ISSN 2188-1952

Nagoya University

Asian Law BulletinVol.

52020.3◣◣◣◣◣◣◣◣◣◣◣◣◣◣◣
特集 ：ポスト権威主義国の民主化プロセスにおける違憲審査機関の役割の比較研究

ISMATOV Aziz

The Constitutional Judiciary and its Role in the Democratization Process
in post-Soviet Central Asia. The Constitutional Court in Uzbekistan………5

DASHBALBAR Gangabaatar

Role of Constitutional Tsets in the Consolidation of Democracy
in Mongolia………..……………………………………………….21

KOKUBUN Noriko

Korean Constitutional Court and Democracy………………………………35

PHAN Thi Lan Huong

Adoption of the Constitutional Council towards the Rule of Law Stateand Democratization in Vietnam…………………………………………53

MAKINO Emi

Evaluation of the Attitudes Between the Constitutional Tribunal and theParliament in Myanmar…………………………….…………………….………69

個別論題
論説

LEE NariInterface of Patent and Trade Secret Protection for Artificial Intelligence in
Personalised Medicine ........................................................................................... 87

資料

ミアン・ピッチダビナー／傘谷
牧野

絵美

翻訳

祐之

翻訳

カンボジア・憲法院規則 .................................... 107

ミャンマー・連邦憲法裁判所法......................................................................117◥◥◥◥◥◥◥◥◥◥◥◥◥◥◥

Center for Asian Legal ExchangeNagoya University Asian Law Bulletin
Editors

 FUJIMOTO Akira (Chief)
 SATO Fumito

 MATSUO Yoh ISMATOV Aziz  MAKINO Emi

Assistant Editor

 WEI Jiyuan

Cover Design

 KASAYA Yushi

Publisher

Vol.5

 Center for Asian Legal Exchange, Nagoya University (CALE)
Furo-cho, Chikusa-ku, Nagoya, 464-8601, Japan
TEL：+81(0)52-789-2325

FAX：+81(0)52-789-4902

E-mail：cale-publication@law.nagoya-u.ac.jp
URL：http://cale.law.nagoya-u.ac.jp
Date of Issue 

March 31, 2020

ISSN  2188 – 1952

Free electronic version available at http://cale.law.nagoya-u.ac.jp/publication/alb.html

Nagoya University

Asian Law Bulletin◣◣◣◣◣◣◣◣◣◣◣◣

Vol.5, March 2020

Center for Asian Legal Exchange
Nagoya University

Nagoya University Asian Law Bulletin
第 5号
◆◇◆
■

特

目次

◇◆◇

集 ：ポスト権威主義国の民主化プロセスにおける違憲審査機関の役割の比較研究
ISMATOV Aziz

The Constitutional Judiciary and its Role in the Democratization

Process in post-Soviet Central Asia. The Constitutional Court in Uzbekistan ······ 5
DASHBALBAR Gangabaatar

Role of Constitutional Tsets in the Consolidation of Democracy

in Mongolia ································································································ 21
KOKUBUN Noriko

Korean Constitutional Court and Democracy ······························· 35

PHAN Thi Lan Huong

Adoption of the Constitutional Council towards the Rule of Law Stateand Democratization in Vietnam ……………………………………………………………...53
MAKINO Emi

Evaluation of the Attitudes Between the Constitutional Tribunal

and the Parliament in Myanmar·································································· 69

■

個別論題

論 説
LEE NariInterface of Patent and Trade Secret Protection for Artificial Intelligence in

Personalised Medicine .............................................................................................................. 87
資料
ミアン・ピッチダビナー／傘谷
牧野

絵美

翻訳

祐之

翻訳

ミャンマー・連邦憲法裁判所法 ··········································· 117

Nagoya University Asian Law Bulletin 規程
Nagoya University Asian Law Bulletin 執筆要領
編集後記

カンボジア・憲法院規則 ..................... 107

Nagoya University Asian Law BulletinVol. 5◆◇◆■

Contents◇◆◇

Special Features ： The Role of Constitutional Review Bodies in the Asian PostAuthoritarian Democratization Process. A Comparative Perspective
ISMATOV Aziz

The Constitutional Judiciary and its Role in the Democratization

Process in post-Soviet Central Asia. The Constitutional Court in Uzbekistan ······ 5
DASHBALBAR Gangabaatar

Role of Constitutional Tsets in the Consolidation of Democracy

in Mongolia ································································································ 21
KOKUBUN Noriko

Korean Constitutional Court and Democracy ······························· 35

PHAN Thi Lan Huong

Adoption of the Constitutional Council towards the Rule of Law Stateand Democratization in Vietnam ……………………………………………………………...53
MAKINO Emi

Evaluation of the Attitudes Between the Constitutional Tribunal

and the Parliament in Myanmar·································································· 69■ Thematic Papers
ArticleLEE NariInterface of Patent and Trade Secret Protection for Artificial Intelligence in

Personalised Medicine .............................................................................................................. 87
Documentation
MEAN Pichdabina/ KASAYA Yushi

Translation: Internal Regulation of the Constitutional

Council of Cambodia ............................................................................................................. 107
MAKINO Emi

Translation: The Constitutional Tribunal of the Union Law in Myanmar ···· 117

Nagoya University Asian Law Bulletin – Rules for Paper Submissions
Nagoya University Asian Law Bulletin – Instructions to Authors
Editorial Note

特集
アジアのポスト権威主義国の民主化プロセスにおける違憲審査機関の役割の比較研究
本特集は、2019 年 6 月 11 日、シンガポール国立大学にて開催された第 16 回アジア法研究所（ASLI）年次大会 2019「アジアにおける法の支配と法の役割」のパネル「アジアのポスト権威主義国の民主化プロセスにおける違憲審査機関の役割の比較研究」の報告者による寄稿論文である。本パネルの一部は、日本学術振興会・研究拠点形成事業 B アジア・アフリカ学術基盤形成型「アジア型立憲主義の解明―
人権保障と法的安定性強化のための研究ネットワーク」の支援を受けて実施した。

Special Features
The Role of Constitutional Review Bodies in the Asian PostAuthoritarian Democratization Process. A Comparative
Perspective
These special features are collection of presentation papers by the speakers
at the panel titled “The role of Constitutional Review Bodies in Asian PostAuthoritarian Democratization Process. A Comparative Perspective” of the
16th Asian Law Institute Conference (ASLI) 2019 “The Rule of Law and theRole of Law in Asia”, which was organized on June 11, 2019 at Singapore
National University. This panel was partly supported by the JSPS Core-toCore Program: Asia-Africa Science Platforms “Advancing Research in Asian
Constitutionalism - Establishing a Transnational Research Network to
Promote Human Rights and Legal System”.

12 Preface 
The Role of Constitutional Review Bodies in the Asian Post-Authoritarian
Democratization Process. A Comparative Perspective

ISMATOV Aziz

What is the system of constitutional review? In modern times it is often discussed
in relation to democracy. In the former eastern bloc countries of Europe, a
constitutional review was introduced along with the changes in their political and legal
systems, and it was widely agreed that having a constitutional review system wasconsidered a membership card for the constitutional democracy club. If to look at a
broader Asian perspective, Korea, Mongolia, Uzbekistan, and Myanmar have all
introduced constitutional review bodies as a part of their democratic transition. In
Vietnam, in the context of the 2013 Constitutional amendments, there were increasing
expectations of introducing a Constitutional Council or Court as a part of thedemocratization process.
Nonetheless, the system of constitutional review is essentially a system to ensure
constitutionalism. Constitutionalism emphasizes the protection of the rights of theminority. Thus, there is an aspect of incompatibility with democracy, which places
importance on the will of the majority. Although the accepted view of theconstitutional review system is that it is ‘one of the preconditions for the existence of apluralistic democratic process,’ it can be said that in the process of introducing anddeveloping a constitutional review system, the way in which democracy is concretely
understood and how the system of constitutional review is linked to that understanding
is prescribed within the historical context of each country. This, in turn, creates the‘uniquely difficult to define’ independently developed constitutional review systems ofeach country.
 Assistant Professor, Center for Asian Legal Exchange, Nagoya University.

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Nagoya University Asian Law Bulletin Vol.5 (March 2020)

A common denominator tying all mentioned countries is that all of them haveexperienced in the past or continue suffering to a certain extent an authoritarian rule.
Furthermore, four of the developing economies are either socialist or states, which areon the way of post-socialist transition. Hence, the level of democratic developments, aswell as characteristics of the constitutional review in mentioned five states, is visibly
different.
Within the scope of the present panel, it is planned to address multiple factors
regarding the constitutional review bodies and their role in posing a positive impact on
democratization. Specific attention will be paid to the political and institutional aspects,
including on parliamentary interactions, variations of the judicial review designs, theconceptualization of the rule of law tradition, and the level the constitutional review
bodies’ independence in political deliberations.
The objective of this special volume is to distinct the reasons behind theestablishment and intentions to establish constitutional review bodies in Korea,
Mongolia, Uzbekistan, Vietnam and Myanmar, clarify factors that shape theiroperation modes, and examine their capacity to contribute to the political process,democracy, and the rule of law in mentioned states.

4

The Constitutional Judiciary and its Role in the Democratization Process
in post-Soviet Central Asia. The Constitutional Court in Uzbekistan【 Special Features ： The Role of Constitutional Review Bodies in the Asian Post- Authoritarian
Democratization Process. A Comparative Perspective】

The Constitutional Judiciary and its Role in the Democratization Process
in post-Soviet Central Asia. The Constitutional Court in Uzbekistan
ISMATOV Aziz

Abstract
The Constitutional Court in Uzbekistan is the body which is primarily expected to defend
and promote constitutionalism. This Court is theoretically expected to perform as anindependent actor in assuring respect for fundamental rights and fair competition between
political parties. The factual situation, however, demonstrates that the Court rarely acts as animpartial adjudicator and often prefers to distance itself from legislative deliberations. A
limited number of the Court’s decisions reflects the soul for the constitutionalism in
Uzbekistan. Between 1995 and 2019, the Court has taken up a total number of only 33 cases,
with the most significant part initiated by its justices. This statistical data indicates structuralproblems in the area of constitutional justice in Uzbekistan. A careful look at the modern
constitutional review system in Uzbekistan, especially its static condition, reveals grave
concerns about the issue of protection of fundamental rights and the promotion of
democracy. This report is an attempt to shed light on the constitutional review in Uzbekistanwith a particular focus on basic features, jurisdiction, and case-study law. The author also
aims to clarify the nature of interactions between the Court and democratical processes.

ContentsI.

The Origins of the Constitutional Court of Uzbekistan

II. Selection Method and Term of the Constitutional Court Justices
III. The Main Features of the Constitutional Court of Uzbekistan
IV. Available Case Study Law
V. Effectiveness of Constitutional Review
VI. The Constitutional Court and Democratic Transition
VII. Conclusion
Appendix Assistant Professor, Center for Asian Legal Exchange, Nagoya University.

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Nagoya University Asian Law Bulletin Vol.5 (March 2020)

I. The Origins of the Constitutional Court of Uzbekistan
In general, the discussion of constitutional review in Uzbekistan starts with theestablishment of a standalone Constitutional Court (from now on, the Court) in 1995.
The attempts to initiate constitutional review also existed before 1995. A pioneer
initiative on constitutional review dates back to 1990 when the Uzbek Soviet Socialist
Republic (Uzbek SSR) transplanted the USSR 1989 Law on the Constitutional
Supervision1 and created the Uzbek SSR’s Committee for Constitutional Supervision(from now on, CCS).2
This Soviet model of constitutional supervision in the Uzbek SSR included ten
justices who provided an advisory opinion to the legislature, but had no authority toinvalidate unconstitutional statutes or executive decisions, with the exception of thosewhich violated human rights. In practice, the CCS only carried scientific expertise of
normative-legal acts and research on their constitutional compatibility. The 1990 law
stipulated that only the legislature, the President, one-fifth of parliamentarians, or alimited number of public officials could initiate such scientific expertise of legalnormative acts. 3 The legislature had the authority to appoint the CCS justices andexercise overall control over the CCS’s activities. 4
The mere fact of establishing a pioneer constitutional review system in Soviet
Uzbekistan resulted in multiple opinions from legal theorists, both within and outside
the country. Mainly, the effectiveness of the CCS was vague and questionable in acountry whose state doctrine had generally rejected the principles of judicial review
over the constitutionality of legislation as incompatible with the supremacy ofparliament or democratic centralism.5
1 Zakon SSSR o Konstitutsionnom Nadore v SSSR [the 1989 Law of the USSR on Constitutional Supervision in the

USSR, Izvestiya No. 360, Dec. 26, 1989, at 1, 7-8 and at 3, 1-6. (First session was held on May 16, 1990)
2 Prikaz ob Utverjdenii Komissii po Razrabotke Zakona o Konstitutsionnom Nadzore v Uzbekskoy SSR [Regulationon the Establishing a Commission on the Draft Law of the Constitutional Supervision of the Uzbek SSR].
O’zbekiston Respublikasining Markaziy Davlat Arhivi [Central State Archive of the Republic of Uzbekistan] XII
Chaqiriq, O’zbekiston Respublikasining Oliy Kengashining 1990 Yil 18-20 Iyun kunlari bo’lib o’tgan XI Sesssiya
Materiallari [11th Plenary Session Materials], (Fond-2454, N 6,7091), 124-25.
3 Art 12, Zakon o Konstitutsionnom Nadzore v Respublike Uzbekistan N 93-XII (Outdated).
4 Art 5-6, ibid.
5 Ismatov, Aziz, “Specifics of the Late Soviet Constitutional Supervision Debate: Lessons for Central Asian

Constitutional Review?” (CALE Discussion Paper 19, CALE/Nagoya University, 2019)6

The Constitutional Judiciary and its Role in the Democratization Process
in post-Soviet Central Asia. The Constitutional Court in Uzbekistan

