Editor’s Note: Today we publish the 2016 Report on Myanmar constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.
—Daw Hla Myo New, Justice of the Constitutional Tribunal
I. Introduction
The constitution-building process in Myanmar is a long journey, like that of most other countries. It continues with time as Myanmar gains new historical and political experience. The most salient issues facing Myanmar relate to the struggle with internal armed conflict and insurgency that arose since its independence.
In a modern democracy, the most important feature of a Constitution is mechanisms to strengthen popular participation in public life. Democracy should connote equality between the majority people and other national races. The participation of national races in social justice, protection of human rights, and political, administrative, and economic concentration is imperative. The Tribunal, or Constitutional Court, by recognizing the legal norms and sources of law, provides the opportunity for minorities to preserve their own traditional norms, values, and practices. The core function of the Tribunal is to stabilize the constitutional order in an ethnically diverse society.
The constitutional recognition of the freedom of belief, religion of every individual, and the prohibition of discrimination is a paramount guarantee against the possible negative impact of a state religion or the predominance of religion in one country.
The independence and impartiality of the judiciary at large enhances the credibility and trust in the Tribunal. Strong institutional legitimacy of the Tribunal then promotes the “pull” of the Constitution as well as its integrity.
II. Constitution and the Court
The Constitutional Tribunal of the Union, the very first of its kind in Myanmar, was established in 2011 along with a series of democratic transitions after the country had been under military rule for nearly three decades. It started to function on March 30, 2011.
The extent of review powers as well as the institutional design of constitutional review varies greatly around the world. Of the classical distinction of decentralized (or “diffuse”) and concentrated (or “specialized”) judicial review, Myanmar utilizes the latter, which spread mainly after World War II. Myanmar, a newly democratic state, views constitutional review as a cornerstone of judicial power. This power entails the implementation of the rule of law and acts as a check on the action of the executive branch in accord with constitutional guarantees and fundamental rights. The objective is to uphold constitutional principles against any legislation or other governmental action that might contravene them. The Constitution endows the Constitutional Tribunal with the power to settle disputes between the Union, regions, and self-administered areas, as well as among them. The Tribunal evaluates, in judicial proceedings, legislation and other governmental acts to ensure that they comply with the Constitution (Section 322 of the Constitution). The Tribunal is thus explicitly mandated to examine the constitutionality of law.
Constitutions vary on the timing and circumstances of review. The Myanmar Constitutional Tribunal may entertain a legal challenge only after the enactment of a legislation (ex-post review). There are, of course, advantages and disadvantages to both pre-enactment constitutional review and ex-post constitutional review. But ex-post constitutional review allows the Tribunal to scrutinize a challenged legislation with fuller information about its effects in real social situations. The Constitutional Tribunal of Myanmar, therefore, exercises constitutional review only in the context of a specific case or controversy. In other words, review takes place when a petitioner submits a dispute or complaint directly to the Tribunal, alleging a violation of the Constitution or its interpretation. The Tribunal acts only on petitions brought by authorized individuals or other branches of government.
A. Constitutional Review in Myanmar in History
Myanmar (formerly known as Burma) regained independence from the British Empire on January 4, 1948. Myanmar has had three constitutions since then, namely the Constitution of the Union of Burma (1947); the Constitution of the Socialist Republic of the Union of Myanmar (1974); and the Constitution of the Republic of the Union of Myanmar (2008), which is currently in force.
Parliament democracy was instituted in Myanmar after independence in accordance with the Constitution of the Union of Burma (1947), which was revoked in 1962 in a military coup. In 1974, the Constitution of the Socialist Republic of the Union of Myanmar entered into force through a referendum. From 1974 to 1988, the country was under the regime of the Myanmar Socialist Program Party as a one-party state. The Constitution of the Socialist Republic of the Union of Myanmar was revoked after a military coup.[1] The idea of establishing a separate constitutional authority did not appear in either of the two earlier constitutions, although the constitutional jurisdiction effectively was vested in the Supreme Court according to the 1947 Constitution of the Union of Burma. Its section 151(1) read:
(1) If any time it appears to the President that a question of law has arisen, or is likely to arise, which is of such a nature and of such public importance that it is upon it, he may refer the questions to that Court for consideration, and the Court may, after such hearing as it thinks fit, report to the President thereon.
(2) No reports shall be made under this section save in accordance with an opinion delivered in open Court with the concurrence of a majority of the judges present at the hearing of the case, but nothing in this sub-section shall be deemed to prevent a judge who does not concur from delivering a dissenting opinion.
