The Short but Turbulent History of Myanmar’s Constitutional Tribunal

[This book chapter is for a new book edited by myself and Albert Chen of HKU Law Faculty. It is called Constitutional Courts in Asia and will be in press with Cambridge by July 2017. We are covering all 8 instances of specialised constitutional jurisdiction in Asia, as well as some cross-cutting issues; and we will of course include discussion of the recent decision 789 on same-sex marriage in Taiwan. Albert is the perfect co-editor. He reminds, encourages, supports, picks one up, is patient and polite beyond what is reasonable, comments insightfully, always has his fingers on the details which elude me, and deals with outstanding diplomacy with publisher and authors. Oh, and he is also by the way totally brilliant and ineffably charming.
This chapter looks at the troubled history of Myanmar's Constitutional Tribunal, and benefited much from Dominic Nardi's excellent work in this field as well as help and encouragement from Janelle Saffin, for whom my admiration knows no bounds.]



The Constitutional Tribunal of Myanmar (CT) owes its existence to the 2008 Constitution (‘CM2008’, otherwise ‘the Constitution’[1]), which effectively provided the framework for transition from military to civilian, democratic government during 2010-16. CM2008 was the outcome of a lengthy and controversial process of constitution-making which was almost universally condemned outside of Myanmar, but which has also provided a framework for the transition. It is the first plausibly democratic constitution since that of 1948, which was revoked following the military coup of 1962. CM2008 instituted the Constitutional Tribunal, an innovation in Myanmar, to provide authoritative interpretations of this new Constitution.[2]
The Constitution was dismissed too readily by international commentators as a self-serving piece of cosmetic reform enacted by the Tatmadaw (Myanmar military) to disguise an intention to remain in control of Myanmar’s government by maintaining a façade of civilian government.[3] Nine years further down the road to democracy (six since the coming into effect of the Constitution) this view needs radical revision. Few would have thought it possible that such a restrictive, partial, and rigid constitution[4] could lead to a transition to a National League for Democracy (NLD) government in office by March 2016, as well as many other remarkable changes. It is true that the Constitution contains a number of extraordinary features that render it, for all these unanticipated positive developments, potentially a basis for lack of accountability of the military; for military control over the government and the process of constitutional change; and possibly even, in an extreme case, for a return to the military rule that prevailed from 1962 to 2010.[5] These considerations made the claim that the Constitution was a façade for military rule all too compelling at the time it was brought into force. However, these problems all seem now remote in contemplation compared to the situation in 2011: the Tatmadaw did not stand in the way of the NLD taking power, nor of Daw Aung San Suu Kyi becoming the de facto if not de jure head of government in March 2016 despite a provision (the controversial section 59(f)) apparently making this impossible via disqualifications for presidential office.[6] Nonetheless, the fact remains that Myanmar has an unusually rigid constitution that is as a result hardly well adapted to the need for rapid transition to democracy.[7] Many changes currently deemed desirable are confronted with a Constitution no longer facilitating but rather blocking the process of democratic development.
At this juncture (writing in early 2017) it is difficult to see how the process of constitutional change will proceed, let alone to say what part in this process might be played by the CT; but it is a commonplace in comparative constitutionalism that constitutional change can occur otherwise than via formal constitutional amendment, and one principal way this happens is through the exercise of judicial power in interpreting the constitution. Another way is via political practice, which also can add flesh to the bare bones of legal text. In this sense – and despite a number of difficulties discussed in the course of this chapter and the rough ride the CT has endured over the brief span of its existence - the creation of the CT nonetheless presents the possibility for future constitutional development via constitutional interpretation.[8] This of course raises in turn the issue of what is expected of the CT and how it might proceed with regard to interpretation of Myanmar’s problematical constitution.[9]
The story of Myanmar’s CT is confined entirely within the last decade (on which this book offers a special focus), and indeed is a fairly short narrative, albeit a dramatic one in several respects. The entire CT was compelled to resign after a decision in 2012 to which parliamentarians objected strenuously. This constitutional-review crisis[10] will be discussed in more detail below. In 2016, following some changes in the law governing the CT (also discussed below) and a change in government, the CT was established with new membership. [11] At this juncture we do not know whether the CT Mark II will make a real difference to constitutionalism in Myanmar, but the potentiality obviously exists that it could do so decisively over the next few years if a number of uncertainties and variables concerning the institution fall into line to enable this to occur. Alternatively, there are arguments suggesting that the CT may have already withered on the vine; added to this is an argument that constitutional review should be carried out in the Supreme Court, which already exercises prerogative-writ jurisdiction over administrative acts and decisions,[12] than by the CT. Currently no cases have yet been decided by the CT Mark II. The rigidity of the Constitution makes it inevitable, one supposes, that the CT will continue, at least for the foreseeable future. It may well be that, given the CT’s recent history, and the fact that the CT Mark II comprises figures acceptable to an NLD Parliament and President, there is likely to be some reluctance to challenge executive actions or legislation via the CT. Unlike other similar institutions across Asia, the CT does not have jurisdiction over electoral disputes or political parties, and it therefore lacks an inevitable docket of cases.[13]
The case of Myanmar’s CT offers us insights on constitutional courts in Asia and beyond for three reasons. One is that it is a case where constitutional review was instituted as part of a rapid transition from military to democratic government. A second is that Myanmar’s CT is unusual in exercising in a common law country[14] the specialised, centralised, constitutional review that one normally finds in civilian jurisdictions, inspired as they are by the Kelsenian model, first established in 1920s Austria. The only other comparable experience is that of South Africa[15] which has a mixed common law and civil law heritage. A third reason is that Myanmar’s CT raises the issue of how best to provide for constitutional review. In this volume there appear chapters on Japan, China and Vietnam, which also have debates concerning the appropriate body for the exercise of constitutional review.[16] This conundrum seems to be endemic to many of the Asian states discussed in this book. Malaysia is another state (not discussed in this book) where a debate continues on this question.[17]
In this chapter we will see how and why the CT was established, the issues that have arisen in relation to its establishment, including those arising from the crisis of 2012; and we will also look at the case law that has emanated from the CT for some guidance as to the crisis and what to expect in the future.