In 1992, Uzbekistan achieved independence and became the first post-Soviet
republic to adopt a written constitution.6 This 1992 Constitution included a long list offundamental rights and a Kelsenian, or European-style, stand-alone Constitutional
Court. The 1993 law implementing this new Court of Uzbekistan afforded it significant
power, including the power to strike down executive acts and formal laws based on the
1992 Constitution. 7 This power notably included the authority to strike down acts
based on constitutional invalidity. Formally, this appeared to be a step forward, eventhough the former CCS practically continued the role of the successor of the court.8
In August 1995, the Parliament replaced the 1993 law with the 1995 Law on theConstitutional Court of Uzbekistan.9 The same year the parliamentarians elected the
Court’s first team of justices and enabled its administrative regulations. A prominent
feature of the 1995 law is that during their deliberations on the model of the Court, theframers referred not only to the existing Soviet model of the constitutional supervision,
but also to the U.S. version of diffused judicial review of the Supreme Court, and the
Kelsenian model of concentrated constitutional review by the standalone constitutional
court.
In particular, during the negotiation process, some parliamentarians considered the
U.S. version less burdensome and more achievable at a lesser time and effort for
Uzbekistan regardless of the country’s hybrid legal system with elements of socialistlaw, Russian civil law tradition, and local indigenous customs.10 The feasibility of the
U.S. model of judicial review was also strongly associated with the U.S. led legal aid
project in Uzbekistan, which aimed to aid legal development mainly through thetransplantation of laws. 11 Finally, the application of the U.S. model in Uzbekistan
6 The Constitution of the Republic of Uzbekistan (December 8, 1992) Supreme Council, 11 session; (Uzbekistan).
7 Zakon Respubliki Uzbekistan o Konstitutsionnom Sude Respubliki Uzbekistan N820-XII (Outdated since 1995)(1993).
8 Postanovlenie o Vremennom Vozlojenii Funkciy Konstitutsionnogo Suda Na Sostav Komiteta Konstitutsionnogo

Nadzora Respubliki Uzbekistan., Tashkent (Verkhovniy Sovet Respubliki Uzbekistan, 1993).
9 Zakon Respubliki Uzbekistan o Konstitutsionnom Sude Respubliki Uzbekistan N103-I (Amended in 2017), (1995).
10 On hybrid legal system of Uzbekistan in Aziz Ismatov and Sardor Alimdjanov, ‘Developmental Trajectory of

Mahalla Laws in Uzbekistan: From Soft Law to Statutory Law’, Nagoya University Asian Law Bulletin Vol.4(December 2018).
11 Ismatov, Aziz, “Do Hybrid Legal Systems Matter in Legal Transplantation Projects? Some Philosophical Aspectsof Legal Aid in Uzbekistan as Provided by Foreign Donors.” Paper presented in the ALSA Conference. (Osaka,
Japan, 2020)

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Nagoya University Asian Law Bulletin Vol.5 (March 2020)

seemed plausible as there were other examples when a country with a predominantly
continental system of law, for example, Japan, transplanted the diffused model ofjudicial review.12
However, despite the strong regional pro-U.S. lobby in the first years of
independence, Uzbekistan opted for the Kelsenian model of a constitutional court orconcentrated judicial review. Presumably, such a step came as a result of reference tothe experience of Eastern European states (i.e., Poland, Hungary) and Russia. Notably,
each of these states established a constitutional court as the most effective mechanism
for the promotion of Rechtsstaat, or rule by the law state (pravovoe gosudarstvo), that
presumably could best protect constitutional values and principles.
II. Selection Method and Term of the Constitutional Court Justices
The significant amendments to the 1995 law took place as a result of the transitionof presidential power in Uzbekistan in 2016. The policymakers initiated specificchanges to the selection method and jurisdiction of the Court, and their efforts resulted
in a new 2017 Constitutional Law on the Constitutional Court (from now on, the 2017law).13This law stipulates seven Court justices.14 According to the 2017 amendments to
the 1992 Constitution, the President nominates the candidates to the Upper Chamber of
the Parliament (Senate), and the Senate finalizes the appointments upon voting foreach candidate individually.15 The Constitution also stipulates that the President should
nominate the candidates for the position of justice out of specialists in the area ofpolitics and law recommended by the newly established organ, the Supreme Judicial
Council. The nature of this organ is still unclear. Notably, before this Council cameinto existence, the nominations of justices fell explicitly within the authority of the
President. On the other hand, one cannot assert that this Council now actively limits
12 Or vice-versa, for example in 2011, Myanmar which had inerited its largely common legal tradition from its

former British colonial past, introduced a concentrated constitutional review in the form of the standalone
Constitutional Tribunal.
13 Konstitutsionniy Zakon Respubliki Uzbekistan o Konstitutsionnom Sude Respubliki Uzbekistan, ZRU-431, (2017).
14 Art 5, ibid. Chairman, Deputy Chairman and five members of the Constitutional Court including a judge from theRepublic of Karakalpakstan
15 Zakon Respubliki Uzbekistan o Vnesenii Izmeneniy v Otdel’nie Stat’yi Konstitutsii Respubliki Uzbekistan, (st 80,

93, 108 i 109), N430 (2017).

8

The Constitutional Judiciary and its Role in the Democratization Process
in post-Soviet Central Asia. The Constitutional Court in Uzbekistan

the presidential power to appoint justices as most of the Council’s members arepresidential appointees. 16 The Constitution separately mentions that one candidate
must be a representative of the Republic of Karakalpakstan.17 (Refer to Table 1)
Table 1. The nomination and election process of the Constitutional Court Justices.
Sources: Article 108, The Constitution of the Republic of Uzbekistan; Article 5, The Law on
the Constitutional Court.

The Senate approves justices of the Court by relying on a bare majority (more than
1/2) rather than a qualified majority (more than 2/3 or 3/5). While a similar scheme
exists in many emerging democracies, there is a risk that “... the majority party(coalition) in the [parliament] can appoint justices who may defer to the majority
without consent of minority parties.”18 Hence, the election of justices in Uzbekistan
does not stipulate any framework in which ruling or opposition parties would come to
a compromise or consensual decision regarding their appointments to the Court.
Furthermore, by paying closer attention to the practical side of the current Court’s
justice election system, one might observe a vast presidential influence on the overall
nomination process. In other words, the system of checks and balances between thethree branches of power is not explicitly applicable in the case of appointments of

16 Art 5. Konstitutsionniy Zakon Respubliki Uzbekistan o Konstitutsionnom Sude Respubliki Uzbekistan, ZRU-431.

Please note, this Council is composed of 21 members, 11 of whom are appointed by the President. Refer further to,
Zakon Respubliki Uzbekistan o Vysshem Sudeyskom Sovete Respubliki Uzbekistan, ZRU-427, (2017).
17 Art 108, The Constitution of the Republic of Uzbekistan, (Sobranie Zakonodatel’stva Respubliki Uzbekistan),(1992, amended in 2017); Refer also to Art 5, Konstitutsionniy Zakon Respubliki Uzbekistan o Konstitutsionnom
Sude Respubliki Uzbekistan, ZRU-431.
No member shall have the right to simultaneously serve as a deputy…. may not be members of political parties ...
Judges … have the right of immunity. [and]… shall be independent....
18 Odonkhuu Munkhsaikhan, Towards Better Protection of Fundamental Rights in Mongolia: Constitutional Review

and Interpretation., CALE Books 4 (2014), 82.

9Nagoya University Asian Law Bulletin Vol.5 (March 2020)

justices in Uzbekistan. Also, in the actual process of elections of the candidates to theposition of justice, there is no rule or practice which would stipulate the right or
privilege for the ruling and opposition parties to elect one justice by each, or elect byconsensus between the ruling and the opposition parties. Such a rule which would
balance the interests in the Parliament does not exist, and only the Senate bears thecompetence to approve candidates offered by the President. Indeed, the existing
practice does not demonstrate even a single case where the senators would question or
refuse any presidential nominee.
Justices have a term of five years and cannot hold a justiceship for more than two
terms.19 The same provision also stresses that the maximum age for justices is 70 years
old.20 Scholars and practitioners assert that the term of five years is too short as it does
not allow justices to create consistent and logical reasoning for a long-term period,
which, in turn, may weaken constitutional integrity.21 Hence, as the term of the justices
is five years, which is the same as the President, 22 and with the possibility of reelection just once, there appears a threat to the independence of the Court, as justices
may be reluctant to rule against bodies that had nominated them.
Non-legal professionals may be appointed de jure as justices, which makes theexisting framework of appointing Court justices in Uzbekistan different from theclassic continental constitutional court model. In the context of Uzbekistan’s law, theframers considered that apart from legal professionals, experienced politicians werealso necessary for the successful functioning of the Court. The parliamentarians widely
supported this viewpoint by referring to the idea that constitutional disputes would
touch upon various political foundations and social life.23

19 Art 6, Konstitutsionniy Zakon Respubliki Uzbekistan o Konstitutsionnom Sude Respubliki Uzbekistan, ZRU-431,(2017).
20 Ibid.
21 Ronald D. Rotunda, John E. Nowak, and Jesse Nelson Young, Treatise on Constitutional Law: Substance andProcedure (West Publishing Company, 1986), 9.
22 Art 90, the Constitution of the Republic of Uzbekistan, (1992).
23 B.A. Eshonov, ‘Nezavisimost’ i Deystvennost’ Resheniy Konstitutsionnogo Suda Respubliki Uzbekistan’,Konstitutsionnoe Pravosudie 3, no. 13 (n.d.), http://www.concourt.am/armenian/con_right/3.132001/uzbekistan.htm. [Accessed on May 16, 2019]10

The Constitutional Judiciary and its Role in the Democratization Process
in post-Soviet Central Asia. The Constitutional Court in Uzbekistan

III. The Main Features of the Constitutional Court of Uzbekistan
The Constitution dedicates Chapter XXII to the judicial authority. By taking a
careful look at the contents of this part, it is evident that the Constitutional Court islegally independent of the Supreme Court to exercise constitutional review. Ordinary
courts do not have this competency. The Court theoretically aims to enforce thesupremacy of the Constitution and implement the Constitutional principle of protectionof fundamental rights in the acts of the legislative and executive branches of power.24
In addition, the Court should be able to necessitate compliance to the Constitution inregards to laws and international treaties.
Although Uzbekistan is a unitary state according to its Constitution, the existence
within its territorial-administrative division of the autonomous Karakalpak Republicdemonstrates that Uzbekistan is indeed a state with elements of federalism. Similarly,
Karakalpak has its own constitution, and one of the tasks of the Court is to monitor thecompliance of the Karakalpak Constitution and statutes to the Constitution and statutesof Uzbekistan.25
Another feature of the Court is normative interpretation. In a few of its cases, theCourt offers a constitutional and legal interpretation of unclear or contested norms. The
Court also revises petitions of ordinary courts originating in concrete cases. Ordinary
courts cannot transfer such petitions directly but only via the Supreme Court. Finally,
this Court annually submits a report on constitutional legality conditions in the country
and hears cases to which it bears competence. 26
Hence, de jure this Court exercises constitutional review of legislation andexecutive acts, and analyzes their compatibility with international treaties27. The Court

24 Art 8, Konstitutsionniy Zakon Respubliki Uzbekistan o Konstitutsionnom Sude Respubliki Uzbekistan, ZRU-

431, (2017). i.e., laws of the Republic of Uzbekistan and resolutions of the chambers of the Parliament of the
Republic of Uzbekistan, decrees of the President of the Republic of Uzbekistan, enactments of the government andlocal bodies of state authority, interstate treaties and other obligations of the Republic of Uzbekistan.
25 Ibid.
26 Art 109, The Constitution of the Republic of Uzbekistan; Art 4, Konstitutsionniy Zakon Respubliki Uzbekistan oKonstitutsionnom Sude Respubliki Uzbekistan, ZRU-431. Also note; Judgments of the Constitutional Court shalltake effect upon publication. They shall be final and cannot be appealed.
Organization and procedure for the work of the Constitutional Court shall be specified by law
27 Please note, as in many cases, the Court of Uzbekistan adjudicates the conformity of international treaties to theConstitution of Uzbekistan before they are ratified. Similarly, most constitutional review bodies do not have the11Nagoya University Asian Law Bulletin Vol.5 (March 2020)

only hears cases relating to the constitutionality of acts of the legislative and executive
authorities.28 The Court can initiate the examination and settlement of constitutional
disputes on its initiative given a relevant request from three or more Court justices.29
The Parliament (both chambers) 30 , the President, the Cabinet of Ministers, Human
Rights Ombudsman, the Parliament of Karakalpak Republic, the Supreme Court, and
the Prosecutor General also have standing in bringing their claims for constitutional
review.31 However, these bodies can only initiate a matter within the competence of
the Court.
There is no individual access to the Court. Analogous to Kelsen’s original idea of
constitutional review, the framers of the Constitutional Court in Uzbekistan widely
rejected actio popularis. 32 Hence, individuals do not have the right to make anapplication to the Court, which, in turn, would have been obliged to review theconstitutionality of disputed matter. It is the central critical issue affecting the core
constitutional principle of protection of fundamental rights. When violations of rights
in Uzbekistan result in statutes, executive acts, or court judgments, individuals have noright to file a complaint to the Court after exhausting all remedies at the ordinary
courts. In other words, there is no possibility to initiate a constitutional review ofordinary court judgements or executive acts which are believed to result in theviolation of individuals’ rights, once ordinary courts fail to quash them.
The Court’s jurisdiction also does not stipulate a constitutional question. Therefore,in Uzbekistan, ordinary judges cannot play a direct role in the concrete review ofstatutes. Whenever judges of ordinary courts have reasonable doubts as to theconstitutionality of a specific law, they cannot stop the proceeding and refer directly toauthority to review those international agreements which have already been ratified as long as such review might
negatively impact upon mutual relations with other countries or international agencies.
28 Art 108, The Constitution of the Republic of Uzbekistan.
29 Art 25, Konstitutsionniy Zakon Respubliki Uzbekistan o Konstitutsionnom Sude Respubliki Uzbekistan, ZRU-431.
30 Note that the law also mentions a group of parliament members who are eligible to initiate constitutional review.

Not less than ¼ of lower chamber members might initiate constitutional review. Similarly, when it comes to theupper chamber (the Senate), not less than ¼ of senators may initiate constitutional review. Refer further to Art 25,
Ibid.
31 Ibid.
32 Hans Kelsen, Judicial Review of Legislation: A Comparative Study of the Austrian and the American Constitution(Journal of politics, 1942), 197.