Subject to this proviso, the President could seek a legal opinion of the Supreme Court on any constitutional problem concerning the Constitution by a referral. Under the 1947 Constitution, the Supreme Court was granted additional powers to implement the Constitution if was deemed necessary by the Parliament (Section 153):
The Parliament may make provision by an Act for conferring upon the Supreme Court such supplemental powers not inconsistent with any of the provisions of this Constitution as may appear to be necessary or desirable for the purpose of enabling the Court more effectively to exercise the jurisdiction conferred upon it or under this Constitution.
Section 4 of the Union Judiciary Act gave expansive powers to the Supreme Court to supervise “over all courts in the Union.” The Supreme Court could on its own motion or if a case was submitted to it, revise and correct any court decision within the Union contrary to the extant legislation. Moreover, section 25 of the Constitution gave citizens access to the Supreme Court to seek the protection of their rights by submitting writs. The Supreme Court was, therefore, empowered to check the constitutionality of the activities of the judiciary and executive against the Constitution:
(1) The right to move the Supreme Court by appropriate proceeding for the enforcement of any of the rights conferred by this Chapter is hereby guaranteed.
(2) Without prejudice to the powers that may be vested in this behalf in other Courts, the Supreme Court shall have the power to issue directions in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari appropriate to the rights guaranteed in this Chapter.
(3) The right to enforce these remedies shall not be suspended unless, in times of war, invasion, rebellion, insurrection or grave emergency, the public safety may so require.
However, with the new Revolutionary Government, the Pyithu Hluttaw (People’s Parliament) became authorized to review and decide on constitutional issues. Section 200 and Section 201 of the 1974 Socialist Constitution read as follows:
Section 200
- In interpreting the expressions contained in this Constitution, reference shall be made to the interpretation Law promulgated by the Revolutionary Council of the Union of Burma.
- Amendments to and further interpretation of expressions contained in the law mentioned in Clause (a) shall only be made by the Pyithu Hluttaw. (Peoples’ Parliament)
- The validity of the acts of the Council of State, or of the Central or Local Organs of State Power under this Constitution shall only be determined by the Pyithu Hluttaw. (Peoples’ Parliament)
Section 201
The Pyithu Hluttaw (Peoples’ Parliament) may publish interpretation of this Constitution from time to time as may be necessary.
In 1993, the military government organized a National Convention with the aim of drafting a democratic constitution. It was ceased for nearly three years but resumed in 1996. The Convention came to a successful end in 2007 when it fully drafted the Constitution of the Republic of the Union of Myanmar. The Constitution was then adopted in a national referendum on May 29, 2008. The Constitution includes a total of 15 Chapters, 457 Sections, and 5 Schedules. A separate constitutional authority named the Constitutional Tribunal of the Union, composed of 9 members, including a Chairperson who is chosen by the President and Speakers of two houses of Parliament, was established to exercise constitutional review jurisdiction.
B. Access to the Tribunal
A constitutional matter may be directly submitted to the Tribunal by the President of the Union; the Speaker of the Pyidaungsu Hluttaw (Union Parliament); the Speaker of the Pyithu Hluttaw (Peoples’ Parliament); the Speaker of Amyotha Hluttaw (National Parliament); the Chief Justice of the Union; and the Chairperson of the Union Election Commission to obtain a constitutional interpretation, resolution, or an opinion of the Tribunal pursuant to Section 325 of the Constitution. In addition to those individuals, the Chief Minister of the Region or State, the Speaker of the Region or State Hluttaw (Parliament), the Chairperson of the Self-Administered Division Leading Body or the Self-Administered Zone Leading Body, and at least 10 percent of all MPs of the Pyithu Hluttaw, or Amyotha Hluttaw, may submit a matters to the Tribunal to obtain an interpretation, resolution, or opinion in compliance with the prescribed manners (Section 326).
Individuals or institutions who may not petition the Tribunal directly due to procedural hurdles, shall do so indirectly through a state official such as the President of the Union, or Speakers of both houses of Parliament, and others who have the right to submit matters to the Tribunal directly. A private individual cannot bring a case to the Tribunal. But a general court may do so if a question arises to the constitutionality of a legislative act or provision, in a case or controversy, and the Tribunal has not decided on the subject matter before. The concerned general court must stay the trial and submit a question to the Constitutional Tribunal. The resolution of the Tribunal of the dispute applies to all cases.[2]
When a case is submitted to the Tribunal, the Chairperson sets up a scrutiny body proportionally composed of three members from among those elected by the President of the Union and the Speaker of both houses of Parliament. When the case is found complete with required documents, the scrutiny body reports it to the Tribunal for a hearing. The case is heard in a plenary session. If it is not possible to be heard in a plenary session because of the absence of one member or other credible reasons, it must be heard by at least six members including the Chairperson. The hearings of the Tribunal are before public except in cases bearing on state secrets or security of the Union.
