really delve into detail, spending almost all of the book’s 530 pages on FDR and the court. (Incidentally, if you know absolutely nothing about the Supreme Court or its history, you might want to scan wikipedia quickly before reading this book). 

And the detail in the book is extraordinary. I studied FDR’s court-packing scheme in law school and read the major cases discussed in the book, but I felt I learned much more reading Supreme Power than I did in 3 years of law school. For example, I had read the Schecter case, which invalidated important New Deal legislation, but I did not even know about the businessmen and activists who formed associations, such as the American Liberty League, to launch test cases like Schecter. It turns out the Schecter brothers even voted for FDR in the 1936 elections! Another fascinating trivia bit revealed early in the book is that the whole issue almost became moot because Justices Sutherland and Van Devanter almost retired in 1932 – but refused to do so when Congress lowered their pensions. 

Shesol also strives – and for the most part achieves – the ideal of historical objectivity (pay the reviewer who claims Shesol is sympathetic to FDR no heed). He is quite willing to point out the flaws of the New Deal and the fact that it wasn’t universally popular (raising concerns similar to Amity Shales’ The Forgotten Man). He also seeks to uncover the ulterior motivations of men like Senator Burton K. Wheeler (against court-packing) and Joe Robinson (for). 

However – and this I found remarkable – Shesol also tries to understand the logic and motivations behind the court-packing plan itself. All too often, historians deride the plan as a mistake or doomed to fail. Yet, Shesol shows that the plan did in fact have an organic history and genesis of its own. He discusses the longstanding concern that many observers, including former president and chief justice Taft, had regarding judges over the age of 70. In fact, FDR’s chief foe on the Supreme Court, arch-conservative Justice McReynolds, proposed a similar plan during the Wilson administration. In short, Shesol shows readers the type of information bombarding the White House about elder judges, as well as how FDR and his advisors could convince themselves that adding additional judges for each over the age of 70 was a brilliant solution. My one complaint – and it is a small one – is that Shesol does not seem to make much use of the political science literature about courts and judicial review. This is a shame. I think political science offers many compelling explanations about why elites would oppose limits on judicial review. For example, Tom Ginsburg’s Judicial Review in New Democracies: Constitutional Courts in Asian Cases advances the theory that elites view judicial review as important to protect themselves if they ever become relegated to minority status (for example, Republicans becoming the minority party in Congress). Some of these theories can be found in some form in Supreme Power, but Shesol, who is primarily a historian, primarily credits the political dynamics of the 1930s for defeating FDR’s plan rather than larger political and institutional forces. Supreme Power will probably become the primary account of FDR’s court-packing scheme for some time. Highly recommended for anybody interested in American history or the politics of courts.

For Southeast Asia, perhaps the most glaring absence in the politics of judicial reform is the absence of strong stakeholders. In New Deal America, both elite politicians and tycoons, in the forms of the Republican party and businesses, waged an active campaign on behalf of the Supreme Court’s independence, largely for self-interested reasons. These stakeholders possessed the political power and finances to ultimately defeat FDR’s 1937 court-packing scheme.

By contrast, political and economic elites in Southeast Asia seem, if anything, to benefit from judicial corruption. There could be several reasons for this (the lack of strong parties, weak law enforcement against businesses, politicians beholden to tycoons), but at the end of the day the drive for judicial reform in Southeast Asia seems largely driven by local activists and foreign donors and companies.

Unlike most milestones in judicial independence, FDR’s court-packing scheme is both well-documented and well-understood. This alone makes it worth studying for any student of courts and judicial politics. Jeff Sheshol takes readers into the depths of that battle

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Filed under judicial independence, Supreme Court, USA