On 6 September 2012, all nine judges of the Constitutional Tribunal in Myanmar (Burma)Footnote 1 “voluntarily” resigned, after both the Pyithu Hluttaw (House of Representatives) and the Amyotha Hluttaw (House of Nationalities)Footnote 2 had voted in favour of impeachment of the Tribunal members.Footnote 3
The impeachment proceedings against the Burmese Constitutional Tribunal were overwhelmingly portrayed by the international media as a sign of the “maturation of Myanmar’s democracy”Footnote 4 and as a manifestation of the growing strength and independence of the Burmese parliament.Footnote 5
At the same time, however, there were several warning voices. Many have described the dispute as the country’s first constitutional crisis since President Thein Sein’s government came to power in March 2011.Footnote 6 Although the removal of the Constitutional Tribunal judges may have bolstered parliamentary sovereignty in Myanmar, these commentators argue, the incident may constitute a severe threat to the independence of the Tribunal.
While some observers thus viewed the incidents around the Constitutional Tribunal as a positive development, others have highlighted the potential dangers of the dismissal of the judges, particularly the potential damage to judicial independence.
In light of this controversy, this paper will address the following questions:
1. How are the 2012 impeachment proceedings against the judges of the Constitutional Tribunal to be interpreted, against the background of Myanmar’s history and current situation of political reform?
2. What can be learned from the experiences of the Indonesian Constitutional Court (Mahkamah Konstitusi) for the strengthening of the authority and independence of Myanmar’s Constitutional Tribunal?
A comparison with Indonesia and its Constitutional Court appears justified due to a number of reasons: Firstly, the Indonesian Constitutional Court has been praised widely and has established a reputation of independence and professionalism.Footnote 7 Secondly, Indonesia and Myanmar share a number of historical and political characteristics: Indonesia was in a comparable situation as Myanmar is now, after Suharto’s resignation in 1998, when Indonesia emerged from decades of military rule. Like Myanmar, Indonesia lacked a democratic system and protection for human rights, and had considerable involvement of the military in politics. Both countries are now at different stages in the transition to democracy. Furthermore, both countries are home to diverse ethnic and religious groups.Footnote 8 Indeed, over the past few years, political actors in Myanmar have repeatedly looked towards Indonesia as an example and a model of reform for Myanmar’s process of democratisation.Footnote 9
This paper will proceed as follows: Section I will briefly outline the events leading up to the resignation of the judges of the Constitutional Tribunal, and the subsequent developments. Section II will interpret these developments in light of Myanmar’s history and current political situation, notably its transition to democracy. Section III examines the experience of the Indonesian Constitutional Court, which is often praised as a success model among Asian constitutional courts,Footnote 10 and which has − despite its “activist”Footnote 11 approach in the early years of its existence − not suffered the backlash and negative consequences which other constitutional courts in emerging democracies have faced. Section IV applies the experiences of the Indonesian Constitutional Court to the case of Myanmar, and describes a number of tentative lessons for the reconstituted Constitutional Tribunal.Footnote 12
I. EVENTS LEADING UP TO THE RESIGNATION OF THE MEMBERS OF THE CONSTITUTIONAL TRIBUNAL AND SUBSEQUENT DEVELOPMENTS
The first bench of the Constitutional Tribunal had heard only five cases in total, between March 2011 and August 2012, before the resignation of all nine judges in September 2012.Footnote 13
The resignation of the members of the Constitutional Tribunal on 6 September 2012 went back to a decision issued by the Tribunal on 28 March 2012 in the case President of the Union v. Pyidaungsu Hluttaw, et al., which was only the fourth decision since the establishment of the Tribunal in February 2011.Footnote 14 On 2 February 2012, the Attorney General of the Union had submitted Submission No. 1/2012 to the Constitutional Tribunal on behalf of the President, asking the Tribunal to resolve the issue of whether the committees, commissions and bodies formed by the Pyidaungsu Hluttaw, the Pyithu Hluttaw, and the Amyotha Hluttaw could be defined as Union level organisations. The Tribunal decided that the bodies formed by each Hluttaw were not Union level organisations.Footnote 15
The decision was met with disbelief by many members of parliament.Footnote 16 Without Union level status, the parliamentary committees and commissions are inferior to Union level government members, which means that they cannot overrule the government or summon government ministers for questioning.Footnote 17 In particular, the members of parliament were worried that if the parliamentary bodies were not recognised as Union level organisations, they would not be able to act as a check on the executive.Footnote 18
On 15 August 2012, in protest to the Tribunal’s March 2012 decision, 301 out of the 440 members of the Pyithu Hluttaw signed a proposal to the Speaker of the Lower House, Shwe Mann, proposing the impeachment of the Constitutional Tribunal and demanding the resignation of all its members, including its chairman, U Thein Soe, by 21 August 2012. Shwe Mann transferred the matter to the President, who urged the parliament to settle the dispute by amending the relevant provisions of the Constitution. However, the appeal of the President was not successful.Footnote 19
The Constitutional Tribunal refused to reverse its March 2012 decision, and rejected the petition to resign. On 24 August 2012, 163 out of the 224 members of the Amyotha Hluttaw signed a petition to impeach the Constitutional Tribunal.Footnote 20 Five days later, the Pyithu Hluttaw formed a 15-member investigatory body in order to investigate the charges against the Tribunal members.Footnote 21 However, since more than two thirds of the members of the Pyithu Hluttaw had already signed an initial proposal to impeach the Tribunal, it was a foregone conclusion that the representatives would vote in favour of the impeachment.Footnote 22 A few days later, on 6 September 2012, all nine members of the Constitutional Tribunal “voluntarily” resigned.Footnote 23
In the months following the resignation of the members of the Constitutional Tribunal, the President and the Speakers of the Pyithu and Amyotha Hluttaws each selected three new Tribunal judges.Footnote 24 On 25 February 2013, more than five months after the members of the Constitutional Tribunal had resigned, nine new Tribunal members were appointed by President Thein Sein.Footnote 25 To date (September 2014), the new bench has not yet heard any new cases, but President Thein Sein announced in January 2014 that he intends to ask the Tribunal to examine whether eight new laws are in conformity with the Constitution. These submissions would be the first since the reconstitution of the Tribunal in February 2013, and they would constitute the first test of the independence of the newly formed Tribunal.Footnote 26
Although the members of the Tribunal have been replaced, several questions surrounding the role of the Constitutional Tribunal in Myanmar’s reform process remain. Notably, it is unclear how the independence and authority of the Tribunal vis-à-vis the other political actors in the country can be further strengthened. In particular, the conflict between the executive and the legislature, which was at the heart of the impeachment process against the judges of the Constitutional Tribunal, appears to be far from over.
