Constitutional Tribunal of the Union of
Myanmar
• Mg Naing Aung Hlaing 4L-11
• Mg Min Khant Kyaw 4L-12
• Ma A Mon Khin 4L-14
• Ma Mya Yan Chel 4L-15
• Ma Chaw Su Han 4L-54
• Ma Hnin Ei Shwe Yi 4L-56
The Definition of Constitutional Tribunal
Specialized courts of constitutional review, usually called the
Constitutional Court or Constitutional Tribunal.
is a constitutionally-established, independent organ of the State
whose central purpose is to defend the normative superiority of the
constitutional law within the juridical order. (Alec Stone Sweet)
Constitutional review in which the judiciary controls the
constitutionality of acts done by the executive and the legislature has
become a common feature.
In this sense, the terms “judicial review” and “constitutional review”
are often used interchangeably.
“Constitutional Review” and “Judicial Review”
A US-style judicial review refers to when the review of the
constitutionality of statutory legislation is exercised at every level of
the ordinary judiciary with the Supreme Court deciding in last instance.
Constitutional systems in which the function of judicial review is
concentrated in a specialized constitutional court outside the ordinary
judiciary are often classified as falling within the Austrian/European or
Kelsenian model of judicial review.
Judicial review - review of acts issued by the legislature or an
executive body by a judicial authority for their consistency with higher
law, namely the constitution (in the case of primary legislation) and
statutory legislation ( in the case of executive acts, including secondary
legislation).
Background History of the Constitutions in the
Republic of the Union of Myanmar
The Constitution of the Union of Burma 1947(hereinafter ‘the 1947 Constitution’)
The Supreme Court exercise the highest judicial power, and its decisions in all cases
were final (Section-136(1) & Section-138)
No law shall be enacted excepting from the appellate jurisdiction of the Supreme Court
cases ….. (Section-137)
Section-25(1) of ‘ Rights to Constitutional Remedies ’ chapter of the Constitution
The Constitution of the Socialist Republic of the Union of Burma 1974 (hereinafter
‘the 1974 Constitution’)
The Pyithu Hluttaw
- a single chamber legislature, was the highest organ of state power, and it exercised the
sovereign powers of the State on behalf of the people (Article-41)
- the power to interpret the Constitution and to decide on the validity of measures of the
organs of State power (Article-200)
- may publish interpretations of this Constitution from time to time as may be necessary
(Article-201)
Current Law and Practice of the Constitutional
Tribunal of the Union, Myanmar
On 18 September 1988, the State Law and Order Restoration Council
(SLORC) which was later renamed the State Peace and Development
Council (SPDC) took over the power of the State.
From that day, the 1974 Constitution came to an end.
The third and current post-independence Constitution (the 2008
Constitution of the Republic of the Union of Myanmar) (hereinafter ‘the
2008 Constitution’) was adopted on 31 January 2011.
The principle of ‘check and balance’ is conducted to uphold the three
branches of sovereign power, namely, legislative power, executive power
and judicial power.
Each branch has powers to check and balance the activities of the other two
branches in order to maintain the constitution.
The 2008 Constitution established the Constitutional Tribunal of the Union
for the purpose of constitutional review.
Continued…
The establishment of a Constitutional Tribunal (Section 46, Chapter I ‘Basic
Principles of the Union’ of the 2008 Constitution)
the State Peace and Development Council enacted The Constitutional
Tribunal of the Union Law on 28 October 2010 to prescribe the formation of
the Tribunal and its duties and functions by using the power assigned by the
2008 Constitution in sections 336 and 443.
- The Constitutional Tribunal of the Union Law (The State Peace and
Development Council Law No. 21 / 2010)
- The Law Amending the Constitutional Tribunal of the Union Law (The
Pyidaungsu Hluttaw Law No. 4, 2013)
- The Second Amendment of the Constitutional Tribunal of the Union Law
(The Pyidaungsu Hluttaw Law No. 46, 2014)
Formation & Term of the members of
Constitutional Tribunal of the Union of
Myanmar
• Formation
• Three chosen by the President
• Three chosen by the Speaker of the Pyithu Hluttaw
• Three chosen by the Speaker of the Amyotha Hlutaw
• One member as chairman among the nine members
• Term
• Five years as same as the Pyidaungsu Hluttaw
• Continue the ongoing term until a new Constitutional Tribunal is formed
• Formation and communication of the Constitutional Tribunal; Duties,
powers and rights of the Chairperson and the members
Qualification and appointment of the
members of the Constitutional Tribunal of
the Union of Myanmar
• Qualification
• Respective qualifications of the nominated members (Sec 333) [The
2008 Constitution], [Sec 4(a)] [The Constitutional Tribunal of the Union
Law, 2010]
• Appointment
• The President appoints the Chairperson and the members approved by
the Pyidaungsu Hluttaw
• The Pyidaungsu Hluttaw’s refusal upon disqualification
• The President submitting the new candidate list
• Resignation from former duty or position of the day of appointment
The Functions and Duties of the Constitutional
Tribunal of the Union
Section 322, 323 & 324 of the 2008 Constitution
Section 12 of The Constitutional Tribunal of the Union Law (2010)
Section 2(b) of The Law Amending the Constitutional Tribunal of the Union Law
(2013)
In accordance with Section 322 of the 2008 Constitution, the Constitutional
Tribunal of the Union has seven number of functions and duties to do.
