Separation of power and constitutional disputes

Comparison of two submissions to the Constitutional Tribunal

By Hla Myo Kyaw on August 7, 2018

Disputes over the 2008 Constitution, which has been heavily questioned for its legitimacy, were seen since the first tenure of the parliament. There had been legal disputes between the Constitution and laws made by the State Peace and Development Council government. Shortly after the effectiveness of the Constitution that there were multiple submissions to the Constitutional Tribunal for interpretation on the disputes between the provisions of the Constitution and the Law of Emoluments, Allowances and Insignia of the Region or State-level Personnels and Pyidaungsu Hluttaw, Pyithu Hluttaw and Amyotha Hluttaw Laws. The Constitutional Tribunal is a judicial body tasked with interpreting the provisions under the Constitution. This article compares two cases of the constitutional tribunal interpretations.

Case (1)

Altogether 23 representatives of the Amyotha Hluttaw (Upper House) made a submission to the tribunal through the Amyotha Hluttaw Speaker, questioning whether or not the term “Minister for Ethnic Affairs under the Section 5 of the Law of Emoluments, Allowances and Insignia the Region or State level-Personnels and the exclusion of “Minister for National Races Affairs” among the “Region or State Ministers” under the Section 4 (c) the said law are in conformity with the provisions under the Constitution.

Statement by applicants

In the submission, it is stated that the Ministers for Ethnic Affairs are the Ministers of Regions or States concerned in accord with the Constitution and the Constitution grants equal status to the Ministers for Ethnic Affairs and the Ministers of Regions or States concerned. But, the Ministers for Ethnic Affairs hold same status as the Judges of Region or State High Courts in the Law of Emoluments, Allowances and Insignia of the Region or State-level Personnels and they are regarded one rank lower than Ministers of Region or State in the said law. That is the reason behind the submission to the Tribunal was made for interpretation whether or not the Ministers for Ethnic Affairs of the Region or State gain the status granted by the Constitution.

Rebuttal by defendents

On behalf of the cabinet, the Office of the Attorney-General explained that it cannot be interpreted that Ministers for Ethnic Affairs have same duties and functions so have Ministers of Regions or States concerned; that the responsibilities of the Ministers of Regions or States concerned and that of the Ministers for Ethnic Affairs are different; that rights and duties are interrelated; that there cannot be rights without equivalent duties. Therefore, the rights and duties defined in the Law of Emoluments, Allowances and Insignia of Region or State-level Persons are in conformity with the Constitution.

Tribunal’s interpretation

The tribunal cited the Section 198 (a) of the Constitution in which it is stated that the Constitution shall prevail “if any provision of the law enacted by the Pyidaungsu Hluttaw, the Region Hluttaw, the State Hluttaw, the Leading Bodies of the Self-Administered Division or the Self-Administered Zone, or any existing law is inconsistent with any provision of the Constitution” ruling its decision, and decided that provisions under Section 7 and Section 17 of the Law of Emoluments, Allowances and Insignia of Region or State-level Persons are inconsistent with the Constitution and the Minister for Ethnic Affairs must be regarded not less than any Ministers of Region or State.

What followed the decision

The law amending the Law of Emoluments, Allowances and Insignia of Region or State-level persons was enacted on 8 March, 2013 following the Tribunal’s decision in December, 2011. According to the amended law, the Ministers for Ethnic Affairs have the same status as Ministers of Regions or States.

Case (2)

Despite provisions for formation of organizations and appointment of their members at the Union level, Region or State level and Self-Administered Division or Zone level, there is no specific definition of the term “Union-level Organization” in the Constitution. It led to the Attorney-General making a submission, on behalf of the President to the tribunal to interpret the term to be clearly.

Statement by applicants

The case originated with the matter related to the term “Union-level” was supposedly aimed at avoiding the possible confusion over the use of the term “Union-level Organization” in other laws. The term “Union-level” was separately defined in some laws enacted by the military junta. The status of committees, commissions and groups formed by the Pyidaungsu Hluttaw, Pyithu Hluttaw and Amyotha Hluttaw were also up for interpretation. Thus, the submission was made to interpret the term as there is no specific interpretation on the term “Union-level Organization” in the Constitution.

Rebuttal by defendents

On behalf of two houses, Deputy Pyidaungsu Hluttaw Speaker U Mya Nyein said that the term “Union-level Organization” is stated in “Chapter IV: Legislature of the Constitution” but no specific interpretation is made on which organization is regarded as the Union-level organization; that the Constitution allows the Pyithu Hluttaw and the Amyotha Hluttaw to form committees, commissions and groups and there is no doubt that the Amyotha Hluttaw and the Pyithu Hluttaw included in the Pyidaungsu Hluttaw are the Union-level organizations; that Speakers and Deputy Speakers elected by the two Hluttaws, committees, commissions and groups formed by the two Hluttaws and Hluttaw representatives are likewise Union-level organizations and persons; that it is required to follow the provisions in the Chapter “Amendment of the Constitution” if the term stated in the Constitution needs to be amended and it is stated in the preambles of the Pyidaungsu Hluttaw Law, Amyotha Hluttaw Law and Pyithu Hluttaw Law that these houses shall enact the laws in accord with the Constitution. That is why, the Pyidaungsu Hluttaw may amend the definition if the term stated in the Hluttaw laws needs to be amended. Formation of joint committees and parliamentary committees, commissions and groups is a well-established international practice. Thus, it seems likely that the Constitution is being interpreted too narrowly if a decision is made that committees, commissions and groups formed by the Pyidaungsu Hluttaw, the Amyotha Hluttaw and the Pyithu Hluttaw are not Union-level organizations.