One manifestation of this ongoing conflict between the legislature and the executive were the events surrounding the amendment of the Constitutional Tribunal Law. In November 2012, the Hluttaw discussed and approved a number of amendments to the Constitutional Tribunal Law.Footnote 27 In his comments submitted to the Hluttaw, the President described the amendments as unconstitutional. The amendments provided, firstly, that in selecting the candidate to be assigned as chairperson of the Constitutional Tribunal, the President should consult with the Speakers of the Pyithu and Amyotha Hluttaws.Footnote 28 Secondly, the amendments required that all members of the Constitutional Tribunal submit regular reports to the President and the Speakers of the Pyithu and Amyotha Hluttaws. President Thein Sein argued that such a reporting requirement would infringe upon the ability of the Constitutional Tribunal to adjudicate constitutional issues independently, and that the bill was contrary to the principle of administering justice independently (Section 19(a) of the Constitution of the Republic of the Union of Myanmar).Footnote 29 Thirdly, the amendments to the Constitutional Tribunal Law prescribed that the decisions of the Tribunal should be final only if the dispute was submitted by a court, implying that for other constitutional disputes, a party who is not satisfied with the decision of the Tribunal can appeal the decision.Footnote 30 In his comments, the President held that this contravenes Section 324 of the Constitution, pursuant to which “[t]he resolution of the Constitutional Tribunal of the Union shall be final and conclusive.”Footnote 31 The comments of the President were all rejected by the members of parliament.Footnote 32 On 22 January 2013, President Thein Sein reluctantly agreed to the proposed amendments of the Constitutional Tribunal Law, as the changes would become law in seven days, with or without the President’s signature.Footnote 33
Although the changes to the Constitutional Tribunal Law have further strengthened the position of the parliament vis-à-vis the executive,Footnote 34 the amendments may be to the detriment of the independence of the Constitutional Tribunal.Footnote 35 Indeed, in order to secure the independence of the Constitutional Tribunal vis-à-vis other political forces, it seems that a number of provisions of the 2008 Constitution will need to be amended, especially those with regard to the appointment process of the Tribunal members, their term length, and the impeachment process.Footnote 36 An amendment of the Constitution is currently underway: in June 2013, the Hluttaw formed a Constitutional Review Committee, which was made up of 109 members,Footnote 37 who had until 31 January 2014 to produce their recommendations.Footnote 38 A call for submission of proposals to amend the Constitution was issued, resulting in an enormous number of submissions to the Committee by political parties, social organisations, and religious and ethnic groups. In the end of January 2014, the Constitutional Review Committee submitted its report to the Union Parliament. However, the report does not propose any changes in relation to two central aspects of the 2008 Constitution: (a) The provisions that guarantee the military a central role in the legislature (Section 109 and Section 141 of the Constitution reserve 25 per cent of the seats in parliament for the military), and (b) the provision barring persons with foreign dependants from presidency (Section 59(f) of the Constitution; this provision bars Aung San Suu Kyi from presidency on the grounds that her deceased husband, as well as her children are foreigners).Footnote 39 On 3 February 2014, a new committee for the implementation of the report was formed by the parliament.Footnote 40 This second committee must now produce a final report on constitutional amendments, which is to be submitted six months before the 2015 general election.Footnote 41
II. ANALYSIS OF THE IMPEACHMENT PROCEEDINGS AGAINST THE MEMBERS OF THE CONSTITUTIONAL TRIBUNAL
A. Preliminary Remarks
A number of observers have interpreted the resignation of the judges of the Constitutional Tribunal in September 2012 as a victory for the Hluttaw, or at least a chance for it to demonstrate its growing strength.Footnote 42 At the same time, however, several commentators have claimed that the resignation of the judges could constitute a severe risk to checks and balances and judicial independence in Myanmar.Footnote 43
This paper suggests that the impeachment proceedings against the members of the Constitutional Tribunal and the subsequent developments must be seen in the context of the current political reform process in Myanmar, as well as the country’s history.Footnote 44 The dispute over the Union level organisations seems to have arisen from a conflict between the President and the parliament, which was played out in the Constitutional Tribunal. In Myanmar, the Constitutional Tribunal appears to have become a central forum for the resolution of (political) conflicts between the legislature and the executive.Footnote 45
B. Distrust of the Parliament Towards the Constitutional Tribunal
When the new regime under President Thein Sein took power in early 2011, many observers thought that the Hluttaw would merely be a rubber-stamp body. However, contrary to these expectations, the power of the parliament seems to be steadily increasing. In the by-elections held in April 2012, 43 members of the National League for Democracy (NLD), including Aung San Suu Kyi, were elected.Footnote 46 After the long period of oppression of the people’s voices under the former military regime, the members of parliament, as the elected representatives of their constituents, are seeking to strengthen their power. Indeed, it seems that at this point in time, the parliament is highly sensitive to any (perceived) attacks on its sphere of influence. The Constitutional Tribunal’s March 2012 decision, which held that parliamentary bodies were not Union level organisations, seems to have been such an attack. It thus appears that in Myanmar, the balance of power between the executive, legislative, and judicial branches of government has not yet solidified, and is still in a state of flux and development.