12

The Constitutional Judiciary and its Role in the Democratization Process
in post-Soviet Central Asia. The Constitutional Court in Uzbekistan

the Constitutional Court, which in turn would examine the matter and forward its
decision back to the original court in order to resume the instant case. Ordinary judges
can forward their queries to the Court only via the Supreme Court. As an example, inGermany, Italy, and Spain because, any judge has an authority to refer a question
directly to the constitutional court. On the other hand, in Uzbekistan, similarly toAustria and France, only the Supreme Court may follow such procedure.33
The Court de jure exercises abstract and concrete review of legislation.34 Review
always focuses on the legal norm but not a case. The Court decides on particularmatters only when the consideration of their constitutionality is challenged. The Court
may also upon examination for the constitutionality of the normative act
simultaneously decide in respect of the other normative acts that contain a reference tothe examined statute even they have not been mentioned in the matter introduced forthe hearing of the Court.35 “The issue of the constitutionality of the norm may arise ina pending case, but the review by … the Court is strictly confined to the norm.”36
Although the 2017 law enables the Parliament to initiate review procedure, there is noteven a single case in which the Court demonstrated how abstract review acts as amechanism to protect a parliamentary minority from the abuse of power by the
majority groups.37 This moment raises grave concerns about the qualitative aspects ofconstitutional review and the parliamentarian culture in Uzbekistan.
Theoretically, once the Court declares a statute or executive act as unconstitutional,
it orders their invalidation since the moment of their adoption. The decisions of the
Court are final and cannot be appealed.38 According to the law, the Court itself may

33 John Ferejohn and Pasquale Pasquino, ‘Constitutional Adjudication: Lessons from Europe Symposium:Comparative Avenues in Constitutional Law - Constitutional Structures and Institutional Designs’, Tex. L. Rev. 82(2003–2004): 1689; Federico Fabbrini, Kelsen in Paris: France’s Constitutional Reform and the Introduction of A
Posteriori Constitutional Review of Legislation, Rochester, NY, SSRN Scholarly Paper (Social Science Research
Network, 15 March 2015), 9.
34 In particular, a review of conformity with Constitution.
35 Refer further to; (https://www.venice.coe.int/WCCJ/Seoul/docs/Uzbekistan_CC_reply_questionnaire-3WCCJ-

E.pdf) [Accessed on May 16, 2019]36 Scott Newton, The Constitutional Systems of the Independent Central Asian States: A Contextual Analysis(Bloomsbury Publishing, 2017), 190.
37 Note. Not a preventive control.
38 Art 33, Konstitutsionniy Zakon Respubliki Uzbekistan o Konstitutsionnom Sude Respubliki Uzbekistan, ZRU-431.

13

Nagoya University Asian Law Bulletin Vol.5 (March 2020)

revise its own decision when new or unknown circumstances arise. The Court may also
revise a decision if the constitutional norm that was at issue in the dispute changed.39
To maintain regular contacts with legal scholars, the framers decided to establish
within the Court a separate Scientific-Consultative Council. According to the law thisCouncil must research the most recent trends, and international law’s influence on theconstitutional courts’ decisions in foreign states. This Council is expected to employ
and attract prominent legal and political science scholars to cooperate in developing
and applying legal-scientific approaches towards constitutional review.

IV. Available Case Study Law
The modern Uzbek constitutional review demonstrates a critically small number ofcase-study law. Even though the Law on Petitions from Individuals and Legal
Entities40 paved the way for the Court to act on numerous claims from individuals, theCourt’s reaction has been rare or non-existent.41 As an example, between 1995-2001,
the Court received more than 2,000 letters and petitions from citizens. Generally, thesepetitions questioned the constitutionality of statutes and acts of the executive branch.42
Regardless of this chance to actively engage with relevant claims and create precedent
database, the Court has demonstrated an unforgivable passiveness. In fact, over 24
years of formal existence, the Court has issued only 33 cases out of which 16 have aform of decrees, 3 definitions, and 14 decisions.
As an example, in the Frolov case, the plaintiff lodged a petition against publicauthorities who barred him from obtaining benefits stipulated by Article 16 of the Lawon the Guarantees of Free Entrepreneurship.43 In particular, the plaintiff, Mr. Frolov,
asserted that public taxation and financing organs incorrectly interpreted and applied
the provisions of the named statute, which in turn, barred the plaintiff from obtaining
financial and tax benefits. In the instant case, the Court had very briefly analyzed the
39 Art 34, ibid.
40 Zakon Respubliki Uzbekistan ob obrasheniyah Fizicheskih i Yuridicheskih Lits, 378 (Uzbekistan 2014).
41 The Court has elaborated a special Regulation to sort and address the relevant petitions of the citizens.
42 Interview with the Justices of the Constitutional Court of Uzbekistan, Tashkent (April 2019). (March 2018)
43 Frolov case (2001), Narodnoe Slovo, 158, (2718).

14

The Constitutional Judiciary and its Role in the Democratization Process
in post-Soviet Central Asia. The Constitutional Court in Uzbekistan

circumstances of the dispute and by considering the reports from the Ministry of
Finance and State Tax Committee, found a misleading wording in the statute. In the
instant case, the Court declared that the actions of the relevant tax and financing organs
were unconstitutional because of the provisional vagueness and upheld the statutory
provision of the two-year benefit for individual entrepreneurs, as long as individual
entrepreneurs had registered before the amendment to the tax code. The conclusion inthis concrete review, while being protective of the individual’s rights, on the other
hand, does not offer a logical and a well-reasoned argumentation story that would help
to follow and support the position of justices.
In another case on constitutional interpretation, the Court revised Article 6 of The
Law on Bar. Three justices decided to bring the matter before the Court after they hadreceived and analyzed a petition from Mr. Nurmuhammedov, a practicing lawyer in
Uzbekistan. In the instant case, Mr. Nurmuhammedov complained that the Forensic
Center refused him access to the written expert-conclusion necessary for the legal
defense of his client. In particular, the named center pointed to the absence of a legal
provision that would enable a practicing lawyer to request such conclusions inprocedural matters. Justices initiated the interpretation of Article 6 on The Law on Bar
which provided “a lawyer, upon obtaining permission from his client, has the right toinquire and obtain the forensic results or expert-conclusions from the relevant agencies
necessary for the legal defense of the client.” After reviewing this norm and consultingwith specialists in relevant fields, the Court ruled that “expert agencies do indeed haveto present files necessary for a person’s legal defense to lawyers after they obtain arelevant agreement from their clients.” 44 Again, as in the previous case, the Court did
not demonstrate in its conclusion a detailed argumentation and legal analysis.
Out of the remaining limited number of Court decisions, there are several in which
justices utilized their right for the legal initiative. For example, in 2001, when the
Court found inconsistency in several articles of the Code on Administrative
Responsibility and declared these articles unconstitutional, it introduced the matter tothe Parliament with a request to revise the inconsistency. Notably, it took the

44 Nurmuhammedov case (2000), Narodnoe Slovo, 134, (2429).

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Nagoya University Asian Law Bulletin Vol.5 (March 2020)

Parliament two months to revise and resolve the issue in the way the Court requested
it.45
There have not yet been any cases in the Court’s jurisprudence in which politicalminority parties claimed a legitimacy in Parliamentary deliberations, although suchcases should exist in the political arena.46One idea might suggest that such situation isan outcome of an underdeveloped condition of the legislature. Another hypothesis
suggests that the Court is unable or unwilling to secure parliamentary compliancebecause of its constant political neutrality. Such distancing from political controversies
eventually affects the much-awaited stabilizing role of the Court inpolitical

deliberations.
V. Effectiveness of Constitutional Review
The story of Uzbek constitutional review began in the late Soviet period. After thefall of the Soviet Union, the newly independent parliament of Uzbekistan created its
Constitutional Court. Formally, this appeared to be a step forward as such a decisionsuggested the beginnings of a move towards rights-based judicial checks on legislativeand executive power. However, this newly empowered court has not emerged as a
powerful force for constitutional implementation.
Despite a long list of rights in its Constitution and a separate constitutional court,
Uzbekistan’s constitutional review has been largely non-existent. Notably, the Court
has not relied on the essential methods of review, such as actio popularis,
constitutional question, or constitutional complaint.
The Court ignored numerous vague legislative and executive acts, as well as cases
in which ordinary courts failed to quash apparent violations of fundamental rights. Had
the Court taken a more active and detailed approach, these acts could have been usedas potential elements that could generate a reasonably grounded case study law.

45 Constitutional Court, Constitutional Decision, O Vnesenii Predlojeniya Ob Ustraneniii Nesootvetstviya Mejdu

Statyami 53, 34 i 257 Kodeksa Respubliki Uzbekistan Ob Administrativnoy Otvetstvennosti, Narodnoe Slovo, 117,(2627), 2001.
46Refer to; (https://www.venice.coe.int/WCCJ/Seoul/docs/Uzbekistan_CC_reply_questionnaire-3WCCJ-E.pdf)[Accessed on May 16, 2019]16

The Constitutional Judiciary and its Role in the Democratization Process
in post-Soviet Central Asia. The Constitutional Court in Uzbekistan

A few available cases reveal another weak aspect in the Uzbek constitutional
jurisprudence, namely, the inability of justices to provide logical reasoning to justify
their decisions. In fact, not even a single case out of the 33 decisions rendered by the
Court demonstrated a clear and detailed record of how justices interpreted the statutory
provisions in a clear, coherent, and justifiable manner.
VI. The Constitutional Court and Democratic Transition
Scholars assert that “the achievement of a stable system of constitutional justicedepends heavily on the same factors and processes related to the achievement of astable democracy.” 47 Such factors as an adequate parliamentarian system withcompetitive parties, fair and transparent elections, the principle of Rechtsstaadt,
respect for human rights, legal education, and legal profession play a substantial role increating and sustaining constitutionalism in transition societies.
After Uzbekistan adopted its 1992 Constitution, which contained a set of wellwritten individual rights and the separate constitutional court, there appeared an
impression that the country, being analagous to some successful Eastern European
states, had started its transition from state centralism to constitutional democracy.
Within the next 25 years of constitutional review’s evolution, it became evident thatthe court failed to perform several functions which are crucial for the facilitation of atransition to democracy. First, within the complicated transition process, the Court
failed to act as a dispute resolution tool between various political forces which framed
the political system after the fall of the Soviet Union. Second, the Court failed to prove
itself as a thriving institution capable to invalidate statutes with prominent
unconstitutional elements. The Court could not construct a dialog with the parliamentand protect political minority groups. Another critical point touches upon an inability
to protect the rights and freedoms of individuals adequately.
Up to 2016, as the Government often approached the human rights concept byactively relying on Asian (Oriental) values and supreme national development interests.
By doing so, many policymakers it often utilized an interpretation that in order toachieve developmental goals with particular national characteristics, sacrificing
47 Alec Sweet, ‘Constitutional Courts’, Faculty Scholarship Series, 1 January 2012, 1.

17

Nagoya University Asian Law Bulletin Vol.5 (March 2020)individual freedoms or restricting particular human rights was unavoidable. This claim
for development influenced the degree of democracy which in contemporary
Uzbekistan is mainly associated with the importance of the strong rule by a dominantleader aimed at achieving good results. As it is the case in other Asian countries, forexample, present-day Indonesia or South Korea in the 1980s, this may have paved theway for the so-called authoritarian developmentalism.48
As in the other Central Asian republics, often referred to in the academic literature
as “super-presidential,” 49 Uzbekistan may indeed be one example of the rapid
development of presidential authority, which is based on constitutional guarantees andpublic trust. The factual situation demonstrates that presidential authority, additionally
represented in such instruments as Presidential Reception Offices (Priyomnaya
Prezidenta, Virtual’naya Priyomnaya Prezidenta), de facto replaces certain elements
associated with constitutional review. This situation further raises justified concernsand questions on mainly what mechanism of judicial review is more suitable for atransitional country such as Uzbekistan.
VII. Conclusion
Constitutional review in the Central Asian region was an innovation of the lateperestroika, which before had been widely unknown to the former Soviet Republic of
Uzbekistan. After the collapse of the USSR, Uzbekistan aimed at distancing itself fromsocialism and moving towards a democratic state. One precondition for such atransition was an ambitious plan to design an institution that would protect the newly
adopted constitution using a system of judicial review. Simultaneously, scholars andpoliticians expressed their hopes that within a short period, such an institution would
turn into an actor capable of protecting fundamental rights and freedoms of individuals.
Historically, in the socialist Uzbekistan, legislature enjoyed unlimited sovereignty
and denied any notion of limited government. Indeed, strong legislature laid thefoundations of the democratic centralism and socialist legality that became core

48 Refer further to; Helena Alviar García and Günter Frankenberg, Authoritarian Constitutionalism (Edward Elgar

Publishing, 2019).
49 Newton, The Constitutional Systems of the Independent Central Asian States.

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The Constitutional Judiciary and its Role in the Democratization Process
in post-Soviet Central Asia. The Constitutional Court in Uzbekistan

principles in many socialist states across the globe. While these notions existed mainly
under the slogans of popular sovereignty, their factual effect often resulted in
autocracy. After the fall of socialism in many parts of the world at the end of 1980s,
new political elites adopted new constitutions and declared their transition towards a
representative democracy and rule of law. In many states, new constitutional courts
were thus expected to perform the role of the guarantor in protecting the fundamental
rights, and catalyst for the democratic transition. However, in many instances, these
instruments could not overcome the judicial passivism inherited from the highly
centrist structure of socialist state. Whereas, the centrism, in many states, particularly
in Asia had moved from legislative supremacy to the strong authority of executive
branch. The Court’s active role as a successful adjudicator capable of enforcing rules
and principles of the constitutionalism while acting even on political issues, but frompurely legal base, could have paved the way for an adequate balance between different
branches of power. So far, the analysis of the institutionalization of the constitutional
review draws to the conclusion that setting a vibrant and reliable constitutional
judiciary in Uzbekistan requires fundamental reconsideration of traditional judicial
passivism and resisting the state centrist theory of state.

19

Appendix
Date of establishment

August 1995

Members

7

How appointed

The
President,
based
on
the
recommendation of the Supreme Judicial
Council nominates the candidates out ofspecialists in the area of politics and law to
the Upper Chamber of the Parliament(Senate), and the Senate finalizes theappointments upon voting for eachcandidate individually.

Term length in years

5

Terms renewable

Yes (Renewable only once)

Actio popularis

No

Petitions from citizens
Abstract/Concrete review

Yes (based on the Law on Petitions)
It is not Actio Popularis
Both

Constitutional complaint

No

Constitutional question

No

Review of legislation ex post/ ex ante

Ex postAre decisions final?

