Dictators, democrats, and constitutional dialogue: Myanmar’s constitutional tribunal

Abstract

Constitutional courts are now a common part of legal reforms in transitional regimes. This is also the case in Myanmar, where in 2011 the Constitutional Tribunal was formed. Yet the operation of the Tribunal flies in the face of assumptions common to global constitutionalism. At present, external factors such as globalized judicial networks or comparative concepts of rights-based review have had little influence in Myanmar. Instead, the operation of the Tribunal can be explained by internal factors and the actions, or inaction, of elite political actors. I demonstrate this by undertaking a sociolegal analysis of the Constitutional Tribunal under President Thein Sein (2011–2012; 2013–2016) and then the National League for Democracy government (2016–2021). I identify the internal factors that have most influenced the operation of the Tribunal. In particular, I consider when and why democratically elected actors (as well as non-elected military) use the Tribunal and engage with the Constitution established by the previous authoritarian regime. As a monumental shift has taken place from direct military rule to military-led constitutionalism in Myanmar, I offer an important and timely reflection on the implications of the role of the Tribunal as a forum for constitutional dialogue between and among military dictators and democratically elected representatives.