Constitutional Tribunal Members Remain Despite USDP Objections

By Htet Naing Zaw 20 January 2017

NAYPYIDAW — The Constitutional Tribunal of the Union on Thursday dismissed a proposal by 23 Upper House lawmakers to review the eligibility of two tribunal members.

Lawmakers led by opposition Union Solidarity and Development Party (USDP) members had earlier submitted a proposal to the tribunal to review if members Daw Khin Htay Kywe and U Twar Kyin Paung met the eligibility requirements for membership.

The submission of the proposal violates the Constitution and was deemed to impact the presidential powers of the President U Htin Kyaw, said tribunal member U Khin Maung Cho, explaining the dismissal.

“The 2008 Constitution does not vest us with the power to handle such a matter. Our tribunal does not have the authority to further rule on something that has already been approved by the Union Parliament,” he said.

Under the 2008 Constitution, the constitutional tribunal is made of nine members—three nominated by the President and speakers of Upper and Lower House, respectively, and approved by Parliament.

Daw Khin Htay Kywe was nominated by the Lower House speaker and U Twar Kyin Paung was selected by the Upper House speaker. However, the constitutional tribunal viewed all nine members as accountable to the President. It does not have the authority to interfere in presidential appointments, according to the Constitution.

When the list of nominees to the constitutional tribunal was submitted to the Union Parliament in March, military representatives opposed the appointment of Daw Khin Htay Kywe and U Twar Kyin Paung, saying they failed to submit sufficient personal documents to prove their eligibility for the post.

However, the house speakers rejected their objection, quoting the 2008 Constitution that “the Union Parliament shall not reject the persons collectively nominated by the president to be appointed to the constitutional tribunal unless there is strong evidence that they are not eligible.”

The appointment of the two was then put to vote and lawmakers voted in favor.

Daw Khi Htay Kywe was elected in 2015 from Mon State’s Moulmein to represent the National League for Democracy (NLD) in the Lower House and she remained a lawmaker even after she was appointed to the constitutional tribunal.

Last October, USDP lawmaker U Soe Thein filed a complaint against Daw Khin Htay Kywe with Parliament, calling for her removal from the constitutional tribunal, citing her dual roles. The Constitution does not allow a lawmaker to serve on the constitutional tribunal. She then resigned from Parliament.