The resolution of the Tribunal is final and conclusive.[3] Resolutions, interpretations, and opinions of the Constitutional Tribunal are published in the Union Gazette and published annually as the rulings to be quoted as well. However, official English translations of resolutions are unavailable.
III. Cases and Controversies
The Tribunal decides few cases in comparison to constitutional courts and similar institutions in other jurisdictions. Since its establishment in 2011, a total of 14 cases have been brought before the Tribunal. This could be attributed to the fact that:
- The Tribunal is a newly established institution, formed only in 2011.
- It is not vested with a power to entertain individual complaints.
- The access to the Tribunal is subject to detailed conditions.
- Public and state institutions lack relevant knowledge about the Tribunal.
- Referral cases by an ordinary court seeking constitutional interpretation can be made through the Supreme Court only (one case had been referred since 2011).
- An individual MP cannot file a case with the Tribunal.
In one case, the Tribunal decided that a provision in the law of Emoluments, Allowances and Insignia of Office for Representatives of the Regions/States was unconstitutional, since the Ministers of National Races Affairs have equal status with the Ministers of the Region/States and they should be, therefore, entitled to the same rights and privileges.
The Tribunal also declared once that the decision of the executive was not in accord with the Constitution. There was also a case where an application filed for conferring of judicial power to administrative officers of the General Administrative Department of the Ministry of Home Affairs.[4]
In one case, the Attorney General petitioned the Tribunal to review its own decision in a case that concerned the Civil Procedure Code, the Criminal Code, and the Evidence Act. The Tribunal opined that neither the Constitution nor the Tribunal Law allows an interpretation that there is a right of appeal or review of its own decisions.[5]
There were also cases seeking the interpretation of the Constitution. In a case indirectly related to the electoral rules, the Tribunal held that the rules determined the power allocated to the Union Election Commission.
The biggest challenge to the Tribunal posed the question on the status of Committees, Commissions, and Bodies formed by each Hluttaw (Parliament). At issue was whether these bodies ought to be regarded as Union Level work to Union Level Organization was unconstitutional.[6] This case led to the resignation of all members of the Tribunal, including the Chairperson, from their post.
Most of the States and Regions seek clarifications from the Tribunal whether they shall exercise the legislative powers entrusted to them under Schedules II and III of the Constitution before a repeal or amendment of the extant Union laws.
Cases submitted during 2011-2016 by type:
2011 – Separation of Power 1
– Constitutional Interpretation 2
2012 – Constitutional Interpretation 3
2013 – Constitutional Interpretation 1
2014 – Constitutional Interpretation 5
2015 – Constitutional Interpretation 1
2016 – Constitutional Interpretation 1
Total 14
IV. Major Cases
In 2016, only one case was brought before the Tribunal. On March 30, 2016, a new government took office, and all 9 members of the Tribunal were replaced by new ones chosen by the President, the Speaker of the People’s Parliament, and the Speaker of the National Parliament, respectively, as their terms expired, according to the Constitution. In the selection process and subsequent approval of the candidates in the Union Parliament, two were challenged. The two candidates qualified for judgeships based on the provision: “(iv) person who is, in the opinion of the President, an eminent jurist,” may be selected as a member of the Constitutional Tribunal. However, they failed to meet other requirements for the position and, most importantly, were candidates of the Speakers.[7] Despite the challenge, they were approved as new members of the Tribunal.
Twenty-three representatives of the National Parliament put forward a submission calling on the Tribunal to interpret the provision of Section 333, Subsection (iv) of the Constitution. The MPs specifically questioned whether the qualification, a “person who is, in the opinion of the President, an eminent jurist” does not apply only to members of the Tribunal who were selected by the President of the Union. Pursuant to Article 4(b) of the Law of the Constitutional Tribunal, the President may select a person as a member of the Tribunal if the candidate is an eminent jurist, despite lacking other professional qualification. The MPs argued that the selection was unconstitutional.
The core question was whether the “eminent jurist” exception only applies to judicial appointments by the President. The Tribunal approached the issue intertextually—it was necessary to take into account the entire Constitution in context. Sections on the appointment of the Union Attorney General;[8] the Deputy Union Attorney General;[9] the Auditor General;[10] the Chief Justice and Associate Judges of the Supreme Court;[11] and finally on the appointment of the Chief Justice and Judges of the High Court of the Region or State[12] all include similar clauses that empower the President of the Union to use discretion in appointing those officials. This discretion pertains to the last stage of the selection process, where the candidates for the Constitutional Tribunal, after being selected by the two Speakers and the President, are appointed to the bench. Another reason was that the President is entrusted with this privilege as he is the head of state as well as the executive. It would be unconstitutional if it were restricted that the President had the power to exercise discretion to appoint the officials and judges.
