^1. In this paper, the name “Myanmar” is generally used, in order to reflect the use of the name in the country’s 2008 Constitution. Since 1989, the official English name of the country is “Myanmar”, and this term is also used in the 2008 Constitution of the Republic of the Union of Myanmar [Myanmar Constitution] (for an English translation, see online: Burma Center Prague <http://www.burma-center.org/en/publications/documents/item/288-constitution-of-the-republic-of-the-union-of-myanmar/>). Some of the members of the country’s pro-democracy movement, as well as some foreign governments, however, continue to use the name “Burma”.

^2. Ibid., s. 74. The Pyithu Hluttaw (House of Representatives) and the Amyotha Hluttaw (House of Nationalities) constitute the two chambers of Myanmar’s bicameral legislature. For certain matters, the two chambers convene as the Union Parliament (Pyidaungsu Hluttaw). Ibid., s. 80.

^3. Dominic NARDI, “Will Democracy and Constitutionalism Mix in Myanmar?” I-CONnect Blog (24 October 2012), online: I-CONnect Blog <http://www.iconnectblog.com/2012/10/will-democracy-and-constitutionalism-mix-in-myanmar/> [Nardi, “Will Democracy and Constitutionalism Mix?”]; Dominic NARDI, “After Impeachment, A Balancing Act”, Myanmar Times (1 October 2012), online: Myanmar Times <http://www.mmtimes.com/index.php/opinion/2013-after-impeachment-a-balancing-act.html> [Nardi, “A Balancing Act”].

^4. Associated Press, “Burma’s Tribunal Judges Resign After Impeachment Vote” The Guardian (7 September 2012), online: The Guardian <http://www.guardian.co.uk/world/2012/sep/07/burmas-tribunal-judges-resign-impeachment>.

^5. “Burmese MPs Force Out Constitutional Court Judges” BBC News (6 September 2012), online: BBC News <http://www.bbc.co.uk/news/world-asia-19498968>; Dominic NARDI, “Who Mourns for the Constitutional Tribunal?” Rule by Hukum (27 September 2012), online: Rule by Hukum <http://rulebyhukum.blogspot.ch/2012/09/who-mourns-for-constitutional-tribunal.html> [Nardi, “Who Mourns?”].

^6. “Myanmar Constitutional Tribunal Judges Resign En Masse” The Nation (7 September 2012), online: The Nation <http://www.nationmultimedia.com/breakingnews/Myanmar-constitutional-tribunal-judges-resign-en-m-30189950.html>. See also Chan, MAUNG Aye, “Constitution and Pillars’ Duties” The New Light of Myanmar (17 August 2012) at 8–9Google Scholar.

^7. Fritz SIREGAR, “Indonesian Constitutional Politics” I-CONnect Blog (20 October 2013), online: I-CONnect Blog <http://www.iconnectblog.com/2013/10/indonesian-constitutional-politics/> (“The Indonesian Constitutional Court has done remarkably well and, in its first 10 years of tenure, has become a success story among other Asian constitutional courts.”); Simon BUTT, “The Constitutional Court’s Decision in the Dispute Between the Supreme Court and the Judicial Commission: Banishing Judicial Accountability?” in MCLEOD, Ross H. and MCINTYRE, Andrew, eds., Indonesia: Democracy and the Promise of Good Governance (Singapore: Institute of Southeast Asian Studies, 2007), 178 at 182 (“[T]he Constitutional Court has shown impressive levels of independence and has exhibited competence far higher than that of other Indonesian courts.”)CrossRefGoogle Scholar; DAVIDSON, Jamie S., “Dilemmas of Democratic Consolidation in Indonesia” (2009) 22 The Pacific Review 293 at 297–298Google Scholar; DRESSEL, Björn and MIETZNER, Marcus, “A Tale of Two Courts: The Judicialization of Electoral Politics in Asia” (2013) 25 Governance 391 at 392, 401-02, 404, 406Google Scholar; SCHMIDT, Adam, “Indonesia’s 2009 Elections: Performance Challenges and Negative Precedents” in Edward ASPINALL and Marcus MIETZNER, eds., Problems of Democratisation in Indonesia: Elections, Institutions and Society (Singapore: Institute of Southeast Asian Studies, 2010), 100 at 100–101Google Scholar; HARDING, Andrew and LEYLAND, Peter, “The Constitutional Courts of Thailand and Indonesia: Two Case Studies from South East Asia” (2008) 3 Journal of Comparative Law 118 at 134Google Scholar [Harding and Leyland, “Thailand and Indonesia 2008”]; HARIJANTI, Susi Dwi and LINDSEY, Tim, “Indonesia: General Elections Test the Amended Constitution and the New Constitutional Court” (2006) 4 International Journal of Constitutional Law 138 at 138, 150Google Scholar: (“[T]he Constitutional Court is now touted as a model for future judicial reform in Indonesia. It is widely regarded as both transparent and capable”); MIETZNER, Marcus, “Political Conflict Resolution and Democratic Consolidation in Indonesia: The Role of the Constitutional Court” (2010) 10 Journal of East Asian Studies 397 at 408Google Scholar, noting that in its report of 2006 on Indonesia, Freedom House explicitly praised the Constitutional Court’s “record for independent rulings that take due consideration of legal principles.”; DRESSEL, Björn and BÜNTE, Marco, “Constitutional Politics in Southeast Asia: From Contestation to Constitutionalism?” (2014) 36 Contemporary Southeast Asia 1 at 15Google Scholar.

^8. Sydney Law School, Myanmar Constitutional Democracy (Proceedings of the Myanmar Constitutional Democracy Workshop, Sydney, 8-10 May 2013) at 7-8, online: University of Sydney <http://sydney.edu.au/law/news/docs_pdfs_images/2013/Apr/Myanmar_Workshop.pdf> [Sydney Law School, Workshop].

^9. CROUCH, Melissa, “Asian Legal Transplants and Rule of Law Reform: National Human Rights Commission in Myanmar and Indonesia” (2013) 5 Hague Journal on the Rule of Law 146 at 147–148Google Scholar [Crouch, “Asian Legal Transplants”]; “Human Rights Weighs More than Nationalistic Fervor” The New Light of Myanmar (23 October 2012) at 6 [“Human Rights”]; KINLEY, David and WILSON, Trevor, “Engaging a Pariah: Human Rights Training in Burma/Myanmar” (2007) 29 Human Rights Quarterly 368 at 374Google Scholar; Sydney Law School, Workshop, supra note 8.

^10. Siregar, supra note 7; Butt, supra note 7; Davidson, supra note 7; Dressel and Mietzner, supra note 7; Schmidt, supra note 7; Harding and Leyland, “Thailand and Indonesia 2008”, supra note 7; Harijanti and Lindsey, supra note 7; Mietzner, supra note 7; Dressel and Bünte, supra note 7.

^11. “Activism” is understood here to mean a situation where a constitutional court ceases to be a “negative legislator” and becomes a “positive legislator”, thereby entering the area of law-making. See below at II.C.

