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Will Democracy and Constitutionalism Mix in Myanmar?

Dominic J Nardi, Jr, University of Michigan Department of Political Science

Myanmar’s[1] constitution – adopted after a controversial referendum in May 2008 – created the country’s first constitutional court in half a century. Initially, few if any observers believed the Constitutional Tribunal would play a significant role. However, within a few months, the tribunal seemed to be growing into an institution worthy of attention, even striking down government actions. Unfortunately, the Constitutional Tribunal pushed too far when it dissolved several legislative committees. The legislature swiftly impeached all nine tribunal members, who subsequently resigned. Yet, this is not merely the story of an authoritarian government suppressing judicial independence. Rather, Myanmar is struggling with how to balance a newly resurgent legislative power with constitutionalism.

A year and a half after Myanmar’s transition to civilian government, the country has shown definite signs of liberalization. President Thein Sein has abolished prior censorship on the media, released almost all political prisoners, and negotiated ceasefire agreements with most of the ethnic insurgent armies. Even though the Union Solidarity and Development Party (USDP) and military combined control about 80% of the seats, the legislature (Pyidaungsu Hluttaw) has become far more than a rubber-stamp for the military’s agenda. The Hluttaw has passed laws legalizing labor unions and protests. Thura Shwe Mann, speaker of the lower chamber, has encouraged opposition MPs to participate in debates. The reforms received symbolic approval when opposition leader Aung San Suu Kyi and 41 other members of the National League for Democracy were elected to the legislature in by-elections on April 1.
Under the Constitution, the Constitutional Tribunal has nine members, three each selected by the president, speaker of the Chamber of Representatives (Pyithu Hluttaw), and the Chamber of Nationalities (Amyotha Hluttaw).[2] The tribunal members only serve for five-year terms. It appears the tribunal was primarily created to resolve interbranch or intragovernmental disputes.[3] The tribunal has authority to vet legislation and government acts to ensure that they conform to the constitution. However, standing is limited to government officials, particularly the president, legislative speakers, Supreme Court, chief ministers of the states, and 10% of the Hluttaw. Under § 323 of the Constitution, ordinary courts can refer constitutional issues to the tribunal, but citizens cannot petition the tribunal directly.

The Constitutional Tribunal’s first decision (Case No. 01/2011) was issued in July 2011. The Ministry of Home Affairs had decided to appoint sub-township administrative officers who could adjudicate smaller criminal cases. The Supreme Court challenged this as a usurpation of the judiciary’s role. The Constitutional Tribunal agreed. The decision relied heavily on textual analysis, acknowledging that while the previous military government had used administrative officers to try such cases, the new Constitution mandates that the judiciary be “separated, to the extent possible” from the executive. For a country that has lacked any sort of constitutional review for the past 50 years, the decision is remarkable both for its clear legal reasoning and its outcome. Sadly, the media largely ignored the decision. Many only learned about the contents of the decision when the tribunal published its jurisprudence earlier this year.[4]

In October 2011, Amyotha Hluttaw Speaker Khin Aung Myint suggested the Constitutional Tribunal be allowed to vet draft legislation for conformity to the constitution. Pyithu Hluttaw Speaker Shwe Mann vigorously rejected the proposal, arguing it would infringe upon legislative sovereignty, claiming that it would undermine the integrity of the Hluttaw. The lower chamber eventually defeated the proposal in joint committee. Foreign media tended to portray Khin Aung Myint as a “hardliner” and Shwe Mann as a “reformer”, with Khin Aung Myint attempting to leverage the tribunal in order to stall the reformist agenda. However, as I discuss below, there is reason to believe the dispute was more about politics than policy.

The Constitutional Tribunal’s second case (Case No. 02/2011), decided in late December 2011, generated much more political controversy. Twenty-three of the Amyotha Hluttaw MPs (10%) challenged portions of a law that would have excluded Ministers of National Races Affairs from receiving the full privileges allotted to other state ministers. The Constitutional Tribunal agreed that all ministers should have equal status and struck down the offending sections of the law. This was the first case in which the tribunal actually struck down a law for not conforming to the constitution. This time, the media did report on the case. Despite his defeat in the case, the president has abided by the decision and recently met with the Ministers of National Races Affairs.

The Constitutional Tribunal’s third case (Case No. 01/2012)[5] came on March 28 of this year and ultimately sealed its doom. The legislature had designated several committees as “union-level organizations”, granting them the power to amend legislation and subpoena ministers. The president challenged this status, partly because committee amendments were delaying passage of the foreign investment law. While the 2008 Constitution mentions “union-level organizations” several times, it never explicitly defines the term. In deciding the case, the tribunal noted that the constitution mentions “union-level organizations” as institutions able to submit proposals to the Hluttaw, so they could not also be legislative bodies. As such, the tribunal defined “union-level organizations” as administrative institutions appointed by the president and approved by the Hluttaw, excluding legislative committees.

