Constitutional row among government branches masks a more important
legal battle
Tucked away, almost invisible in
the judicial decision that sparked the impeachment by Myanmar’s parliament and
the resignation of all nine judges on the country’s Constitutional Tribunal lie
the potential seeds of a momentous shift in power.
The shift is not among the
government’s three branches but between the current government and the remnants
of the country’s former military regime, the State Peace and Development
Council, known by its initials the SPDC.
The ouster was announced on Sept.
6 by the office of President Thein Sein.
The controversial judicial
decision arguably could play a major role in weakening the laws pushed through
by the SPDC to protect itself as the junta era neared its end in what most of
the world thought would lead to a sham democracy. The decision in fact appears
to pave the way for a liberal interpretation of the constitution’s human rights
protections and may be another demonstration of Thein Sein’s liberalizing
influence.
When it drafted the current
constitution, the junta implemented various safeguards, like hands reaching
from the grave, to ensure control over the nation’s future government and laws.
The constitution, for instance, reserves 15 percent of parliamentary seats for
the military, guaranteeing the military veto power over constitutional amendments
and giving it big say in legislation. The constitution also provides former
SPDC members immunity for acts done in their official capacity. The SPDC was
similarly careful to provide, in two sections of the constitution, that the
laws it issued remain valid and binding even after a change in government.
These two sections were at the
heart of the parliament’s case before the Constitutional Tribunal. In an ironic
twist, the parliament argued that the judges must comply with the two sections
and uphold the SPDC’s laws. This uncomfortable position, at least for Aung San
Suu Kyi and her colleagues from the National League for Democracy, was
necessary because the SPDC laws unequivocally supported the parliament’s
position that parliamentary commissions are “Union level organizations.”
In fact, those laws provided the
only clear and unambiguous definition of “Union level organizations,” and thus
were powerful ammunition in the parliament’s legal case.
Yet in its decision, the court
ignored the parliament’s argument, focusing instead on the constitution’s
structure, language, and legislative history. The SPDC laws, it wrote, were
irrelevant to the interpretation of the constitution: “[This] is not an
application to provide the interpretation of the expression “Union Level
Organization” contained in the laws relating to the each Hluttaw enacted by the
State Peace and Development Council in accord with Section 443 of the
Constitution … Therefore, it is not necessary to review the provisions
contained in Section 443 and Section 445 of the Constitution.”
The tribunal’s disregard for the
SPDC laws, and hence for Sections 443 and 445, clearly upset the parliament and
was reportedly a major factor in the grounds for impeachment.
But while the parliament lost the
legal case, it may have won a bigger battle. Arguably, laws passed during the
SPDC era now cannot be used to interpret the constitution because under
Myanmar’s common law system, the tribunal’s decision to disregard the laws is
binding, or at the very least a persuasive precedent for future cases. In other
words, courts deciding future disputes should follow the tribunal’s lead in
disregarding SPDC laws while interpreting the constitution.
This holding has significant
legal consequences for the nation’s human rights protections. During its rule,
the SPDC issued a number of laws that it used to suppress speech, association,
movement, and other human rights. Sections 443 and 445 were of major concern
because they had the potential to empower a court to consult SPDC laws to
interpret the constitution’s human rights provisions.
Now, considering the tribunal’s
decision, there is a strong argument that those laws should be completely
ignored when defining constitutional rights, even when the SPDC laws are the
best source of clarification for an ambiguity in the constitution.
The ultimate fate of the tribunal
and its ill-received decision remain unclear. Yet even though the parliament
might be unable to overrule the court, the judgment may well have given Suu Kyi
and the parliament a win in the larger battle against the legacy of the
nation’s former military rulers.
Stewart Manley
(Stewart Manley is senior counsel to the Burma Lawyers’ Council)
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