Behind the Firing of Myanmar's High Court

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 25 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 is senior counsel to the Burma Lawyers’ Council)

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