Yes

Impeachment powerNo

Declarespolitical
unconstitutional

partiesNo

20

Role of Constitutional Tsets in the Consolidation of Democracy in Mongolia【 Special Features ： The Role of Constitutional Review Bodies in the Asian Post- Authoritarian
Democratization Process. A Comparative Perspective】

Role of Constitutional Tsets in the Consolidation of
Democracy in Mongolia
DASHBALBAR Gangabaatar

Abstract
This paper examines the role of the Constitutional Tsets in consolidation of democracy inMongolia. Mongolia is one of the successful democracies among the post-socialist countries.
The 1992 Constitution introduced a centralized constitutional review model and established
the Constitutional Tsets of Mongolia. The Tsets is empowered to rule on the constitutionalityof the laws, international treaties, presidential decrees and government decisions. The
constitutional review provides an important safeguard for human rights and freedoms
enshrined in the Constitution. The Tsets had to confront a number of issues ranging from the
problems regarding the qualification of Tsets members to the confrontation on constitutional
interpretation and jurisdictional issues with the State Great Khural and the Supreme Court.
Although Tsets’s independence raises disputes touching upon its competency, it was able toprotect democratic principles and individual rights and freedoms for the past 28 years of
democratic history in Mongolia. This paper draws attention to the role of Constitutional Tsetsin democratic consolidation in Mongolia and discusses current challenges and prospects.

Contents
I.

History of Constitutional Review in Mongolia

II. Weak Form of Judicial Review?
III. The Relationship Between Tsets and the State Great Khural
IV. Role of Constitutional Tsets in Mongolian Democracy
V. Composition of the Constitutional Tsets
VI. Conclusion Professor, School of Law, National University of Mongolia.

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Nagoya University Asian Law Bulletin Vol.5 (March 2020)

I.

History of Constitutional Review in Mongolia

With the collapse of socialist regime in early 1990s, Mongolia was one of the firstpost-socialist countries to embrace democracy and created a constitutional court. Rapid
legal reception and transfer to a democratic constitutionalism led to the inevitabletransitional issues faced by many other post-socialist countries. All of these countries
went through a difficult transitional period and Mongolia was no exception. 70 years ofexperience under one party system and three socialist Constitutions left deep marks on
Mongolian society and polity.
The first constitution was adopted in 1924. The second and the third constitutions ofMongolia were adopted in 1940 and 1960 respectively. All three constitutions were
known as the socialist constitutions of Mongolia. They listed human rights and freedoms
citizens would enjoy, but failed to create a constitutional review system for theprotection of those fundamental rights and freedoms. Under the socialist constitutions
there was no mechanism to effectively protect human rights and freedoms at theconstitutional level or to control government behavior. The prosecutor had a role to limit
the government behavior, but in practice it worked under the guidance of the Mongolian
People’s Revolutionary Party and its supervisory role was limited.
With the introduction of Constitutional Tsets (hereinafter, the Tsets) in the 1992
Constitution, Mongolia adopted the Austrian model of abstract norm control. The
decentralized constitutional review in the USA and the pre-legislative constitutional
review of France were also considered during the drafting phase. The first draft provided
for the Tsets to be part of the judicial system, but later it was moved to a separate chapter,
independent of the main judicial branch. Like many other post-communist countries ofEastern Europe after the collapse of a socialist regime, Mongolia, for the first timecreated a constitutional court to review the constitutionality of statutes.
Apart from statutes, the Tsets is entitled to review the constitutionality of resolutions
by the State Great Khural, government ordinances, and presidential decrees, andinvalidate them if found unconstitutional. However, it did not obtain the jurisdiction overthe complaints related to citizens’ fundamental rights and freedoms and left them to thejurisdiction of ordinary courts. It can settle disputes on the basis of petitions andinformation received from citizens or at the request of the State Great Khural, the22Role of Constitutional Tsets in the Consolidation of Democracy in Mongolia

President, the Prime Minister, the Supreme Court and the Prosecutor General. 1 The
purpose of Tsets was to protect human rights and freedoms and it is entitled to interpret
the Constitution and invalidate decisions that are contrary to the constitutional provisions
that guaranteed the human rights and freedoms. Establishment of an independent Tsets,
therefore, was the most important aspect of the 1992 Constitution. Human rights andfreedoms stipulated in the previous constitutions of Mongolia were not enforced in the
courts of law.
II. Weak Form of Judicial Review?
Mongolian constitutional review is said to be closest to real weak-form review2 as it
is known to facilitate dialogue between the legislature and the constitutional court.
Week-form review is believed to promote constitutional dialogue about theconstitution’s meaning. “Where a judicial decision is open to legislative reversal,
modification, or avoidance,” then it is meaningful to regard the relationship between the
Court and the competent legislative body as a dialogue.3
Mongolian Tsets is among the third generation of constitutional courts, whichappeared after the dismantling of the socialist legal system. The first generation of courts
followed the American and the Kelsen’s centralized constitutional review model, while
the German type combined the individual rights protection and the abstract norm control.
Mongolian Tsets is a third-generation Constitutional court, which follows the Kelsenianmodel.
Mongolian Tsets established an abstract norm control and any legislation that
violates the Constitution is deemed unconstitutional and invalid. The consequence ofchoosing this form of constitutional review was that it makes the relations between the
Tsets and the State Great Khural far more challenging. A proper relationship between
the two is vital for the constitutional democracy to function well.

1

Constitution of Mongolia, (1992), art. 66.1.

2 Mark Tushnet and Rosalind Dixon, Weak-form review and its constitutional relatives: An Asian perspective, in

Rosalind Dixon and Tom Ginsburg, Comparative Constitutional Law in Asia, (Edward Elgar Publishing, Inc.) 2014,103.
3 Hogg, Peter W. and Alison A. Bushell.. “The Charter Dialogue Between Courts and Legislatures (Or Perhaps theCharter of Rights Isn`t Such a Bad Thing After All)”, Osgoode Hall Law Journal 35, (1997), 79.

23

Nagoya University Asian Law Bulletin Vol.5 (March 2020)

The relationship of these two institutions meant to be one of cooperation anddialogue as a design. When the Tsets makes a conclusion on the constitutionality of astatute, it is sent to the State Great Khural for review. When the conclusion is not
accepted by the State Great Khural, the Tsets examines it again with full bench andmakes a final judgment. The decisions that found a statutory provision unconstitutional
will make the relevant provisions of the law invalid.
The design might seem to be a variant of the weak-form review as it promotes
legislative participation in constitutional decision-making. It gives a second chance forthe legislature, which might have overlooked some constitutional issues in the law.
However, upon closer investigation, the Mongolia’s constitutional review appears as astrong-form review. When convening in full bench, the court almost always confirms its
earlier conclusion and disregards the parliamentary rejection. Although it may seem tohave given the legislature a chance to reverse the conclusion of the court, in practice, it
has always confirmed its earlier decisions rejecting the parliamentary interpretation of
the constitution.
Another way in which strong-form review can be weakened is via constitutional
amendments. As Dixon pointed out, India is an example as the Constitution of India
stipulated that amendments can be adopted by a majority vote. This may not be very
relevant to Mongolia’s case as amendment to the Constitution requires three-fourthmajority vote of the State Great Khural. In 2000, the State Great Khural amended theConstitution with a short notice without giving time for deliberation by the public. The
seven amendments of 2000 were criticized as “worsening seven amendments” by thedrafters of the Constitution and Mongolian scholars, but has not been able to reverse it
for about 20 years. Therefore, at best, Mongolian Constitutional review closely
resembles the weak-form review.
III. The Relationship Between Tsets and the State Great Khural
The dialogue between the legislature and the constitutional court starts when the
middle bench of five to seven Tsets members submits its conclusion on theconstitutionality of a statute to the State Great Khural for approval. If State Great Khuralaccepts the conclusion, it becomes the final decision of the Tsets on that dispute. When24

Role of Constitutional Tsets in the Consolidation of Democracy in Mongolia

it is rejected by the State Great Khural, the Tsets then makes the final decision by its fullbench, which is composed of seven to nine members. This dialogue with the State Great
Khural is not only a distinctive feature of Tsets’s constitutional review, but also a pointof friction between the two.
From one side, the dialogue gives the State Great Khural an opportunity to review
the legislation again and correct the inconsistency with the Constitution. On the other
hand, it gives an opportunity for the members of the State Great Khural to politicize theconstitutional issue, which could affect negatively on the independence of the Tsets.
From 1992 to 2016, the Tsets submitted 165 conclusions to the State Great Khural. In
100 conclusions or 60 percent of the cases, the Tsets invalidated the legislation as
unconstitutional. The State Great Khural did not agree with the Tsets’s decision in mostcases by rejecting 57 and accepting only 36 conclusions.4 The rejected conclusions werethen examined by the Tsets’s full bench, which reconfirmed its earlier decisions in mostcases. Due to these disagreements, some researchers expressed frustration with theunwillingness of the State Great Khural to accept the role of the Tsets in constitutional
democracy.5
In many instances, the State Great Khural does not respond to Tsets’s conclusions
within the period of time required by the law. In 39 disputes, the State Great Khural did
not respond to the conclusion within the 15-day period stipulated in the statute.6 In fivedisputes, it did not even respond to the conclusion of the Tsets at all.
One of the cases was on the constitutionality of the constitutional amendments
decided by the Tsets in 2000. The State Great Khural never responded and made adecision as to whether to accept or reject the Tsets’s decision to invalidate theconstitutional amendments making it impossible for the Tsets to make the final decisionon the constitutionality of the seven amendments.7 When the State Great Khural decides
to remain silent and does not respond to the Tsets’s conclusion it freezes the whole
dialogue. Tsets can no longer make its final decision and pursue its’ duty under the
4 Ochirbat, P, Mongol Ulsiin Undsen Khuuli: kheregjilt, khyanalt, sudalgaa [Constitution of Mongolia:

enforcement, review, research], (2017), 367. (Hereinafter, Ochirbat Mongol Ulsiin Undsen Khuuli: kheregjilt (2017)
5 Udval V, Role of Constitutional Tsets in Statehood Building, NUM Law Review, 2017, Issue 2, 74.
6 Law on Constitutional Law Procedure, (1997), art 3.6.
7 Ginsburg Tom and Gombosuren Ganzorig, 2001, “When Courts and Politics Collide: Mongolia`s Constitutional

Crisis.” Columbia Journal of Asian Law 14: 317.

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Nagoya University Asian Law Bulletin Vol.5 (March 2020)

Constitution. This deadlock can be prevented if the Tsets makes the final decision
without the approval by the State Great Khural or if the silence can legally be understoodas an acceptance.
In 2016, the State Great Khural issued a decision to recall the Chairman of the Tsets
when he sent a letter to the State Great Khural to inform that a dispute was initiated on
the amendments of the Law on Constitutional Tsets. The State Great Khural regarded
this as an attempt to prevent the State Great Khural from taking any measures to enforce
the new amendments, thereby, publicly expressing the conclusions about the case before
the court. The amendments were about retirement age and terms of office for membersof the Constitutional Tsets.
By recalling the Chairman of the Tsets, the State Great Khural has expressed its
willingness to confront the Tsets despite such a move allegedly violated the law. Article
65.4 of the Constitution stipulates that if the Chairman or a member of the constitutional
court violates the law, he or she may be recalled by the State Great Khural based on
decision of the constitutional court and the recommendation of the institution that
nominated him or her. This was further elaborated by the Law on Constitutional Tsets
that members of the Tsets can only be recalled with a decision of the court on theviolation of the law.8 The State Great Khural recalled the Chairman of the Tsets without
a decision by the court on violation of the law.
This is proof that Tsets’s independence is fragile in its relationship with the State
Great Khural. This kind of interaction and dialogue between the two could jeopardize
the democratic constitutionalism and the independence of the Tsets. Justification behindthe dialogue between the two needs to take into account that the purpose of thisrelationship is to serve the public interest, to show respect for the popularly elected
representatives and the consolidation of constitutional democracy.
In dissenting Tsets’s decisions, the State Great Khural on many occasions restored
the statutory provisions that have been invalidated by the Tsets as unconstitutional. A
statutory provision on the lifting of parliamentary immunity, for instance, has been foundunconstitutional several times by the Tsets over the years. However, each time the Tsets

8 Law on Constitutional Tsets, (1992), art 5.3.

26

Role of Constitutional Tsets in the Consolidation of Democracy in Mongolia

invalidates the same provision, the State Great Khural restored an almost identicalprovision.9
Re-appointment of Tsets members by the State Great Khural is another issue that
may negatively affect the independence of the Tsets. The Constitution stated that themembers will be appointed by the State Great Khural for six years.10 In practice, manymembers of the Tsets have been re-appointed more than once. Some members have been
re-appointed three or four times. In 2016, Law on Constitutional Tsets was amended sothat Tsets members can only be re-appointed once. However, the amendment wasinvalidated by the Tsets stating that although the Constitution did not explicitly mention
about the issue, it did not restrict re-appointment of Tsets members. Tsets could haveinterpreted that the absence of Constitutional regulation over the re-appointment of themembers means that the Constitution left this issue to be decided by the legislature.
Unlimited re-appointment by the legislature could potentially pose a significant threat tothe independence of the Tsets as it could generate incentives among Tsets members tocooperate with powerful members of the State Great Khural in order to get their support
for re-appointment.
IV. Role of Constitutional Tsets in Mongolian Democracy
Establishment of Constitutional Tsets promoted the transition from socialism todemocracy, guaranteed protection of human rights and freedoms and the rule of law ingeneral. Tsets settles disputes and limits the power of the branches. “Since the Tsets cannegate laws adopted by the parliament, playing the role of the ‘negative law-maker’, therelations between these two bodies are extremely important in understanding the current
status and role of the Tsets.”11
Tsets has no jurisdiction to hear actual cases related to complaints about humanrights violations. This created favorable conditions for citizens to bring a dispute to the
Tsets based on abstract and political grounds rather than concrete cases in which alleged
violations of constitutional rights took place. Its jurisdiction is limited by an abstract
9 Law on State Great Khural, (2006), art 6.9.1.
10 Constitution of Mongolia, (1992), art 65.1.
11 UNDP, The Role of the Constitution of Mongolia in Consolidating Democracy: An Analysis, (UB, 2015), 71.

