Posted in Legislative Research on Jul 10, 2018
A Constitution is a social contract between a people and their government in modern nations guaranteeing the fundamental rights of the citizens. It provides legitimacy for a government. It sets separation of powers among different political institutions. If each of branches comes into conflict with others, duties and powers of each branch as prescribed by the Constitution will be determining factors to resolve the conflict. These disputes are mostly handled by supreme court or tribunal.
A constitutional tribunal was formed in Myanmar for constitutional disputes and it was granted the power to make decisions for dispute settlements. The Constitutional Tribunal of the Union Law with its formation and duties and powers had been enacted. The Constitutional Tribunal is an organ of defending the fundamental rights of the citizens and resolving the conflicts among the three branches. The tribunal as an independent organization with the power to decide upon the disputes over the separation of powers can perform its functions without bias.
Formation of the constitutional tribunal
The tribunal shall be formed with three members each selected by the President, the Speaker of Pyithu Hluttaw (Lower House) and the Speaker of Amyotha Hluttaw (Upper House), totaling nine members including the chairperson. A member from among them shall be selected to be assigned as the chairperson by the president in coordination with the house speakers, and the president shall present the chairperson nomination together with the list of that of remaining members to the Pyidaungsu Hluttaw (Combined House) for approval. The combined shall not have the right to refuse the nominees unless it can clearly be proved that they do not meet the qualifications to be the members of the tribunal. If a person appointed as the member of the tribunal is a civil servant, he shall be deemed to have retired from being the service personnel. If the person is a member of parliament, he shall be deemed to have resigned from the parliament and if the person is a political party member, he shall not take part in any political activities of the party from the day of his appointment. If such person is set to run in a forthcoming “general” election, he shall be given the right to conduct election campaigning and constituency campaigning commencing from the day when the election date was announced by the Union Election Commission. The term of the tribunal shall be five years that is the same as that of the parliament. Although its term has expired, the tribunal shall continue its tenure till the new tribunal is formed. If the tribunal chairperson wishes to resign from office, his resignation in writing shall be submitted to the president. If any member wishes to resign from office, his resignation in writing shall be submitted to the president via the chairperson. The tribunal chairperson and members may be impeached by the president and MPs for reasons of breach of any provisions of the Constitution, misconduct, inefficient discharge of duties assigned by law, etc. If the president wishes to impeach the chairperson and members, he shall submit the charge to the combined house speaker. The speaker shall form an investigation body to cause the charge to be investigated. The investigation body shall be formed with an equal number of representatives of both houses. The time for the completion of the investigation shall be set by the speaker. The speaker, on receipt of the findings by the investigation body, shall present it to the parliament. On presentation of the resolution that the charge has been substantiated by the two-third majority of the parliament, the president shall remove the alleged person from his office. If MPs want to impeach them, a charge signed by one-fourth of the total number of either house shall be submitted to the house speaker concerned. Action shall proceed only when this charge is supported by two-third majority of the house, and another house shall subsequently form an investigation body to conduct the investigation into the charge and follow the same steps as the previous house. On receipt of the resolution from both houses that the charge has been substantiated, the president shall dismiss that person from the office.
Political independence of the tribunal
TThe constitution tribunal is an organ of supposedly passing verdicts on disputes over the citizens’ fundamental rights and the separation of powers as prescribed by the constitution. As for the tribunal, it is imperative to have political independence. According to the provision of the duties and functions of the tribunal, tribunal members shall submit their reports on the duties and functions of the tribunal to those who nominated them. That could lead to constant political influence by either the president or the house speakers over each members. Through submission of reports to the persons concerned, they may exert influence over the tribunal members. As the term of the tribunal is the same as that of the parliament, a ruling political party may have influence on the tribunal because the president and the house speakers are mostly be from the ruling party.
The tenure and communications with other branches of the constitutional tribunal should be equal to those of the Chief Justice and Supreme Court Judges.
Duties and powers
The constitutional tribunal shall perform the duties of interpreting the provisions under the Constitution, vetting whether or not the laws passed by the parliament and institutions with the right to make laws at the various levels are in conformity with the Constitution, vetting whether or not the measures of the executive authorities at the various levels including the Union level are in conformity with the Constitution, deciding constitutional disputes among territories in the country including the Union, deciding disputes arising from the rights and duties of the Union and territories in the country in implementing the Union laws and deciding constitutional disputes arising out of an ongoing trial in court submitted by the Chief Justice of the Union.
Bring cases to the tribunal
The president, the house speakers, the chief justice and the Chairman of the Union Election Commission are entitled to submit matters related to the constitutional disputes to the Constitutional Tribunal directly. The Chief Minister of the Region or State is entitled to submit the matters to the tribunal through the president, the state and region parliament speakers through the union parliament speaker, the chairperson of the self-administered division leading body or the chairperson of the self-administered zone leading body through the Chief Minister of the Region or State concerned and the president and representatives numbering at least ten percent of all the representatives of either houses through the speakers concerned.
Disputes submitted to the tribunal
The constitutional tribunal can confirm constitutionality of laws and administrative measures. The tribunal shall interpret the provisions prescribed in the constitution when cases for interpretation are submitted. The tribunal shall pass decisions on the constitutional disputes between the Union and territories in the country, disputes arising out of the rights and duties in implementing the Union law and matters intimated by the president relating to the Union territory and matters related to an ongoing trial in court on which whether provisions of the law are in conformity with the constitution or not. It is required to clearly mention what the case submitted to the tribunal for its resolution is for interpretation, resolution or consent. All tribunal members including the chairperson shall be present for hearing on submission, and in the case where all members are unable to perform hearing due to an official matter or any other cause, the proceeding shall be undertaken by not less than six members including the chairperson. The date set for hearing shall be announced in advance, and sittings of the tribunal shall be made public except matters related to the State secret and matters that may jeopardize the security of the State. In passing the final verdict, the final decision of the tribunal shall be signed by the chairperson on behalf of the tribunal and it shall be read out by a member of the tribunal.
Ambiguities about the Constitutional Tribunal Law
According to the law, duties and functions of the Constitutional Tribunal include constitutional interpretation, making comments about whether or not the laws promulgated by the union and subnational parliaments and measures of administrative authorities of the Union and the Region and the State are in conformity with the Constitution and passing final decisions. It is not clear how to interpret or implement opinions of the constitutional tribunal on constitutionality of legislations and administrative decisions. If the executive and legislative branches have influence on the tribunal which is a judicial organ of making decisions on constitutional disputes, the tribunal vested with powers to deal with the fundamental rights of citizens and to pass final verdicts on the constitutional disputes will lose the public trust in it. As the tribunal is the only judicial body of making decisions on matters related to the Constitution, it is required to review the Constitutional Tribunal Law in order to keep influence of any organization or power of a branch away from the tribunal.