Origins of the Tribunal
The independence Constitution of 1947 contained provision for constitutional review by the Supreme Court via writ jurisdiction.[18] In practice during 1948-62 the Supreme Court exercised careful review of administrative actions using this jurisdiction, but did not go so far as to strike down legislation.[19] As we will see, this is in contrast to the CT during 2011-12. The Supreme Court’s writ jurisdiction has survived in CM2008.[20] The 1947 Constitution was effectively revoked following the military coup of 1962,[21] and independent constitutional review did not feature again in Myanmar law until CM2008 came into effect on 31 January 2011, following which the CT was established. During the period 1974-88, under the 1974 one-party Constitution, constitutional interpretation, so far as it was salient, was reserved to the legislature.[22]
The proposal to create a CT was contained in the statement of ‘The Fundamental Principles and Detailed Basic Principles’, which were adopted by the National Convention as early as 1993 and created the basis for, and much of the detail in, CM2008. However, although it would not be quite correct to call the CT a constitutional afterthought, it is, significantly, not mentioned in CM2008’s Chapter I (Fundamental State Principles, which notably does mention every other major institution) but only at the very end of this 101-page document, in Chapter XV (General Provisions).[23] The terms for establishing the CT were finally set at the Convention’s meeting on 2 August 2007. The CT was duly established on 31 March 2011 under section 46 of the Constitution.
Section 46 reads:
A Constitutional Tribunal shall be set up to interpret the provisions of the Constitution, to scrutinize whether or not laws enacted by the Pyidaungsu Hluttaw [Union Parliament], the Region Hluttaws and the State Hluttaws [Region and state assemblies] and functions of executive authorities of Pyidaungsu, Regions, States and Self-Administered Areas are in conformity with the Constitution, to decide on disputes relating to the Constitution between Pyidaungsu and Regions, between Pyidaungsu and States, among Regions, among States, and between Regions or States and Self-Administered Areas and among Self-Administered Areas themselves, and to perform other duties prescribed in this Constitution.
The Constitution Drafting Committee inserted into CM2008, at sections 320-36, the terms agreed in 2007.[24] Dominic Nardi, in his study of the debates, points out that delegates to the National Convention appeared to justify the CT’s creation on the basis of its role in resolving inter-elite disagreements rather than in limiting government as such, or protecting human rights.[25] This is supported by the terms of section 46 itself. Nothing is said explicitly there about the CT as an enforcer or protector of constitutional law or principle, nor of the imposition of limits on the executive, nor of the protection of human rights.[26] Of course it may be argued that such objectives are implicit, but their absence may present an obstacle in future in that decisions pursuing such objects might appear to be ambitious or ‘activist’ in nature.
However that may be, one representation to the National Convention in 2006 described the CT as ‘a must for perpetual existence of the constitution and in discharging responsibilities in accordance with the constitution’.[27] It is far from obvious, however, that the CT is a ‘must’ in this sense. Given the history and nature of the common law system in Myanmar and the fact that the CT Members, like ordinary judges, must be legally qualified,[28] one might plausibly ask, as indeed some are doing, why the Supreme Court could not adequately carry out the function of constitutional review instead of the CT, much as it had exercised writ jurisdiction in the past (and presumably will in the future too).[29] Indeed it is the position of the NLD itself that the power of constitutional review should be returned to the Supreme Court that exercised it (at least in theory) before the coup of 1962.[30] One learned writer on this issue from Myanmar considers the CT to be the best locus for constitutional review, subject to some changes designed to bolster its independence.[31] Perhaps the constitution-makers did feel that a strong enforcer, independent of all three branches, was required. Yet the language of the Constitution is ambiguous on the issue of judicial independence.[32] Or perhaps the military simply wanted to ensure that its vested rights and interests would not be easily overturned by a parliamentary majority. An even more likely motive is that of avoiding serious splits amongst elites as powers became divided in various ways with the implementation of the Constitution. What is clear is that understanding of the CT and its constitutional role was and still is lacking, as there was no wide debate about it during or after the National Convention, and it was not thought to be of great significance even before the crisis occurred in 2012.