^12. Given the relative shortage of literature on the legal system of Myanmar, as a state emerging from decades of military rule and undergoing rapid transition, research on the country’s legal system may frequently have to draw on comparisons with other jurisdictions. Furthermore, general theories which have been developed in the disciplines of law, political science, history, and other fields, may be applied and made fruitful for the case of Myanmar. Accounts of events and developments may have to rely more heavily on media reports, documents available on the Internet, and other non-academic sources, until a body of relevant literature has been built up. Finally, in Myanmar, as in all countries undergoing transition and reform, the political, legal, and economic landscape is still very much in flux and not conclusively defined. In all sectors of the state, rapid developments and changes are taking place, and any materials consulted may be quickly outdated. See also STOTZKY, Irwin P., “Lessons Learned and the Way Forward” in Siri GLOPPEN et al., eds., Democratization and the Judiciary: The Accountability Function of Courts in New Democracies (London: Frank Cass Publishers, 2004), 198 at 200Google Scholar (“if a nation is in some form of transition, it may be too late to study how it was and too early to study how it will be”). It seems, therefore, that any conclusions drawn will be more speculative and tentative than in more established systems of government. On socio-legal research on Southeast Asia generally, see CHUA, Lynette J. and HARDING, Andrew, “Socio-Legal Research on Southeast Asia: Themes, Directions and Challenges” (Background Paper for the CALS Workshop on Socio-Legal Research on Southeast Asia: Themes, Directions and Challenges, Singapore, 2012)Google Scholar. See also Andrew HARDING, “Comparative Law and Legal Transplantation in South East Asia” in NELKEN, David and FEEST, Johannes, eds., Adapting Legal Cultures (Oxford: Hart Publishing, 2001), 199Google Scholar; HARDING, Andrew, “Asian Law, Public Law, Comparative Law Stir-Fry: Theory and Methods Considered” in Tania GROPPI et al., eds., Asian Constitutionalism in Transition: A Comparative Transition (Milan: Giuffrè Editore, 2008), 19Google Scholar; ANTONS, Christoph, “Analysing Asian Law: The Need for a General Concept” (1995) 13 Law in Context 106Google Scholar.

^13. For a description of the five decisions issued by the Constitutional Tribunal, see NARDI, Dominic, “Finding Justice Scalia in Burma: Constitutional Interpretation and the Impeachment of Myanmar’s Constitutional Tribunal” (2014) 23 Pacific Rim Law and Policy Journal 633 at 660–669Google Scholar [Nardi, “Finding Scalia in Burma”].

^14. Decision of the Constitutional Tribunal in President of the Union v. Pyidaungsu Hluttaw, et al. (28 March 2012). An English translation of the decision is available in The New Light of Myanmar (16 August 2012), online: Online Burma/Myanmar Library <http://www.burmalibrary.org/docs14/NLM2012-08-16.pdf>.

^15. Ibid.; Dominic NARDI, “Two Myanmar Tribunal Decisions for 2012” Rule by Hukum (29 March 2012), online: Rule by Hukum <http://rulebyhukum.blogspot.ch/2012/03/two-myanmar-tribunal-decisions-for-2012.html>.

^16. “Burma’s Constitutional Tribunal Members Should Resign: Shwe Mann” Mizzima (15 August 2012), online: Mizzima <http://archive-2.mizzima.com/news/inside-burma/7758-burmas-constitutional-tribunal-members-should-resign-shwe-mann.html> [“Shwe Mann”]. One former European diplomat even remarked that the decision of the Constitutional Tribunal was “clearly designed to protect the executive against the emerging will of the people represented in parliament ... [w]hat it really says is that the ‘old guard is trying to strike back’”; “Myanmar At Risk Of Constitutional Crisis” Financial Times (31 August 2012), online: Financial Times <http://www.ft.com/cms/s/0/27b49c54-f38e-11e1-b3a2-00144feabdc0.html>.

^17. See “Shwe Mann”, supra note 16; “Burma: Resignation of Constitutional Court Justices” Library of Congress (12 September 2012), online: Library of Congress <http://www.loc.gov/lawweb/servlet/lloc_news?disp3_l205403323_text>. The dispute surrounding the qualification of the parliamentary bodies had intensified after a Rule of Law Committee was formed in August 2012, which is headed by opposition leader Aung San Suu Kyi.

^18. Dominic NARDI, “Not for the Money” Rule by Hukum (8 September 2012), online: Rule by Hukum <http://rulebyhukum.blogspot.ch/2012/09/not-for-money-myanmarburma.html>; “Union Level Crossword Still Unresolved” The New Light of Myanmar (6 September 2012), online: The New Light of Myanmar <http://www.burmalibrary.org/docs14/PH-NLM2012-09-06-day39.pdf>.

^19. Supra note 17.

^20. Fifty-three members of the Amyotha Hluttaw voted against impeachment; see Nardi, “Will Democracy and Constitutionalism Mix?”, supra note 3 at 2; “Myanmar’s Constitutional Tribunal Allowed To Resign” Xinhua Global Times (7 September 2012), online: Xinhua Global Times <http://www.globaltimes.cn/content/731715.shtml>.

^21. See Myanmar Constitution, supra note 1, ss. 334(b), 302(c), 71. See also Nardi, “Will Democracy and Constitutionalism Mix?”, supra note 3 at 2; Nardi, “Not for the Money”, supra note 18.

^22. Nardi, “Will Democracy and Constitutionalism Mix?”, supra note 3 at 2; Dominic NARDI, “The Constitutional Tribunal Strikes Back” Rule by Hukum (5 September 2012), online: Rule by Hukum <http://rulebyhukum.blogspot.ch/2012/09/the-constitutional-tribunal-strikes.html>.

^23. Nardi, , “Will Democracy and Constitutionalism Mix?”, supra note 3 at 2Google Scholar. Interestingly, both the Union Solidarity and Development Party (USDP) and the opposition party, the National League for Democracy (NLD) led by Aung San Suu Kyi had voted in favour of the impeachment proceedings, while the military members of parliament voted against impeachment. See Nardi, “Will Democracy and Constitutionalism Mix?”, ibid. at 2-3. Combined, the USDP and the NLD were easily able to reach the required threshold of two thirds of the votes to initiate impeachment proceedings. See Myanmar Constitution, supra note 1, ss. 334(b), 302(c), 71(c). Two thirds of the votes are also required to proceed with the impeachment after the investigation. See ibid., ss. 334(b), 302(c), 71(f). Given that the military MPs had voted against impeachment, it is remarkable that even though the impeachment proceedings had led to the resignation of the members of the Constitutional Tribunal, the military did not intervene. Nardi, “Will Democracy and Constitutionalism Mix?”, supra note 3 at 2-3.

^24. These selections were then to be approved by the Pyidaungsu Hluttaw. Myanmar Constitution, supra note 1, s. 321. See also Nardi, “Will Democracy and Constitutionalism Mix?”, supra note 3 at 2-3.

