Asian Journal of Comparative Law

Not long after the establishment of its Constitutional Tribunal in February 2011, Myanmar faced a constitutional crisis, when on 6 September 2012, all nine judges of the Tribunal resigned, after the Burmese parliament ( Hluttaw ) had initiated impeachment proceedings against the Tribunal members. While the international media overwhelmingly portrayed the incident as a sign of the growing strength and independence of the Hluttaw , other commentators warned that the impeachment of the Tribunal could constitute a severe threat to judicial independence and constitutionalism in Myanmar. Meanwhile, nine new members of the Constitutional Tribunal have been appointed in February 2013. However, several questions surrounding the role of the Tribunal in Myanmar’s reform process remain. In particular, it seems that as long as the 2008 Constitution is not amended, many of the controversies around the Tribunal will remain unresolved. Furthermore, it is not entirely clear how the independence and authority of the Constitutional Tribunal should be further strengthened. This paper examines the role of Myanmar’s Constitutional Tribunal, against the background of the country’s history and current political situation. Notably, the paper will address the question of how the post-impeachment Tribunal may be able to fortify its position vis-à-vis the various political actors in the country. A number of commentators have suggested that constitutional courts in emerging democracies are especially susceptible to attacks from the other branches of government, particularly when they adopt an “activist” approach in the early years of their existence. However, the experience of the Indonesian Constitutional Court ( Mahkamah Konstitusi ) seems to contradict this theory, given that the court – despite its “activist” approach in the first few years of its existence – has not suffered the negative consequences which a number of other constitutional courts in emerging democracies have faced. This paper will draw on the experiences of the Indonesian Constitutional Court, which has been praised as a model of success among Asian constitutional courts, and will develop lessons which can be applied to Myanmar’s Constitutional Tribunal. Apart from the comparative success of Indonesia’s Constitutional Court, Indonesia provides a useful point of comparison for Myanmar due to a number of further reasons: The two countries share several political and historical characteristics and are both at different stages in the process of transition to democracy, after decades of military rule. Indeed, over the past few years, political actors in Myanmar have repeatedly looked towards Indonesia as a model for reform. The paper will argue that in the first few years of its existence, Myanmar’s Constitutional Tribunal may be able to strengthen its legitimacy and authority by building up public support. Notably, this may augment the costs in electoral terms which political actors have to fear if they decide to attack the Tribunal or its members. Moreover, it appears that in order to secure the independence of the Constitutional Tribunal, certain provisions of the 2008 Constitution will need to be amended, especially those regarding the appointment process of the Tribunal members, their term length, and the impeachment process.