Furthermore, there appears to have been a significant lack of trust, on the part of several members of parliament, in the will of the Constitutional Tribunal to effectively check the executive.Footnote 47
In light of the first three decisions handed down by the Constitutional Tribunal prior to its decision of March 2012, however, this concern of the Hluttaw does not seem entirely warranted: The Constitutional Tribunal’s first case (The Chief Justice of the Union v. Ministry of Home Affairs, Case No. 01/2011), which was decided in July 2011, was a decision against the executive. The Ministry of Home Affairs had appointed administrative officers at the sub-township level who were entitled to adjudicate minor criminal cases. The Chief Justice of the Myanmar Supreme Court challenged this as an infringement on the role of the judiciary, and the Constitutional Tribunal agreed.Footnote 48
The second case of the Constitutional Tribunal (Dr. Aye Maung, et al. v. The Republic of the Union of Myanmar, Case No. 02/2011) was decided in December 2011. In this case, ten per cent of the members of the Amyotha Hluttaw contested the constitutionality of certain portions of a law which would have precluded the Ministers of National Races Affairs from receiving the full privileges granted to other ministers. The Constitutional Tribunal agreed and held that all ministers should have equal status, and struck down the provisions which were contrary to the Constitution.Footnote 49
The third case of the Tribunal (President of the Union v. Dr. Aye Maung, et al.) was initiated by a petition submitted by President Thein Sein in early 2012, which requested that the Constitutional Tribunal overturn its decision in Dr. Aye Maung, et al. v. Myanmar. The Tribunal however reaffirmed its earlier decision, and noted that according to § 324 of the Constitution, decisions of the Constitutional Tribunal were “final and conclusive”.Footnote 50
In its first three cases, therefore, the Constitutional Tribunal had not hesitated to rule against the executive – in Case No. 01/2011 it ruled in favour of the power of the judiciary, and in Case No. 02/2011 (and in its third case) it decided in favour of the members of the Amyotha Hluttaw, and against the President.Footnote 51
Notwithstanding these decisions, a major reason for the distrust of the parliament towards the Constitutional Tribunal seems to have been the fact that the Tribunal was established under the 2008 Constitution, which was drafted by the National Convention.Footnote 52 The legitimacy of the National Convention was questionable, since the electorate did not know in advance that it was electing a constituent assembly, but was rather expecting to elect a legislature. Rather than honouring the results of the 1990 parliamentary elections, in which the NLD won 80 per cent of the votes, the military regime refused to transfer power and stated that the elected representatives would merely be responsible for drafting a new Constitution.Footnote 53 It therefore cannot be legitimately argued that the National Convention was democratically elected, and its legitimacy – as well as, consequently, that of the Constitution it drafted – seems limited.Footnote 54 By implication, the legitimacy of the Constitutional Tribunal set up by the 2008 Constitution appears limited as well (and perhaps this sentiment was at the heart of the distrust of the parliamentarians towards the Tribunal, ultimately leading to the impeachment of its members).Footnote 55
Furthermore, the appointment of the first nine members of the Constitutional Tribunal occurred under unfavourable circumstances. Under the 2008 Constitution, the nine judges of the Tribunal are selected by the President and the Speakers of the Pyithu and Amyotha Hluttaws, who each choose three members.Footnote 56 However, when the original members were appointed in March 2011, there was no public discussion of the candidates and their credentials,Footnote 57 and it is unclear how much of a voice the President and the Speakers of the Pyithu and Amyotha Hluttaws, or other members of parliament, had in the selection process.Footnote 58 Indeed, most of the members of the Tribunal seem to have been selected by the military in February 2011, and the members of parliament appear to have had little opportunity to review their qualifications.Footnote 59 The impeachment proceedings against the Tribunal members may therefore have been seen as the “correction” of a more fundamental, underlying problem.Footnote 60
C. The Constitutional Tribunal as an Arbiter in Political Conflicts
It seems that the Constitutional Tribunal is increasingly being used, in Myanmar, as an arbiter to resolve political conflicts and power struggles between the legislature and the executive. Given the fact that the Tribunal has only decided five cases to date (September 2014), it is too early to make out definite trends. However, although the Tribunal’s fourth case formally concerned the (legal) issue of whether the bodies formed by the parliament constitute Union level organisations, underlying the case was a more fundamental (political) conflict between the legislature and the executive.
Indeed, Myanmar’s Constitutional Tribunal seems to have been established primarily to decide constitutional disputes among the political elites (and not primarily to decide cases regarding violations of constitutional rights of citizens).Footnote 61 Direct standing before the Tribunal is limited to a number of officials at the Union and state/regional levels (furthermore, courts can refer constitutional questions to the Tribunal for resolution).Footnote 62
After years of military rule, the various institutions in Myanmar are defining their new roles and the extent of their respective jurisdictions, and it appears that some of the conflicts between the executive, legislative, and judicial branches of government are being carried out in the forum of the Constitutional Tribunal. This is not an uncommon phenomenon: In emerging democracies, constitutional courts are frequently called upon to resolve disputes between different branches of government and to define the boundaries between their respective jurisdictions.Footnote 63
In many new democracies emerging from the “third wave” of democratisation around the world, specialised courts with the power of judicial review have been established.Footnote 64 Several emerging democracies in Asia and elsewhere (especially civil law jurisdictions, such as Thailand, Indonesia, South Korea, and Taiwan) have preferred Hans Kelsen’s Austrian model of designated constitutional courts as opposed to the decentralised American model of judicial review.Footnote 65 In these “centralized” systems of judicial review, the judicial system comprises two parts: the constitutional court (which only has “constitutional” jurisdiction) on the one hand, and a supreme court on the other hand (which decides the matters which do not fall within the jurisdiction of the constitutional court). Under a centralised system of judicial review, therefore, only one court, the constitutional court, is empowered to interpret the constitution, and this court is separate from the ordinary judicial system.Footnote 66 Although constitutional courts have links with the legislative, executive, and judicial branches of government, they are formally detached from them: “Constitutional judges occupy their own ‘constitutional space’, which is neither clearly ‘judicial’ (the enforcement of pre-existing legal norms in the course of litigation) nor ‘political’ (the creation of new legal norms) in classic continental terms.”Footnote 67
Hans Kelsen’s original model, however, clearly distinguished between the functions of parliaments and constitutional courts: members of parliament are “positive legislators” (that is, they make law freely, according to their own policy preferences, and are subject only to the constraints of the constitution), whereas constitutional judges are “negative legislators” (that is, their legislative authority is restricted to the annulment of legal norms when they are in conflict with the constitution). Kelsen warned that constitutional courts should not act as “positive legislators”, as they would otherwise, in effect, become supreme legislators.Footnote 68
Myanmar has also followed the Kelsenian model of (centralised) judicial review, although this is unusual for a common law country (common law jurisdictions normally follow a decentralised system of judicial review).Footnote 69 The prevalence of the model of centralised judicial review in new democracies may in part be due to the widespread distrust towards the ordinary judiciary, due to corruption and other inefficiencies.Footnote 70
Constitutional courts in new democracies are almost invariably subject to a delicate and fragile political context. The counter-majoritarian difficulty − that is, the question of the legitimacy of unelected judges to review legislation enacted by democratically elected representatives − is perhaps even more pronounced in young democracies, where the various branches of government are still defining their roles.Footnote 71 Moreover, in emerging democracies, there is a certain risk that constitutional courts producing decisions unfavourable to the legislative or executive branches of government will generate retaliatory measures by the political actors. In these cases, the independence of these courts may be seriously compromised by interference by the executive or the legislature in a particular case, or by attacks on the court or on individual judges.Footnote 72
Constitutional courts will often be confronted with cases that are different from those decided by ordinary courts. Although cases are presented in legal terms, the disputes may in fact be of a profoundly political nature.Footnote 73 The tension between law and politics is a central feature of constitutional adjudication, and lies at the heart of the vulnerability of constitutional courts in countries in transition to democracy.