The reference to civil law countries is odd in that Myanmar is the only common law country apart from South Africa (which has a ‘hybrid’ system) to have specialised constitutional review. The formation of the CT is stated on its website to be ‘in accord with the principle of the Supremacy of the Constitution adopted in civil law countries’.[33] From the discussions of the CT’s role it seems that the transplanting of this essentially civil-law institution into a common-law framework and a constitutional history, owing much to the Westminster model, or at least Anglo-Indian ideas about government, is a potential legal irritant, in Teubner’s sense.[34] The adoption of this mechanism for constitutional review is at least far from being an obvious step. We will see that in 2012 the CT was shown to be an actual rather than merely potential irritant. The debate as to the proper locus (but not the salience as such) of constitutional review continues, but major change in the near future is in effect prohibited by the rigidity of Myanmar’s Constitution. Interestingly enough, given the paucity of cases before the CT, it could be that this ‘irritant’ has provoked disdain rather than outright rejection.[35]

Powers and their invocation
According to the Constitution, the CT has as we have seen general powers of interpretation of the Constitution, scrutiny of laws, and resolving disputes between state organs.[36] However, the ability to invoke these powers is given only to a court of law;[37] the President; the Speakers of the Pyidaungsu Hluttaw, the Pyithu Hluttaw, and the Amyotha Hluttaw (the National Assembly, its the lower house and upper house, respectively); the Chief Justice; the Chairman of the Union Election Commission; a Region or State Chief Minister; a Speaker of a Region or State Hluttaw; a Chairman of the Leading Body of a Self-Administered Area; at least 10 percent of the members of the Pyithu Hluttaw or the Amyotha Hluttaw.[38] Under this dispensation neither an individual citizen nor a civil society organisation, nor even a sole Member of Parliament, would be able to bring a case before the CT. It is hardly then surprising that the citizenry generally and the civil society did not react to the 2012 crisis in such a way as to defend the CT, an institution in which they were able to play no direct role, and whose purpose was essentially unclear. The literature on constitutional courts tends to emphasise the need for these bodies to project an image to the public and to have widespread support for their function.[39]
Highly relevant is the fact that the CT’s jurisdiction, although potentially broad, does not cover electoral disputes, on which the Union Election Commission has the final say.[40] Across much of Asia it is seen that electoral jurisdiction is very prominent (see especially the chapters on Taiwan, South Korea and especially Indonesia) and has tended to cement the role of constitutional courts. The adoption of ex ante jurisdiction, in which laws could be scrutinised before they are passed (a feature of many constitutional courts), was also suggested by the Speaker of the Amoythya Hlutaw in 2011, but this was defeated.[41]

Appointment of the Constitutional Tribunal
The 2011 Law on the Constitutional Tribunal came into effect on the same day as the Constitution. Rules under this Law were passed by CT itself.[42]
Under the Constitution the CT is composed of nine members, including a Chairperson, who hold office for five years. Three members are chosen by the President, and three each by the Speaker of each House of Parliament; these are subject to confirmation by the whole Parliament.[43] This system replicates, but only in part, that adopted in South Korea (see chapter xx) and Indonesia (see chapter xx). In those cases too three bodies nominate a third each of the judges, but the bodies reflect the separation of powers between the legislature, the executive and the judiciary; but in Myanmar’s case the judiciary does not have this power (contrast Thailand, where the judiciary plays a very important part in the process of selection, but the selection is given to an independent commission: see chapter xx). The Myanmar system is notable in this comparison, not only for not enabling the ordinary courts to embark on constitutional review, but also for not enabling them to partake of the process of appointments. This in turn betokens a signal lack of trust in the ordinary judiciary to fulfil a role of real constitutional significance.
Those nominated must be at least 50 years of age, and must have a legal background (that is, have served five years as a judge, ten years as a judicial officer, 20 years as an advocate, or otherwise be an ‘eminent jurist, in the opinion of the President’). They must also be loyal to the Union and have a ‘political, administrative, economic and security outlook’.[44] It is not clear what this latter requirement means. Clearly it does not require career experience of all four varieties listed, as nobody would be able to fulfil such requirement. As Nardi points out[45] most previous and current Members of the Tribunal had no military experience.
Regarding the 2016 appointments,[46] two nominations were contested by military MPs, who appeared to challenge the legal credentials of the two nominees. The issue is instructive concerning the process of appointment. One nominee in particular was controversial. Daw Khin Htay Kywe was the only female nominee and the only nominee from the NLD (in fact a party executive committee member), having a record as a human rights lawyer and as Daw Aung San Suu Kyi’s own lawyer. Military MPs argued that the papers filed with Parliament did not show her as having sufficient legal expertise. Parliament voted not to discuss the matter, and both nominees were appointed, the Speaker arguing that it was for those opposed to the appointments to bring evidence, rather than simply relying on a request for more information.[47]  The appointments of these two nominees were nonetheless challenged in the CT in a case to secure an interpretation of the relevant provision, but in January 2017 the CT ruled that it had not jurisdiction to rule on this matter as it was within the purview of the legislature.[48] The CT as reconstituted in 2016 is therefore likely to consider as its first case the qualifications of two of its own Members. Given Parliament’s role in the appointment process, it is hard to see why MPs should not be allowed to raise questions concerning nominees or even the information that has been adduced concerning their qualifications. In the instant case there might well also have been an argument, if the matter had been debated, that the nominee might show bias towards NLD legislation or executive actions. That debate might well also have been instructive. Despite the constitutional provision giving the legislature the power of approval of nominees, the  membership of the legislature has not in the event been involved to any great extent in the nomination process, as we can see from the process for the most recent appointments.
CT Members are appointed after each presidential election, and their terms are coterminous with that of Parliament.[49] This means not only that their terms are very short by international standards, but also that their jurisdiction is only ever exercised in relation to one Parliament. This position is counter-intuitive: surely, the CT would be strengthened if its terms overlapped those of Parliaments and Presidents, creating a firmer impression of impartiality?