On the other hand, it was clear after reviewing the whole submission that it was asking the Tribunal to accede to the applicants’ interpretation rather than requesting the interpretation of the Tribunal. The judges thus held that the submission was incompatible with the Constitution, and it was dismissed.
V. Conclusion
The Tribunal has confronted some challenges since its establishment. Some commentators argue that certain constitutional rights are absolute, but others are of the view that rights, such as the right to free expression, are qualified. Constitutional rights are guaranteed only insofar as their exercise is not contrary to the laws enacted for security of the Union, law and order, and community peace. Some authors critique undue influence of the executive on the judiciary, and emphasize the importance of judicial independence and access to courts, while again others argue that access to justice should remain exclusive.
The Constitutional Tribunal for its part applies law to everyone in a fair and consistent manner. The Tribunal is committed to the principle of impartiality. It tries to promote clarity and consistency across the judicial process, because coherent legal doctrine makes the exercise of justice transparent. Transparent and properly functioning judiciary in turn enhances the quality of the rule of law.
With regard to the complaints, on the repressive legislation, the Union Parliament prioritizes review and abolition of such old laws. The Parliament must enact legal framework capable to withstand scrutiny and not misuse its power. One of the important functions of the Constitutional Tribunal is to protect people’s fundamental rights and promote democracy. An appropriate balance in the choice of legislative schemes can improve the functioning of the government and improve the legitimacy of the actions of all branches. Judicial independence leads to the rule of law, which forces the impartiality. It is also essential to the protection of fundamental rights and other constitutional guarantees.
It is necessary for the Constitutional Tribunal to engage in outreach and disseminate information about its role, functions, and decision-making. State institutions and citizens must have wide knowledge about the Tribunal and how to access it in their pursuit of justice. The Constitutional Tribunal is trying to share information about its activity and to develop sufficient information services.
The effective and efficient implementation, protection and promotion of fundamental rights of citizens is more likely to succeed if the constitutional provisions are clearly formulated within a given constitutional framework. The effective guarantee of constitutional rights shall be based on the rule of law, and it is characterized by foreseeability, accessibility, accountability, separation of powers as well as recognition and protection of the rights of every person.
It is of this view that the courts should have a reputation of being independent, impartial, efficient, and representing the highest quality. Access both physical and to legal assistance to the courts also plays an important role. Finally, it is necessary to ascertain that the bodies protecting the constitutional rights of citizens are provided sufficient financial, human, and technical resources.
Since the mandate of the Tribunal does not reach to individual complaints, the Union Supreme Court has an important role in promoting and protecting citizens’ constitutional rights. A citizen whose rights and liberties, recognized by the Constitution have been violated petition the Supreme Court (writs system). The right to petition the Court is, however, subject to the exhaustion of other available legal remedies. The citizen, a party to a dispute, can also request the Supreme Court to make a referral to the Constitutional Tribunal (the so-called incidental attack on constitutionality) for a ruling that a contentious provision of law affecting a resolution of the case is contrary to or inconsistent with the Constitution.
Another constitutional mechanism of the Union Supreme Court that contributes to the protection of constitutional rights is its mandate to receive and consider complaints to submit amicus briefs, or recommendations to bring cases before the courts on behalf of the alleged violation of other constitutional rights. Presently, the National Human Rights Commission has also gained public trust as an independent institution to promote citizens’ rights. The rule of law and constitutionalism are in this sense a joint project to which all state institutions must positively contribute.
[1] The military-based State Law and Order Restoration Council (SLORC) suspended the 1974 Constitution upon taking power in 1988.
[2]Ibid, s 323.
[3]ibid, s 324.
[4] Submission No.2/2011, Rulings of the Constitutional Tribunal (2011) 63.
[5] Submission No.2/2012, Rulings of the Constitutional Tribunal (2012) 31.
[6] Submission No.1/2012, ibid 1.
[7] See s. 333(d) of the Constitution: (ii) person who has served as a Judge of the High Court of the Region or State for at least five years; or (ii) person who has served as a Judicial Officer or a Law Officer at least 10 years not lower than that of the Region or State level; or (iii) person who has practiced as an Advocate for at least 20 years.
[8] s. 237(a)(iv)(dd).
[9] s. 239(a)(iv)(dd).
[10] s. 244(a)(iv)(cc).
[11] s. 301(d)(iv).
[12] s.310(d)(iii).
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