Due to their location at the intersection of law and politics, furthermore, constitutional courts are not completely neutral or independent − the political and personal perspectives of the judges will inevitably influence their decisions.Footnote 74 Therefore, “[j]udicial independence as it applies to these courts is ... a relative concept which can be understood in a variety of ways.” However, in order for the court to have authority, it must be perceived as being − if not completely independent − sufficiently insulated from political processes.Footnote 75
Under the Burmese Constitution, the provisions regarding the Constitutional Tribunal are included in Chapter VI (Judiciary) (Section 320 and following of the Constitution). With regard to judicial independence, the text of the Constitution is somewhat ambiguous. Section 19(a) states that the judiciary is to “administer justice independently according to law.” With regard to the separation of powers, on the other hand, the Constitution states in Section 11(a) that the legislative, executive, and judicial powers are separate “to the extent possible”. It is not entirely clear whether the Constitution’s guarantee of judicial independence applies to the Constitutional Tribunal, since in Section 18 of the Constitution, the Constitutional Tribunal is not listed among the institutions having “judicial power”, and since the members of the Constitutional Tribunal hold office for only five years (like the President and the members of the legislative, but unlike judges of the ordinary judiciary).Footnote 76
Establishing the independence of constitutional courts is a challenging matter in emerging democracies, where the political context is fragile and the distribution of powers between the branches of government is often still unclear. In these situations, constitutional courts may themselves − as political actors − strive to build up their scope of influence and authority: “Judiciaries emerging from an authoritarian past are frequently eager to demonstrate their newfound independence, bolster their legitimacy and expand their authority by becoming ‘activist’ across a range of issues.”Footnote 77 However, a number of commentators suggest that in new democracies, where the political institutions may be in conflict over their respective jurisdictions, an overly “activist” court could ultimately be rendered more fragile.Footnote 78 According to these commentators, constitutional courts in emerging democracies are especially vulnerable to executive and legislative interference.Footnote 79 If these courts become too assertive, they may provoke counter-reactions from the legislature or the executive, penalising them for their “transgressions”.Footnote 80 In other words, they may create a backlash which ultimately reduces their scope of action.Footnote 81
Indeed, in Myanmar, the parliament, which was initially expected to play a non-threatening role, is now increasingly asserting its importance.Footnote 82 Notably, the Hluttaw appears to react strongly to any perceived encroachment on its powers. The fact that the parliament decided to impeach the members of the Constitutional Tribunal after the controversial decision regarding the Union level organisations is a testimony to the assertiveness of the parliament, and to the vulnerability of the Constitutional Tribunal.Footnote 83
In light of the susceptibility of constitutional courts to attacks from the executive and the legislature in the early years of democracy, a number of commentators have suggested that if constitutional courts act cautiously in the initial stages of democratic transition, they may be able to induce political actors to abide by the constitutional order and to comply with unfavourable decisions. In this manner, constitutional courts can build up their authority and influence.Footnote 84
The example of the Indonesian Constitutional Court, however, seems to demonstrate that constitutional courts which adopt an “activist” approach in countries undergoing democratisation need not necessarily be subject to retaliatory measures from the other branches of government, but that to the contrary, the “activism” of these courts in their early years may strengthen their legitimacy and authority. The following sections will examine the experiences of the Indonesian Constitutional Court, which has often been praised as a model of success among Asian constitutional courts,Footnote 85 and will develop a number of tentative lessons which can then be applied to Myanmar’s Constitutional Tribunal.
III. EXPERIENCES FROM ANOTHER SOUTHEAST ASIAN STATE: INDONESIA
A. Preliminary Remarks
As mentioned above, a number of commentators have suggested that constitutional courts are especially susceptible to attacks from other political actors in the early stages of democracy, particularly when these courts adopt an “activist” approach.Footnote 86 Indeed, the experiences of a number of courts in Asia and other regions of the world seem to support this theory. Constitutional courts in new democracies have experienced measures such as suspension, failure to comply with their decisions, impeachment, or other means to punish judges or render their decisions ineffective.Footnote 87
Other commentators, by contrast, disagree with this view and argue that to the contrary, “activism” of constitutional courts in new democracies ultimately strengthens the authority and influence of these institutions.Footnote 88 The Indonesian Constitutional Court (Mahkamah Konstitusi), for example, has become increasingly “activist”, yet it has not experienced the negative consequences which other constitutional courts in emerging democracies have faced.
Indonesia has been mentioned by several commentators as providing a useful model for reform for Myanmar.Footnote 89 Indonesia shares a number of characteristics with Myanmar: Like Myanmar, Indonesia has a centralised system of judicial review with a separate constitutional court, which was established in 2003, following the Third Amendment to the 1945 Constitution in November 2001.Footnote 90 Indonesia was in a comparable position as Myanmar is now, after the resignation of Suharto in May 1998, when the country emerged from decades of military rule. Like Myanmar, Indonesia had considerable involvement of the military in politics, lacked a democratic system and protection for human rights, and is home to numerous ethnic and religious groups.Footnote 91 Indeed, over the past few years, political actors in Myanmar have repeatedly looked towards Indonesia as an example and a model of reform for Myanmar’s process of democratisation.Footnote 92
The following paragraphs will briefly consider the experiences of the Indonesian Constitutional Court, which is often cited as a model of success among the new constitutional courts in Asia.Footnote 93
B. The Indonesian Constitutional Court
Since its establishment in 2003, the Indonesian Constitutional Court has attained considerable power, independence, and popular support.Footnote 94 Indeed, the court has been praised as a model of success among Asian constitutional courts.Footnote 95 The Indonesian Constitutional Court has acted as a successful judicial and political arbitrator, and has effectively contributed to the prevention of large-scale violent disputes between the country’s major political forces. In this manner, the Constitutional Court was able to advance the consolidation of Indonesia’s democracy.Footnote 96
How has the Indonesian Constitutional Court been able to establish its authority, despite its “activist” approach in the early years of its existence?