^25. The new members of the Tribunal are: U Mya Thein (Chairman), U Myint Win, U Than Kyaw, Daw Hla Myo Nwe, U Mya Thein (who has the same name as the Chairman), U Myint Lwin, U Tin Myint, Daw Kyin San, and U Myo Chit. The President, the Speaker of the Pyithu Hluttaw, and the Speaker of the Amyotha Hluttaw had each nominated three candidates. See generally Myanmar Constitution, supra note 1, ss. 332, 327, 321. See also “Burma MPs Nominate Constitutional Court Chief” Radio Free Asia (21 March 2013), online: Radio Free Asia <http://www.rfa.org/english/news/myanmar/constitutional-tribunal-02212013175458.html>; Dominic NARDI, “The Court is Now in Session” Rule by Hukum (26 February 2013), online: Rule by Hukum <http://rulebyhukum.blogspot.ch/2013/02/the-court-is-now-in-session-myanmarburma.html>; Dominic NARDI, “And the Justices Come Rolling In…” Rule by Hukum (23 February 2013), online: Rule by Hukum <http://rulebyhukum.blogspot.ch/2013/02/and-justices-come-rolling-in.html>.

^26. The eight laws are the Anti-Corruption Law, the Farmers’ Rights Protection Law, the Pyithu Hluttaw Law, the Amyotha Hluttaw Law, the Pyidaungsu Hluttaw Law, the Region and State Hluttaw Law, the Union Auditor General’s Office Law and the Constitutional Tribunal Law. See Sandar LWIN, “President to Test New Constitutional Tribunal with Eight Laws” Myanmar Times (30 January 2014), online: Myanmar Times <http://www.mmtimes.com/index.php/national-news/9400-president%20to-test-new-constitutional-tribunal-with-eight-laws.html>; Dominic NARDI, “Less than Expected” Rule by Hukum (6 February 2014), online: Rule by Hukum <http://rulebyhukum.blogspot.ch/2014/02/less-than-expected-myanmarburma.html>.

^27. For a discussion of the bill amending the Constitutional Tribunal Law, see Dominic NARDI, “Myanmar/Burma” Rule by Hukum (18 November 2012), online: Rule by Hukum <http://rulebyhukum.blogspot.ch/2012/11/myanmarburma.html>.

^28. In contrast, Section 321 of the Myanmar Constitution (see supra note 1) states that the President shall submit the name of a candidate to be assigned as the chairperson of the Constitutional Tribunal to the Pyidaungsu Hluttaw for its approval. See AUNG Htoo, “Will the Tribunal Crisis Push for the Creation of a New Constitution?” DVB Analysis (25 January 2013), online: DVB <https://www.dvb.no/analysis/will-the-tribunal-crisis-push-for-the-creation-of-a-new-constitution/26019> [Aung, “Will the Crisis Push?”].

^29. This would also infringe the separation of powers under Section 11(a) of the Myanmar Constitution. See Aung, “Will the Crisis Push?”, supra note 28.

^30. Ibid.

^31. See Republic of the Union of Myanmar Information Team, “Press Release on the Proceedings for Enactment of ‘the Bill to Amend the Constitutional Tribunal of the Union Law’” The New Light of Myanmar (22 January 2013) at 8, online: Network Myanmar <http://www.networkmyanmar.org/images/stories/PDF14/NM220113.pdf>.

^32. See Dominic NARDI, “President’s Constitutional Tribunal Comments Voted Down” Rule by Hukum (16 January 2013), online: Rule by Hukum <http://rulebyhukum.blogspot.ch/2013/01/myanmarburma.html>.

^33. Myanmar Constitution, supra note 1, s. 106(c). See also SOE Than Lynn, “MPs Ignore President on Tribunal Law Changes” Myanmar Times (21 January 2013), online: Myanmar Times <http://www.mmtimes.com/index.php/national-news/3851-mps-ignore-president-on-tribunal-law-changes.html>; Hanna HINDSTROM, “President Bows to Parliament on Controversial New Law” DVB Multimedia Group (22 January 2013), online: DVB <http://www.dvb.no/news/president-bows-to-parliament-on-controversial-new-law/25940>.

^34. Aung, “Will the Crisis Push?”, supra note 28.

^35. Furthermore, some commentators have noted, with regard to the impeachment proceedings against the members of the Constitutional Tribunal, that there is a risk that the developments surrounding the changes to the Constitutional Tribunal Law could weaken the government’s ability to pursue its far-reaching reform agenda, since President Thein Sein’s authority seems to have been further weakened thereby. President Thein Sein has announced that he intends to submit the dispute surrounding the amendments to the Constitutional Tribunal Law to the newly reactivated Constitutional Tribunal. See ibid.

^36. See below at IV.B.

^37. Of the 109 members of the Committee, 52 were from the ruling USDP, 25 from the military, and seven from Aung San Suu Kyi’s NLD. “Myanmar Constitutional Panel to Keep Pace of Reform” Mizzima (29 August 2013), online: Mizzima <http://www.mizzima.com/mizzima-news/politics/item/9945-myanmar-constitutional-panel-to-keep-pace-of-reform> [“Panel to Keep Pace”].

^38. The original deadline for the submission of the Committee’s recommendations was 31 December 2013, but this deadline was extended to 31 January 2014. See “Myanmar Delays Constitution Review by One Month” Radio Free Asia (7 November 2013), online: Radio Free Asia <http://www.rfa.org/english/news/myanmar/constitution-11072013174720.html>; “Panel to Keep Pace”, supra note 37; Melissa CROUCH, “Road to Constitutional Amendment in Myanmar Going Nowhere” East Asia Forum (27 March 2014), online: East Asia Forum <http://www.eastasiaforum.org/2014/03/27/road-to-constitutional-amendment-in-myanmar-going-nowhere/> [Crouch, “Going Nowhere”]. Observers commenting on the planned amendment of the Burmese Constitution have mentioned the importance of amending two aspects in particular of the 2008 Constitution: (1) The role of the military in the legislature (Sections 109 and 141 of the Constitution reserve 25 per cent of the seats in parliament for the military; see Melissa CROUCH, “Myanmar: Civil-Military Relations and Constitutional Reform” East Asia Forum (21 June 2013), online: East Asia Forum <http://www.eastasiaforum.org/2013/06/21/myanmar-civil-military-relations-and-constitutional-reform/>); and (2) the provision barring persons with foreign dependants from the presidency (Section 59(f) of the Myanmar Constitution bars Aung San Suu Kyi from the presidency on the grounds that her deceased husband, as well as her children are foreigners).

^39. See Crouch, “Going Nowhere”, supra note 38.

^40. Ibid. The committee consists of 30 members of parliament.

^41. The implementation committee must submit proposals for the amendment of the Myanmar Constitution to the parliament six months before the 2015 general election. “USDP Leader Urges Committee to Review Key Constitutional Reforms” The Irrawaddy (18 February 2014), online: The Irrawaddy <http://www.irrawaddy.org/burma/usdp-leader-urges-committee-review-key-constitutional-reforms.html>; “Constitution Amendment Proposals to Be Submitted Before 2015 Election in Myanmar” Xinhua Global Times (19 February 2014), online: Xinhua Global Times <http://www.globaltimes.cn/content/843466.shtml#.U0B_Gal_ERBo>. It appears that in its proposals to amend the Myanmar Constitution, which were released on its website in May 2014, the NLD has included an amendment to abolish the Constitutional Tribunal and to transfer its powers of constitutional review to the Supreme Court. Dominic NARDI, “Is Constitutional Review Moving to a New Home in Myanmar?” I-CONnect Blog (11 June 2014), online: I-CONnect Blog <http://www.iconnectblog.com/2014/06/is-constitutional-review-moving-to-a-new-home-in-myanmar/>.