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Nagoya University Asian Law Bulletin Vol.5 (March 2020)

review. Under the current Law on Constitutional Tsets, the Tsets cannot restore citizens’
fundamental rights and freedom violated in the concrete cases. The Supreme Court’s
decisions are the final according to the Constitution12 and Tsets has no jurisdiction overits decisions. Tsets is not a court of appeal although its authority is specified by a separate
chapter in the Constitution. The author, along with other Mongolian constitutional law
scholars, recommends authorizing the Tsets with reviewing complaints dealing withalleged violations of constitutional rights.
Although the Tsets does not have a jurisdiction over human rights complaints,13 it
can still address human rights violations at constitutional level. It can review legislations,
government decisions and presidential decrees, and to decide whether they are
constitutionally valid. Since the establishment of Tsets, around 70-80 percent of theconclusions of the Tsets invalidated legislations as unconstitutional. Among the 157
conclusions made by the Tsets by May 2016, 29 were related to citizens’ rights andfreedoms while the rest were related to the state structure and other provisions of theConstitution. Apart from the abstract norm control, there is a mechanism established by
the Law on Courts. This law enables ordinary courts to forward a presumably
unconstitutional legislation to the Tsets review. However, ordinary courts cannot
forward such issue directly but only to via the Supreme Court.14 If Tsets finds the statuteunconstitutional, this could potentially redress fundamental rights and freedoms inconcrete cases.
The drafters of the Constitution deliberately envisaged and designed the Tsets as theguarantee for strict observance of the Constitution and a mechanism that exercises
supreme supervision over the implementation of the Constitution. The current
Constitution differs from the former socialist constitutions as it confers upon the Tsets
authority to decide on the constitutionality of statutes, presidential decrees, the decisionof the Government, international treaties, decisions of the Central Election Authority
and national referendum.15

12 Constitution of Mongolia, (1992), art. 50.2.
13 Ts. Sarantuya, Mongol Ulsiin Undsen khuuliin tsetsiin ontslog, erkh zuin kharitsuulalt, in J. Amarsanaa, Mongol

Ulsiin Undsen Khuuliin Tsets: uguulel, iltgeliin emkhetgel, (Ulaanbaatar, 2007), Khuuli zuin undesnii tuv, 232.
14 Law on Courts, (2012), art. 6.4.
15 Constitution of Mongolia, art. 66.2.1.

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Role of Constitutional Tsets in the Consolidation of Democracy in Mongolia

The Tsets also has jurisdiction to settle constitutional disputes on whether the
President, Chairman and members of the State Great Khural, the Prime Minister,members of the Government, the Chief Justice of the Supreme Court and the Prosecutor
General have breached the law; as well as disputes on the grounds for removal of the
President, Chairman of the State Great Khural and the Prime Minister and for the recallof members of the State Great Khural.16 In addition to citizens who submit petitions andinformation to the Tsets, the State Great Khural, the President, the Prime Minister, theSupreme Court and the Prosecutor General can submit a request to the Tsets. The Tsetsis required to initiate a dispute upon receiving a request while it can decline to initiate a
dispute based on the information received from citizens. “Until 2016, the Tsets received
nine requests: one from the General Prosecutor, six from the Supreme Court, and two
from the President.”17
Citizens can submit petitions and information to the Tsets. It is a form of “actio
popularis, in which anyone is entitled to take action against a norm after its enactment,even if there is not personal interest; the individual suggestion, in which the applicant
only suggests that the constitutional court control the constitutionality of a norm, leaving
the decision to do so at the court’s discretion.”18 In early 19907s, the Tsets received anaverage of 30-40 information and petitions a year. Today Tsets receives two to three
information each day. 19 By April 5, 2016, the Tsets has received 2069 petitions,information and requests and issued 144 conclusions. The vast majority of these werereceived from citizens.20
The design of relationship between the Tsets and the State Great Khural theoreticallytarget cooperation and dialogue. However, it does not always work in such a mode.
Sometimes, the State Great Khural’s attitude do not seem cooperative. It eventually
influences the legitimacy of the Tsets in a visibly negative way. The dialogue between
the two, for example, has undoubtfully politicized Tsets’s decisions. Notwithstanding

16 Ibid. art. 66.2.3, 4.
17 UNDP, Assessment of the Performance of the 1992 Constitution of Mongolia (UB 2016).
18 European Commission for Democracy through Law, Study on Individual Access to Constitutional Justice(Council of Europe Publishing, 2010), 4.
19 Ochirbat Mongol Ulsiin Undsen Khuuli: kheregjilt (2017), 349.
20 Ibid.

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Nagoya University Asian Law Bulletin Vol.5 (March 2020)

these factors, the establishment of Tsets has been in the heart of the constitutionalism
and has served well for the consolidation of constitutional democracy in Mongolia.
V. Composition of the Constitutional Tsets
The legitimacy and independence of the Tsets rests with its composition. A balanced
and professional composition of the Tsets will make it the most important institution in
our scheme of constitutional democracy. A qualified composition invites trust from thepublic. If the Tsets is seen to side with one particular interest group or a certain politicalparty, the legitimacy and independence of the Tsets will be endangered and it cannot
effectively carry out its duty to limit and prevent the arbitrariness of the state authorities.
The qualifications of the members are important to ensure that the Tsets is competentand independent. The State Great Khural appoints nine members of the Constitutional
Tsets for a term of six years upon the nomination of three by the State Great Khural,
three by the President, and the remaining three by the Supreme Court.21 This might be areflection of the legislature’s intention to create a balanced composition including judges,
law professors and other lawyers. However, contrary to the expectation, out of the 30
persons who served as members of the Tsets, only a handful of them appear as career
judges or law professors. 22 The vast majority of the members are often politicians. The
purpose of entitling three different institutions to nominate three candidates each isperhaps to give more legitimacy to Tsets and a balanced composition.
Article 65.2 provides for the qualifications of the members of the Tsets to be a citizenof Mongolia, who has reached forty years of age and has a high political and legal
qualification. The requirement of “high political and legal qualification`` has beeninterpreted in two different ways over the years. It used to be interpreted as a requirementthat the candidate must have only one of these two qualifications. This resulted in theappointment of candidates, who do not possess a law degree. A geologist, two historians,
and an engineer were appointed as members of the Tsets under this interpretation.
The other interpretation requires the candidates to possess both of the qualifications.
This effectively excluded many law professors and career judges and practicing lawyers
21 Constitution of Mongolia, (1992), art 65.1.
22 Ochirbat, Mongol Ulsiin Undsen Khuuli: kheregjilt (2017), 349.

30

Role of Constitutional Tsets in the Consolidation of Democracy in Mongolia

from serving as a member of the Tsets as they do not often have a high politicalqualification. Mongolian constitutional law scholars had variable interpretations for thesame provision on the qualifications of the members of the Constitutional Tsets. Doctor
G. Sovd explained ‘high political and legal qualification’ as a requirement that a memberof Tsets must first be majored in law. He continued by asserting that a candidate shouldhave both a law degree and relevant education and experience in politics.23 Professor Ts.
Sarantuya said a lawyer who had many years of experience in practicing law will not be
qualified to become a member of Tsets unless he or she also has some education inpolitics. Apparently, this provision requires amendements in order to overcome
increasing ambiguity and arbitrary interpretations.
Tsets has long been criticized for not including the legal grounds and explanation for
its written decisions. This is sometimes attributed to the lack of qualifications by themembers of the Tsets.24 Professor B. Chimid criticized the Tsets that it only writes inthe decision two words constitutional or unconstitutional, offering no detailed
explanation and a well-elaborated legal logic.25
Another unique feature about the composition of Tsets is that its members are
divided into two groups: full-time and part-time members. In 1992, State Small Khural’s
Resolution 34 stated that “the Chairman of the Constitutional Tsets and two othermembers will be full-time members of the Tsets and the remaining six members will be
part-time members.”26 Since then, subsequent legislation had kept this policy. The parttime members of the Tsets worked without salary until 2009 and with half of the salaryof a full-time member from 2009 to 2013. Beginning from 2014, they received the samesalary as the full-time members.27 The Resolution of the State Small Khural which is

23 G. Sovd, Mongola Ulsiin Undesn Khuuliin Tailbar, (2000), 255.
24 Munkhsaikhan O. Undsen Huuliin Tsets ba Undsen Erkhiin Hamgaalalt, NUM Law Review, 2018, Special issue

2, 148.
25 Chimid B, Turiin Khuulias Irgenii Khuuli Ruu lektsiin temdeglel,

http://forum.mn/pdf/public_meeting/TuriinKhuuliasIrgeniiKhuuliRuu20070111.pdf, 16, [accessed on May 8, 2019].
26 State Small Khural Resolution 34 on `Some measure to implement the Law on Constitutional Tsets`, May 15,

1992.
27 Ochirbat Mongol Ulsiin Undsen Khuuli: kheregjilt (2017), 342.

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Nagoya University Asian Law Bulletin Vol.5 (March 2020)

clearly in violation of the Constitutional provision that provides for nine members of the
Tsets,28 is yet a valid resolution.
VI. Conclusion
More than 27 years passed since the adoption of the democratic Constitution and theLaw on Constitutional Tsets. The establishment of the Tsets enabled faster transition
period from socialism to democracy. The Tsets played fundamental role in consolidationof democracy and protection of human rights in Mongolia. However, there are issues
that need to be addressed with respect to the relationship between the State Great Khuraland the Tsets. This relationship was designed to be one of cooperation and dialogue.
However, it did not always work as intended. Sometimes, the State Great Khural’s
attitude has been not very cooperative and that has influenced the legitimacy of the Tsets
negatively. The dialogue between the two needs to be re-considered so that the Tsets
makes the final decision without the State Great Khural’s approval. Individual citizens
should have the opportunity to file complaints to the Tsets concerning violations of theirfundamental rights guaranteed in the Constitution. Apart from these improvements, theTsets facilitated the peaceful transfer of powers in the past 27 years and has been theguarantee for the strict observance of the first democratic Constitution in Mongolia.
References
ChimidB,

TuriinKhuulias

Irgenii

KhuuliRuu

lektsiin

temdeglel,

http://forum.mn/pdf/public_meeting/TuriinKhuuliasIrgeniiKhuuliRuu20070111.pd
f, 16.
European Commission for Democracy through Law, Study on Individual Access toConstitutional Justice (Council of Europe Publishing, 2010).
G. Sovd, Mongola Ulsiin Undesn Khuuliin Tailbar, 2000.
Ginsburg Tom and Gombosuren Ganzorig, 2001, ``When Courts and Politics Collide:
Mongolia`s Constitutional Crisis.`` Columbia Journal of Asian Law 14: 317.

28 Constitution of Mongolia, (1992), art 65.1.

32

Role of Constitutional Tsets in the Consolidation of Democracy in Mongolia

Hogg, Peter W. and Alison A. Bushell. 1997. ``The Charter Dialogue Between Courts
and Legislatures (Or Perhaps the Charter of Rights Isn`t Such a Bad Thing AfterAll)``, Osgoode Hall Law Journal 35:
Tushnet Mark and Dixon Rosalind, Weak-form review and its constitutional relatives:
An Asian perspective, in Rosalind Dixon and Tom Ginsburg, Comparative
Constitutional Law in Asia, (Edward Elgar Publishing, Inc.) 2014.
Munkhsaikhan O. Undsen Huuliin Tsets ba Undsen Erkhiin Hamgaalalt, NUM Law
Review, 2018, Special issue 2.
Ochirbat, P, Mongol Ulsiin Undsen Khuuli: kheregjilt, khyanalt, sudalgaa (Constitutionof Mongolia: enforcement, review, research) (2017) 367.
Ts. Sarantuya, Mongol Ulsiin Undsen khuuliin tsetsiin ontslog, erkh zuin kharitsuulalt,
in J. Amarsanaa, Mongol Ulsiin Undsen Khuuliin Tsets: uguulel, iltgeliin emkhetgel,(Ulaanbaatar, 2007), Khuuli zuin undesnii tuv, 232.
Udval V, Role of Constitutional Tsets in Statehood Building, NUM Law Review, 2017,
issue 2.
UNDP, The Role of the Constitution of Mongolia in Consolidating Democracy: An
Analysis, (UB, 2015), 71.
UNDP, Assessment of the Performance of the 1992 Constitution of Mongolia (UB 2016).

33

Nagoya University Asian Law Bulletin Vol.5 (March 2020)

34

Korean Constitutional Court and Democracy【Special Features：The Role of Constitutional Review Bodies in the Asian Post- Authoritarian
Democratization Process. A Comparative Perspective】

Korean Constitutional Court and Democracy

KOKUBUN Noriko*

Abstract
In Korea, the Constitution was amended in 1987 (generally referred to as the Constitution of the
6th Republic), heralding Korea’s era of democratization. After the democratization, theConstitutional Court of Korea is working very actively and attracting attention globally.
In this article, the following topics are discussed: 1) The history of the constitutional review
system after the founding of the Republic of Korea, 2) An overview of the present Constitutional
Court, and 3) The problem of ‘political judicialization’ that has appeared in the court cases.
The Constitutional Court of Korea basically models the German Constitutional Court. However,unlike in Germany, there are some very Korean characteristics. From the viewpoint of its
organization, the Korean Constitutional Court has nine judges who passed the exam for the legal
profession. Three of the nine judges must be nominated by Parliament, three by Chief Justice ofSupreme Court, and three by President. While this is believed to be in consideration of theseparation of powers, in reality, the influence of the President is relatively significant.
From the viewpoint of its function, unlike the German Constitutional Court, the Constitutional
Court of Korea has no authority for abstract normative control, and concrete normative control isdone only for laws. The reason for no abstract normative control is that the Constitutional Court
does not have to take a position over the Parliament. On the other hand, since the Constitutional
Court's decision has the power to invalidate the law, it still has a significant influence on legislation.
For this reason, the Constitutional Court has made judgments to allow room for legislative
discretion by using various judgment methods called ‘transformation decisions’ in consideration to
the legislature. However, its positive activities have created the phenomenon of ‘politicization ofjustice’ or ‘judicialization of politics’.
It is examined in this article, how the Constitutional Court can be positioned for democracy andpolitical processes through analysis of the role of the Constitutional Court from the relationshipwith the political sector.

* Professor, Faculty of Law, Hosei University, Japan35

Nagoya University Asian Law Bulletin Vol.5 (March 2020)

Contents
I.

Introduction

II. History
III. Overview of the current Constitutional Court
1.

Function(1) Nonconformity to Constitution (nonconformity decision)(2) Limited Constitutionality and Limited Unconstitutionality

2.

The method for selecting Constitutional Court judges

IV. Constitutional Court decisions and political issues
1.

A case of dispute over authority

2.

The case of party dissolution

3.

Impeachment(1) The case of President Roh Moo-hyun(2) The impeachment of President Park Geun-hye(3) Public confidence as a basis for determining impeachment

V. Conclusion

I.

