Posted in Legislative Analysis, Political Institutions on Oct 03, 2019

This Bill was assumed to be submitted by the Constitutional Tribunal and posted on Pyidaungsu Hluttaw website on 24th September 2019.

3rd Amendment Bill

The Bill aims to amend the provisions related to the prescriptive qualifications of Constitutional Tribunal members. The provision of the original law which stated “president-selected candidates can be an eminent jurist” will be revoked, and the provision “person who is, in the opinion of the President, an eminent jurist” will be added, for invited members who do not fit any of the other criteria. If approved, candidates selected by the President and Speakers of Pyithu Hluttaw and Amyotha Hluttaw can be a person who is assumed an eminent jurist by the President.

Context

As with most elected governments, it is for the winning party to appoint the heads of government ministries upon assuming office. Accordingly, when the NLD Government came to power, the President appointed the new Union Ministers. According to the 2008 Constitution and Constitutional Tribunal Law, the Constitutional Tribunal members are appointed by the President and Speakers of Hluttaws, with each putting forward 3 candidates. To fill arising vacancies, Hluttaw Speakers appointed Daw Khin Htay Khwe and U Twar Kyin Paung, however a motion opposing this appointment was submitted by a military MP. The Amyotha Hluttaw MP and military MP also sent a submission to the Constitutional Tribunal.

2016 Submission No. (1)

In appointing Constitutional Tribunal members, as the constitutional provision “person who is, in the opinion of the President, an eminent jurist” is a power solely reserved by the President, the submission is to define whether “an eminent jurist” is concerned with the power of Hluttaw Speakers.

As the above provision is included in the article 333 of the 2008 Constitution, as an exception to those not meeting some prescriptions, the Constitutional Tribunal Law provision “president-selected candidates can be an eminent jurist” is deemed unconstitutional. Where there is contradiction in applying the difference between the Constitutional Tribunal Law and the Constitution, the Constitutional Tribunal has determined only to follow the constitution.

To be constitutional, therefore, it can be assumed that the current amendment Bill aims to fix this difference.

Link

Bill text

Reference

Constitutional tribunal, 2016 Submission No. (1)

2008 Constitution

Constitutional Tribunal Law

Records from first regular session of the second Hluttaw