Under a statutory amendment in 2013 to the 2011 Law on the Constitutional Tribunal, the CT Members are required to report to the person or body nominating them.[50] This provision is likely to be unconstitutional as it tends to interfere with the independence of the CT.[51] It also, oddly, rather implies that the Members should be guided by the interests or expectations of their nominators rather than their view of the legal arguments presented to them. Neither of these issues is reassuring with regard to maintaining the CT’s independence from the legislature and the executive.
More generally on the appointment process, it has been argued that the requirement that nominees should be at least 50 years old closes off some potentially excellent appointees as well as being inconsistent with other offices under the Constitution.[52]

The Crisis of 2012
We now turn to the critical juncture, the crisis of 2012.[53]
The CT began well enough with a decision defending judicial independence.[54] In Chief Justice v Ministry of Home Affairs it struck down an attempt by the ministry to enable sub-township officials to deal with criminal cases. This was held to be a breach of the principle of judicial independence.[55] In fact the Constitution at section 11(a) requires the separation of powers ‘to the extent possible’ and for the powers to ‘exert reciprocal checks and balances among themselves’. This provision is worryingly vague, but in adopting a restrictive view of the latter phrase and a broad view of the guarantee of judicial independence, the CT has effectively imposed a requirement that the government show why failing to adopt a particular limitation on judicial independence is impossible. This sets a high bar for future attempts to interfere with judicial power.
In the second case too, Dr Aye Maung v Myanmar, the CT struck down statutory provisions concerning ministerial emoluments, holding that ministers for ‘national races affairs’ [sic] were ministers within the meaning of the Constitution and could not be discriminated against in terms of their salaries. What is most interesting about this case is that the President petitioned the CT to reconsider its decision: not surprisingly the CT ruled that its decision was final under the Constitution.[56]
However, its decision in March 2012 in President v Pyidaungsu Hluttaw the CT decided that parliamentary committees were not ‘union-level’ institutions. This had the effect of reducing parliament’s capacity to call the executive to account by, for example, issuing subpoenas to ministers. This proved highly controversial, in the event, highly damaging for the prospects of constitutional review.[57] As a matter of strict interpretation the CT did appear to be correct in drawing a distinction between parliamentary committees, which are provided for by the Constitution, and ‘union-level organisations’ such as parliament itself, the effect of the interpretation was to deprive these committees of oversight powers, which was not helpful in terms of the separation of powers. In terms of interpretive technique the case raised also the question of what should be taken into account when interpreting the Constitution.  
Whereas the earlier decisions had been accepted - albeit with the grumbled dissent that tends to accompany such rulings everywhere - Parliamentarians were enraged by this last decision, despite what might well be seen as a plausible if rather wooden interpretation of the Constitution. In August-September 2012 the crisis played out. More than two thirds of the Members of the lower house voted for an initial motion to impeach the CT Members. A similar majority of the upper house signed a petition to impeach the CT Members.[58] The lower house formed an investigatory body in order to investigate charges of unconstitutional action.[59] It was therefore inevitable that the final outcome would be a vote in favour of impeachment. All nine CT Members accordingly ‘voluntarily’ resigned. Interestingly enough, the military members voted against impeachment, but the military-supporting USDP, President Thein Sein’s own party, voted in favour of impeachment, as did the NLD and Aung San Suu Kyi. The President himself, however, was against impeachment.
The constitutional provisions of relevance to this episode are contained in CM2008, section 334, which allows the President or a quarter of MPs of either House to initiate proceedings against a Member of the CT on grounds of ‘high treason’, ‘breach of the Constitution’, ‘misconduct’, or ‘inefficient discharge of duties’. In this case the charges were breach of the Constitution and inefficient discharge of duties. Presumably the former charge  is not to be read as equivalent to ‘adopted an improper interpretation of the Constitution’, as that would make the CT’s interpretation equivalent to anyone else’s, whereas the Constitution is quite clear at section 324 (as is the case law referred to above) that the CT’s interpretation is final and conclusive. ‘Inefficient discharge of duties implies institutional dysfunction (for example a failure to decide), of which there does not appear to be any evidence. The basis for the impeachment remains somewhat incoherent legally, as it is unclear in what way the CT Members were supposed to have breached the Constitution or been inefficient.[60] Essentially the report issued by Parliament merely stated that the CT was in error, indicating its disagreement with the CT rather than a violation as such of constitutional norms or procedures. Arguably therefore, if anyone it was actually Parliament rather than the CT that breached the Constitution in this episode. The real issue appears not to be the merits of this decision (or the CT’s decisions generally) from a technical viewpoint: the CT adopted a perfectly reasonable and plausible interpretation of the Constitution’s text, employing some convincing arguments in reaching its decision.[61] Indeed the CT had also, as we have seen, decided cases against the President: it can scarcely be argued on the case law that the CT had shown favour to the military or to a President who, as a former general, hailed from that same quarter. Rather the issue appears to be that the first tranche of Members appointed to the CT had been in effect selected by the military, which was still dominant in 2011. This adds evidence in support of the notion that the real purpose of creating the CT was for it to act as a brake on the independence of Parliament. That appears to be how it was seen by MPs, who viewed the CT as undemocratic. Seen in these broader terms the impeachment becomes a scene of battle not between Parliament and the CT, but between the military and Parliament. One commentator sees the impeachment crisis in the following light:
it seems that the impeachment proceedings against the Tribunal members were seen to be a solution for a more profound problem – namely, the perceived lack of legitimacy of the members of the Constitutional Tribunal, which may suggest that the impeachment was viewed as a singular, cathartic remedy.[62]
Thus the impact of the crisis on the separation of powers under CM2008 was in fact more nuanced than might appear from the foregoing. On one hand Parliament, as part of a trend,[63] established its independence of the other branches, standing against the President on this matter as well as against the CT. On the other hand the impeachment did not promise a bright future for judicial independence, given that the CT’s purposes include (or should be seen as including) acting as a check on the legislature as well as  on the executive. For all that, the parliamentarians voting for impeachment did not impugn the concept of constitutional jurisdiction as such: it was not suggested that the CT be abolished, and judicial independence as such appears to be supported by the current NLD leadership. Rather they were opposed to the membership of the CT. Of course, as stated above, given the rigidity of the Constitution, it would in fact have availed them nothing to demand abolition of the CT itself. In the event the CT has as we have seen survived this challenge to its authority and has been reconstituted. The fate of CT Mark I suggests that a bold approach by the CT to the exercise of its jurisdiction is likely to create an adverse reaction. On the other hand, one might ask, would a low-profile response be more likely to result in retention of the CT, and its fulfilling of an important purpose?