The success of the Indonesian Constitutional Court seems to have been facilitated by a number of institutional characteristics. Firstly, the Indonesian Constitutional Court has a comparatively wide scope of jurisdiction: It has “the final power of decision in reviewing laws against the Constitution, determining disputes over the authorities of state institutions whose powers are given by this Constitution, deciding over the dissolution of a political party, and deciding disputes over the results of general elections.”Footnote 97 Furthermore, the Constitutional Court has the authority to issue a decision over an opinion of the DPR (Dewan Perwakilan Rakyat, the People’s Representative Council) “concerning alleged violations by the President and/or Vice-President of this Constitution”, in other words, to finally decide on impeachment proceedings.Footnote 98
Secondly, and importantly, it seems, the extent of access to the court is relatively broad: Standing is granted to (a) individual citizens, (b) representatives of traditional communities, (c) public or private legal entities, and (d) state institutions.Footnote 99 The fact that individual citizens have access to the court has contributed greatly to the reputation of the court and its image of independence and efficiency. The court has received a large number of petitions for judicial review by various groups of people since its establishment, and its case load has been considerable and has risen steadily over the years.Footnote 100 This is different from the situation in Myanmar, where citizens cannot petition the Constitutional Tribunal directly (and which may have contributed to the lack of support for the Tribunal from the public). Further activities conducted by the Indonesian Constitutional Court (such as informing the public about its work, providing rooms in the court for visitors and journalists, and uploading the court’s decisions to its website)Footnote 101 have equally raised public support for the court.Footnote 102 Indeed, in Indonesia, both civil society and the media have played vital roles in the Constitutional Court’s progression to increased authority and independence. The support that the court received from the public, as well as the influence of the media, have been central to the court’s success in defending its authority vis-à-vis other political actors.Footnote 103
Thirdly, the court’s budgetary autonomy allows for the payment of high salaries to the judges (the salaries of the Constitutional Court judges are higher than the Supreme Court judges’ salaries). This measure has the potential to significantly reduce corruption in the court (and indeed long appeared to have freed the court from corruption).Footnote 104
Fourthly, the appointment system for the judges of the court (the President, the DPR, and the Supreme Court each select three of the nine judges) involves each branch of government (thereby preventing one institution from monopolising the court), and allows for considerable diversity on the bench.Footnote 105 The term of office of the Constitutional Court judges is five years, renewable once.Footnote 106
The Indonesian Constitutional Court’s successful role as a mediator of political conflict became most apparent in its decisions in cases regarding election disputes, which it heard in the years from its establishment until 2009. In the 2004 parliamentary and presidential elections, the court proved its ability to handle electoral complaints in a prudent manner, by issuing balanced decisions on electoral complaints regarding the parliamentary elections.Footnote 107 After the court had established trust in its impartiality, it went on to handle the complaint made by the losing candidate in the presidential election, former general Wiranto. The court rejected Wiranto’s complaint, which alleged election irregularities, and thereby further strengthened its reputation as an independent arbiter. After the 2009 elections, the court was again called upon to decide a number of complaints with regard to the legislative elections. Again, the court handled the complaints in a balanced manner. As in 2004, the court rejected the complaints made by the candidates that had lost the presidential elections. However, the court simultaneously criticised the General Elections Commission (Komisi Pemilihan Umum, or KPU) for its poor management of the elections, thereby appeasing the unsuccessful petitioners.Footnote 108
Through its adept management of electoral disputes, the Constitutional Court successfully consolidated its role as an important institution in the Indonesian political landscape. Thus strengthened, the court has been able to ward off several attempts of the military to intervene in the proceedings of the court.Footnote 109 In light of these experiences, a number of commentators have argued that the case of the Indonesian Constitutional Court “has demonstrated that judicial intervention related to elections can in fact promote democratic consolidation.”Footnote 110
Indeed, in deciding electoral disputes, the Indonesian Constitutional Court had become “activist” in a number of ways. The court began, from November 2008 onwards, to review the quality of the election process itself (such as the nomination of candidates, the abuse of power by incumbent candidates, etc.). In particular, the court started to withdraw the nomination of candidates, order a re-count of the vote, and even order a new election.Footnote 111 Furthermore, in a decision issued two days before the presidential election in 2009, the Constitutional Court repealed the election law, according to which only citizens registered on official voter lists were allowed to vote. Many voters had not been registered, or had been included in lists at incorrect locations, making the voter lists incomplete and inaccurate, thereby threatening to reduce the legitimacy of the presidential election. The court ruled that every Indonesian citizen with a valid identity card could vote. This decision went beyond merely repealing a law, by producing a guideline for how the Election Commission should conduct the election. With this decision, the Constitutional Court had become a “positive legislator”, thereby moving beyond its role as a “negative legislator” as envisaged in the Constitution, and thus formally “overstepping the boundaries of its authority”.Footnote 112
What is remarkable in the case of the Indonesian Constitutional Court is that although the court moved from being a mere “negative legislator” to being a “positive legislator”, and although it went beyond its authority as circumscribed by the Constitution, it has not suffered the negative consequences that other constitutional courts in emerging democracies have faced.Footnote 113 Indeed, although the court’s “activist” approach has been criticised by legislators, who are of the view that the court has unduly overstepped the boundaries of its authority and entered the area of law-making, the Constitutional Court is, overall, a highly respected and popular institution in Indonesia.Footnote 114
One plausible explanation for this remarkable stability of the Indonesian Constitutional Court in its early years (despite its “activist” approach) is that it firmly established its legitimacy through support from the public. Indeed, the court’s numerous activities to engage the population and win public support, its comparatively broad rules of standing allowing individual citizens and representatives of traditional communities to petition the court, as well as the considerable number of cases brought before it, all contributed to bolstering the legitimacy of the court in the eyes of the public, as well as its reputation for independence and autonomy.Footnote 115 Furthermore, what also seems to have benefitted the Constitutional Court is that in the case of majority decisions, dissenting opinions are recorded as part of the decision (which is remarkable given that Indonesia is a civil law jurisdiction).Footnote 116 In principle, “the decision ... is taken by way of deliberation to reach consensus in a plenary session of the constitutional judges”,Footnote 117 but if unanimity is not possible, the decision is made by majority vote, and the chairperson has the decisive vote.Footnote 118 The fact that dissenting opinions are allowed may contribute to a clearer understanding on the part of the public of the legal reasoning behind a particular decision.Footnote 119
A central lesson for the newly appointed judges of the Constitutional Tribunal in Myanmar, then, seems to be the importance of building up the trust of the public in its impartiality and independence in the first few years after impeachment. By increasing its support from the public, the Tribunal may be able to successfully withstand attacks from the executive or the legislature.
IV. LESSONS FOR MYANMAR’S CONSTITUTIONAL TRIBUNAL
A. Establishing the Authority of the Constitutional Tribunal
As mentioned above, according to a number of commentators, when constitutional courts adopt an “activist” approach in the early stages of democracy, they can experience backlash and retaliatory measures by the other branches of government. On the other hand, where they exercise caution, and avoid risking to overstep their mandate,Footnote 120 they may be able to gradually consolidate their authority.Footnote 121
Under this theory, given the susceptibility of constitutional courts to attacks from other political actors in the early stages of democracy, the newly formed Burmese Constitutional Tribunal would benefit from avoiding an “activist” approach in the first few years of its existence. Only once its authority has been sufficiently established could the Tribunal then go on to assume a more “activist” role.Footnote 122
A number of experiences of courts in Asian states, as well as in other regions of the world, indeed exemplify the risks an assertive judiciary is exposed to in the early years of democratic consolidation. Commentators who suggest that avoiding an “activist” approach in the early years of democracy enables courts to establish their authority would therefore argue that an extended period of caution in the early years of Myanmar’s Constitutional Tribunal may well pay off in the long run.Footnote 123 In this view, too much “activism” in the early periods of a constitutional court’s existence can be detrimental for the long-term independence and authority of the court.Footnote 124
However, the example of the Indonesian Constitutional Court seems to indicate that constitutional courts in emerging democracies − even if they adopt an “activist” approach − do not need to experience backlash from the other branches of government, if they are able to establish their authority and build up public support.
