Is Constitutional Review Moving to a New Home? (Myanmar/Burma)

Late last year, Myanmar's legislature initiated a process to review and amend the 2008 Constitution. Until recently, the largest opposition party, National League for Democracy, seemed focused on removing the ban against citizens with foreign dependents from becoming president (NLD leader Aung San Suu Kyi's two sons are British nationals). However, last month, the NLD released more detailed proposals on its website, including an amendment to abolish the Constitutional Tribunal and transfer its powers to the Supreme Court.

Currently, the Tribunal has exclusive jurisdiction over constitutional petitions in Myanmar, although standing is limited to select government officials. The Tribunal has nine members, three selected by the president, upper chamber of the legislature, and the lower chamber. The members serve for a five-year term. However, as I recounted here, in August 2012 the legislature - with the support of the NLD MPs - impeached the members for issuing a decision that reduced the status of legislative committees. All nine members resigned a week later.

At the time, many MPs had argued that the Tribunal had infringed on the legislature's lawmaking authority. Although the government appointed nine new members in February 2013, the Tribunal has not received any petitions since. The Tribunal recently relaunched its website, but its most recent decision was issued in July 2012 - a month before the impeachment saga. According to The Myanmar Times, earlier this year, President Thein Sein considered asking the Tribunal to assess the constitutionality of eight new laws, but apparently his advisors worried that the Tribunal would not rule against the legislature. 

Ironically, the Supreme Court has become increasingly involved in constitutional disputes. Under the Constitution, the Supreme Court has original jurisdiction to hear petitions for writs. Between March 31, 2011, and June 30, 2013, the Supreme Court received 432 petitions for writs. In April, the Court agreed to hear a petition from Professor Kyi Htay, challenging her dismissal from the Department of Economics at Yangon Distance University. Daw Kyi Htay argues that the Civil Servants Law violates § 375 of the Constitution (“right of defense in accord with the law”) because it gives the Ministry of Education the power to dismiss teachers without a formal enquiry. Although § 375 appears to refer to criminal trials, Daw Kyi Htay's claim is not unlike the substantive due process claims popular during the 1970s in the U.S. The Supreme Court has not yet issued its decision, but just by agreeing to hear the case it might have set a constitutional precedent.

Transferring constitutional review to the Supreme Court might also have the unintended effect of returning Myanmar more firmly to the family of Common Law countries. Nominally, Myanmar inherited its legal system from Great Britain after it gained independence in 1948, but 50 years of military rule have created many gaps in the law. Law schools do not use case method teaching and rarely discuss jurisprudential reasoning. The Supreme Court will sometimes cite other cases as precedent, but Myint Zan argues that the number of citations decreased from an average of 4.61 per case in 1948 to 1.27 in 1998. Myanmar is also the only common law country in the world to have a Kelsenian constitutional court; other common law countries combine constitutional review powers in a Supreme Court with general jurisdiction. 

It is too early to predict what effect the NLD's proposal might have on constitutional governance in Myanmar, much less if the proposal will pass the legislature (notably, the military appears to support the Constitutional Tribunal). It is possible that the Supreme Court, whose members remain in office until they reach 70 years of age, might have greater independence to rule on constitutional disputes. Perhaps the most important question is if the move to the Supreme Court would expand standing to allow regular citizens to petition for review. The NLD does not directly address this in its proposal, but it could potentially be the most important constitutional change for the majority of Myanmar citizens.