^42. See Dominic NARDI, “Why Did It Happen?” Rule by Hukum (7 September 2012), online: Rule by Hukum <http://rulebyhukum.blogspot.ch/2012/09/why-did-it-happen-myanmarburma.html>; Nardi, “Will Democracy and Constitutionalism Mix?”, supra note 3 at 3; BBC News, supra note 5.

^43. See Dominic NARDI, “Constitutional Tribunal – We Hardly Knew Ye” Rule by Hukum (6 September 2012), online: Rule by Hukum <http://rulebyhukum.blogspot.ch/2012/09/constitutional-tribunal-we-hardly-knew.html>; Nardi, “Will Democracy and Constitutionalism Mix?”, supra note 3 at 1, 3. Some commentators have warned that the constitutional crisis resulting from the impeachment process could have long-term negative effects on judicial independence in the country. See e.g. Dominic NARDI, “Reps Move towards Impeachment” Rule by Hukum (27 August 2012), online: Rule by Hukum <http://rulebyhukum.blogspot.ch/2012/08/reps-move-towards-impeachment.html> [Nardi, “Reps Move Towards Impeachment”].

^44. On the attempts of Myanmar’s military regime to manage political reform since the late 1980s, and the discrepancy of these efforts with the aspirations of a number of ethnic groups for autonomy and the democratic opposition led by Aung San Suu Kyi (calling for a liberal democracy), see TIN Maung Maung Than, “The Essential Tension: Democratization and the Unitary State in Myanmar” (2004) 12 South East Asia Research 187CrossRefGoogle Scholar. On various aspects of Myanmar’s judicial and legal history, see e.g. Zan, MYINT, “Judicial Independence in Burma: Constitutional History, Actual Practice and Future Prospects” (2000) 4 Southern Cross University Law Review 17 [Myint, “History, Practice and Prospects”]Google Scholar; Zan, MYINT, “Judicial Independence in Burma: No March Backwards Towards the Past” (2000) 1 Asia-Pacific Law and Policy Journal 1Google Scholar; Zan, MYINT, “A Comparison of the First and Fiftieth Year of Independent Burma’s Law Reports” (2004) 35 Victoria University of Wellington Law Review 385Google Scholar; LWIN, Michael, “How Aung San Suu Kyi Can Free Burma from Fear” (2011) 24 Columbia Journal of Asian Law 477Google Scholar; CHEESMAN, Nick, “How an Authoritarian Regime in Burma Used Special Courts to Defeat Judicial Independence” (2011) 45 Law and Society Review 801CrossRefGoogle Scholar; DEIGHTON, Mathew and GARKAWE, Sam, “A Democracy’s Rite of Passage: Confronting the Ghosts of its Past” (2000) 4 Southern Cross University Law Review 169Google Scholar; Maung Maung Than, TIN, “Neither Inheritance nor Legacy: Leading the Myanmar State since Independence” (1993) 15 Contemporary Southeast Asia 24CrossRefGoogle Scholar; Mo Kham Hom, NANG, “‘Revolutionary Legality’: The Coup d’Etat of 1962 and the Burmese Military Regime” (2000) 4 Southern Cross University Law Review 60Google Scholar; WIFFEN, Graeme, “Drafting a Constitution for Burma: A Comparison of the Government’s and an Expatriate Opposition Group’s Proposals” (2000) 4 Southern Cross University Law Review 117Google Scholar; SARKIN, Jeremy, “Examining the Competing Constitutional Processes in Burma/Myanmar from a Comparative and International Democratic and Human Rights Perspective” (2001) 2 Asia Pacific Journal of Human Rights and the Law 42CrossRefGoogle Scholar; Zunetta LIDDELL, “No Room to Move: Legal Constraints on Civil Society in Burma” (Paper presented at the conference “Strengthening Civil Society in Burma. Possibilities and Dilemmas for International NGOs”, Amsterdam, 4-5 December 1997), online: Ibiblio.org <http://www.ibiblio.org/obl/docs3/liddellpaper.doc>.

^45. See Dominic NARDI, “Constitutional Tribunal aftermath”, Rule by Hukum (30 April 2012), online: Rule by Hukum <http://rulebyhukum.blogspot.ch/2012/04/constitutional-tribunal-aftermath.html>.

^46. Thirty-seven members of the NLD were elected into the Pyithu Hluttaw, four into the Amyotha Hluttaw, and two into provincial assemblies; see HOLLIDAY, Ian, “Myanmar in 2012: Toward a Normal State” (2013) 53 Asian Survey 93 at 94Google Scholar; a list of elected members of the NLD is available from Mizzima, online: Mizzima <http://www.mizzima.com/images/NewsPhotos/APR12/MPs%20List.pdf>.

^47. See “Nine Judges Quit in Constitutional Tribunal Row” The Irrawaddy (7 September 2012), online: The Irrawaddy <http://www.irrawaddy.org/parliament/nine-judges-quit-in-constitution-tribunal-row.html>.

^48. The Chief Justice of the Union v. Ministry of Home Affairs, Submission No. 01/2011. An English translation of the decision is available from the Myanmar Constitutional Tribunal, online: Myanmar Constitutional Tribunal <http://www.myanmarconstitutionaltribunal.org.mm/en>. See also Nardi, “Will Democracy and Constitutionalism Mix?”, supra note 3 at 1.

^49. Dr. Aye Maung, et al. v. The Republic of the Union of Myanmar, Submission No. 02/2011. An English translation of the decision is available from the Myanmar Constitutional Tribunal, online: Myanmar Constitutional Tribunal <http://www.myanmarconstitutionaltribunal.org.mm/en>. See also Nardi, “Will Democracy and Constitutionalism Mix”, supra note 3 at 2.

^50. See Nardi, “Finding Scalia in Burma”, supra note 13 at 663-64.

^51. See Nardi, “Will Democracy and Constitutionalism Mix?”, supra note 3. The fifth case of the Constitutional Tribunal (Chairperson of the Mon State Hluttaw v. The Republic of the Union of Myanmar) was initiated by a petition of July 2012 by the chairman of the Mon State Hluttaw, which requested the Tribunal to repeal the 1993 Municipal Law. The Mon State Hluttaw had wanted to issue a new municipal law, but thought that the Union level Municipal Law precluded this. The Constitutional Tribunal agreed that the Mon State Hluttaw had jurisdiction over municipal affairs. The Tribunal then stated that according to the Constitution, existing laws were allowed to remain in force until they were repealed or amended by the Pyidaungsu Hluttaw. The Tribunal advised that the Pyidaungsu Hluttaw should repeal the 1993 Municipal Law, and authorised the Mon State Hluttaw to enact its own municipal law. Nardi, “Finding Scalia in Burma”, supra note 13 at 667-69.

^52. See NARDI, Dominic, “Discipline-Flourishing Constitutional Review: A Legal and Political Analysis of Myanmar’s New Constitutional Tribunal” (2010) 12 Australian Journal of Asian Law 1Google Scholar [Nardi, “Discipline-Flourishing Review”]. On the National Convention and the constitution-drafting process see WILLIAMS, David C., “Constitutionalism before Constitutions: Burma’s Struggle to Build a New Order” (2009) 87 Texas Law Review 1657 at 1666–1671Google Scholar.

