Finding Justice Scalia in Burma: Constitutional Interpretation and the Impeachment of Myanmar's Constitutional Tribunal

Abstract

While the comparative courts literature has yielded valuable insights into confrontations between political elites and judges, we still know relatively little about if and how jurisprudential methodology affects the ability of constitutional courts to survive such crises. How does the choice between originalism versus living constitutionalism affect a court’s relationship with the other branches of government? Do political elites tend to be more hostile towards certain methods of interpretation?

The 2012 impeachment of Myanmar’s Constitutional Tribunal presents an interesting example of the interplay between jurisprudence and politics. After fifty years of military rule, Myanmar’s 2008 Constitution produced a new civilian government that appeared committed to political reform. However, when the Tribunal ruled that legislative committees did not have constitutional status, the legislature impeached all nine members, forcing them to resign. Less than two years after it was created, the Constitutional Tribunal was essentially defunct.

This article argues that the Constitutional Tribunal’s approach towards constitutional interpretation did not ameliorate — and might have exacerbated — the crisis. Using a textualist or originalist methodology, the Tribunal struck down national legislation in four out of the five cases it heard. However, the Tribunal’s reasoning did not balance the legislature’s interests, much less account for the dramatic political reforms. The Tribunal also never provided a defense its constitutional review power, and many legislators feared that the Tribunal was usurping their newfound power. Had the Tribunal adopted a more flexible approach — such as proportionality or living constitutionalism — it might have soothed the legislature’s fears while still reaching similar policy outcomes.

Keywords: Burma, Myanmar, Constitution, Courts, Judicial

JEL Classification: K00, N45