Myanmar’s constitutional tribunal reached a final ruling on Wednesday on two key points in the impeachment case against former Kayah state chief minister L Phaung Sho.
The ruling, on whether the case should have been allowed to proceed after the withdrawal of one of his accusers, and on the legality of including three accusers in a body formed to investigate his alleged offenses, came after the tribunal agreed to accept the former chief minister’s submission.
“L Phaung Sho is eligible to submit to the constitutional tribunal since he applied for a review through the President’s Office during his incumbency on August 31, 2020, before his impeachment,” said tribunal member Khin Maung Cho.
A lawyer for the former chief minister, Min Min Soe, had requested a definition of article 263(b) of the constitution, associated with indicting a chief minister, at the initial hearing on October 6.
The tribunal declined to offer its opinion on Hla Htwe’s actions, saying only that he was within his rights as speaker when he decided to proceed with the investigation.
Min Min Soe argued that an investigation into the allegations should have required the passing of an additional motion by two-thirds of the state legislature, and not just a decision by Hluttaw speaker Hla Htwe.
Under article 263(b), at least a quarter of all representatives in any state or regional Hluttaw must be included in a complaint before it can go forward. It does not, however, mention the necessity to table a motion in parliament.
At the hearing, the tribunal declined to offer its opinion on Hla Htwe’s actions, saying only that he was within his rights as speaker when he decided to proceed with the investigation despite the withdrawal of one of the accusers.
The tribunal added, however, that to avoid problems in the future, it would rule that complaints would henceforth have to be presented to the Hluttaw as a motion after they are signed by one-fourth of sitting MPs.
L Phaung Sho’s lawyer also took issue with the inclusion of three of his accusers in the investigative body formed to look into the allegations against him.
Article 263(c) of the constitution requires the state speaker to form an investigative body to review complaints against the chief minister. It does not, however, explicitly state that accusers should be excluded from the body.
“This is a new case study for our country. Nothing like this has ever happened before,” said constitutional lawyer Nay Win Naing
Again, the tribunal ruled that it did not have the right to review the speaker’s inclusion of three accusers in the investigative body, but said that in future, only “suitable” representatives should be permitted to serve in this capacity.
The specific meaning of the word “suitable” was not, however, mentioned in the ruling.
The tribunal also made clear that its rulings related only to the definition of terms in the constitution and did not have any bearing on the legality of the state speaker’s actions.
According to constitutional lawyer Nay Win Naing, the tribunal’s rulings were unlikely to affect the case against L Phaung Sho.
He noted that while the Kayah state Hluttaw speaker’s handling of the impeachment process was questionable, his actions did not violate the constitution.
“These rulings aren’t going to majorly impact the state parliament’s initial decision,” said Nay Win Naing, who is also the program director of The Fifth Pillar, a legal NGO.
He added, however, that the battle between the state parliament and L Phaung Sho could still be fought on more fundamental grounds.
“If you bring in the issue of honour, this will go down in political history on the basis of whether the accused person followed the law or not,” he told Myanmar Now.
The rulings were more important, he said, for the role they would play in deciding future cases, and because they would have to be adopted by parliament when amending the law.
“This is a new case study for our country. Nothing like this has ever happened before. After hearing about the conflict between the state Hluttaw and the former chief minister, I must say that the mechanisms in our country are coming into action,” he said.
L Phaung Sho, who was appointed to the position of chief minister of Kayah state by the ruling National League for Democracy (NLD), was accused in August of using state money for personal gain.
The speaker of the state Hluttaw, Hla Htwe, moved swiftly to investigate the allegations, even after Thein Aung, also known as Sae Yal, withdrew his accusation on August 20.
State MPs voted on the chief minister’s impeachment on August 31, and he was removed from office three days later.
The current constitutional tribunal was formed after the 2010 general election. It has made 14 decisions related to questionable provisions in the constitution since 2011.
This was the first time for the tribunal to hold hearings on the impeachment of a chief minister.
