Decisional Independence of Constitutional Justices: Practice of Myanmar and Overview of Legal Framework in Certain AACC Members

The Constitutional Tribunal of the Republic of the Union of Myanmar was initially established with the very important role of guaranteeing the supremacy of the Constitution, exercising constitutional review, and balancing the constitutional powers of multi-level governance in Myanmar under section 46 of the 2008 Constitution. Decisional independence means the independence of justices in making legally binding decisions without any interference, and it is the touchstone for the rule of law, impartiality, and the independence of the judicial branch of government as a whole which are guaranteed by the 2008 Constitution. This paper provides an overview of the practice of decisional independence of justices of the Constitutional Tribunal in Myanmar and the legal framework for judicial independence in certain Association of Asian Constitutional Courts and Equivalent Institutions (AACC) member states such as Indonesia, Thailand, Korea (Republic of), and Russia, based on five criteria that affect judicial independence. These are the rules for selecting and removing justices, party detachment, individual autonomy, and political insularity. This paper retells the challenges to judicial independence of the Constitutional Tribunal of Myanmar in the years from 2011 to 2020 and describes its persistence and successes in this regard. This paper intends to examine the important factors that curb and threaten the decisional independence of constitutional justices of Myanmar and to explore how judicial independence could be protected by typical legal precautions, which should be prescribed in the Law on the Constitutional Tribunal of Myanmar. This paper also discusses the implementation of international standards for judicial independence in Myanmar in line with the Bangalore Principles of Judicial Conduct on Ethics and the UN Basic Principles on the Independence of the Judiciary.