2016 Global Review of Constitutional Law

advantages and disadvantages to both
pre-enactment constitutional review and
ex-post constitutional review. But ex-post
constitutional review allows the Tribunal to
scrutinize a challenged legislation with fuller
information about its effects in real social
situations. The Constitutional Tribunal of
Myanmar, therefore, exercises constitutional
review only in the context of a specific case
or controversy. In other words, review takes
place when a petitioner submits a dispute or
complaint directly to the Tribunal, alleging a
violation of the Constitution or its interpretation.
The Tribunal acts only on petitions
brought by authorized individuals or other
branches of government.
Constitutional Review in Myanmar in History
Myanmar (formerly known as Burma) regained
independence from the British Empire
on January 4, 1948. Myanmar has had
three constitutions since then, namely the
Constitution of the Union of Burma (1947);
the Constitution of the Socialist Republic
of the Union of Myanmar (1974); and the
Constitution of the Republic of the Union of
Myanmar (2008), which is currently in force.
Parliament democracy was instituted in
Myanmar after independence in accordance
with the Constitution of the Union of Burma
(1947), which was revoked in 1962 in a
military coup. In 1974, the Constitution of
the Socialist Republic of the Union of Myanmar
entered into force through a referendum.
From 1974 to 1988, the country was under
the regime of the Myanmar Socialist Program
Party as a one-party state. The Constitution
of the Socialist Republic of the Union
of Myanmar was revoked after a military
coup. 1 The idea of establishing a separate
constitutional authority did not appear in either
of the two earlier constitutions, although
the constitutional jurisdiction effectively
was vested in the Supreme Court according
to the 1947 Constitution of the Union of Burma.
Its section 151(1) read:
(1) If any time it appears to the President
that a question of law has arisen, or is
likely to arise, which is of such a nature
and of such public importance that
it is upon it, he may refer the questions
to that Court for consideration, and the
Court may, after such hearing as it thinks
fit, report to the President thereon.
(2) No reports shall be made under this section
save in accordance with an opinion
delivered in open Court with the concurrence
of a majority of the judges present
at the hearing of the case, but nothing in
this sub-section shall be deemed to prevent
a judge who does not concur from
delivering a dissenting opinion.
Subject to this proviso, the President could
seek a legal opinion of the Supreme Court
on any constitutional problem concerning
the Constitution by a referral. Under the
1947 Constitution, the Supreme Court was
granted additional powers to implement the
Constitution if was deemed necessary by the
Parliament (Section 153):
The Parliament may make provision by
an Act for conferring upon the Supreme
Court such supplemental powers not
inconsistent with any of the provisions
of this Constitution as may appear to be
necessary or desirable for the purpose of
enabling the Court more effectively to
exercise the jurisdiction conferred upon
it or under this Constitution.
Section 4 of the Union Judiciary Act gave
expansive powers to the Supreme Court to
supervise “over all courts in the Union.” The
Supreme Court could on its own motion or if
a case was submitted to it, revise and correct
any court decision within the Union contrary
to the extant legislation. Moreover, section
25 of the Constitution gave citizens access to
the Supreme Court to seek the protection of
their rights by submitting writs. The Supreme
Court was, therefore, empowered to check the
constitutionality of the activities of the judiciary
and executive against the Constitution:
(1) The right to move the Supreme Court
by appropriate proceeding for the enforcement
of any of the rights conferred
by this Chapter is hereby guaranteed.
(2) Without prejudice to the powers that
may be vested in this behalf in other
Courts, the Supreme Court shall have
the power to issue directions in the nature
of habeas corpus, mandamus, prohibition,
quo warranto and certiorari
appropriate to the rights guaranteed in
this Chapter.
(3) The right to enforce these remedies
shall not be suspended unless, in times
of war, invasion, rebellion, insurrection
or grave emergency, the public safety
may so require.
However, with the new Revolutionary Government,
the Pyithu Hluttaw (People’s Parliament)
became authorized to review and
decide on constitutional issues. Section 200
and Section 201 of the 1974 Socialist Constitution
read as follows:
Section 200
(a) In interpreting the expressions contained
in this Constitution, reference shall be
made to the interpretation Law promulgated
by the Revolutionary Council of
the Union of Burma.
(b) Amendments to and further interpretation
of expressions contained in the law
mentioned in Clause (a) shall only be
made by the Pyithu Hluttaw. (Peoples’
Parliament)
(c) The validity of the acts of the Council of
State, or of the Central or Local Organs
of State Power under this Constitution
shall only be determined by the Pyithu
Hluttaw. (Peoples’ Parliament)
Section 201
The Pyithu Hluttaw (Peoples’ Parliament)
may publish interpretation of this
Constitution from time to time as may
be necessary.
In 1993, the military government organized
a National Convention with the aim of drafting
a democratic constitution. It was ceased
for nearly three years but resumed in 1996.
The Convention came to a successful end in
1
The military-based State Law and Order Restoration Council (SLORC) suspended the 1974 Constitution upon taking power in 1988.
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