Introduction

Since its establishment in 1948, the Republic of Korea has implemented a system of
constitutional review. However, under dictatorship rule, this system did not function well. It
was not until after the nation’s democratization and the introduction of a new Constitutional
Court system under the present Sixth Republic Constitution that constitutional review cameto be actively used. Today, the Korean Constitutional Court is attracting attention as arepresentative example of the constitutional review system in Asia.
Activities by an active Constitutional Court are generally highly valued in Korea1,
however, situations are also occurring that are forcing us to question how we should
consider the position of the Constitutional Court within the nation, and consequently ask‘what is constitutionalism?’ In particular, in recent years, the ‘judicialization of politics’ has
become a theme frequently taken up in Korea. After presenting: 1) The history of the
1 According to an annual survey by JoongAng Ilbo, the Constitutional Court has been known for its position of the ‘Most

trusted State Organ’.

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Korean Constitutional Court and Democracy

constitutional review system after the founding of the Republic of Korea, 2) An overview
of the present Constitutional Court, and 3) The problem of ‘political judicialization’ that has
appeared in court cases, this report examines what kind of position the Constitutional Court
might have in a democracy.
II. History
First, let us revisit the history of Korea’s constitutional court system.
A system of constitutional review was introduced at the time of the founding of the
Republic of Korea in 1948. At the time of establishing the Constitution, there was a debate
about the kind of constitutional review system that should be introduced. There were twoschools of thought: adopting a constitutional review system through ordinary courts (fromnow on referred to as the American type) or adopting a system that authorized aConstitutional Committee that was separate from the regular court system (hereinafterreferred to as the Continental type). In the end, the system that was established was chairedby the vice president and gave the Constitution Committee, consisting of five Supreme
Court judges and five congressional members, the right to review the constitutionality of
the law.
At this time, in the explanatory memorandum to the 1948 South Korean Constitutional
Assembly, it was explained that the courts were empowered to request a review of theconstitutionality of the law, and the authority to conduct such a review was given to theConstitution Committee, a special review body that was separate to the court, to take into
consideration the balance between judicial and legislative powers.
A Constitutional Court system that is similar to the present system, was subsequently
introduced in the Second Republic (1960 Constitution) that was established after the April
Revolution (4.19 Democratic Revolution) overthrew the Syngman Rhee regime. However,the Second Republic collapsed before this system was realized, and in the Third Republic(1962 Constitution) during which Park Chung-hee held power, an American constitutional
review system was implemented. During the Fourth Republic (1972 Constitution) and theFifth Republic (1980 Constitution) a Continental constitution committee system wasadopted. A system in which constitutional review was conducted by the Constitutional
Court was realized for the first time under the current 1987 Constitution (the Sixth

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Nagoya University Asian Law Bulletin Vol.5 (March 2020)

Republic). While the Constitution Committee was stipulated under the ‘Court’ chapter inthe previous Constitution, the present Constitution has a separate chapter 6 on
‘Constitutional Court.’ Based on the 1987 Constitution, the Constitutional Court Act waspromulgated on 5 May 1988.
This description may suggest that Korea's constitutional review system has undergone a
considerable transition. Still, except for the Third Republic, the nation has continued toadopt a Continental constitutional review system. Further, Korea’s distinctive system forconsidering the constitutionality of laws separately from the constitutionality of orders,rules, and dispositions has been consistently followed since the establishment of the First
Republic Constitution, including during the Third Republic.2
When the current Constitution of 1987 was established, there was a debate as towhether to give the power of constitutional review to the Supreme Court or to create a
Constitutional Court. The reason why the German Constitutional Court system was chosen
has not been clarified, but according to the compilation of the Constitutional Court, it wasasserted that during the deliberations around the introduction of the Constitutional Appeal
System, the German-type would guarantee the protection of human rights.3
Before 1987, the constitutional review system under dictatorships did not function. For
this reason, even when the Constitutional Court came into being after the nation’s
democratization, there was little hope for it to function well. However, the Constitutional
Court had gained the trust of the public over time as an organization that contributed todemocratization by determining that laws established under dictatorship rule wereunconstitutional.
2 According to the 1987 Constitution, article 107 provides that:(1) When the constitutionality of a law is at issue in a trial, the court shall request a decision of the Constitutional Court,
and shall judge according to the decision thereof.
(2) The Supreme Court shall have the power to make a final review of the constitutionality or legality of administrative
decrees, regulations or actions, when their constitutionality or legality is at issue in a trial.
Furthermore, even in the third republic, which adopted the US-style constitutional review system, the constitution
provides that the constitutional review of law is the separated from the review of orders, rules, and dispositions, as describedin article 102 in the 1962 Constitution:
Article 102 When the constitutionality of a law is at issue in a trial, the Supreme Court shall have the power to make a
final review of the constitutionality thereof.
(3) The Supreme Court shall have the power to make a final review of the constitutionality or legality of administrative
decrees, regulations or actions, when their constitutionality or legality is at issue in a trial.
In Korea, the constitution committees of the 1st, 4th, and 5th republics are also limited in terms of their authority to
conduct a concrete review of norms, and an abstract review of norms was not permitted.
3 The First Ten Years of the Korean Constitutional Court 1988-1998 (Constitutional Court of Korea., Seoul 2001), p.17.

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Korean Constitutional Court and Democracy

III. Overview of the current Constitutional Court
1.

Function

What are the current functions of the Constitutional Court?
Article 111 (1) of the Constitution defines five powers: 1. Adjudication on theconstitutionality of statutes, 2. Adjudication on impeachment, 3. Adjudication on the
dissolution of a political party, 4. Adjudication on competence disputes, 5. Constitutional
complaint. The first of these powers is the equivalent of the German ‘concrete review ofnorms’. There is no power to conduct an ‘abstract review of norms’, and the concrete
review of norms can only be carried out against laws created by the National Assembly.
The absence of the power to conduct an abstract review of norms is thought to be inconsideration of the legislative powers of the National Assembly under the separation of
powers. On the other hand, the fact that the Constitutional Court can only conduct a
concrete review of norms during a constitutional review of laws, and regular courts makedecisions on orders and rules, constitutional review of laws is considered to be a different
domain to that of ordinary judicial affairs. While distinguishing itself from ordinary judicial
matters, when conducting a constitutional review of laws, the power of the Constitutional
Court, which requires the existence of legal disputes to be subject to trial, can also bereferred to as ‘political judiciary.’
The validity of the Constitutional Court’s decision is defined by the Constitutional
Court Act as being broadly binding to all state agencies. For this reason, it can be said that
the Constitutional Court recognizes that the Constitution has persuasive authority over allstate institutions that extends beyond the separation of power. However, the members of theConstitutional Court are not directly chosen by the public. In this respect, the Constitutional
Court has customarily created a judgment style that emphasizes the discretionary powers of
the legislature in examining the laws created by the National Assembly, as representativesof the people. This judgment style is called ‘modified decisions’. There are currently threeforms of this style, which are described as follows4:4 Ibid, pp.87-93.

39

Nagoya University Asian Law Bulletin Vol.5 (March 2020)(1) Nonconformity to Constitution (nonconformity decision)
In several cases, the Constitutional Court stated that there is a general need for‘nonconformity decisions’ because a simple choice between unconstitutionality andconstitutionality prevents the Court from taking a flexible and resilient approach to areasonable interpretation of the laws that regulate the complex social phenomena; it may
cause the vacuum in or confusion about the law, destabilizing the legal system; and it
can restrict the legislature’s policy-making privilege. The Court made it clear that thisnonconformity decision is simply a mutated form of the decision of unconstitutionality
provided in Article 47 (1)5 of the Constitutional Court Act; and, therefore, naturally has
the binding force on all other state institutions.
This is not a simple declaration of nonconformity to the Constitution, but one thatgives provisional legal effects to the unconstitutional statute until the legislature cures its
defect in accordance with the Court’s decision.
(2) Limited Constitutionality and Limited Unconstitutionality
The Constitutional Court issues a decision of limited constitutionality, using theexpression ‘[the law] is not unconstitutional as interpreted,’ and in the decision oflimited unconstitutionality, using the form ‘[the law] is not constitutional as interpreted’.
The Court explained that, although the statute in question had unconstitutional aspects,
if it could also be interpreted in ways consistent with the Constitution, the Court coulddeliver “the decision of constitutionality/un-constitutionality as interpreted or applied”
as could be naturally be derived from the doctrine of preference for constitutionality instatutory interpretation6. Specifically, in expressing his concurring opinion of this case,the first President Cho Kyu-kwang elaborated that if the text and the legislative intent of
the statute have room for both the decisions of constitutionality and unconstitutionality,
the Court must choose the preferred, constitutional version of the statutory interpretation.
In doing so, the Court can use both ‘unconstitutional as interpreted’ and ‘constitutional
as interpreted’ as proper forms. As the two forms are different only in expression but thesame in essence and for all practical purposes, the choice between them is merely a
5 Constitutional Court Act, Art.47 (1): Any decision that statutes are unconstitutional shall bind the ordinary courts, otherstate agencies and local governments.
6 CC 1989.7.21, 89 Hun-Ma38.

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Korean Constitutional Court and Democracy

matter of choosing the appropriate means.
In any of these methods of decision making, the Constitutional Court may take thelegislative power of the National Assembly into consideration, urge the legislature toreconsider, rather than invalidate laws enacted by the National Assembly, or interpret thecontent of the laws in a way that conforms to the Constitution. However, since thesemethods of decision making are not stipulated in the Constitutional Court Act, but rather are
methods developed by the Constitutional Court itself, there is criticism that using suchmethods is, in itself, illegal.
2.

The method for selecting Constitutional Court judges

Nine judges conduct a Constitutional Court trial. Under the Constitution, the President
appoints nine judges. Among them, the National Assembly and the chief of the Supreme
Court each nominate three members, taking into account the separation of power. However,among the three members nominated by the National Assembly, one is recommended by
the ruling party, one by the opposition party, and one is by recommendation of the rulingand opposition party by consensual decision. Further, the Chief of the Supreme Court, whonominates three judges, is to be appointed by the President upon the consent of the National
Assembly.7 Given these constraints, it is said that presidential influence on the overall
nomination process is substantial. In addition, although the term of a Constitutional Court
judge is six-years, with the possibility of re-appointment, since most judges resign at theend of their six-year term, if the President of the same party were to continue for more than
two terms (the term of the President is five years), the Constitutional Court might strongly
reflect the influence of that party.
Currently, all candidate judges are to appear before a National Assembly hearing. Thisis important in terms of giving democratic legitimacy to their appointments. However, thereis the problem that these hearings may be used as a political dispute tool, with actual cases
where candidates have been subjected to harsh interrogation over their political positionand consequently declined their nomination.
More recently, a political issue arose when President Moon Jae-in appointed two judges
without waiting for a hearing report, which has led to the alarming speculation that the
7 The 1987 Constitution, Article 104, Article 1

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Nagoya University Asian Law Bulletin Vol.5 (March 2020)

Constitutional Court will become nothing more than a subordinate agency of the executive
office.8
IV. Constitutional Court decisions and political issues
Above, I have touched on the Constitutional Court’s consideration of the legislative
power of the National Assembly and political issues relating to the appointment of a judge.
However, the authority of the Constitutional Court, as envisaged by the Korean
Constitution, possesses a very close relationship with politics. For this reason, in recent
years, problems such as the ‘judicialization of politics’ have become a topic of discussion.
Below, we will look at some representative cases.
1.

A case of dispute over authority

This case involves a dispute over authority raised by opposition lawmakers regarding
the revision procedures for the Draft Law Relating to Media at the second plenary sessionof the 283rd National Assembly (extraordinary session) on 22 July 2009 under the Lee
Myung-bak administration (Act on the Freedom of Newspapers, etc. and Guarantee of their
Functions, the said partial revised Broadcasting Act and the proposed partial revisions to the
Act on Internet Multimedia Broadcasting Business).9 The outline of the case is as follows.
The government and the ruling party held that the integration of broadcasting andcommunications must improve broad and unbalanced regulations that do not conform to therapidly changing media environment due to technological development and submitted a billthat would remove the clause that prohibited the concurrent operation of newspaper andbroadcast businesses, and newspapers and large companies from holding terrestrial
broadcast shares. In response, opposition parties, broadcasters, and labor unions strongly
opposed this revision, arguing that it was intended to curb criticism of the administration by
the broadcasters and aimed at the control of the broadcasters by the three major newspaper
companies and large conglomerates close to the Lee Myung-bak administration. Their
8 Chosun Online 2019/4/20

http://www.chosunonline.com/site/data/html_dir/2019/04/20/2019042080007.html[accession date: May 3, 2019]9 21-2(B) KCCR 14, 2009 Hun-Ra8/9/10 (consolidated), October 29, 2009. English summary of the decision:

http://search.ccourt.go.kr/xmlFile/0/010400/2009/pdf/e2009r8_1.pdf [accession date: March 31, 2020]

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Korean Constitutional Court and Democracy

opposition resulted in fierce and ongoing trading of insults that escalated into a brawl.
Finally, the Speaker of the National Assembly attempted to use his authority to table theBill in the plenary session. Still, the opposition members blocked the entrance, preventing
the Speaker from entering the plenary hall. The Speaker consequently delegated theproceedings to the Vice-Speaker. The Vice-Speaker used the authority of the Speaker anddeclared that Bill would be tabled at once, that the examination report and the Bill
explanation, would replace the minutes and meeting materials, and that no questioning or
debates would be held. The ballot was to be held electronically, and the result displayed onan electronic board. However, in the decision relating to the amendment of the broadcast
law proposed by the ruling Grand National Party, after the Vice-Speaker declared the end of
the ballot the following figures were recorded: National Assembly Members: 294 people,
Members Present: 145 people, Members in Favor: 142 people, Members in Opposition: 0
people, Members Abstained: 3 people. In response to this outcome, the Vice Speakerreferred the said Broadcasting Act to a revote, saying that “the bill proposed by Kang,
Seung-kyu and other 168 assemblymen shall be voted again, [and] it will be revoted
because of the failure of a vote due to the lack of presence quorum.”10 A second ballot was
held, and on this occasion, the voting board showed 150 approval votes, zero opposite votes,
and three abstention votes, out of an enrollment of 294 members and the presence of 153
members of the National Assembly.11 In this way, the Bill was passed, as were several
others.
On the other hand, concerning the series of procedures, opposition lawmakers filed alawsuit in the Constitutional Court seeking confirmation of the invalidation of the law on
the grounds that their right to ballot had been violated by the government for reasons
including: the Speaker cannot authorize the tabling of an item; the proceedings carried out
by the Vice-Speaker, which did not allow for explanations and debate, violated appropriate
procedure; and the verdict of the draft amendments violated the principle of not deliberating
the same measure twice.
In this case, the Constitutional Court did not recognize the invalidation of thepromulgation of the draft law. Five out of nine judges recognized the illegality of theviolation of the principle of not deliberating the same measure twice. Still, they did not
10 Ibid, p. 354.
11 Ibid,43

