Tuesday, July 25, 2017

After impeachment, a balancing act

Constitutional Tribunal chairman U Thein Soe at a press conference shortly before the tribunal’s members were impeached. Win Ko Ko Latt / The Myanmar TimesConstitutional Tribunal chairman U Thein Soe at a press conference shortly before the tribunal’s members were impeached. Win Ko Ko Latt / The Myanmar Times

With the resignation of the nine Constitutional Tribunal members on September 6, Myanmar has survived its first constitutional crisis. The military did not intervene, even though military MPs had voted against impeachment. This is no mean feat for Myanmar’s relatively young constitution. Many constitutional systems die young because the different branches of government cannot resolve their disagreements amicably. Nevertheless, as in any democracy, tensions between legislators and judges will never entirely go away. As such, now is an excellent time for a discussion about the impeachment process. While the political science literature does not provide a one-size-fits-all model, Myanmar can draw important lessons from other countries.

The Constitutional Tribunal could have an important role to play in Myanmar’s peacemaking and democratisation process. Last year, at the request of the Supreme Court, the tribunal prohibited the Ministry of Home Affairs from allowing sub-township administrative officers to decide judicial cases. In December, the tribunal struck down portions of a law that would have effectively reduced the emoluments of state and region “national races affairs” ministers. Earlier this year, the tribunal received a petition from the speaker of the Mon State Hluttaw asking whether state legislation complied with the constitution. Moreover, under section 323, it appears the tribunal can hear some cases referred by ordinary courts, including interpretations of fundamental rights.

Because the Constitutional Tribunal has wide discretion in interpreting the constitution, it is important to have mechanisms, including impeachment, to ensure it does not abuse its authority or engage in corruption. According to the Comparative Constitutions Project database, created by professors Zachary Elkins, Tom Ginsburg, and James Melton, about 70 percent of all constitutions in the world explicitly contain a mechanism to remove wayward judges. In a 2008 article in the European Journal of Law and Economics, Professor Stefan Voigt provides evidence that on average countries with judicial accountability mechanisms encourage economic growth by reducing judicial corruption.

However, the Constitutional Tribunal will not be able to carry out its functions if accountability mechanisms stifle judicial independence. Two requirements for judicial independence are judges who are insulated from the political branches of government and whose decisions are respected. Section 11 of Myanmar’s 2008 constitution does state that the judiciary – including the Constitutional Tribunal – should be “separated, to the extent possible” from the executive and legislature. There is significant evidence that judicial independence can strengthen new democracies by guaranteeing that the government will follow the constitution. Businesses become more willing to invest and ethnic minorities less likely to rebel when they believe the constitution constrains government power. For this to happen, Myanmar’s government and its citizens must have confidence that the appointment and impeachment process will not undermine the tribunal members’ impartiality.

During the next few weeks, President U Thein Sein, Pyithu Hluttaw Speaker Thura U Shwe Mann, and Amyotha Hluttaw Speaker U Khin Aung Myint must each select three new tribunal members, after which the Pydaungsu Hluttaw must approve the nominees. Before doing so, they should take the opportunity to reconsider the process for screening and appointing tribunal members. When the original members were appointed in March 2011, there was no public discussion about the candidates or their credentials. However, Myanmar has changed dramatically since then. Both the legislature and executive have shown greater willingness to involve the public when making crucial decisions and have begun moving towards greater transparency. Moreover, under section 333(g) of the constitution, the Pydaungsu Hluttaw has a duty to evaluate the qualifications and “political, administrative, economic, and security outlook” of nominees.

In many countries, legislative committees hold public hearings in which MPs interview judicial candidates in order to learn about their qualifications. For example, in Indonesia, the People’s Consultative Assembly holds public “fit-and-proper tests” for Constitutional Court and the Supreme Court nominees. Legislators often ask nominees how they envision the court’s role and whether they would give deference to the legislature. The legislature also invites non-government organisations to submit their opinions on the nominees. In a few cases, they successfully warned the legislature against appointing judges who had engaged in corruption. The MPs still make the final decision in secret, but do so with the benefit of hearing other opinions.