On behalf of the Pyithu Hluttaw, Deputy Pyithu Hluttaw Speaker U Nanda Kyaw Swa said that committees, commissions and groups formed by the various Hluttaws are organizations formed in accord with the power vested in the Constitution; that Union-level organization means Union-level legislature, Union-level executive and Union-level judiciary; that any organization is not defined as the Union-level organization in the Constitution; that committees, commissions and groups formed by various Hluttaws are Union-level organizations because the term is prescribed in the Hluttaw laws as well as in the Union government law as it is required to recognize the organizations responsible for the whole country as the Union-level organization; and that it seems likely that the Constitution is being interpreted too narrowly by the cabinet. He said that the submission should be rejected, saying the tribunal has no right to scrutinize the laws passed by the State Peace and Development Council.

Tribunal’s interpretation

The tribunal said that the submission questioning whether or not the interpretation that committees, commissions and groups formed by the various Hluttaws as Union-level organization is in conformity with the provisions of the Constitution will be mainly decided. In its reply, the tribunal said that the term “Union-level organization” is interpreted in the respective Hluttaw laws but no interpretation on the term is made in the Constitution. However, it is stated in the sections of the Constitution that “a Union-level organization formed under the Constitution and members or persons representing an organization formed in accord with the Constitution”. According to the sections, members or persons representing the Union-level organization formed under the Constitution are not referred to representatives of the Pyidaungsu Hluttaw, the Amyotha Hluttaw and the Pyithu Hluttaw. According to the Constitution, not only Union-level organizations formed under the Constitution but also Hluttaw representatives are entitled to put forward bills to respective Hluttaws. According to the sections related to parliamentary clarifications and bill submissions stated in the Constitution, it is found that a Union-level organization formed under the Constitution and members or persons representing a Union-level organization formed under the Constitution are not similar to Hluttaw representatives by definition. According to the provisions in Chapter IV: Legislature of the Constitution, a Union-level organization means an organization formed under the Constitution, and it is found that the organization is not similar to committees, commissions, and groups formed by various Hluttaws. According to the provisions under the Constitution, Union-level organizations mean organizations formed under the Constitution, and committees, commissions and groups are organizations formed by Hluttaws under the Constitution. That is why, the term “Union-level organization formed under the Constitution” is separately used in Chapter IV: Legislature of the Constitution in order to distinguish these organizations from committees, commissions and groups formed by various Hluttaws.

According to the basic principles and detailed basic principles adopted in the National Convention, matters related to appointments of members on the organizations formed in accord with the Constitution submitted by the President shall be sought approval in the Pyidaungsu Hluttaw. So, Union-level organizations formed in accord with the Constitution and members are organizations and members formed and appointed by the President with the approval of the Pyidaungsu Hluttaw. The Chairman of Working Committee for Organizing the National Convention explained that the right of issuing bylaws and rules and regulations in making laws should be vested in the Union-level organizations formed in accord with the Constitution and the right of issuing orders, notifications, directives and procedures should be vested in organizations concerned or authorities concerned and it is prescribed in the Constitution. The tribunal accepted the President’s submission and decided that interpretation of committees, commissions and groups formed by various Hluttaws as the Union-level organizations is inconsistent with the provisions under the Constitution.

What followed the decision

Following up on the defeat, the Amyotha Hluttaw representatives initiated the impeachment of the tribunal members on the reasons of the breach of any provision of the Constitution and insufficient discharge of duties assigned by law. It led to the resignations of the tribunal judges as the parliament approved the impeachment. Then, the combined house announced that the judgment of the Constitutional Tribunal of the Union on the submission (1), 2012 was as invalid.

Questions over separation of powers

These two cases pointed out that the decision of the tribunal supposed to be independent became invalid and its all members were forced to resign due to the conflict between the legislature and the executive on a legal dispute. According to the Constitution, the tribunal is the only judicial organization with the power to pass resolutions on constitutional disputes. The tribunal’s judgment being rejected by vote in the Pyidaungsu Hluttaw implied the majority in parliament can decide constitutionality of the laws they made themselves.

Following the first case, the provisions of the Law of Emoluments, Allowances and Insignia the Region or State level-Persons which the tribunal decided that they were unconstitutional were amended. Following the second case, constitutional tribunal members ended up in impeachment, paving the way for further influence by the executive and legislative powers on judicial resolutions.