Nagoya University Asian Law Bulletin Vol.5 (March 2020)

reach the number necessary for determining unconstitutionality (six out of nine). In addition,although they acknowledged that the rights of the claimants to deliberate and vote had been
violated, it was deemed that there was no problem with the act of declaring thepromulgation itself, and the establishment of the law promulgated on this occasion wasconsidered valid.
There has been an argument among the media and citizens, both supporting andopposing the decision. In particular, many commentators and intellectuals took the ‘dual
stance’ of the Constitutional Court – where it found that the act was illegal, but not severe
enough to invalidate the promulgation – as a significant problem and coined the term
‘judicialization of politics’.
One of the by-products of the National Assembly’s rivalry, which is represented by thiscase, is the National Assembly Advancement Act. The National Assembly Advancement
Act is the general name for the National Assembly Act revisions that took place in 2012.
Before this, the Speaker of the National Assembly designated the period for committee
examination of items, and if this examination did not end within the set period, the Speaker
had the authority to refer it to another committee immediately after the designated period or
to submit it to the plenary session. However, due to the confrontation between thegovernment and the opposition over matters including the proposed Budget, the US-ROKFTA and the case discussed above, the government used its authority to table the Bills,
which in turn triggered a violent response. Consequently, in the May 2012 amendment of
the National Assembly Act, the powers of the Speaker to exercise his or her ‘official
authority’ to fast track the tabling of legislation were limited to: 1) the event of a natural
disaster; 2) the event of war, incident or similar situation that triggers a national emergency;or 3) any other situation where the Speaker and the representatives of the factions agree(noting that even in the case of 1) or 2), consultation between the Speaker and therepresentatives of the factions is necessary). The amendment provided that in order to be
designated as an ‘expedited processing case’, a motion by a majority and approval by
three-fifths of National Assembly members would be required.
Similarly, introduced under the ‘National Assembly Advancement Act’ was an‘unlimited debate’ (filibuster) system. This meant that the Speaker was required to permit
an unlimited debate if a request form signed by one-third or more of the registeredmembers was submitted for a matter assigned to the plenary session (however, the number

44

Korean Constitutional Court and Democracyof statements allowed was only one per member). In order to conclude an unlimited debate
by decision required the submission of a closing motion by more than one-third of theregistered members and a vote by secret ballot 24 hours after submission of the closing
motion. The secret ballot required the approval by more than three-fifths of registeredmembers.
This revision was a pledge by the ruling Saenuri Party during its election campaign, andit was made with the agreement of the ruling and opposition parties. The result, however,
was the creation of a situation in which deliberation within the National Assembly stalled,
and it became challenging to re-amend the National Assembly Act itself. Consequently, theview arose that this issue could not be resolved by anything other than the Constitutional
Court.12 Under such circumstances, on 30 January 2015, 19 members of the Saenuri Party
claimed that “the provisions of the National Assembly Act violated the deliberation andvoting rights of the National Assembly members” and filed for a Constitutional Court trial
against the Speaker of the National Assembly and the chairman of the Planning and
Finance Committee over a dispute of authority. However, for reasons including theexceeding of the prosecution period, the case was dismissed.13
2.

The case of party dissolution

The Korean Constitution contains a provision for the dissolution of a political party,
stating that “if the purposes or activities of a political party are contrary to the democratic
basic order, the Government may bring an action for its dissolution in the Constitutional
Court, and the political party may be dissolved by decision of the Constitutional Court”.14
There is controversy within Korea regarding the understanding of this clause. While there isa view that it is the influence of the German Streitbare Demokratie (Fortified Democracy),
there is also a view that the Constitutional Court conducts a review to prevent the
government from arbitrarily disbanding political parties, as had happened under past

12 See for example: Chosun Ilbo Online Edition chosun.com 31 October 2015 Editorial, the Constitutional Court, theNational Assembly Advancement Act, and the Constitutional Appeal Decision – what can we gauge from this?
http://news.chosun.com/site/data/html_dir/2015/10/29/2015102904826.html?Dep0=twitter&d=2015102904826 [accession
date: March 30, 2020]
13 2015 Hun-Ra1, May 26, 2016. English summary of the decision:

http://search.ccourt.go.kr/xmlFile/0/010400/2016/pdf/e2015r1_1.pdf. [accession date: March 30, 2020]
14 The 1987 Constitution, Article 8, Paragraph 4.

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Nagoya University Asian Law Bulletin Vol.5 (March 2020)

dictatorships. Under the 1987 Constitution, there had been no case of party dissolution until
2014, when the Unified Progressive Party was dissolved by the Constitutional Court, adecision that attracted significant attention15. The direct cause of the case was that during an
emergency, the National Assembly members of the Unified Progressive Party had
conspired with North Korea to destroy state-owned facilities in South Korea. Members of
the party were arrested and prosecuted for the crimes of plotting insurgency and civil unrest,and violations of the National Security Act. In this case, it became a question of whether theactivities of their group could be viewed as the activities of the Unified Progressive Party
itself. The Constitutional Court found that three members of the National Assembly were
present at a secret meeting and that many other attendees were leading members of theParty.
Further, one member in a key position within the Unified Progressive Party actively
advocated their assertations of innocence. However, based on the fact that the participantsat the meeting were nominated as candidates for public office, the Constitutional Court
concluded that the sabotage plot was indeed the activity of the Unified Progress Party.
Furthermore, the concept of ‘progressive democracy,’ which was contained within the
mission statement of the Unified Progress Party, was regarded as contrary to thefundamental democratic order, as it was considered an idea of a socialist state based on aclass-like world view that denied national sovereignty. The Unified Progress Party was
subsequently dissolved by the decision of the Constitutional Court, a decision that also
disqualified five National Assembly members from the legislature (including regional
representatives).
Following this Constitutional Court decision, these National Assembly members were
found guilty by the Supreme Court under the criminal code for violation of the National
Security Act. However, the charge associated with the crime of plotting insurgency was notrecognized.16 Consequently, many voiced doubt about the decision of the Constitutional
Court, and despite no clear stipulation regarding the divestment of office for the National
Assembly members, the Party was dissolved, and the National Assembly qualifications
were revoked from five members, including those who were district elected members, acts
15 2013 Hun-Da1, Dec.19, 2014. English translation of the decision:

http://search.ccourt.go.kr/xmlFile/0/010400/2014//pdf/e2013d1_2.pdf. [accession date: March 30, 2020]
16 The Supreme Court Verdict, Jan. 2, 2015, 2014. do 10978

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Korean Constitutional Court and Democracy

which drew criticism.
3.

Impeachment“The President, the Prime Minister, members of the State Council, heads of Executive
Ministries, Justices of the Constitutional Court, judges, members of the National Election
Commission, the Chairman and members of the Board of Audit and Inspection, and otherpublic officials designated by Act” may be subject to impeachment.17 There have been twocases in which the Constitutional Court examined impeachment under the 1987
Constitution. The cases of President Roh Moo-hyun in 2004 and President Park Geun-hye
in 2017 are the two examples of impeachment targeting the nation’s president.
(1) The case of President Roh Moo-hyun18
The main reasons for the impeachment of President Roh Moo-hyun were the facts thatthe president had acted in favor of his political party before the National Assembly election,and that he made remarks to disrespect the constitutional institutions, which amounted to abreach of the order of the national laws. Articl 9 of the Act on the Election of Public
Officials and the Prevention of Election Malpractices (hereinafter ‘The Public Officials
Election Act’) at that time provided that
A public official or a person who is required to maintain political neutrality (including an agency ororganization) shall not exercise any unreasonable influence over the election or perform any act
likely to have an effect on the election.

At a press conference before the National Assembly elections, President Roh Moo-hyunmade multiple statements indicating that he supported the ruling party at the time, ‘The
Yeollin Uri Party’, including: “I expect that the people overwhelmingly support the Uri
Party”, and “I would like to do anything that is legal if it may lead to the votes for the Uri
Party”19, which were deemed to have violated the Public Officials Election Act. Also, thePresident expressed regret over the decisions of the National Election Commission (which
17 The 1987 Constitution, Article 65.
18 16-1 KCCR 609, 2004 Hun-Na1, May 14, 2004. English translation of the decision:
http://search.ccourt.go.kr/ths/pr/eng_pr0101_E1.do?seq=1&cname=%EC%98%81%EB%AC%B8%ED%8C%90%EB%A
1%80&eventNum=12077&eventNo=2004%ED%97%8C%EB%82%981&pubFlag=0&cId=010400 [accession
date:2020/3/30]
19 Ibid. p161.

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Nagoya University Asian Law Bulletin Vol.5 (March 2020)is a constitutionally stipulated body) that required the compliance of electoral neutrality
obligations to such presidential speeches, and he further denigrated the current election law
as the ‘vestige of the era of the government-power-interfered elections.’20 These comments
were considered to have violated Article 40 of the Constitution, which provides thatlegislative power shall be vested in the National Assembly, and Articles 66 and 69, which
stipulate the President's obligation to comply with the Constitution.
In this decision, the criteria for the president’s impeachment trial were explicitly stated.
That is, “a decision to remove the President from office shall be justified in such limited
circumstances as where the maintenance of the presidential office can no longer bepermitted from the standpoint of the protection of the Constitution, or where the President
has lost the qualifications to administrate state affairs by betraying the trust of the people.”21
As mentioned above, this decision for impeachment, which was the first impeachment case,cites the essence of the impeachment and gives a reasonably detailed explanation for
determining the adjudication. Concerning impeachment, the purpose and the function of the
impeachment process are to reinforce “the normative power of the Constitution by holding
certain public officials legally responsible for their violation of the Constitution in
exercising their official duties.”22 In particular, the fact that a president, who is directly
elected by the people, can also be subject to the preservation of the Constitution
demonstrated that even the “political chaos that may be caused by a decision to remove thePresident from office should be deemed as an inevitable cost of democracy in order for thenational community to protect the basic order of free democracy.”23
In this decision, the Constitutional Court acknowledged that the law had been violated.
However, it was considered that the question of whether there was a ‘grave violation of law’or whether the ‘dismissal was justifiable’ should be determined through balancing thedegree of the negative impact on or the harm to the constitutional order caused by theviolation of law and the effect to be caused by the removal of the respondent from office. In
this case, it was not considered a ‘grave’ violation of law sufficient to justify the removal ofa public official from office, and the President was therefore not dismissed.
20 Ibid. p173.
21 Ibid. p.182.
22 Ibid. p.159.
23 Ibid.

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24(2) The impeachment of President Park Geun-hye25
In this case, which became worldwide news, the President was accused of having
leaked official secrets to friends and allowed them to intervene in government affairs andthe hiring of staff. It was further alleged that they also benefitted financially from thebusiness world.
Here, although many unconstitutional and illegal acts were explicitly indicated, themain reason for dismissal is cited as having betrayed the people’s trust through these acts.
Three contributing reasons are cited for this betrayal of confidence: that the violation of thelaw was grave, that Park violated the President’s obligation to serve the public interest, andthat Park’s will to safeguard the Constitution was not recognized.
Following a close examination, in this case, all eight judges (of the nine, the chief judge
resigned during the trial) unanimously decided to remove the President, concluding that;…the respondent’s acts of violating the Constitution and law are a betrayal of the people’s
confidence, and should be deemed grave violations of the law unpardonable from theperspective of protecting the Constitution. Since the negative impact and influence on theconstitutional order brought about by the respondent’s violations of the law are serious, we
believe that the benefits of protecting the Constitution by removing the respondent from officeoverwhelmingly outweigh the national loss that would be incurred by the removal of the
President.26(3) Public confidence as a basis for determining impeachment
In the case of President Roh Moo-hyun, the Constitutional Court presents ‘the balance
between “the seriousness of the violation of the law” and “the effect of a dismissal
decision”’ as the standard for dismissing the President. The latter is considered to be tied to“direct democratic legitimacy” and “the public interest in continuity of performance of
24 Ibid. p.180.
25
2016 Hun-Na1. English translation of the decision:
http://search.ccourt.go.kr/ths/pr/eng_pr0101_E1.do?seq=1&cname=%EC%98%81%EB%AC%B8%ED%8C%90%EB%A
1%80&eventNum=48728&eventNo=2016%ED%97%8C%EB%82%981&pubFlag=0&cId=010400
26 Ibid. p.63.

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Nagoya University Asian Law Bulletin Vol.5 (March 2020)

presidential duties”.27 This standard has also been followed in the case of President Park
Geun-hye. However, it should be noted here that the relationship between the president andthe people in the two cases was very different. In the case of President Roh Moo-hyun,
many of the people were sympathetic to him. The effect of a dismissal decision for apresident who possesses both a serious violation of thelaw and direct democratic legitimacy
is, for the people who support the president, a symmetrical argument that can be considered
reliable. However, the people’s stance towards the case of President Park Geun-hye wasdifferent. It was a situation in which the majority of people wished the president to step
down before impeachment proceedings had commenced. It is said that under the current
Constitution, in which the incumbent president is not allowed to resign directly,
impeachment is the only possible means for removing a president. Under thesecircumstances, it can be said that the above two concepts did not become counterbalancing
forces for President Park Geun-hye, as had been the case for President Roh Moo-hyun.
In this aspect, looking once again at the Constitutional Court in the Roh Moo-hyun case,one may question whether the seriousness of the violation of the law and the effect of adismissal decision always, in fact, stand in opposing positions in terms of balance. The
Constitutional Court stated that;… A grave violation of the law from the viewpoint of protection of the Constitution [is]… an act
that threatens the basic order of free democracy that is an affirmative act against the fundamental
principles constituting the principles of the rule of law and a democratic state, [and that] ‘act of
betrayal of the public’s trust’ is inclusive of other patterns of the act than a ‘violation of law
significant from the standpoint of protection of the Constitution.’28

Of the above two points, the issue of ‘the public’s trust,’ that is, ‘direct democratic
legitimacy,’ relates to the effect of a dismissal decision. However, considering that an ‘actof betrayal of the public’s trust’ is deemed to be an extension of ‘an act that threatens thebasic order of free democracy’, what can be the final standard for dismissal is whether or
not there was a ‘betrayal of the public’s trust’. Of course, this must be premised on theexistence of a violation of the Constitution or other acts as defined in Article 65 (1) of theConstitution. In this sense, it may be fair to say that impeachment is not a political
27 Supra. Footnote 18, p.181.
28 Ibid. p.181-182.