^53. See Williams, supra note 52 at 1666; TIN Maung Maung Than, “Myanmar: The Dilemma of Stalled Reforms” (Paper presented to the ISEAS Forum on Regional Strategic and Political Developments, Singapore, 29 August 2000), online: Ibiblio.org <http://www.ibiblio.org/obl/docs3/Dilemmas-TMMT.pdf>; Myint, “History, Practice and Prospects”, supra note 44 at 43-44; TAN, Kevin Y.L., “The Making and Remaking of Constitutions in Southeast Asia: An Overview” (2002) 6 Singapore Journal of International and Comparative Law 1 at 32Google Scholar.

^54. See DILLER, Janelle M., “Constitutional Reform in a Repressive State” (1993) 33 Asian Survey 393 at 406Google Scholar (“[F]or a constitution to be legitimate, it must be drafted in some form that includes the freely expressed will of the people – a popular participation that is reflected by a representative body or a representative process, including a final approval by the people through a free and fair referendum or similar means of ratification.”); Williams, supra note 52 at 1667.

^55. See LARKINS, Christopher M., “Judicial Independence and Democratization: A Theoretical and Conceptual Analysis” (1996) 44 American Journal of Comparative Law 605 at 620Google Scholar, who addresses the question of how a new transitional government should treat judges who were appointed by, or served under, the former authoritarian regime.

^56. Myanmar Constitution, supra note 1, s. 321.

^57. Nardi, “Will Democracy and Constitutionalism Mix?”, supra note 3.

^58. Dominic NARDI, “Irony? What Irony?” Rule by Hukum (25 September 2012), online: Rule by Hukum <http://rulebyhukum.blogspot.ch/2012/09/irony-what-irony-myanmarburma.html> [Nardi, “What Irony?”].

^59. Nardi, “Finding Scalia in Burma”, supra note 13 at 669-70.

^60. Nardi, “What Irony?”, supra note 58. A similar incident had taken place in Myanmar in 1998. According to a military order of late 1998, five of the six Supreme Court judges were “permitted” to retire. The order gave no reasons for the resignations, and merely announced the judges who were to replace the retiring judges. See SOUTHALAN, John, “Impunity and Judicial Independence” (2004) 17 Legal Issues on Burma Journal 40 at 67Google Scholar. This incident might also explain, in part, the Hluttaw’s low inhibition threshold to initiate impeachment proceedings against the Constitutional Tribunal.

^61. See Nardi, “Discipline-Flourishing Review” supra note 52 at 25-26; BROWN, Trevor L. and WISE, Charles R., “Constitutional Courts and Legislative-Executive Relations: The Case of the Ukraine” (2004) 119Google Scholar Political Science Quarterly 143 at 150, who point to the “conflict resolution role of ... courts in disputes between national political institutions during regime transitions.”

^62. Myanmar Constitution, supra note 1, ss. 323, 325-26. At the Union level, the following persons have the right to submit matters directly to the Constitutional Tribunal: The President, the Speakers of each Hluttaw, the Chief Justice of the Supreme Court, and the Chairperson of the Union Election Commission.

^63. See GINSBURG, Tom and ELKINS, Zachary, “Ancillary Powers of Constitutional Courts” (2009) 87 Texas Law Review 1431 at 1435–1436Google Scholar, 1458, 1461. Ginsburg and Elkins note that the risk of constitutional courts being drawn into explicitly political conflicts is especially acute in new democracies. According to the authors, especially in new democracies, “constitutional courts will be drawn into inherently unwinnable zero-sum conflicts, which require deft maneuvering and skillful action.” Ibid. at 1461. See also Björn, DRESSEL “The Judicialization of Politics in Asia: Towards a Framework of Analysis” in Björn DRESSEL, ed., The Judicialization of Politics in Asia (Milton Park: Routledge, 2012)Google Scholar, 1 at 10 [Dressel, “The Judicialization of Politics”].

^64. See GINSBURG, Tom, Judicial Review in New Democracies: Constitutional Courts in Asian Cases (Cambridge: Cambridge University Press, 2003)CrossRefGoogle Scholar at 6 [Ginsburg, Judicial Review]; Ginsburg and Elkins, supra note 63 at 1434; HARDING, Andrew, LEYLAND, Peter, GROPPI, and Tania, “Constitutional Courts: Forms, Functions and Practice in Comparative Perspective” in Andrew HARDING and Peter LEYLAND, eds., Constitutional Courts: A Comparative Study (London: Wildy, Simmonds and Hill Publishing, 2009), 5 at 12–15Google Scholar [Harding, Leyland, and Groppi, “Forms, Functions and Practice 2009”]; GAROUPA, Nuno and GINSBURG, Tom, “Building Reputation in Constitutional Courts: Political and Judicial Audiences” (2011) 28 Arizona Journal of International and Comparative Law 539 at 539Google Scholar.

^65. Ginsburg and Elkins, supra note 63 at 1434; Harding and Leyland, “Thailand and Indonesia 2008”, supra note 7 at 124.

^66. HARDING, Andrew, LEYLAND, Peter, GROPPI, and Tania, “Constitutional Courts: Forms, Functions and Practice in Comparative Perspective” (2008) 3 Journal of Comparative Law 1 at 2–3Google Scholar [Harding, Leyland, and Groppi, “Forms, Functions and Practice 2008”].

^67. SWEET, Alec Stone, “Constitutional Courts” in Michel ROSENFELD and András SAJÓ, eds., The Oxford Handbook of Comparative Constitutional Law (Oxford: Oxford University Press, 2012), 816 at 818Google Scholar.

^68. In reality, however, constitutional courts frequently go beyond merely performing the functions of a “negative legislator”, and become “positive legislators”, in order to effectively protect rights. See Sweet, , “Constitutional Courts”, supra note 67 at 819Google Scholar; SWEET, Alec Stone, “Constitutional Courts and Parliamentary Democracy” (2002) 25 West European Politics 77 at 81–82Google Scholar.

^69. Myanmar and South Africa are the only common law countries which have a separate constitutional court apart from their supreme court. See also Myint, “History, Practice and Prospects”, supra note 44 at 53-54. The Kelsenian model was aimed at civil law jurisdictions. See Ginsburg, Judicial Review, supra note 64 at 9; Ginsburg and Elkins, supra note 63 at 1433-34; Harding, Leyland, and Groppi, “Forms, Functions and Practice 2009”, supra note 64 at 3-4; Myint, “History, Practice and Prospects”, supra note 44 at 53-54; Garoupa and Ginsburg, supra note 64 at 539-40.

^70. See Ginsburg, , Judicial Review, supra note 64 at 9; Francisco Ramos ROMEU, “The Establishment of Constitutional Courts: A Study of 128 Democratic Constitutions” (2006) 2 Review of Law and Economics 103 at 107Google Scholar.

