Constitutional Tribunal of the Union of Myanmar

Historical background of the Constitutional Tribunal

To determine the fundamental principles to be included in the Constitution, the plenary session of the National Convention held on 16 September 1993 adopted 104 basic principles. At that session, all delegates from the eight groups of the National Convention unanimously agreed on the basic principle concerning the establishment of a Constitutional Tribunal. At the plenary session held on 2 August 2007, detailed principles were adopted concerning the Tribunal's establishment, members' qualifications, term of office, impeachment of members, functions, and the requirement that requests for its interpretation, decisions or opinions be submitted only through the prescribed procedures.

The Commission for Drafting the Constitution of the Republic of the Union of Myanmar (2008) incorporated the basic principle on establishing the Constitutional Tribunal, adopted at the National Convention's plenary session on 16 September 1993, as Article 46 in Chapter I, Basic Principles of the Union. It also incorporated the detailed principles adopted on 2 August 2007 concerning the Tribunal's establishment and functions, the effect of its decisions, submissions seeking interpretations, decisions or opinions, impeachment of its Chairperson and members, and its term of office, into Articles 320–336 of Chapter VI, Judiciary.

These principles were intended to establish a Constitutional Tribunal under the new Constitution of the Republic of the Union of Myanmar and to enable it to apply the principle of the supremacy of the Constitution used in countries with a civil law system, thereby ensuring the endurance of the Constitution to be approved and enacted through a nationwide referendum. The principle enables the legislature, executive government, High Courts and Supreme Court, to which the Constitution allocates the three branches of sovereign power—legislative, executive and judicial—to discharge their duties in accordance with the Constitution. In Myanmar, a constitutional system establishing and operating a Constitutional Tribunal was introduced only with the emergence of the 2008 Constitution.

In Myanmar's constitutional history, Article 151 of the 1947 Constitution provided, in substance, that when a question of law of public importance arose or was likely to arise, the President could refer it to the Supreme Court, which could hear the matter and report to the President. Constitutional disputes and questions of legal interpretation were therefore decided by the Supreme Court at that time. Under Articles 200 and 201 of the 1974 Constitution, the Pyithu Hluttaw alone was to decide whether actions of the State Council and central or local organs of power complied with the Constitution when such a determination was required, and to interpret the Constitution when a question of interpretation arose.

Under the Constitution of the Republic of the Union of Myanmar (2008), the Constitutional Tribunal was established on 31 March 2011 to perform the duties set out in Articles 322–323, including interpreting the Constitution, scrutinizing the constitutionality of laws enacted by legislatures and actions of the executive government, and deciding constitutional disputes, together with duties assigned by laws enacted by the Pyidaungsu Hluttaw.

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