Monday, July 24, 2017

Why I opposed tribunal law changes

Speaker Thura U Shwe Mann presides over the fourth session of the Pyithu Hluttaw in July 2012. (AFP)Speaker Thura U Shwe Mann presides over the fourth session of the Pyithu Hluttaw in July 2012. (AFP)

When a bill to amend the Constitutional Tribunal Law was put to a vote in the Pyithu Hlutatw on Thursday, November 15, two civilian parliamentarians joined the Tatmadaw MPs in opposing the changes. Both are from the Shan Nationalities Democratic Party; one is Dr Sai Kyaw Ohn of Namkham, and the other is me: U Ye Tun of Hsipaw.

The bill was submitted earlier that day to the Amyotha Hluttaw, sponsored by Amyotha Hluttaw Deputy Speaker U Mya Nyein. However, the Amyotha Hluttaw just forwarded the bill to the Pyithu Hluttaw.

I would like to enlighten readers as to why I voted against the bill.

The proposed amendment was published in state newspapers on November 14 to allow people to read it and make suggestions. It is pleasing that this step was taken, as it allows ordinary people to make recommendations. However, representatives were not given any chance to discuss or propose amendments to the legislation when it was in the Pyithu Hluttaw.

Specifically I am not pleased with section 12(i) of the bill, which specifies that the tribunal should report to the president, Pyithu Hluttaw speaker and Amyotha Hluttaw speaker about their activities because they select the tribunal’s members. This means that after a person joins the tribunal, it will not be enough for them to dutifully fulfil their responsibilities. They will also have to report what they have done to the president and hluttaw speakers.

Why should we be worried about this? Because it is important that tribunal members do not feel the need to be loyal to those who appointed them. Instead, the tribunal should carry out its duties in an unbiased manner to encourage true democracy. This also potentially leaves the hluttaw looking hypocritical, because only by encouraging the tribunal to be an independent judicial body can the parliament fulfil it stated aim of having an unbiased judicial system.

More appropriate wording would be: “In respect of the performance of duties, the tribunal shall send a formal message to the Union Government, the Pyidaungsu Hluttaw, state and region governments and state and region hluttaws.”

If I had been allowed to discuss the bill, I would have proposed this change.

Paragraph 3 is also troubling. It says section 23 shall be made section 24, and section 24 will become 23. The new section 24 will read: “The rulings of the tribunal made according to section 23 shall be final.”

This leaves open the possibility that the ruling of the tribunal is final only for the cases that belong to section 23, but not for other cases that the tribunal is asked to adjudicate.

The original wording of section 24, which will become the wording of section 23, is: “The ruling of the tribunal in respect of the matter submitted by a law court according to section 12(g) shall concern all cases.”

We have to peruse section 12(g) to find the meaning: “Judgement about the dispute submitted by a law court according to section 323 of the constitution and section 17 of this law regarding a case being under trial.”

So I had to get my copy of the constitution out. Section 323: In hearing a case by a court, if there arises a dispute whether the provisions contained in any law contradict or conform to the constitution, and if no resolution has been made by the Constitutional Tribunal of the union on the said dispute, the said court shall stay the trial and submit its opinion to the Constitutional Tribunal of the union in accord with the prescribed procedures and shall obtain a resolution. In respect of the said dispute, the resolution of the Constitutional Tribunal of the union shall be applied to all cases.”

Moreover, section 17 of the Constitutional Tribunal Law states: “If the Constitutional Tribunal has not made a ruling on a dispute over whether a provision of the law is contrary to the constitution or does not agree to the constitution when a law court is hearing a case, the law court shall halt the trial and promptly submit its opinion to the chief justice. The chief justice shall with his opinion submit this submission to the tribunal.”

The implication of this is that when undertaking seven of the eight duties outlined in section 12 of the Constitutional Tribunal Law – including the definition of the constitution, scrutiny of whether the laws promulgated by the hluttaws agree to the constitution and scrutiny of whether the decisions made by the executive bodies of the union, regions and states and self-administered areas agree to the constitution – the tribunal may not have the final, decisive authority to decide on a case. Only when the case is submitted by a law court, as per section 12(g) of the tribunal law, can we be certain the decision is final.

If this is allowed to happen, our country will face many constitutional crises. Think of it like a football match where the referee does not always have the final say on all the decisions he is supposed to make.

The law should specify which body has the final decisive authority – but it doesn’t, so it does not conform to section 324 of the constitution, which says that the decision of the tribunal is final.

Because of this, the bill amending the Constitutional Tribunal Law submitted last month should not have been put to the hluttaw for a vote, and this is why I voted against it.

Ye Tun is from the Shan Nationalities Democratic Party and is the Pyithu Hluttaw representative for Hsipaw in northern Shan State.