^71. See Stotzky, supra note 12 at 201-02; SKLAR, Richard L., “Democracy and Constitutionalism” in Andreas SCHEDLER et al., eds., The Self-Restraining-State: Power and Accountability in New Democracies (Boulder, Lynne Rienner Publishers, 1999), 53Google Scholar; Ginsburg, , Judicial Review, supra note 64 at 21Google Scholar; BRADLEY, Anthony W.et al., “Constitutionalism and the Role of Parliaments” in Katja S. ZIEGLER et al., eds., Constitutionalism and the Role of Parliaments (Oxford: Hart Publishing, 2007), 1Google Scholar; Dressel, , “The Judicialization of Politics”, supra note 63 at 5Google Scholar.

^72. SHAPIRO, Martin, “Judicial Independence: New Challenges in Established Nations” (2013) 20 Indiana Journal of Global Legal Studies 253 at 272CrossRefGoogle Scholar.

^73. Harding, Leyland, and Groppi, “Forms, Functions and Practice 2008”, supra note 66 at 14.

^74. See GAROUPA, Nuno, “Empirical Legal Studies and Constitutional Courts” (2011) 5 Indian Journal of Constitutional Law 26 at 29Google Scholar (“[J]udicial decision-making in a constitutional court, as in any court, is the result of personal attributes, intra-court interaction (a natural pressure for consensus and court reputation; a common objective to achieve supremacy of the constitutional court), and party politics (loyalty to the appointer) within a given constitutional and doctrinal environment.”). Later, Garoupa describes the “double role” of constitutional courts as “political and judicial institution[s]”. Ibid. at 34.

^75. Harding, Leyland, and Groppi, “Forms, Functions and Practice 2008”, supra note 66 at 11-12.

^76. Myanmar Constitution, supra note 1, s. 335; Nardi, “Finding Scalia in Burma”, supra note 13 at 658.

^77. PEERENBOOM, Randall, “Varieties of Rule of Law: An Introduction and Provisional Conclusion” in Randall PEERENBOOM, ed., Asian Discourses of Rule of Law (London: Routledge, 2004), 1 at 21–22CrossRefGoogle Scholar.

^78. EPSTEIN, Lee, KNIGHT, Jack, SHVETSOVA, and Olga, “The Role of Constitutional Courts in the Establishment and Maintenance of Democratic Systems of Government” (2001) 35 Law and Society Review 117CrossRefGoogle Scholar.

^79. See Ginsburg, Judicial Review, supra note 64 at 92, referring to the example of the US Supreme Court. On legislative interference in the judicial process generally, see GERANGELOS, Peter A., The Separation of Powers and Legislative Interference in Judicial Process: Constitutional Principles and Limitations (Oxford: Hart Publishing, 2009)Google Scholar.

^80. See SHAPIRO, Martin, “Judicial Review in Developed Democracies” in Siri GLOPPEN et al., eds., supra note 12, 7 at 20Google Scholar; Ginsburg, , Judicial Review, supra note 64 at 31, 105Google Scholar.

^81. Ginsburg, , Judicial Review, supra note 64 at 105Google Scholar.

^82. Nardi, , “Will Democracy and Constitutionalism Mix?”, supra note 3 at 3Google Scholar.

^83. However, after the resignation of the judges, a number of parliamentarians expressed regret over the fact that things had progressed so far; see Nardi, , “Who Mourns?”, supra note 5Google Scholar.

^84. Ginsburg, , Judicial Review, supra note 64 at 104Google Scholar.

^85. Siregar, supra note 7; Butt, supra note 7; Davidson, supra note 7; Dressel and Mietzner, supra note 7; Schmidt, supra note 7; Harding and Leyland, “Thailand and Indonesia 2008”, supra note 7; Harijanti and Lindsey, supra note 7; Mietzner, supra note 7; Dressel and Bünte, supra note 7.

^86. Epstein, Knight, and Shvetsova, supra note 78.

^87. In Mongolia, for example, a decision of the Mongolian Constitutional Court in 1996 on the nature of the political system resulted in an institutional conflict between the parliament and the court. The court had decided that a provision in the Mongolian Constitution prevented the government from forming the cabinet from among sitting parliament members. After the court rejected as unconstitutional legislation that had been passed to allow the government to be formed from among members of parliament, the parliament passed a number of constitutional amendments to remedy the defect. The court in turn rejected these amendments as unconstitutional. The conflict was resolved only in 2001, when the court allowed a second series of constitutional amendments to be made; see Ginsburg, Judicial Review, supra note 64 at 251; GINSBURG, Tom, “Constitutional Courts in New Democracies: Understanding Variation in East Asia” (2002) 2Google Scholar Global Jurist Advances, art. 4 [Ginsburg, “Constitutional Courts in New Democracies”]. In Taiwan, the Taiwanese Constitutional Court (the Council of Grand Justices on Taiwan) experienced a severe political backlash in 1958, when it overstepped the boundaries of its authority. The backlash experienced by the court turned it into a compliant institution for the next few decades. Only with the political liberalisation in the 1980s did the court begin to gradually expand its power; see Ginsburg, Judicial Review, supra note 64 at 251-252; Ginsburg, “Constitutional Courts in New Democracies”, supra note 87 at 4-6; Garoupa and Ginsburg, supra note 64 at 559-561; Dennis T. C. TANG, “Judicial Review and the Transition of Authoritarianism in Taiwan”, online: Sinica <http://idv.sinica.edu.tw/dennis/20010115.pdf>.

^88. See e.g. Mietzner, supra note 7 at 399 (“[I]t is precisely the corrective (and very aggressive) intervention in highly contentious political issues that has consolidated the moral stature of the Court in Indonesian society. These interventions have bolstered the Court’s popularity, which in turn has offered its judges additional protection from elite attempts to influence their decisions.”).

^89. See e.g. Sydney Law School, Workshop, supra note 8.

^90. A series of four major amendments to the 1945 Constitution were enacted between 1999 and 2002. See e.g. INDRAYANA, Denny, Indonesian Constitutional Reform 1999-2002: An Evaluation of Constitution-Making in Transition (Jakarta: KOMPAS Book Publishing, 2008)Google Scholar.

^91. Sydney Law School, Workshop, supra note 8.

^92. Crouch, “Asian Legal Transplants”, supra note 9; “Human Rights”, supra note 9; Kinley and Wilson, supra note 9; Sydney Law School, Workshop, supra note 8.

^93. Siregar, supra note 7; Butt, supra note 7; Davidson, supra note 7; Dressel and Mietzner, supra note 7; Schmidt, supra note 7; Harding and Leyland, “Thailand and Indonesia 2008” supra note 7; Harijanti and Lindsey, supra note 7; Mietzner, supra note 7; Dressel and Bünte, supra note 7.

^94. On the Indonesian Constitutional Court see e.g. Harding and Leyland, “Thailand and Indonesia 2008”, supra note 7; Andrew HARDING and Peter LEYLAND, “The Constitutional Courts of Thailand and Indonesia: Two Case Studies from South East Asia”, in Andrew HARDING and Peter LEYLAND, eds., supra note 64, 317 [Harding and Leyland, “Thailand and Indonesia 2009”]; Butt, supra note 7; INDRAYANA, Denny, “Indonesia: In Search for a Democratic Constitution (1945-2008)” in Clauspeter HILL and Jörg MENZEL, eds., Constitutionalism in Southeast Asia (Singapore: Konrad-Adenauer-Stiftung, 2008), 91, 118–119Google Scholar.