During public hearings, legislators must be careful not to undermine the appearance of judicial impartiality by pressuring judges to reveal how they would decide specific cases. In US judicial confirmation hearings, senators sometimes attack judicial nominees as a way of showing their support for certain political causes. In return, nominees refuse to answer any questions, making the entire proceeding unproductive. Fortunately, section 328 of Myanmar’s constitution already encourages MPs to focus on qualifications when evaluating judicial nominees. As such, there is reason to hope that the Pyidaungsu Hluttaw could hold hearings in a manner that encourages dialogue, not confrontation, between the legislature and judiciary.

Next, the government could clarify the grounds for impeachment. Under section 334(a) of the 2008 constitution, either the president or hluttaw can initiate impeachment proceedings against Constitutional Tribunal members for: 1) high treason; 2) breach of the constitution; 3) misconduct; 4) failure to meet the qualifications; or 5) inefficient discharge of duty. The phrase “breach of the constitution”, which many MPs cited during the recent impeachment, is particularly vague. Does this mean the hluttaw can impeach tribunal members simply because they disagree with a particular decision? In practice, constitutional provisions are often frustratingly vague and thoughtful lawyers disagree about their meaning. The primary purpose of constitutional review is to provide a mechanism for interpreting those ambiguous provisions. As such, according to the Comparative Constitutions Project, only seven other constitutions in the world list breach of the constitution as an acceptable basis for impeaching judges.

In clarifying section 334, the hluttaw and president should define a standard that provides tribunal members with clear guidance. One option would be to adopt a criminal law standard, clarifying that tribunal members will only be impeached when they “knowingly and intentionally” issue incorrect constitutional decisions. Another option would be to describe particular types of behaviour that constitute a violation. Fortunately, clarifying section 334 would not necessarily require a constitutional amendment. Many other countries rely upon legislation, jurisprudence, or norms for guidance on the impeachment process. As former US Supreme Court Chief Justice William Rehnquist recounts in his book Grand Inquests, the acquittal of Justice Samuel Chase in 1805 set the precedent that Congress should not impeach justices merely because they disagree with the political impact of their decisions. Since then, US judges have only been impeached for legal or ethical misconduct.

Finally, most countries treat impeachment proceedings like formal legal trials. In December 2011, the Philippines House of Representatives impeached Supreme Court Chief Justice Renato Corona. The bill of impeachment against Corona listed specific complaints, including corruption and inappropriate deference to former President Arroyo. As Philippine journalist Marites Vitug recounts in her new book Hour Before Dawn, the Senate essentially transformed itself into a trial court. Corona had his own defence lawyers and presented evidence on his behalf. Senate President Juan Ponce Enrile warned both the prosecution and defence against unethical conduct. Enrile also issued formal opinions explaining his decisions to admit or exclude evidence. Ultimately, the Philippine Senate did convict Corona. While the process took several months, it allowed the prosecution to present clear evidence of corruption and convince the vast majority of Filipinos that Corona deserved impeachment.

I am not an astrologer, so I cannot predict when Myanmar’s next constitutional crisis will arise. I can predict that the Pyidaungsu Hluttaw and Constitutional Tribunal will not always agree on how to interpret the 2008 constitution, especially if the tribunal hears more disputes between the Union Government and state or region governments. With so few cases pending on the tribunal’s docket, the president, hluttaw speakers, and hluttaw representatives have sufficient time to reconsider the process of appointing members to the tribunal. In addition, they should clarify the grounds for impeachment such that tribunal members have clear guidance. If the hluttaw ever votes to impeach the new members, MPs should be prepared to conduct full trial-like proceedings. Hopefully, by investing the time and effort now in reforms, the next time the hluttaw and Constitutional Tribunal disagree Myanmar can avoid political drama and focus on strengthening the rule of law.

(Dominic J Nardi, Jr is a PhD student at the University of Michigan Department of Political Science. He received a JD from Georgetown University and an MA in Southeast Asian Studies from the Johns Hopkins School of Advanced International Studies. His research focuses on judicial politics in Southeast Asia.)