Constitutional courts are faced with a dilemma at the outset of their work. Should they act strongly to lay down clear lines and mark out clearly their place in the polity? Or should they proceed carefully to avoid creating enemies in a fluid situation? These questions assume (although much of the literature appears to consider it irrelevant) that a reasonable understanding of the law gives them such options in the first place; the issue is after all one of correct and consistent interpretation, not minute calculation of political advantage, which surely would undermine the notion of judicial independence, not to mention the rule of law. Yet even where the law is very clear, there are nonetheless, when it comes to remedies, options that can be strategically deployed.[64] In the case of Mon State v Myanmar, for example, the CT employed some flexibility in prescribing a process for dealing with unconstitutional laws.[65] In the case of Myanmar it seems as though CT Mark I had adopted the first position indicated above in using its jurisdiction actively and indeed also impartially. However, debate and understanding concerning the CT, unlike in Indonesia and South Africa, for example, had been thin on the ground. The National Convention was lacking in transparency and the relatively marginal attention given to the CT during the drafting process ensured that its position was not generally seen as critically important. When the crisis erupted the CT had decided only three cases, and was short of defenders or admirers, and in the event appeared to give up its position rather meekly.
What is critical to understanding both the CT’s situation and its potential is the type of reasoning they have adopted. Interpretation lies on a scale on which to different extents material apart form the text itself may be employed to decide the case. In the Chief Justice’s case the CT intelligently construed the Constitution as embracing judicial independence, adopting a narrow interpretation of permissible restrictions thereon, and denying the relevance of previous judicial practice. Here one can see the Constitution being endowed with a capacity for growth beyond the actual text. In the parliamentary committees’ case careful textual analysis would probably (although this is clearly arguable) produce a result along the lines of the CT’s actual decision. A more imaginative decision might have seen the necessity of a broad construction of the Constitution to allow these committees to exercise legislative oversight. At the same time, this ‘living tree’ approach, if applied consistently, might have ultimately led to the very type of concern that exercised MPs – namely that the CT was erecting itself as a power over Parliament and thereby disabling Parliament’s power to supervise the government in a democratic manner.[66]
One further case requires mention, decided in early 2015 after the CT was reconstituted. In a case known as the ‘White Card’ case, the CT struck down a law allowing those holding white cards (that is, not citizens, but having a right to remain in Myanmar) to vote in a referendum.[67] This had the effect of depriving 750,000 people of the vote, these being mainly Rohingya, or Muslims living in Rakhine state. This decision was politically popular (it was in any case anticipated by the President cancelling white card status prospectively), despite ostensibly limiting parliament’s power.

Issues and Changes Regarding the Framework of the Constitutional Tribunal
Given the rigidity of the Constitution, the law concerning the CT is changeable by Parliament only to a certain extent. In 2013 the Constitutional Tribunal Law 2010 was amended to increase the role of the legislature in appointing CT Members and to secure their greater accountability. The Law now (as is mentioned above) requires the CT Members to report to the body/ person nominating them (the President or the Speaker of one of the two Houses of Parliament); and the legislature rather than the President now selects the Chairperson of the CT. Very arguably these provisions are both unconstitutional,[68] but the CT has not had an opportunity to consider them. In the case of the selection of the CT’s Chair, the constitutional provision is less than clear.[69] An attempt in 2014 to amend the law to enable the President to select the Chair ‘in whatever way he thinks fit’ was rejected by Parliament. As it stands, the Law on the CT requires that one of the nine nominees be assigned as the Chairperson, nominated by the President in consultation with the Speakers of the two houses of parliament. The point is that this rather vague provision might be used to overturn the President’s nomination of the CT’s Chairperson in a future instance, increasing the possibility of political interference.