The events surrounding the impeachment proceedings against the members of Myanmar’s Constitutional Tribunal have demonstrated that the legitimacy and authority of the Tribunal members was not yet firmly established. Although both the parliament and the executive had accepted the first three decisions of the Constitutional Tribunal as binding, the Constitutional Tribunal’s decision of 28 March 2012 regarding the Union level organisations was not respected by the parliament: impeachment proceedings against the Tribunal members were initiated, which ultimately led to the resignation of the judges in September 2012. The unsteady foundation of the Tribunal’s authority and legitimacy goes back to several factors (a number of which have already been mentioned above). An analysis of these underlying factors may allow the identification of a number of possible remedies for the Burmese Constitutional Tribunal, in order to prevent a similar attack in the future.
A central point seems to be that since the 2008 Constitution lacks legitimacy, due to its history and the manner it was drafted,Footnote 125 the Constitutional Tribunal, which was created under the 2008 Constitution, also seems to have been seen as lacking legitimacy, by many members of parliament. Much therefore seems to hinge upon an amendment of the Constitution, which is now underway. It may be that only after the Constitution is amended, will it be possible for the Tribunal to truly gain independence.
In its decision of March 2012 regarding the definition of “Union level organizations” (President of the Union v. Pyidaungsu Hluttaw, et al.),Footnote 126 which caused the subsequent impeachment proceedings against the Tribunal members, the Constitutional Tribunal had qualified the committees, commissions and bodies formed by each Hluttaw as not being Union level organisations. The Constitutional Tribunal’s decision was based on two main arguments:
First, the Tribunal noted that Chapter IV (Legislature) of the 2008 Constitution contains, for each Hluttaw, separate provisions regarding the formation of “committees, commissions and bodies”. In particular, in its decision, the Tribunal stated that “the expression ‘Union Level Organization’ formed under the Constitution is separately mentioned to differentiate between each Hluttaw which is as a legislative body, and committees, commissions, and bodies formed by the respective Hluttaw.”Footnote 127 The Tribunal took this to mean that committees, commissions, and bodies formed by the Hluttaws were being treated separately − and differently − from “Union level organizations”, in other words, that the Hluttaws were “Union level organizations”, whereas the − separately mentioned − committees, commissions, and bodies formed by the Hluttaws were not.
Second, the Tribunal cited a clarification made by U Taung Toe, the Chairman of the National Convention Convening Work Committee, according to which “Union Level Organizations formed under the Constitution” and “organizations or persons of such organizations” were “the organizations or persons appointed by the President of the Union with the approval of the Pyidaungsu Hluttaw”.Footnote 128 Consequently, therefore, the Constitutional Tribunal held that “the Union Level Organization[s] formed under the Constitution” and “the members or persons representing any Union Level Organizations under the Constitution” were not the same as committees, commissions, and bodies formed by each Hluttaw, as these bodies are not appointed by the President with the approval of the Pyidaungsu Hluttaw.Footnote 129
Although the outcome of the case may be debatable, in its decision, the Constitutional Tribunal had, in principle, “considered and applied the relevant Constitutional provisions in a clear manner and reached logical and seemingly unbiased conclusions”.Footnote 130 Nevertheless, the parliament did not accept the decision of the Tribunal and initiated impeachment proceedings, which ultimately led to the resignation of the judges. The fact that the Hluttaw did not respect the Constitutional Tribunal’s decision demonstrates that the authority of the Tribunal had not yet sufficiently solidified, in the course of Myanmar’s transition to democracy.
It seems that especially the following characteristics of Myanmar’s Constitutional Tribunal and its position within the Burmese political landscape have contributed to its vulnerability (and, ultimately, to the resignation of its members):
(1) Different than in Indonesia, where the Constitutional Court enjoyed much popular support, the Constitutional Tribunal in Myanmar seems to have lacked support from the public and from members of parliament. This is not uncommon in new democracies: Commentators have noted that courts in emerging democracies “have yet to build up reservoirs of public and political support from which to draw when confronted with threats”.Footnote 131
In Myanmar, the members of parliament who were in favour of the impeachment of the Tribunal seemed to have been of the view that the Tribunal members lacked legitimacy, given that most of them had been selected by the military in February 2011, and since the legislature had not been significantly involved in the selection process.Footnote 132 The Constitutional Tribunal thus appears to have been seen by many members of parliament as lacking legitimacy and independence. Prior to its decision of March 2012, furthermore, the Tribunal had decided only three cases,Footnote 133 and had thus not yet been able to build up a significant foundation of trust, or a reputation for independence and autonomy. Nevertheless, although the President’s Office and members of parliament criticised several of the Constitutional Tribunal’s decisions, the political actors in Myanmar had accepted the first three decisions of the Constitutional Tribunal as binding, even though the Tribunal had not hesitated to strike down laws and to rule against the executive.Footnote 134
In its first case (The Chief Justice of the Union v. Ministry of Home Affairs, Case No. 01/2011), which was decided in July 2011, the Constitutional Tribunal dealt with the question of the extent of the guarantee of judicial independence in Section 11 of the 2008 Constitution. The Ministry of Home Affairs had sought to confer judicial power to 27 sub-township administrative officers, allowing them to adjudicate criminal cases. This was challenged by the Chief Justice of Myanmar’s Supreme Court, who stated that this essentially created judges within the executive branch and therefore infringed upon the independence of the judiciary. The Constitutional Tribunal ruled that the decision of the Ministry of Home Affairs to confer judicial power to sub-township administrative officers was unconstitutional and stated that Section 11(a) of the Constitution firmly guarantees judicial independence, despite the ambiguous wording of the provision, according to which judicial power should be “separated, to the extent possible”.Footnote 135
The Constitutional Tribunal’s second decision (Dr. Aye Maung, et al. v. The Republic of the Union of Myanmar, Case No. 02/2011) of 14 December 2011 concerned a petition filed by 23 members of the Amyotha Hluttaw, seeking to invalidate a part of the Law Relating to the Emoluments, Allowances and Insignia of the Region or State Level Persons.Footnote 136 Notably, they argued that Section 5 and Section 17 of the Law excluded Region or State level Ministers for National Races Affairs from certain benefits which other ministers enjoyed, and that all ministers should be treated equally. The Constitutional Tribunal found that the National Races Affairs Ministers qualified as ministers under the law. The Tribunal stated that Section 262(f) of the Constitution allows the President to appoint the persons selected by the Region or State Chief Minister “as Ministers”, and does not differentiate between them and the Ministers of the Regions or States appointed under Section 19 of the Union Government Law.Footnote 137 The Constitutional Tribunal struck down Section 5 and Section 17 of the Law Relating to the Emoluments, Allowances and Insignia of the Region or State Level Persons as unconstitutional, and stated that the Ministers of the National Races Affairs of the Regions or States shall be entitled to the same emoluments, allowances and insignia of office as other Ministers of the Region or State.Footnote 138
The Constitutional Tribunal’s third decision (President of the Union v. Dr. Aye Maung, et al.) was initiated by a petition submitted by President Thein Sein, requesting that the Tribunal overturn its decision in Dr. Aye Maung, et al. v. The Republic of the Union of Myanmar. The Tribunal however reaffirmed its earlier decision, and stated that according to Section 324 of the Constitution, the decisions of the Tribunal are “final and conclusive”.Footnote 139
A further factor contributing to the absence of a solid foundation of trust in the Constitutional Tribunal was the fact that the Tribunal had only been in existence for one year, since its establishment in February 2011. Moreover, as the Tribunal cannot be petitioned directly by citizens to resolve questions of constitutional rights, the Tribunal did not enjoy the same level of popular and media support as the Indonesian Constitutional Court.