^95. See e.g. Siregar, supra note 7 (“The Indonesian Constitutional Court has done remarkably well and, in its first 10 years of tenure, has become a success story among other Asian constitutional courts.”); Butt, supra note 7; Davidson, supra note 7; Dressel and Mietzner, supra note 7; Schmidt, supra note 7; Harding and Leyland, “Thailand and Indonesia 2008”, supra note 7; Harijanti and Lindsey, supra note 7; Mietzner, supra note 7; Dressel and Bünte, supra note 7.

^96. See Mietzner, supra note 7 at 398-399.

^97. Article 24C(1) of the 1945 Constitution of the Republic of Indonesia [Constitution of Indonesia].

^98. Ibid., art. 24C(2).

^99. Law 24/2003 on the Constitutional Court, art. 51(1) [Law 24/2003].

^100. Jimly ASSHIDDIQUE, “Creating a Constitutional Court for a New Democracy” (Paper presented at Melbourne Law School, 11 March 2009) at 8 [unpublished]; Siregar, supra note 7.

^101. See the Indonesian Constitutional Court’s website, online: Mahkamah Konstitusi <http://www.mahkamahkonstitusi.go.id>.

^102. See Asshiddique, supra note 100 at 10, 16, 19; Siregar, supra note 7.

^103. Mietzner, supra note 7 at 414.

^104. In October 2013, however, Akil Mochtar, the then-Chief Justice of the Constitutional Court, was accused of corruption by the Corruption Eradication Commission (KPK). The investigators of the KPK completed their investigation into the case in January 2014 and handed over the dossiers to the prosecutors. In February 2014, Akil Mochtar was charged in the Jakarta Corruption Court with rigging election disputes and money laundering. The recent incidents surrounding Akil Mochtar appear to have considerably affected the reputation of the Constitutional Court. See Santy KOUWAGAM, “Is the Indonesian Constitutional Court Corrupt?” Leiden Law Blog (11 October 2013), online: Leiden Law Blog <http://leidenlawblog.nl/articles/is-the-indonesian-constitutional-court-corrupt>; Dominic NARDI, “Disorder In The Court” Rule by Hukum (16 November 2013), online: Rule by Hukum <http://rulebyhukum.blogspot.ch/2013/11/disorder-in-court-indonesia.html>; Dressel and Bünte, supra note 7 at 15 (“And while so far the Indonesian Constitutional Court has won much praise for its assertive and balanced views, the 2013 impeachment of its Chief Justice for corruption is a vivid reminder that perennial problems of capacity and corruption endemic to the region challenge public trust in judges and courts”).

^105. Constitution of Indonesia, supra note 97, art. 24C(3); Law 24/2003, supra note 99, art. 18(1); Harding and Leyland, “Thailand and Indonesia 2008”, supra note 7; Harding and Leyland, “Thailand and Indonesia 2009”, supra note 94; Mietzner, supra note 7 at 414; Dressel and Mietzner, supra note 7.

^106. Law 24/2003, supra note 99, art. 22.

^107. Mietzner, supra note 7 at 406.

^108. Ibid. at 406-07.

^109. Ibid. at 413.

^110. Dressel and Mietzner, supra note 7 at 400.

^111. Siregar, supra note 7.

^112. Dressel and Mietzner, supra note 7 at 403-404; Mietzner, supra note 7 at 411.

^113. See, for example, the First Russian Constitutional Court (1991-1993), which failed to establish its legitimacy and whose work was suspended by a decree by President Boris Yeltsin in October 1993. In December 1993, another presidential decree repealed the Constitutional Court of the RSFSR (Russian Soviet Federative Socialist Republic) Act; Epstein, Knight, and Shvetsova, supra note 78.

^114. Dressel and Mietzner, supra note 7.

^115. Siregar, supra note 7.

^116. Law 24/2003, supra note 99, art. 45(10). See also Harijanti and Lindsey, supra note 7 at 147.

^117. Law 24/2003, supra note 99, art. 45(4).

^118. Ibid., art. 45(8); Harding and Leyland, “Thailand and Indonesia 2008”, supra note 7 at 130.

^119. Asshiddique, supra note 100 at 14-15. Cf. Garoupa and Ginsburg, supra note 64 at 546-548, who are of the view that if cases are decided by consensus, this could raise the “cost (in terms of public opinion) to political bodies of interference or manipulation.”

^120. See Epstein, Knight and Shvetsova, supra note 78 at 127; HOROWITZ, Donald L., “Constitutional Courts: A Primer for Decision Makers” (2006) 17 Journal of Democracy 125 at 133CrossRefGoogle Scholar.

^121. See Ginsburg, Judicial Review, supra note 64 at 95, referring to the example of the US Supreme Court.

^122. See also Ginsburg, , “Constitutional Courts in New Democracies”, supra note 87 at 18Google Scholar (“The lesson then, is one of caution on core issues of the political process for courts in new democracies”); Dressel, , “The Judicialization of Politics”, supra note 63 at 12Google Scholar (“Courts must carefully choose their battles and the scope of their interventions ...”).

^123. See Ginsburg, and Elkins, , supra note 63 at 1460Google Scholar, who highlight the need for a constitutional court “to act strategically over a long series of cases ... to build up its political role over time”. See also HIRSCHL, Ran, “The Political Origins of Judicial Empowerment through Constitutionalization: Lessons from Four Constitutional Revolutions” (2000) 25 Law and Social Inquiry 91CrossRefGoogle Scholar.

^124. Ginsburg and Elkins, supra note 63 at 1438, argue that the scope for judicial law-making will expand in periods of divided government. See also Ginsburg, Judicial Review, supra note 64 at 18, who argues that the more diffused politics and the party system are in a given country, the more space courts have in which to operate. Yasushi HAZAMA, “Constitutional Review and Democratic Consolidation: A Literature Review” Institute of Developing Economies Discussion Paper No. 192, online: Institute of Developing Economies <http://ir.ide.go.jp/dspace/bitstream/2344/834/1/192_hazama.pdf>); Dressel, “The Judicialization of Politics”, supra note 63; Matthew C. STEPHENSON, “‘When the Devil Turns ...’: The Political Foundations of Independent Judicial Review” (2003) 32 Journal of Legal Studies 59.

^125. See above at II.B.

^126. President v. Pyidaungsu Hluttaw, et al., reprinted in “Verdict Handed Down on Submission No. 1/2012 Submitted by Attorney-General of the Union on Behalf of the President of the Union” The New Light of Myanmar (16 August 2012) at 4-7.

^127. Ibid. at 6.

^128. Ibid.

^129. Ibid. See also Nardi, “Finding Scalia in Burma”, supra note 13 at 666-67.

^130. Nathan WILLIS, “The Constitutional Tribunal of Myanmar (Burma) and the Rule of Law” [unpublished]. See also Nardi, “Finding Scalia in Burma”, supra note 13 at 671.

^131. Epstein, Knight, and Shvetsova, supra note 78 at 127. According to the authors, “some of this lack of legitimacy stems from their comparative youth. But the relative lack of legitimacy and support may also be a function of a general and long-held suspicion of judges existing among the populace ..., which will take time for courts in new democracies to dispel”.