Analysis of the Myanmar Case
Looking at the CT in light of general ideas about constitutional review, one would expect that there would be a military interest in creating and retaining the CT as an insurance against constitutional change.[70] That would assume a secured role for the CT as a conservative force, blocking implicit or gradual change short of constitutional amendment. If so, one would wonder why the CT Members were given relatively short terms of office (five years) which could be ended relatively easily (as it proved) by an impeachment process in Parliament. On the other hand, parliamentarians, rightly or wrongly, viewed the CT as a hostile force serving the military, or at least advanced this image of the CT to support their case; and the military members voted consistently against impeachment.[71] This theory must however deal with the fact that it implies a conservative or ‘originalist’ mode of constitutional interpretation, whereas it is far from clear from the decisions that such mode was in fact adopted by the CT. Indeed the cases tend to support the notion that the CT was trying to put flesh on the bone of the Constitution, or - to change the metaphor - view the Constitution as a living tree. The case that led to the crisis could be viewed analytically either way: as a decision enforcing the separation of powers, or as one tied to the Constitution’s text. There is really not enough evidence, nor is there enough reasoning in the decisions, to decide this either way, but the political reality is that it was simply viewed by the legislature as a hostile act.
There is a point of view, advanced by well-known scholars working on constitutional transition, that in its early years a constitutional court should tread carefully, eschewing ‘activism.’[72] The Myanmar case would appear, as we have seen, to support this position. The alternative view is that a constitutional court needs to make an early and assertive mark. The latter position may be true only where there is both a constitution enjoying legitimacy and a clear expectation that constitutional review will enforce it with rigour. Both of these conditions, I suggest, are missing in Myanmar’s case.
We are left with a double conundrum. Is constitutional review essentially dead or capable of being successfully revived (as occurred in Taiwan and South Korea: see chapters  xx and xx)? In either case, is it to be and should it be vested in the CT or the Supreme Court? The answer to these questions depends, first, on whether the limited range of potential litigants is willing to bring cases; this depends on whether the CT’s decisions may be regarded as legitimate and enforceable. Secondly, it depends on how, if it gets opportunities, the CT handles the cases. In view of the 2012 crisis, the outcome probably depends not on the technical quality of the decisions but on what we might call the politics of the separation of powers. Given the support of parliament for the current membership of the CT, these considerations meld into the question whether the CT will be supported on all sides as an institution. There is no shortage of constitutional controversy capable of being resolved through the CT. Parliamentarians argued before, but will not be able to argue again, that the membership of the CT is objectionable; after all, it was they who in essence chose the Members. Accordingly, they will have to accept its decisions. The matter thus rests with Myanmar political society: will the CT be put to use or will it become, to use Bagehot’s terms, a dignified (perhaps not very dignified) rather than efficient element[73] in Myanmar’s evolving constitutionalism.




[1] Constitution of the Union of Myanmar 2008 (Naypyithaw, Printing and Publishing Enterprise, Ministry of Information).
[2] See CM2008, s.46, set out in full below, for the purposes of the CT.
[3] See, e.g., Yash Ghai, ‘The 2008 Myanmar Constitution: Analysis and Assessment’ (2008):  http://www.burmalibrary.org/docs6/2008_Myanmar_constitution--analysis_and_assessment-Yash_Ghai. pdf;  David Williams, ‘Lessons of Experience in the enterprise of Constitutional Design: Constitutionalism Before Constitutions:  Burma’s Struggle to Build a New Order’, (2009) 87 Texas Law Review 1657; David Williams, ‘What’s So Bad about Burma’s 2008 Constitution? A Guide for the Perplexed’, ch.7 of Tim Lindsey and Melissa Crouch, Law, Society and Transition in Myanmar (Oxford: Hart Publishing, 2014;  David Williams, ‘A Second Panglong Agreement: Burmese Federalism for the Twenty-First Century, ch.3 of Andrew Harding, ed, Constitutionalism and Legal Change in Myanmar (Oxford: Hart/ Bloomsbury, 2017).
[4] This rigidity has been a standing criticism of CM2008 with regard to many issues, and the provisions on constitutional amendment themselves (ss.436-9) were the object of the largest number of criticisms during the debates on amending the constitution in 2013. See, further, Andrew Harding, ‘Irresistible forces and Immovable Objects: Constitutional Change in Myanmar’, ch.4 of Harding, supra note 3.
[5] Janelle Saffin, ‘Seeking Constitutional Settlement in Myanmar’, ch.1 of Harding, supra note 3.
[6]  Andrew Harding, ‘Editorial note: The Debate Concerning Section 59(f) of Myanmar’s Constitution” A Gordian Knot of Rule of Law, Democracy, and the Application of Problematical Constitutional Provisions’, in Harding, supra note 3, at 253; see, further, the Law on the State Counsellor 2016, and CM2008, ss.217-18.
[7] Dominic Nardi, ‘Will Democracy and Constitutionalism Mix in Myanmar?’ (available at www.iconnectblog.com/2012/10/will-democracy-and-constitutionalism-mix-in-myanmar/).
[8] Gabriela Marti, ‘The Role of the Constitutional Tribunal in Myanmar’s Reform Process’ (2014) 10 Asian Journal of Comparative Law 153.
[9] Dominic Nardi, ‘Finding Justice Scalia in Burma: Constitutional Interpretation and the Impeachment of Myanmar’s Constitutional Tribunal’, (2014) 23 Pacific Rim Law and Policy Journal 633.
[10] See further, Nardi, ibid.; Dominic Nardi, ‘How the Constitutional Tribunal’s Jurisprudence Sparked a Crisis’, ch.9 of Harding, supra note 3. For another example of legislature-judiciary conflict arising from the exercise of jurisdiction by a constitutional court, see Ginsburg’s chapter in this volume.