A number of scholars argue that the higher the public support and popular legitimacy of a court, the greater the costs of politicians tend to be in electoral terms if they decide to attack the bench or to disregard the court’s decisions. If political actors have to fear “costs” in electoral terms if they do not implement the judgments of the court, the resistance against the implementation of court decisions will decline. Therefore, according to this theory, the higher the popular legitimacy of a court, the greater the likelihood is that its decisions will be implemented − even if they are unfavourable to the political actors. By contrast, if courts lack public support, they reduce the costs that political actors face if they decide to attack the bench.Footnote 140
In Myanmar, the costs in electoral terms which the members of parliament who refused to obey the Constitutional Tribunal’s decision had to fear were low (not least due to the considerable level of distrust of the population in the judiciary, given the country’s history), and this may have contributed to the attack on the members of the Tribunal.
Finally, the jurisdiction of the Constitutional Tribunal, which is circumscribed in Section 322 of the Constitution, appears to be somewhat narrower than that of the Constitutional Court of Indonesia (which, inter alia, has the power to resolve disputes concerning the results of general elections −Footnote 141 and it was precisely the cases surrounding the 2004 and 2009 general elections which significantly contributed to the strengthening of the Indonesian Constitutional Court’s authority).
(2) In all first four decisions of the Constitutional Tribunal, there was a clear losing party, whose arguments were deemed, by the Tribunal, as “incorrect”. Moreover, it seems that the arguments of the losing party were not extensively acknowledged, in the decisions.Footnote 142 In its first four decisions, the Constitutional Tribunal could perhaps have mitigated the impact of the decision on the losing party somewhat, by adopting measures such as permitting the losing party to remedy the violation of the Constitution on its own (this is a technique which notably the Indonesian Constitutional Court has used in its decisions).Footnote 143 Only in its fifth decision (Chairperson of the Mon State Hluttaw v. The Republic of the Union of Myanmar) did the Tribunal engage both the winning and the losing parties in the implementation of the decision: The case was initiated by a petition of July 2012 by the chairman of the Mon State Hluttaw, which requested the Tribunal to repeal the 1993 Municipal Law. The Mon State Hluttaw had wanted to issue a new municipal law, but believed that the Union level Municipal Law precluded this. In its decision, the Tribunal held that the Mon State Hluttaw had jurisdiction over municipal affairs, but that according to the Constitution, existing laws were allowed to remain in force until they were repealed or amended by the Pyidaungsu Hluttaw.Footnote 144 The Tribunal then advised that the Pyidaungsu Hluttaw should repeal the 1993 Municipal Law, and authorised the Mon State Hluttaw to enact its own municipal law.Footnote 145 In this manner, the Tribunal involved both parties to the dispute − the Mon State Hluttaw and the Union legislature − in the implementation of the decision.
A further feature of the Constitutional Tribunal’s decisions is the absence of dissenting opinions. The Tribunal has always issued unanimous decisions, even though this is not mandated by the Constitution.Footnote 146 The absence of dissenting opinions may also have contributed to the decisions of the Tribunal appearing as if the question in dispute was seen to have only one “correct” answer.
(3) As outlined above, according to a number of commentators, the ability of constitutional courts in emerging democracies “to issue rulings that other actors will respect and implement, even when it is not in their self-interest to do so” is limited, since these courts “have yet to establish their own independence, legitimacy, or authority”.Footnote 147 These commentators suggest that constitutional courts in new democracies exercising caution, in order to avoid interfering with the scope of jurisdiction of the legislature, may be more successful in establishing their authority.Footnote 148 Notably, these commentators believe that too much “activism” of constitutional courts in countries in transition to democracy may be harmful to the establishment of their legitimacy and authority, and their long-term development within the political landscape.Footnote 149
The experience of the Constitutional Court of Indonesia in the early years of its existence, however, seems to demonstrate that “activist” constitutional courts need not experience backlash. This may, in part, be due to the favourable institutional characteristics of the court, as described above.Footnote 150 Furthermore, in Indonesia, the process of democratisation was already at a more advanced stage in 2004, when the Constitutional Court issued its first controversial decisions, than was the case in Myanmar at the time of the “Union level organisations” decision in March 2012.Footnote 151 Notwithstanding this, some scholars have − in light of the experiences of Indonesia’s Constitutional Court − suggested that an “activist” approach of constitutional courts can in fact promote democratic consolidation.Footnote 152
With regard to the Burmese Constitutional Tribunal’s March 2012 decision, it appears that given the political circumstances at the time, the history of the Tribunal’s establishment, its institutional characteristics, as well as the perception of the members of parliament that the court lacked legitimacy, the Tribunal had no other choice than to risk annoying the parliament, if it decided the case in favour of the President. Ultimately, therefore, a clash between the Tribunal and the parliament over the decision in the case President v. Pyidaungsu Hluttaw may have been unavoidable. The main lesson for the post-impeachment Constitutional Tribunal then is that − regardless of whether it adopts an “activist” approach or not, in the first few years of its existence − it should work to strengthen its legitimacy and authority. Notably, by building up its support in the public, the Tribunal may be able to raise the costs politicians have to fear in electoral terms if they decide to attack the Tribunal or individual judges. In particular, the Constitutional Tribunal may benefit from the following measures:
Firstly, in order to strengthen its authority, it appears essential that the Court establishes the support of the public, as well as trust and confidence in its independence and impartiality. Following the example of the Constitutional Court of Indonesia, the Tribunal could inform the public about its work, by using channels such as the media and the Internet. It appears that the greater the public support for the Tribunal, the more difficult, and the less likely it would be for political actors to attack the Tribunal or its members.