Section 323 & Section 324 of the 2008 Constitution – Effect of Resolution of the
Constitutional Tribunal of the Union
According to Section 12 of The Constitutional Tribunal of the Union Law (2010),
the Constitutional Tribunal of the Union has eight numbers of functions and duties
to do.
Section 2(b) of The Law Amending the Constitutional Tribunal of the Union Law
(2013) added one sub-section to Section 12 of The Constitutional Tribunal of the
Submission (locus standi) to obtain the interpretation,
resolution and opinion of the Constitutional Tribunal of
the Union
• Direct submission (Sec 325) [The 2008 Constitution], (Sec 13)
[The Constitutional Tribunal of the Union Law, 2010]
• Submission with prescribed procedures (Sec 326) [The 2008
Constitution], (Sec 14) [The Constitutional Tribunal of the Union
Law, 2010]
• Making applications for submission (Sec 15) [The Constitutional
Tribunal of the Union Law, 2010]
• Firm evidences and documents (Sec 16) [The Constitutional
Tribunal of the Union Law, 2010]
Reviewing
• The Chairperson shall form the review body with candidates ec
(Sec 18) [The Constitutional Tribunal of the Union Law, 2010]
• The review party shall;
1. Scrutinize the facts, valid documents and papers
2. Instruct or notify the parties or organizations to present
3. Submit to the tribunal for hearing (Sec 19) [The Constitutional
Tribunal of the Union Law, 2010]
Hearing
• All members, including the Chairperson, must attend the
hearing. Proceedings shall not be taken by less than six members
(Sec 20) [The Constitutional Tribunal of the Union Law, 2010]
• While sitting for hearing;
(a) The date fixed for hearing shall be announced in advance
(b) The Chairperson or a member shall read the brief of the hearing
(c) The right to be heard
(d) Sittings of the Tribunal shall be public (with exception)
(e) May invite technical expert for his opinion
(f) Hearing shall be done on the immediate basis
(g) Shall record the daily activities of the case and the record shall be
signed by the Chairperson or a member (Sec 21) [The Constitutional
Tribunal of the Union Law, 2010]
Impeachment of the chairperson and members of
the Constitutional Tribunal of the Union
• Reasons to be impeached [Sec 334(a)] [The 2008 Constitution]
• How impeachment shall be done [Sec 334(b)] [The 2008
Constitution], (Sec 29) [The Constitutional Tribunal of the Union Law,
2010]
Passing the definition, conception and decision
• Section 22 of The Constitutional Tribunal of the Union Law, 2010
stated that, “On passing the definition, conception and decision,
the Constitutional Tribunal shall;
1. Arrange to pass the definition, conception and decision as soon as
possible
2. Announce the date fixed for the definition, conception and decision in
advance
3. Pass the definition and conception with the consent of more than half
of members
4. Pass the final decision with the consent of more than half of members
including the Chairperson
Effects of the definition, conception
and decision
• The definition, conception and decision of the Constitutional
Tribunal;
• cannot be varied from case to case. (Sec 23) [The Constitutional
Tribunal of the Union Law, 2010]
• shall be final and conclusive. (Sec 24) [The Constitutional
Tribunal of the Union Law, 2010]
Cases
• Dr. Aye Maung, et al. v. The Republic of the Union of Myanmar
(2/2011)
• President of the Union v. Dr. Aye Maung, et al. (1/2012)
Conclusion
• The Constitutional Tribunal was established for the purpose of
constitutional review.
• Established according to Section 46 of the 2008 Constitution, the
Constitutional Tribunal of the Union Law was established in 2010.
• Nine members must be qualified. Last for a term of five years.
• Can submit for the interpretation, resolution and opinion; and impeach
the members
• Review party must be formed before hearing.
• The dates of hearing and the final decision must be fixed.
• The definition, conception and decision of the Constitutional is final and
conclusive.