^132. Nardi, “Finding Scalia in Burma”, supra note 13 at 669-70.

^133. For a brief overview of these cases, see also above at II.B.

^134. Nardi, “Finding Scalia in Burma”, supra note 13 at 669.

^135. Myanmar Constitution, supra note 1, s. 11. See also The Chief Justice of the Union v. Ministry of Home Affairs, Submission No. 01/2011, at 11-14. An English translation of the decision is available online: Myanmar Constitutional Tribunal <http://www.myanmarconstitutionaltribunal.org.mm/en>.

^136. Law Relating to the Emoluments, Allowances and Insignia of the Region or State Level Persons (State Peace and Development Council Law No. 3/2011).

^137. Section 19(c) of the Union Government Law provides that “[t]he President shall appoint the following persons in accord with the Constitution: the Ministers of the Region or State.” See also Dr. Aye Maung, et al. v. The Republic of the Union of Myanmar, Submission No. 02/2011, 12-14. An English translation of the decision is available online: Myanmar Constitutional Tribunal <http://www.myanmarconstitutionaltribunal.org.mm/en>. See also Nardi, “Finding Scalia in Burma”, supra note 13 at 662.

^138. Dr. Aye Maung, et al. v. The Republic of the Union of Myanmar, Submission No. 02/2011, at 14-19. An English translation of the decision is available online: Myanmar Constitutional Tribunal <http://www.myanmarconstitutionaltribunal.org.mm/en>.

^139. Nardi, “Finding Scalia in Burma”, supra note 13 at 663-64.

^140. KNEIP, Sascha, “Constitutional Courts as Democratic Actors and Promoters of the Rule of Law: Institutional Prerequisites and Normative Foundations” (2011) 5 Zeitschrift für Vergleichende Politikwissenschaft 131 at 142CrossRefGoogle Scholar; HELMKE, Gretchen and ROSENBLUTH, Frances, “Regimes and the Rule of Law: Judicial Independence in Comparative Perspective” (2009) 12 Annual Review of Political Science 345 at 361–362Google Scholar (“[W]idespread popular dissatisfaction with courts gives politicians a ready-made excuse to tread on judicial independence”).

^141. Constitution of Indonesia, supra note 97, art. 24C(1); Law 24/2003, supra note 99, art. 10(1).

^142. Nardi, “Finding Scalia in Burma”, supra note 13 at 680.

^143. Ibid. at 44. On the judiciary engaging the other branches of government, see DRESSEL, Björn, “Courts and Governance in Asia: Exploring Variations and Effects” (2012) 42 Hong Kong Law Journal 95Google Scholar [Dressel, “Courts and Governance”].

^144. Myanmar Constitution, supra note 1, s. 446.

^145. Nardi, “Finding Scalia in Burma”, supra note 13 at 667-68.

^146. See Willis, supra note 130.

^147. Epstein, Knight and Shvetsova, supra note 78 at 125-126 (“in practical terms, this means, first, that elected officials have not been hesitant to suspend their courts, fail to comply with their decisions, threaten impeachment against particular justices, or take other steps designed to punish justices or render their decisions inefficacious ... [s]econd, when these threats occur the courts are often unable or unwilling to mount defenses, at least in part because they toil in countries where, under previous regimes, ‘it had been unthinkable that an independent institution should exist which could exert constitutional control over the process of government and law enforcement’).

^148. Ibid. at 127; Horowitz, supra note 120 at 133.

^149. See e.g. Ginsburg, Judicial Review, supra note 64; Ginsburg, “Constitutional Courts in New Democracies”, supra note 87; Dressel, “Courts and Governance”, supra note 143; Epstein, Knight and Shvetsova, supra note 78; Horowitz, supra note 120.

^150. See above at III.

^151. Nardi, , “Finding Scalia in Burma”, supra note 13 at 676–677Google Scholar, note 357.

^152. See e.g. Mietzner, supra note 7; Siregar, supra note 7.

^153. See Nardi, “Reps Move Towards Impeachment”, supra note 43.

^154. Nardi, “What Irony?”, supra note 58.

^155. Brown, and Wise, , supra note 61 at 148–149Google Scholar.

^156. See Ginsburg, , Judicial Review, supra note 64 at 247Google Scholar (“To play this important role of contributing to democratic stability and deliberation, courts must develop their own power over time”).

^157. See also Brown, and Wise, , supra note 61 at 149; Stotzky, supra note 12 at 199Google Scholar.

^158. See Dominic NARDI, “Constitutional Tribunal Under Fire” Rule by Hukum (15 August 2012), online: Rule by Hukum <http://rulebyhukum.blogspot.ch/2012/08/constitutional-tribunal-under-fire.html>; AUNG Htoo, “Rule of Law and Reality in Burma” DVB Analysis (2 October 2012), online: DVB <http://www.dvb.no/analysis/rule-of-law-and-reality-in-burma/24042> [Aung, “Rule and Reality”]; Nicolas BAMFORTH, “Separation of Powers, Public Law Theory and Comparative Analysis” in Ziegler et al., eds., supra note 71, 167 at 168-74.

^159. Brown and Wise, supra note 61; Larkins, supra note 55 at 625. According to Larkins, one of the most difficult dilemmas for courts during democratic transition is the fact that while the “stability of democratization relies to a large extent on the independence of the courts”, the independence of the courts also hinges “quite a bit upon the stability of the transition.”

^160. See above at I.

^161. See e.g. Crouch, “Going Nowhere”, supra note 38.

^162. See e.g. Stephen BLOOM, “The ‘Rule of Law’ in Burma” The Irrawaddy (1 February 2012), online: The Irrawaddy <http://www2.irrawaddy.org/opinion_story.php?art_id=22960>.

^163. Nardi, “Finding Scalia in Burma”, supra note 13 at 669-70; Nardi, “Will Democracy and Constitutionalism Mix?”, supra note 3.

^164. Myanmar Constitution, supra note 1, ss. 334(b), 302(c), 71(b); Nardi, “Discipline-Flourishing Review”, supra note 52 at 1.

^165. Nardi, “Finding Scalia in Burma”, supra note 13 at 652.

^166. See also RUSSELL, Peter H., “Toward a General Theory of Judicial Independence” in Peter H. RUSSELL and David M. O’BRIEN, eds., Judicial Independence in the Age of Democracy: Critical Perspectives from around the World (Charlottesville: University Press of Virginia, 2001), 1 at 15Google Scholar (“What is really essential for judicial independence is that removal should be very difficult and should be based on a demonstration, judiciously arrived at, that the judge is incapable of discharging the responsibilities of judicial office”); Larkins, supra note 55 at 623.

^167. Myanmar Constitution, supra note 1, s. 335.

^168. Garoupa, supra note 74 at 29–30Google Scholar; Aung, “Rule and Reality”, supra note 158.

^169. See e.g. Mietzner, supra note 7 at 414, on the important role that support from civil society and the media played in the strengthening of the Indonesian Constitutional Court’s institutional position, and Hazama, supra note 124 (“high public support deters politicians’ challenge to judicial independence”).

^170. See above at I.

^171. See above at II.

^172. See above at III.

^173. See above at IV.

^174. Epstein, Knight, and Shvetsova, supra note 78 at 127Google Scholar.