Secondly, the Tribunal could take measures such as involving both parties in the implementation of its decisions, as it has done in its fifth decision, Mon State v. Myanmar. Moreover, if the Tribunal included dissenting opinions in its decisions, both parties, including the losing party, may feel that their arguments have been sufficiently acknowledged, by the Tribunal.
A number of commentators have argued that the constitutional crisis which was caused by the impeachment of the Tribunal members could set a negative precedent for the future role of the Constitutional Tribunal, and particularly for its independence.Footnote 153 However, this paper suggests that all things considered, it is possible that the damage to the Tribunal’s independence, and the precedent set by the impeachment of the Tribunal, may not be so severe, after all. Firstly, several members of parliament expressed their regret over the ultimate outcome of the events, even though they considered the resignations to be necessary in view of the refusal of the Tribunal to reverse its decision regarding the parliamentary bodies.Footnote 154 Secondly, it seems that the impeachment proceedings against the Tribunal members were seen to be a solution for a more profound problem – namely, the perceived lack of legitimacy of the members of the Constitutional Tribunal, which may suggest that the impeachment was viewed as a singular, cathartic remedy. A transparent and participatory selection and appointment process for the members of the Tribunal therefore seems crucial. Furthermore, if the new members of the Constitutional Tribunal can gradually build up the support of the public and the authority of the Tribunal vis-à-vis the other branches of government, there is hope that the impeachment proceedings may have been a singular occurrence, and that they may not have set a damaging precedent for judicial independence in Myanmar.
Political conflicts and tensions between the executive and the legislature frequently create opportunities for constitutional courts to assume the role of a neutral arbiter. By acting as an arbiter in these conflicts, courts can assist in establishing stable relationships between the executive and legislative branches of government, by defining their respective scopes of action.Footnote 155 If the Burmese Constitutional Tribunal could successfully assume this role, that is, if it were to engage in balanced and independent conflict resolution between the executive and the legislature, it could perhaps ultimately contribute to the stability of the entire political system in Myanmar.Footnote 156 However, it is crucial that both the legislative and executive branches respect the Tribunal’s decisions, and that they are committed to strengthening the values of constitutionalism and judicial independence in Myanmar.Footnote 157 If the legislature reacts as fiercely to unfavourable decisions of the Constitutional Tribunal as it has done after the Tribunal’s March 2012 decision, it will be difficult for the judges of the Tribunal to feel sufficiently secure to decide “political” cases independently.Footnote 158 A serious commitment to constitutionalism on the part of both the legislative and the executive branches therefore seems to be a key factor for ensuring judicial independence, as well as the stability of the political system, in Myanmar.Footnote 159
B. Constitutional Amendments
Although an amendment process of the 2008 Constitution is now underway,Footnote 160 it is unclear how far-reaching the amendments to the Constitution will effectively be, and whether and how the provisions regarding the Constitutional Tribunal will be amended. A number of commentators seem to fear that the constitutional amendments will remain negligible.Footnote 161 In order to strengthen the institutional independence of the Constitutional Tribunal, a number of amendments to the 2008 Constitution appear to be important:
First, it seems that the appointment procedure for the members of the Constitutional Tribunal should be reconsidered. While it is arguable that the process whereby the President and the Speakers of the Hluttaws each select three members of the Tribunal sufficiently distributes the responsibility for appointment, the procedure does seem to give the military considerable power. The President and a large number of the members of parliament are former or serving military officials, or allies of the military.Footnote 162 What seems essential, however, is a greater degree of transparency and public discussion about the candidates for the Tribunal. When the nine original members of the Tribunal were appointed, there was no public discussion about the candidates, and the members of parliament appear to have had little opportunity to review their qualifications. Indeed, most of the members of the Tribunal seem to have been selected by the military. This appears to have led to the perception on the part of the members of parliament that the judges lacked legitimacy.Footnote 163
Second, a further necessary reform seems to be the amendment of the impeachment process. Although in the present case, it had not been the military members who initiated the impeachment proceedings against the Tribunal judges, the threshold for the initiation of impeachment proceedings seems too low at 25 per cent of the votes of either Hluttaw,Footnote 164 and should be augmented. Furthermore, the grounds for impeachment enumerated in Section 334(a) of the Constitution should be clarified, as the provision contains a number of vague grounds for impeachment (such as a “breach of any of the provisions under the Constitution”, or “inefficient discharge of duties”).Footnote 165 These phrases are open to interpretation and can be misused to initiate impeachment proceedings without sufficient cause against unwelcome judges.Footnote 166
Third, in order to strengthen the independence of the Constitutional Tribunal, the term of office of the Tribunal judges should be expanded. The current term of five yearsFootnote 167 appears too short to guarantee sufficient independence of the members of the Tribunal, and may create political bias, as judges may want to remain loyal to their appointers in view of potential future appointments after their term.Footnote 168
Finally, citizens should be able to petition the Constitutional Tribunal directly. It seems that if access to the Tribunal for citizens were extended, the support of the public for the Tribunal would equally augment − rendering the Tribunal less susceptible to interference from external political forces, by raising the costs in electoral terms that politicians would have to fear if they decided to interfere with the Tribunal or disregard its decisions.Footnote 169
V. CONCLUSIONS
This paper has traced the events leading to the resignation of the members of Myanmar’s Constitutional Tribunal in September 2012, and the subsequent developments.Footnote 170 These developments were interpreted in light of Myanmar’s current political reform process.Footnote 171 The paper then examined the experience of the Indonesian Constitutional Court, which − although it adopted an “activist” approach in the early years of its existence − has not experienced the negative consequences which a number of other constitutional courts in Asia and other regions of the world have suffered. The case of Indonesia thus seems to contradict the theory that “activist” constitutional courts in emerging democracies are usually subject to retaliatory measures by the other branches of government.Footnote 172 The lessons derived from the example of the Indonesian Constitutional Court – notably, the importance of building up public support, and measures such as involving both parties in the implementation of the decision, and recording dissenting opinions – were then applied to the case of the Burmese Constitutional Tribunal.Footnote 173
It seems that especially in the first few years of its existence, the most promising approach for the Tribunal – regardless of whether it adopts an “activist” approach or not – may be to establish “reservoirs of public and political support” from which it can draw on when confronted with threats by the other branches of government.Footnote 174 In this manner, the Constitutional Tribunal may be able strengthen its authority and legitimacy. By resolving constitutional disputes between the various branches of government, the Constitutional Tribunal may then be able to assist in establishing stable relationships between the executive and the legislature, and may thereby ultimately contribute to the stability of the entire political system in Myanmar.
