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A constitutional crisis in Burma?

In the aftermath of the 2010 elections, the newly created regime, led by President Thein Sein, pledged to commence the country’s democratisation process. However, a genuine democratic transition will not be able to take root as long as the 2008 constitution remains intact.

In an interesting turn of events, the president proposed to amend the constitution on 20 August 2012 in response to the current constitutional crisis after the country’s legislative body and the constitutional tribunal squared off over the political status of the parliament’s committees.

When the president asked the tribunal if parliamentary committees and commissions could be granted union-level status – it ruled that it would be unconstitutional.

The Pyidaungsu Hluttaw (national parliament) not only refused to abide by its ruling, but also took legal action against the court’s members. Today the tribunal’s justices stepped down after being impeached by both houses of parliament. The legislative body’s brazen moves have illustrated how illegal actions are allowed to stand in the absence of the rule of law.

Such drastic moves were only accomplished after an initial letter was signed by 301 MPs from the Union Solidarity and Development Party (USDP), the National League for Democracy (NLD), ethnic parties and other individual MPs pushing for the impeachment of the court’s members.

But as one pensioner in Burma asked, “Why do the MPs from the NLD follow the same road that the other MPs, who constitute a majority, are taking?” Surprisingly, the NLD is in the same boat with the USDP in fighting against the constitutional tribunal.

MPs calling for the judges to be impeached soon began making public threats – including saying that if any other state institutions, including the Supreme Court, were to hinder the action of the Pyidaungsu Hluttaw and attempt to limit its power, the Hluttaw would impeach them as well.

The authenticity of the Pyidaungsu Hluttaw is still questionable given the number of MPs who earned their seats through the rigged 2010 election. Yet it has sought to exercise “supreme power” by ignoring the tribunal’s ruling in contravention of Article 324 of the 2008 constitution, which states that the court’s decisions are “final and conclusive”.

As such, the Pyidaungsu Hluttaw has readily violated a constitutional decree. Through this episode they’ve exhibited their willingness to disrupt the government’s system of checks and balances. The parliament is also in the process of laying down the foundation to reign over other state institutions, including the judiciary. In so doing, the Pyidaungsu Hluttaw is effectively forcing the constitutional tribunal and the country’s highest courts into subordination. The judiciary will no longer be able to adjudicate cases independently; and, as a result, the rule of law will continue to be a mockery.

“I have realised the aspiration of the MPs. They would like to place the Hluttaw above the law. Why are the MPs attempting to dismiss the members of the constitutional tribunal rather than amend the constitution?” asked May Thingyan Hein, chief editor of Shwe Myitmakha Media Group.

However, in support of the Pyidaungsu Hluttaw’s actions, Aung Tin, a Burmese activist who is based in Toronto, Canada, said, “The current members of the constitutional tribunal are those who obeyed all the orders of former dictator Senior General Than Shwe. The conflict arising between the two top state institutions–the Pyidaungsu Hluttaw and the constitutional tribunal–should be resolved only by political means. As such, we have to support the institution that is closer to the people.”

Like Aung Tin, many MPs in the Pyidaungsu Hluttaw may share a similar opinion, and they might not have absolute confidence in the constitutional tribunal’s adjudications.

[pullquote]“Why are the MPs attempting to dismiss the members of the constitutional tribunal rather than amend the constitution?”[/pullquote]

However, to properly resolve this, the judicial chapter in the 2008 Constitution should be amended first, and a new procedure concerning the appointment and dismissal of judges should replace the current protocol in order to allow for the creation of an independent judiciary. Afterwards and accordingly the new members of the constitutional tribunal should be appointed. In doing so, a new trustworthy constitutional tribunal would be established.

Now that the standing members of the tribunal have been impeached, if the new members are appointed without amending the constitution, then the tribunal’s dismal reputation will remain.

Aung Tin’s second point concerning the resolution of the conflict arising between the two top institutions by political means is vague. Legislative assemblies, at least in democratic countries, allow for political forces to meet, hold negotiations, and promulgate resolutions. Political negotiations should take place mainly within the scope of the legislative assemblies.

If political agreements reached in the legislative assemblies are contrary to the constitution, or if there are unsolvable disputes arising between the legislative assemblies and the executive branch, then the resolution set forth by the constitutional tribunal, or by the Supreme Court, should be final and conclusive. Only then will the rule of law be firmly established within the country.

Now the so-called Hluttaw in Burma is taking a path that is contrary to international norms established by other democratic societies.

A number of people in Burma do not realise why the Hluttaws are asking for their affairs committees to be recognised at the Union level. Many critics suspect that the MPs would like to earn allowances on par with union ministers. They would achieve this if the affairs committees of the Hluttaws were recognised as constitutional institutions on the union level in accordance with a new law. If this were to happen, then the state would have to cover the enormous expenditure incurred by the operations of the 30 affairs committees.

Another concern that people have is that these committees include not only MPs, but also non-MPs as members – for example, Toe Naing Mahn (Shwe Mann’s son). As a result, the number of affairs committee members is influx. Thus, the state would be forced to cover all the expenses and allowances for those members on the same level as government ministers.

“Whether the Hluttaw-affairs-committee members are recognised as those who are at the Union level or not, does not directly benefit the people. The amendment of the 2008 constitution would directly benefit the people; and, in so doing, it would establish a stable and strong legal framework,” said one Burmese national anonymously online.

However, potential amendments to the 2008 constitution should be understood in relation to the Rule of Law Committee, chaired by Aung San Suu Kyi. Even if that committee were recognised at the Union level, it would not make any difference with respect to its practical operations because it would continue to be an ordinary affairs committee, not a constitutional institution. In that case, Aung San Suu Kyi’s capacity and aspiration to work for the country and people may end up being wasted because she would have to spend countless hours managing a committee that is politically sterile. Only when the constitution is amended and the Rule of Law Committee is transformed into the Rule of Law Commission will it be effective.

While the current dispute may lead to a serious constitutional crisis, it is unfortunate that efforts to amend the 2008 constitution within and outside of the Hluttaws are lacking. While constitutional awareness among the majority of people in Burma needs to be effectively promoted, the interest of the international community in this field is also waning.

-Aung Htoo is a human rights lawyer

Email: [email protected]


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