After several months of searching for a compromise, on August 15, 301 Pyithu Hluttaw representatives signed a petition to impeach the Constitutional Tribunal members. Speaker Shwe Mann issued an ultimatum for the tribunal members to resign within a week. The deadline passed without resignations. The Amyotha Hluttaw then passed a formal bill of impeachment with 163 votes in favor and 53 against. Interestingly, all elected MPs, including the opposition parties, voted to impeach, while all military MPs voted against. The Pyithu Hluttaw then formed an investigatory committee. However, given that more than two-thirds of MPs had signed the initial petition, the outcome was a foregone conclusion. Just a few days later, on September 6, 2012, The New Light of Myanmar announced that all nine Constitutional Tribunal members “voluntarily” resigned.

As with much of Myanmar politics, the exact motives behind impeachment remain murky. What does seem clear is that this was not simply an attempt by an authoritarian government to silence judges. The president and the military opposed impeachment but did not use extra-constitutional means to stop the process. While the USDP controls a majority of the legislature, without the military votes it controls only about half the seats in each chamber. As such, the support of opposition parties was crucial to reach the two-thirds threshold. While some opposition MPs had asked for a secret ballot, there is no evidence that they were coerced to vote for impeachment. Indeed, it is difficult to imagine Aung San Suu Kyi and the other opposition leaders being easily intimidated.

Rather, the real driving impetus seems to have been a newly assertive legislature’s desire to change the rules of the game in its favor. When the Constitutional Tribunal members were first appointed back in February 2011, most still assumed that the legislature would act as a rubber-stamp. It is not clear who actually selected the tribunal members, but the MPs almost certainly played no role. Some suspect that the former military junta essentially forced the choice on the new government. One European diplomat quoted in The Financial Times went so far as to claim that the tribunal’s “union-level organizations” decision was “clearly designed to protect the executive against the emerging will of the people represented in parliament.”[6]

From the debate over abstract review to the “union-level organizations” case, most MPs found constitutional review to be unduly constraining. Representative Ba Shein from the Rakhine Nationalities Development Party recently claimed, “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.”[7] Moreover, Speaker Shwe Mann’s path to the presidency in the 2015 elections lies through the legislature. Under the constitution, the Pyithu Hluttaw, Amyotha Hluttaw, and the military MPs nominate presidential candidates, while a joint session votes for the president and vice-presidents. As such, Shwe Mann will need the legislature’s support to become president. The best way to win that support is for Shwe Mann to become the leading advocate for legislative supremacy.

Unfortunately, what is good for legislative power is not necessarily good for constitutionalism. As both Shwe Mann and Aung San Suu Kyi have noted, Myanmar’s judicial system still suffers from the legacy of 50 years of military rule. According to reports, while the national government does not interfere in judicial cases, local elites do exert influence in order to secure favorable decisions. Thus far, judicial reform has remained on the backburner. Aung San Suu Kyi’s Rule of Law Committee is expected to forward a proposal for judicial reform by late October. The question facing Myanmar now is whether the impeachment of the Constitutional Tribunal has set a precedent that will intimidate other judges, or whether the damage can be contained.[8]

 

1  Although Myanmar is the official English-language name of the country, the United States and the country’s own prodemocracy opposition still call the country “Burma”. I use “Myanmar” because that is the name used in the 2008 Constitution.

2  The three members nominated by the president were U Thein Soe, Dr Tin Aung Aye and Daw Khin Hla Myint. The members chosen by the Speaker of the Pyithu Hluttaw were U Tun Kyi, U Soe Thein and U Khin Tun. The members nominated by the Speaker of the Amyotha Hluttaw were U Hsan Myint, U Myint Kyaing and Daw Mi Mi Yi.

For more analysis of the Constitutional Tribunal’s design and function, see Dominic J. Nardi, Jr. “Discipline-Flourishing Constitutional Review: A Legal and Political Analysis of Myanmar’s New Constitutional Tribunal.” Australian Journal of Asian Law 12: 1. 2011.

4  Both 2011 cases are available at http://www.myanmarconstitutionaltribunal.org.mm.

5  Available at http://www.burmalibrary.org/docs14/NLM2012-08-16.pdf.

6 Quoted in Gwen Robinson, “Myanmar at risk of constitutional crisis,” The Financial Times (August 31, 2012), available at http://www.ft.com/intl/cms/s/0/27b49c54-f38e-11e1-b3a2-00144feabdc0.html#axzz28dB4YdH4.

7  Quoted in Lawi Weng, “Constitutional Tribunal Dispute Heats Up,” The Irrawaddy (August 21, 2012), available at http://www.irrawaddy.org/archives/12029.

8  For thoughts on how Myanmar could reform the impeachment process, see Dominic J. Nardi, Jr. “After impeachment, a tough balancing act.” The Myanmar Times. October 1, 2012. Available at http://www.mmtimes.com/index.php/national-news/2013-after-impeachment-a-balancing-act.html.

 

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Published on October 24, 2012
Author:          Filed under: Developments
 

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