The principle of rule of law and independence of the judiciary in Myanmar
DOI:
https://doi.org/10.15503/jecs2021.1.530.539Keywords:
Key words: Constitutional Tribunal of Myanmar, principle of rule of law, independence of the judiciary, composition of the constitutional tribunal, function of the constitutional tribunal.Abstract
Aim. This research aims to discuss the importance of the principle of rule of law in protecting the judiciary’s role, especially the independence of constitutional adjudication and its functions.
Methods. The study applies the case study approach and comparative method to investigate the constitutional court systems of some countries of the Association of Southeast Asian Nations (ASEAN) and their independence.
Results and conclusion. The resultsreveal a lack of the judiciary’s independence, even among the top branches that are trying to implement democracy in Myanmar. The judiciary is under the control of the executive and legislature branches as their members belong to political parties. Moreover, a constitutional court is established with the members who are elected and nominated by the legislature and executive. Sometimes there can be conflicts when constitutional law does not mention the division of powers among governmental organisations like Myanmar, which results from the impractical functions of the Constitutional Tribunal of Myanmar.
Cognitive value. This research highlights possible ways to solve the constitutional issues among the three great branches. This initiative is in the interest of Myanmar citizens and citizens of all nations as these are international issues.
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References
Aung, M. K. S. (2020). Writ Jurisdiction in Myanmar, Dagon University Research Journal, 11, 98-105. Retrieved June 11, 2020, from https://www.dagonuniversity.edu.mm/wp-content/uploads/2020/05/13.-Mi-Khin-Saw-Aung-1.pdf.
Aung, N. N. (2013). Comparison on Formation of Courts between Myanmar and IndiaConstitution. Taunggyi University Research Journal,4(1), 54-62.
Aung, N. N., & Lwin, S. S. (2015). Comparison on Formation of Courts among Some ASEAN Countries [Unpublished research project]. Department of Law, Taunggyi University, Myanmar.
Brown v. Bd. of Educ. 347 U.S. 483, 74 S.Ct. 686(1954).
Bur. Const. of 1947.
Bur. Const. of 1974.
Chemerinsky, E. (2015). Constitutional Law: Principle and Policy, New York: Wolters Kluwer.
Const. Tri. Law of 2010.
Const. Tri. Amend. Law of 2013.
Council of Europe (2014). World Conference onConstitutional Justice. Retrieved March 14, 2021, fromhttps://www.venice.coe.int/WebForms/pages/?p=02_WCCJ.
Daw, H. M. N. (2016). Developments in Myanmar Constitutional Law: The Year 2016 in Review, International Journal of Constitutional Law, I-CONnect Blog. Retrieved May 7, 2020, from http://www.iconnectblog.com/2017/12/developments-in-myanmar-constitutional-law-the-year-2016-in-review/.
Ducat, C. R. (2009). Constitutional Interpretation,Canada: Wadsworth, Cengage Learning.
Gov. of Bur. Act of 1935.
Htay, C. M. (2021, Jan 14). Challenges of the Independence of the Constitutional Tribunal in Myanmar [Conference Session], Judicial Independence in ASEAN: A Comparative Perspective, Nagoya University (CALE). Retrieved March 24, 2021, from https:/cale.law.nagoya-u.ac.jp/index-eng.
Indo. Const. of 1945.
Int. of Exp. Law of 1973.
International Commission of Jurists. (2014). Myanmar Appointment and Promotionof Judges; Security of Tenure. Retrieved June 2, 2020, from www.icj.org.
Lowndes, J. (2016). Judicial Independence and Judicial Accountability at the Coalface of the Australian Judiciary. Retrieved March 13,2021, from https://localcourt.nt.gov.au/sites/default/files/judicial_independence_and_judicial_accountability_at_the_coalface_of_the_australian_judiciary_.pdf.
Marbury v. Madison, 5 U.S.(1Cranch) 137(1803).
Montesquieu, Baron Charles de (2001). The Spirit of the Laws. (T. Nugent. Trans). Ontario: Batocle Books. (Original work published 1748).
Myan. Const. of 2008.
Plessy v. Ferguson, 263 US 537 (1896).163 U.S 537, 16 S. Ct. 1138 (1896)
Pyithu Hluttaw v. the Members of the Constitutional Court of the Union, (2012). Reference 1: 1-23. Retrieved March 15, 2021, from https://www.constitutionaltribunal.gov.mm/my/publication/32
Thai. Const. of 2007.
Uni. Judi. Law of 2010.
Vinx, L. (Ed.). (2015). The Guardian of the Constitution: Hans Kelsen and Carl Schmitt on the Limits of Constitutional Law. United Kingdom: Cambridge University Press.
Zulueta-Fulscher, K. (2020). Looking back at the Myanmar Constitution amendmentprocess. Retrieved July 5, 2020, from www.idea.int.
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