[11] ‘Membership Approved: Parliament Approves Election Commission, Constitutional Tribunal’, Global New Light of Myanmar, Yangon, 29 March 2016.
[12] Melissa Crouch, ‘The Common Law and Constitutional Writs: Prospects for Accountability in Myanmar’, ch.8 of Lindsey and Crouch, supra note 3.
[13] See, e.g., chapter xx by Simon Butt.
[14] Myanmar is usually classified as common law in the sense that its private law and legal institutions conform broadly  to the common law system. It is certainly closer to common law than to civil law. See, further, Tun Shin, ‘As Myanmar Belongs to the Common Law Legal System Family, Myanmar Judicial system is Deeply Rooted with Legal Maxims, Judicial Customs and Precedents’ [short title], New Light of Myanmar, 10 February 2013.
[15] Heinz Klug, ‘South Africa’s Constitutional Court: Enabling Democracy and Promoting Law in the Transition from Apartheid’, in Andrew Harding and Peter Leyland (eds), Constitutional Courts: A Comparative Study (London, Wildy, Simmonds and Hill, 2009).
[16] See chapters xx, xx and xx.
[17] Andrew Harding, ‘The Constitution and Malaysia’s Bifurcated Legal System’, (2017) 1:1 Perak Letters, forthcoming.
[18] Nick Cheesman, ‘How an Authoritarian Regime in Burma Used Special Courts to Defeat Judicial Independence’, 45 Law and Society Review (2011), 801; Nick Cheesman, ‘The Incongruous Return of Habeas Corpus to Myanmar’, ch.6 of Nick Cheesman, Monique Skidmore and Trevor Wilson, eds, Ruling Myanmar: From Cyclone Nargis to National Elections (Singapore: ISEAS/ Yusoff Ishak Institute, 2010); Nardi, supra note 10, at 643-53.
[19] Nardi, ibid., at 645.
[20] CM2008, s.296; Judiciary Law, No 20/2010. See, further, Crouch, supra note 13.
[21] Nang Mo Kham Hom, ‘”Revolutionary Legality”: The Coup d'Etat of 1962 and the Burmese Military Regime’, (2000) 4 Southern Cross University Law Review, 60.
[22] 1974 Constitution, ss.200-1. This is of course typical of socialist constitutional systems; see, e.g., chapter xx by Bui Ngoc Son.
[23] The functions allocated to the CT at para.20 are reflected in CM2008, ss. 320-36: see below.
[24] Nardi, supra note 11, at 174ff.
[25] Ibid., at 184.
[26] Catherine Renshaw, ‘Human Rights under the New Regime’, ch.11 of Harding, supra note 3.
[27] Proposal on ‘General Provisions’ to be included in the Constitution, Delegate Group of Workers, presented 28 December 2006: New Light of Myanmar, Yangon, 1 January 2007.
[28] This is not a given: in Thailand (see chapter xx), it has been usual to include political or social scientists on the Constitutional Court’s bench.
[29] Crouch, supra note 13.
[30] Dominic Nardi. ‘Is Constitutional Review Moving to a New Home in Myamnar?’: http://www.iconnectblog.com/2014/06/is-constitutional-review-moving-to-a-new-home-in-myanmar/.
One practical argument here might be that, given the paucity of cases coming before the CT (for which see below), would the spare capacity of such highly qualified individuals not be better used in deciding ordinary civil or criminal cases?
[31] Khin Khin Oo, ‘Judicial Power and the Constitutional Tribunal: Some Suggestions for Better Legislation Relating to the Tribunal and its Role’, ch.10 of Harding supra note 3.
[32]  CM2008, ss.11, 18.
[33] Emphasis added.
[34] Teubner describes legal transplants as irritants that ultimately create change as laws and institutions adjust to the presence of the newcomer. This may well accurately describe the trajectory of the CT in Myanmar: G Teubner, ‘Legal  Irritants: Good Faith in British Law, or How Unifying Law ends up in New Divergences’, (1998) 61:1 Modern Law Review, 11.
[35] One interesting ‘dog that didn’t bark’, is the USDP’s (military party) constitutional objections in Parliament to the law creating the State Counsellor in 2016 (see above) have not been brought to the CT, even though there are presumably some telling arguments that could be made against this law; see, however, CM2008, s.217.
[36] CM 2008, ss.46, 322.
[37] CM2008, s.323, apparently not used as yet.
[38] CM2008, ss.325-6.
[39] Tom Ginsburg, Judicial Review in New Democracies (Cambridge: Cambridge University Press, 2003);  Theunis Roux and Fritz Siregar, ‘Trajectories of Curial Power:  The Rise, Fall and Partial Rehabilitation of the Indonesian Constitutional Court’, UNSW Research Paper 2015, 30: http://s3.amazonaws.com/academia.edu.documents/38714937/Trajectories_of_Curial_Power_-_The_Rise__Fall_and_Partial_Rehabilitaion_of_the_Indonesian_Constitutonal_Court_.pdf?AWSAccessKeyId=AKIAIWOWYYGZ2Y53UL3A&Expires=1493373888&Signature=R39ZLfEXfUC6%2BiLxTG1SHvbFzpY%3D&response-content-disposition=inline%3B%20filename%3DTrajectories_of_Curial_Power_-_The_Rise.pdf (accessed 28 April 2017).
[40] CM2008, s.402.
