A few weeks ago, I mentioned news about Daw Kyin Htay’s attempt to use a constitutional writ to challenge her dismissal from the University of Yangon faculty. Here’s a brief follow-up.
Daw Kyin Htay filed a petition for writ of mandamus under § 377 of the Constitution. This explains how the Supreme Court had jurisdiction in the first place, even though the Constitutional Tribunal has exclusive jurisdiction over constitutional issues.
Earlier this month, the Supreme Court decided the case in Daw Kyin Htay’s favor, striking down the Ministry of Education’s order (see the official order here
). The Myanmar Times
has an article discussing the outcome here
Daw Kyin Htay’s lawyer claims this is the first Supreme Court case to overrule a decision by a Union minister, which is significant. However, before we all start calling this Myanmar’s Marbury vs. Madison, it is worth recalling China’s Qi Yuling case from 2001, in which China’s Supreme People’s Court found a constitutional right to education. A flurry of law review articles proclaimed that China’s Marbury vs. Madison moment had arrived, but there was little follow-up and in December 2008 the Supreme People’s Court withdrew the opinion.
I will be interested in reading the Supreme Court’s decision when it comes out in order to understand the legal reasoning in the case. I’m still a bit unclear as to the constitutional right in question here (it seems to be a sort of due process claim under § 375 of the 2008 Constitution). In any case, a fascinating development.
According to The Myanmar Times, Daw Kyi Htay, professor and head of the Department of Economics at Yangon Distance University, is challenging her dismissal before the Myanmar Supreme Court. What makes the case so interesting is that she claims her dismissal was unconstitutional. Under § 41 of the Civil Servants Law, the Ministry of Education has the right to dismiss teachers without a formal enquiry. Daw Kyi Htay claims this violates the constitutional “right of defence in accord with the law” (§ 375).
Two points stick out to me. First, the case was filed at the Supreme Court, not referred to the Constitutional Tribunal. It’s not immediately clear to me how the Court has jurisdiction over the case, unless Daw Kyi Htay is using a constitutional writ (the Supreme Court has original jurisdiction over writs). Either way, this is the first constitutional petition I have heard of filed by a citizen and not a government body.
Second, Daw Kyi Htay is making a fairly novel legal claim. On its face, § 375 of the 2008 Constitution seems to refer to criminal trials (especially because the right applies to an “accused”). However, this claim is not without precedent; it resembles the substantive due process claims popular in the United States during the 1970s that government workers had a property interest in their jobs and could not be dismissed without formal proceedings.
It will be interesting to see how this case turns out, especially if the Supreme Court does end up interpreting the Constitution (or referring the case to the Tribunal). If Daw Kyi Htay wins, it could also set a power precedent and lead to more constitutional rights litigation.