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Burma: Resignation of Constitutional Court Justices

(Sept. 12, 2012) The nine justices of the Constitutional Tribunal of Myanmar (Burma) all resigned on September 6, 2012. The abrupt move was made in response to a vote to impeach them taken that day by the Lower House of the country’s Parliament as part of a dispute between that body and the government of President Thein Sein. The President’s appeal to Parliament to settle the disagreement by amendment of the Constitution, rather than impeachment of the justices, did not succeed. (Nine Judges Quit in Constitution Tribunal Row, THE IRRAWADDY (Sept. 7, 2012).)

The dispute between the government and the Parliament over the Tribunal began in March but gained momentum after the formation in August 2012 of a Rule of Law Committee, headed by opposition leader and Member of Parliament Aung San Suu Kyi. The basis for the disagreement, and ultimately the impeachment, was the MPs’ objection to a March decision of the Tribunal that denied parliamentary committees the status of national-level organizations. Without such a status the committees could not overrule the government or, for example, summon government ministers for questioning. (Jonathan Head, Burmese MPs Force Out Constitutional Court Judges, BBC NEWS (Sept. 6, 2012).) According to Lower House MP Pe Than,

[w]e found this Constitutional Tribunal cannot work in a democratic way. This is why we asked for them to withdraw even though we did not want to do it … . If they have power above Parliament, there will be no one who can control the government. We are worried that there will be no checks and balances on the government, and the government may act similar to the last the military regime … . (Nine Judges Quit in Constitution Tribunal Row, supra.)

The Constitutional Tribunal was formed on February 11, 2011, during a joint session of the country’s Parliament, with three judges having been selected by President Thein Sein, three by the Speaker of the Lower House, and three by the Speaker of the Upper House. Most of the nominees were reportedly academics and legal experts, although it was headed by a former general. (Parliament Forms Constitutional Tribunal; Approves Cabinet Members,MIZZIMA (Feb. 11, 2011 19:18); Nine Judges Quit in Constitution Tribunal Row, supra.)

MPs have indicated that a new Constitutional Tribunal will be formed during the next parliamentary session, but “it is not yet clear how the ongoing dispute regarding the status of parliamentary committees will be resolved.” (Nine Judges Quit in Constitution Tribunal Row, supra.)

The Tribunal

Chapter 2 of the Constitutional Tribunal Law stipulates that the tribunal’s functions and duties are to interpret the provisions of Burma’s Constitution, determine whether laws promulgated by the Parliament are in conformity with the Constitution; decide constitutional disputes between the Lower and Upper Houses of Parliament and with local assemblies; and make decisions on the rights and functions of state, regional, or self-administered divisions or zones. (Parliament Forms Constitutional Tribunal; Approves Cabinet Members, supra.)

Under the Constitution, the term of the Constitutional Tribunal is five years, the same as that of the Parliament. “However, the ongoing Constitution Tribunal of the Union, on expiry of its term, shall continue its functions till the President forms a new Tribunal under the Constitution.” (Constitution of the Republic of the Union of Myanmar (2008), art. 335, ONLINE BURMA/MYANMAR LIBRARY (last visited Sept. 12, 2012).) The Constitution specifies that the formation of the Tribunal and the duties, powers, and rights of the Chairperson and members are to be prescribed by law (id. art. 336) (such a law has in fact been adopted).

Impeachment Proceedings

In accordance with the Constitution, impeachment of the chairperson and members of the Constitutional Tribunal may be instituted on any of five grounds, including high treason, breach of any constitutional provision, misconduct, disqualification, and inefficient discharge of their lawful duties. (Id. art. 334(a).) An impeachment is to be carried out in accord with the impeachment provisions that are prescribed for the Chief Justice or judges of the Supreme Court of Burma. (Id. art. 334(b) & art. 302.)

If the President wishes to impeach a justice, he will submit the charge to the Speaker of the Parliament, who will form an investigative body to investigate the charge in accordance with the law. (Id. art. 302(b)(i-ii).) That body will present its finding to the Speaker, who will present them to the Parliament; and if two-thirds of the total number of the members of Parliament pass a resolution to the effect that the charge has been substantiated and the alleged person is unfit to continue to serve, the Speaker will present and report the resolution to the President. The President will then proceed to remove the impeached person from office. (Id. art. 302(b)(vii-ix).)

If the representatives of the Lower House or the Upper House of the Parliament wish to impeach a justice, the provisions for the impeachment of the President or the Vice-President of the country apply. (Id. art. 302(c)(i) & art. 71.) Under those provisions, a charge of impeachment signed by at least one-fourth of the total number of members of either House will be submitted to the Speaker of the House concerned, with further action to occur only when the charge is supported by at least two-thirds of the total number of the given House’s members. (Id. art. 71(a & b).) If one House supports taking the action, the other will form a body to investigate the charge. (Id. art. 71(d).)

If at least two-thirds of the total number of members of the House that investigated the charge or caused the investigation to be initiated adopt a resolution to the effect that the charge has been substantiated, thus declaring the justice unfit to continue in office, the House concerned will submit the resolution to the Speaker of the Parliament to remove the impeached justice from office. (Id. art. 71(f).) The President of Burma will proceed to remove the impeached justice from office. (Id. art. 302(c)(ii).)