[41] Nardi, supra note 11, at 185.
[42] CTU Rules Notification No 30/2011, 28 June 2011.
[43] CM2008, s.321, 327.
[44] CM2008, s.333.
[45] Nardi, supra note 11, at 175.
[46] The presidential order for the appointment of the new CT appears at: <http://www.president-office.gov.mm/en/?q=briefing-room/orders/2016/03/31/id-6172> (accessed 28 April 2017). For information on the new Members, see <http://www.elevenmyanmar.com/politics/constitutional-tribunal-nominated.> (accessed 28 April 2017).
[47] The Speaker relied on CM2008, s.328, which places the burden of proof on those who object to a nomination The controversies related to the ‘qualifications’ of two nominees: Daw Khin Htay Kywe and U Twar Kyin Paung: see <http://www.mmtimes.com/index.php/national-news/nay-pyi-taw/19684-nld-silences-military-concerns-on-tribunal.html> (accessed 28 April 2017); and <http://www.rfa.org/english/news/myanmar/aung-san-suu-kyi-preps-nld-lawmakers-for-handover-of-power-in-myanmar-03282016163123.html> (accessed 28 April 2017).  http://www.elevenmyanmar.com/politics/6272> (accessed 28 April 2017).
[48] ‘Constitutional Tribunal Members Remain Despite USDP Objections’: <http://www.irrawaddy.com/news/burma/constitutional-tribunal-members-remain-despite-usdp-objections.html> (accessed 28 April 2017); see also ‘Arakan MPs Oppose Tribunal Appointment’:  <http://www.elevenmyanmar.com/politics/6272> (accessed 28 Aopril 2017). A full report of the CT case was not available at the time of writing.
[49] CM2008, s.335.
[50] Law Amending the Constitutional Tribunal Law 2013, s.12.
[51] Khin Khin Oo, supra note 31, at 206.
[52] Ibid., at 203.
[53] For extensive comment on this crisis, see the literature cited supra notes 10 and 11;. See also Dominic Nardi, ‘Why did it Happen?’ (available at rulebyhukum.blogspot.ch/2012/09/why-did-it-happen-myanmarburma.html); Dominic Nardi, ‘The Constitutional Tribunal Strikes Back’ (available at rulebyhukum.blogspot.ch/2012/09/the-constitutional-tribunal-strikes.html); Dominic Nardi, ‘After Impeachment, a Balancing Act’ (available at <www.mmtimes.com/index.php/opinion/2013-after-impeachment-a-balancing-act.html).
[54] For judicial independence more generally, see Myint Zan, ‘Judicial Independence in Burma: No March Backwards Towards the Past’, (2000) 1 Asia-Pacific Law and Policy Journal, 1; Myint Zan, ‘Judicial Independence in Burma: Constitutional History, Actual Practice and Future Prospects’, 4 Southern Cross University Law Review, 17; John Southalan, ‘Impunity and Judicial Independence’, (2004) 17 Legal Issues on Burma Journal, 40; Nick Cheesman, ‘How an Authoritarian Regime in Burma Used Special Courts to Defeat Judicial Independence’, (2011) 45 Law and Society Review, 801.
[55] For the reasoning in this and the other pre-impeachment cases, and detailed anlaysis and comment, see Nardi supra note 11.
[56] Khin Khin Oo, supra note 31, at 219 describes this as Myanmar’s ‘Marbury v Madison moment’.
[57] It decided one other case, Mon State v Myanmar (for which see Nardi, supra note 11, at 180) which supports the notion that legislation pre-existing CM2008 remains in force until repealed; this places a considerable restriction on the CT’s jurisdiction.
[58] 53 out of 224 members of the Amyotha Hluttaw voted against impeachment, see Nardi, ‘Will Democracy and Constitutionalism Mix in Myanmar?, supra note 3, at 2. <www.globaltimes.cn/content/731715.shtml> (accessed 28 April 2017).
[59] CM2008, s.334.
[60] See s334 a ii and iv.
[61] See, further, Nardi supra note 11.
[62] Marti, supra note xx, at xx.
[63] Michael Lidauer and Gilles Saphy, ‘Elections and the Reform Agenda’, ch.11 of Lindsey and Crouch, supra note 3, at 214-5.
[64] Nardi, supra note 11, at 678ff.
[65] For discussion of this case, decided in 2012, but after the impeachment process began, see Nardi, supra note 9, at 667ff.
[66] I remain uncertain whether the usual dichotomy between ‘originalism’ and ‘living tree’ approaches is really applicable in Myanmar, where the Constitution is both recent and enjoys limited legitimacy; see, however, Nardi, supra note 9, at 635ff.
[67] ..
[68] Khin Khin Oo, supra note 31, at 200ff.
[69] CM2008, s.321.
[70] For this type of analysis, see Ginsburg, supra note xx.
[71] Nardi, supra note 13, at 669ff.
[72] Nuno Garoupa and Tom Ginsburg, ‘Building Reputation in Constitutional Courts: Political and judicial Audiences’ (2011) 28 Arizona Journal of International and Comparative Law 539;  Ran Hirschl, ‘The Political Origins of Judicial Empowerment through Constitutionalization: Lessons from Four Constitutional Revolutions’ (2000) 25 Law &and Social Inquiry, 91.
[73] Walter Bagehot, The English Constitution (1st edition, London, Chapman and Hall, 1867), 4-5.

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