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In Burma, all the Constitutional Tribunal’s seats are vacant after nine of the court’s judges resigned after the Union Parliament (Pyidaungsu Hluttaw) passed an impeachment resolution. The country is now enveloped in a constitutional crisis that was engineered by the Pyidaungsu Hluttaw.
According to the 2008 Constitution, the Pyidaungsu Hluttaw is comprised of the Pyithu Hluttaw (the People’s Assembly) and the Amyotha Hluttaw (National Assembly), while the Constitutional Tribunal constitutes a major part of the judiciary. The Pyidaungsu Hluttaw forced the judges to step down following the Tribunal’s ruling stating that the Parliament’s committees and commissions, formed by the respective Hluttaws, are not recognised as union-level entities.
“As all members of the Tribunal have already resigned, the ruling of the tribunal has [been] automatically dissolved,” said Pyithu Hluttaw MP Thein Nyunt. Here, the parliamentarian is claiming that the disputed committees and commissions should be considered union-level bodies in the wake of the judges’ resignation.
His statement is entirely contrary to British common law, a tradition the country inherited during the colonial period. The status of the Tribunal’s ruling must be scrutinised from a common law perspective, which centers on judicial precedents.
“If parliament was unhappy on the Court’s constitutional ruling, the common law tradition is either to amend the law and try again (this is the phenomenon of having a dialogue with the courts) or to amend the constitution,” said Simon NM Young, a law professor at Hong Kong University.
“The ruling of the tribunal, even if it is controversial or wrong, will stand until it is set aside by a court of higher status. Simply because resignation of the tribunal’s judges from their posts does not affect decisions made in the name of the tribunal,” argues Dr Venkat Iyer, a barrister and the UK-based Law Commissioner for Northern Ireland.
Or, as David Fisher, a professor of International Law at Stockholm University, commented: “The Constitutional Tribunal’s ruling was made in its institutional capacity and, therefore, that ruling should be unaffected by the resignation of its members.”
If the Pyidaungsu Hluttaw intentionally ignores the country’s common law tradition and allows its committees to operate at a union-level-status, then effectively the Hluttaw has the power to dissolve the rulings adjudicated by the country’s highest court.
If that is the case, whenever the parliament is unhappy it will have the power to reverse the rulings of the courts or Tribunal. As a result, the Hluttaw – not the judiciary – would become the final arbiter and therefore have the power to set one precedent after another, which will undoubtedly lead to the total collapse of Burma’s legal system.“Now the new regime led by President Thein Sein must decide how valuable rule of law is to the current government”
According to Article 324 of the 2008 constitution, the Tribunal’s resolutions shall be “final and conclusive.” That provision is still effective. If the president and state officials, who adopted this constitution, hope to safeguard the rule of law and preserve the common law tradition then they must observe this provision.
President Thein Sein is set to appoint new members to the Tribunal shortly. Afterwards, he must submit the disputed issue back to the Tribunal and ask for a new ruling.
If the president chooses to ignore the rule of law and common law, the move might potentially prevent foreign companies from investing in the country. Generally speaking, foreign companies have not been as interested in investing in a country where there is no rule of law. Businesses justifiably avoid markets that lack fair, efficient and unbiased courts because the risk of incurring uncompensated losses simply becomes too great.
When the former military regime forcefully and illegally confiscated enterprises from the Singapore-based Yaung-chi-oo company, which entered into a joint venture with the Ministry of Industry in December 1997, the courts did not provide any protection for the company. Rather, it unjustifiably used its broad discretion under the law to side with the government, forcing the company to pull out of the country. The lack of an independent judiciary seemingly halted incoming foreign investment at that time.
Now the new regime led by President Thein Sein must decide how valuable rule of law is to the current government, as the country stands poised to usher in a wave of foreign investment. To preserve the country’s legal infrastructure, Thein Sein must abide by the 2008 Constitution and submit this issue to the Constitutional Tribunal again without fail.
But even if this happens, how will the new Tribunal adjudicate the case?
If the new judges set aside the previous ruling in line with the political pressure created by the Hluttaw, the Tribunal would be discredited and shamed. However, if the Tribunal stands by the previous ruling, tension between the court and the Hluttaw would likely intensify. If that is the case, will the Hluttaw impeach all the judges again?
Which begs the questions: why did the Pyidaungsu Hluttaw create such a serious crisis by impeaching all the Tribunal’s judges in the first place? Was it just because the court did not grant the parliamentary committees union-level status?
Is it just because the MPs would likely have earned allowances on par with union ministers if their affairs committees were granted union-level status? Or, is it because the Tribunal’s ruling lowered the status of their parliamentary committees, effectively preventing them from being able to subpoena ministers to testify?
Unfortunately, the second argument is also unreasonable because it is out of step with the legal norms practiced in most democratic countries.
As noted by Derek Tonkin, the chairman of Network Myanmar, in the UK “the formal powers of a select committee to require written and oral evidence (termed calling for “persons, papers and records”) are extensive, but are rarely used and do not apply to the Government or to Members of either House.”
Rather than parliamentary committees, the Pyidaungsu Hluttaw, as an entire institution, can still practice a system of ‘checks and balances’ in cooperation with the government. Given that such committees are only affairs committees belonging to legislative bodies, they should not be given unreasonable power.
However, under the irrational arguments pushed by the majority of the Pyidaungsu Hluttaw, the independence of the judiciary, which is the cornerstone of the rule of law, has been seriously damaged.
“To take this route of impeachment is like taking a sledgehammer to a nut and shows how vulnerable the judiciary is to political and legislative power and interference,” noted Professor Simon NM Young.
To rectify this, the 2008 Constitution must be amended. In so doing, the status of the parliamentary committees can be manifestly designated. In addition, judicial tenure must be guaranteed and the independence of the judiciary established.
To consolidate the latter, the separate existence of the constitutionally instituted Military Tribunals shall be abrogated as well. If it continues to exist, any member of the armed forces who commit heinous crime against civilians or take advantage of foreign companies would never be tried in civilian courts and high-ranking army officials will remain above the law.
However, the possibility to amend the 2008 Constitution in the halls of the Hluttaw is quite slim at the moment. To this end, Burma still needs the international community to push for an advisory opinion from the International Court of Justice (ICJ) on the legality of the provisions in Burma’s constitution under international law. That would be a healthy first step.
-Aung Htoo is a human rights lawyer
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