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responsibility but a legal responsibility. However, as the final deciding criterion, ‘betrayalof the public’s trust’ is a highly political issue, determining whether or not to dismiss isintertwined with an element of political judgment.
V. Conclusion
The Constitutional Court is considered to be, in principle, within the domain of the
judiciary as one wing of the separation of powers in Korea. However, as political issues are
regularly brought to the Constitutional Court, a phenomenon called ‘judicialization ofpolitics’ has occurred. This kind of problem is not only emerging in Korea but also in many
countries with constitutional courts. Particularly in the case of the Korean Constitutional
Court, which possesses the powers of party dissolution and impeachment, confronting
political issues is what was originally intended under the Constitution, and therefore‘judicialization of politics’ can perhaps be considered a natural consequence.
The role of the Constitutional Court is primarily to defend constitutionalism. However,democracy is included in the basic principles of the Constitution. What can be seen fromthe party dissolution and impeachment cases is a system in which the Constitutional Court– the Guardian of the Constitution – must set foot into the substance of democracy.
Why has such strong Constitutional Court authority been maintained? This is due to theexistence of public trust in the Constitutional Court. In the democratized Korea, theConstitutional Court has maintained its status as the ‘most trusted state organ in Korea’.
The judicialization of politics may be viewed as being highly trusted by the political sector
also. However, the judicialization of politics also leads to the politicization of the judiciary,
and there is a risk that trust in the neutrality of the Constitutional Court will be lost. Thisrisk, in conjunction with the demand for the democratic legitimacy of the appointment ofjudges, is an important issue.
In a country with a constitutional democracy, the extent to which institutions other thanthe political sector can answer the central question ‘what the democracy envisaged by theConstitution is’ is a fundamental issue to be considered within the context of therelationship between democracy and the Constitutional Court.

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Nagoya University Asian Law Bulletin Vol.5 (March 2020)52

Adoption of the Constitutional Council
towards the Rule of Law State and Democratization in Vietnam【Special Features：The Role of Constitutional Review Bodies in the Asian Post- Authoritarian
Democratization Process. A Comparative Perspective】

Adoption of the Constitutional Council
towards the Rule of Law State and Democratization in Vietnam
PHAN Thi Lan Huong*

Abstract
Since the introduction of the Doi Moi in 1986 for transferring from centrally-planned economy
to the open market with socialist orientation, Vietnam has made a significant effort in building
comprehensive legal framework to promote socio-economic development as well as moving
towards rule of law state and democratic society. However, the low quality of the current legal
system presents a key obstacle to Vietnam’s achievement of its development targets. The
Vietnamese legal system faces many problems such as statutory contradictions and inconsistency
which raise serious challenges in implementing legislative reforms. Under the current system, only
the National Assembly holds the power to review the constitutionality of acts issued by thecompetent agencies. The Supreme Court can only recommend to competent agencies to review laws
and regulations in the course of administrative case settlements. The Ministry of Justice holds theauthority to review regulations issued by other state authorities of ministerial and lower level. For
example, there were 5639 illegal documents issued by ministerial agencies and local governments
at provincial level in 2017 as reported by the Ministry of Justice. There still remains no mechanism
allowing individuals or organizations to request for constitutional review when legal documents areunconstitutional or illegal and violating individual rights. During the process of drafting theConstitution 2013, legislative members and researchers in Vietnam raised concerns about adopting
the Constitutional Council as a specialized model for constitutional review; however, theConstitutional Council has not been established yet under the 2013 Constitution of Vietnam.
Consequently, human rights cannot be protected effectively due to the lack of an adequate andspecialized institution for constitutional review. The question remains: does Vietnam need toestablish the Constitutional Council as a critical instrument of rule of law and democracy? Studying
foreign experience in creating specialized institutions for constitutional review is essential for
Vietnam. This paper will examine current issues of constitutional review for human rights protection*

Lecturer, Hanoi Law University.

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Nagoya University Asian Law Bulletin Vol.5 (March 2020)

and the need for establishing the Constitutional Council in order to implement the rule of law andcreate a truly democratic society in Vietnam.

Contents
I.

Introduction

II. Current mechanism of constitutional review in Vietnam
III. Vietnam’s approach to the adoption of a Constitutional Council
IV. Conclusion

I. Introduction
Since the establishment of the Democratic Republic of Vietnam in 1945, it has
promulgated several constitutions including the 1946, 1959, 1980, 1992 and 2013
constitutions. The 1946 and 1959 constitutions were promulgated during the period of
Resistance War Against America. After unification in 1975 and establishing the socialist
state, Vietnam enacted the 1980 Constitution which introduced a mono-party system basedon democratic centralism, centrally-planned economy and socialist legality principle.
Notably, most of the concepts, including laws appeared as the Soviet transplants. Since the
Doi Moi reforms in 1986, which is a Vietnamese prototype of the Soviet perestroika, the1992 Constitution introduced free market economy with socialist orientation. The 1992
Constitution was amended in 2001 and 2013. The most significant constitutional challenges
appeared in 2013. Particularly, a possibility to establish the Constitutional Council came out
as the issue that most sparked an interest of domestic and international scholars.
In general, development of constitutionalism in Vietnam can be divided into three
periods: constitution under the French and American war periods, including 1946 and 1954
constitutions; post-unification constitutionalism (1980 Constitution); and constitutionalism
under transformation period from central-planned economy to opened market with socialist
orientation (1992 Constitution). This article will explore the development of54

Adoption of the Constitutional Council
towards the Rule of Law State and Democratization in Vietnam

constitutionalism in post-unification of Vietnam as a representative of the modern andfundamental legal ideologies of contemporary Vietnam.
The 1980 Constitution drew upon the constitution of the former Soviet Union sinceVietnam heavily relied on the support of the Soviet Union during the American war and after
its unification in 1975. During and after the American war, a number of Vietnamese scholars
went to the former Soviet Union to study law; and their legal ideologies were almost certainly
influenced by socialist law. Consequently, legal system of Vietnam generally followed thelegal ideology of the socialist country. In other words, the legal system of Vietnam hadfeatures of socialist law transplanted from the former Soviet Union.1 The 1980 Constitution
adopted the Soviet political ideology through three principles including: socialist-legality,
democratic-centralism, and the collective-mastery. 2 The central government played adominant role in decision making while local governments functioned as subordinate organsof the central government. The central government made important decisions related toeconomic development through a system of state-owned enterprises (SOEs). “Vietnam used
to be a closed socialist country with a command economy”.3
Due to the collapse of the former Soviet Union, the Communist Party had to find a new
strategic development for Vietnam by introducing Doi Moi Policy (Renovation policy). Doi
Moi was a turning point for reforming political policy and legal system of Vietnam. Vietnam
needs to reform its legal system to respond to the changes in the country’s economic
development. Consequently, the 1992 Constitution replaced the 1980 Constitution with arenewed focus on socialist oriented open market economy.
“The 1992 constitution represents a step forward in Vietnam's constitutional history, it isaimed at strengthening state management of society through the rule of law, building

1 Ngoc Son Bui, “Law of China and Vietnam in Comparative Law,” Forham International Law Journal 41, no. 1,

accessed May 6, 2019, https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2688&context=ilj.
2 Hualing Fu et al., Socialist Law in Socialist East Asia (Cambridge University Press, 2018), 16.
3Gail Fay, Economies Around the World (Raintree, 2012), 30.

55

Nagoya University Asian Law Bulletin Vol.5 (March 2020)socialist democracy and enhancing socialist legality, so that the superstructure can wellenhance its role in paving the way and accelerating socio-economic development.”4
Notably, during the time of amendment of the 1980 Constitution, there was strong
advocacy for the separation of powers model which upheld the principle of separation of
powers and checks and balances principles for organization and operation of state bodies andwas popular in other countries; however, the Communist Party and central government
resolved to follow the democratic-centralism.
Vietnam has entered into transactional period from central planned economy to the open
market economy under socialist-oriented market economy since 1986. By doing so, Vietnam
has developed a legal system reflective of various aspects of its society. 5 For example,
regarding economic aspects, collective ownership has played a dominant role in economic
development. However, an open market economy requires the recognition of businessfreedom and private ownership. Together with state owned enterprises, the private sector
and foreign investment are guaranteed by the 1992 Constitution. For example, the 1992
Constitution, Article 25 confirms the full protection of foreign investment throughguaranteeing the right to lawful ownership of funds, property and other interests of foreignorganizations and individuals.
However, institutional regulations only contained some minor changes under the 1992
Constitution. The main features of the socialist legal model have remained. One was thedemocratic-centralism principle for organization and operation of state bodies. For example,
the National Assembly (legislative organ) is the highest organ of state power while theexecutive and judicial branches depend on the National Assembly as the subordinate organs.6
Vietnam does not have principles of separation of powers and checks and balances.
Vietnam has gained positive result in economic development since promulgation of the
1992 Constitution. However, there remained a need to amend the 1992 Constitution to better

4 David. G Marr et al., Vietnam and the Rule of Law: Proceedings of Vietnam Update Conference, November 1992

(Canberra: Australian National University, 1993), 91, http://catalog.hathitrust.org/api/volumes/oclc/29968358.html.
5 Bui, “Law of China and Vietnam in Comparative Law,” 159.
6

Marr et al., Vietnam and the Rule of Law, 52.

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Adoption of the Constitutional Council
towards the Rule of Law State and Democratization in Vietnam

adapt to the standards of globalization and integration. Vietnam revised the 1992
Constitution in 2001. Significantly, the amended Article 2of the Constitution in 2001 definedthat “the Socialist Republic of Vietnam State is a law-governed socialist State of the people,
by the people and for the people”. Hence, rule-by-law state principle requires to develop
comprehensive legal system to respond to the needs of managing the country by laws. Withinfour years from 1986 to 1990, the National Assembly passed 24 laws and 33 Decrees issued
by the State Council.7 Notably, there is different interpretation of the term law-governedsocialist State (Nhà nước pháp quyền xã hội chủ nghĩa) such as the rule of law or rule bylaw state. However, in the Vietnam’s context, rule of laws is explained as pollical party
using laws as instruments of political control; therefore Vietnam lacks inherent qualities ofrule of law state.8 Vietnam also amended the 1992 Constitution in 2013; those amendments
focused on the distribution of functions among the legislative, executive and judicial
branches under Article 2 (3) as follows: “The state power is unified and delegated to stateagencies which coordinate with and control one another in the exercise of the legislative,
executive and judicial powers.” According to this article, Vietnam maintains theconcentration of power principle in which executive and judicial branches are independent
organs and under the control of the National Assembly. Significantly, new concepts wereintroduced in the 2013 Constitution such as control [of] one another in exercise of thelegislative, executive and judicial powers and human rights are considered as a step to reachthe rule of law standards. However, the legal system of Vietnam still contains several issues
such as inconsistency, or fragmentation due to many state agencies holding law-making
powers. Decrees or circulars issued by executive organs have played a dominant role in thelegal system. In other words, substantive laws cannot be enforced without guidelines issued
by the executive organs. However, Vietnam lacks an independent mechanism forconstitutional review.
Notably, judicial review and constitutional review remain controversial issues inVietnam which must be studied continuously by Vietnamese scholars and law-makers.
7 Marr et al., 7.
8Bui, “Law of China and Vietnam in Comparative Law.”

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Nagoya University Asian Law Bulletin Vol.5 (March 2020)

Hence, the question remains as to whether Vietnam needs to establish the Constitutional
Council as one element of rule of law state.
II. Current mechanism of constitutional review in Vietnam
To some extent, there is a need to distinguish the differences between judicial review andconstitutional review in the context of Vietnam. In general, judicial review differs fromcountry to country depending on a state’s political system. The judicial review refers to thecontrol of constitutionality of legislation promulgated by the Parliament. There are two
popular models of constitutional review applied around the world: the model applied by the
US and the model applied by European countries.9 In America, constitutional judicial review
refers to the power of the court to reviewing both public and private conduct in consistencewith the constitution. 10 All courts hold constitutional judicial review powers while theSupreme Court makes final decision whether any provision is inconsistent with the federal
constitution. In comparison, the European model of constitutional judicial review is a
specialized Constitutional Court. The Constitutional Court is an independent institution
which holds power to review constitutionality of legal norms.11 In France, constitutional
review is under jurisdiction of the Constitutional Council. The Constitutional Council
reviews the institutional laws before promulgation, or at the request of a competent person,
such as the President of Republic.12 Constitutional review can also be conducted by different
state organs. For each model of judicial review, jurisdiction of the reviewing agency differs
as follows:9
Albert H. Y. Chen, Hongyi Chen, and Andrew Harding, Constitutional Courts in Asia: A Comparative Perspective(Cambridge University Press, 2018), 2.
10

Theunis Roux, The Politico-Legal Dynamics of Judicia Review: A Comparative Analysis (Cambridge University Press,
2018), 15.
11

Chen, Chen, and Harding, Constitutional Courts in Asia, 3.

12 Constitution of France, Article 61, https://www.constituteproject.org/constitution/France_2008.pdf?lang=en

accessed on May 5, 2019.

58

Adoption of the Constitutional Council
towards the Rule of Law State and Democratization in Vietnam“Whereas the Austrian model only provided for limited jurisdiction of certain
disputes, the German model introduced the device of the constitutional complaint,in which any individual could complain about the constitutionality of a statute or
government action, even without a specific case or controversy.”13
Unlike US and France, Vietnam has not yet established an independent model such as
the Constitutional Court/Council or the principle of constitutional judicial review. The
democratic-centralism principle ensures the concentration of state power. The National
Assembly is the highest organ of state; therefore, there is no institution that has control over
the National Assembly. Under the 1992 Constitution as well as the amended Constitution of2013, only the National Assembly and its Standing Committee hold the power to review theconstitutionality and legality of the legal documents including laws, ordinances, decrees, andcirculars issued by competent agencies. Notably, legality requires the conformance of legal
documents issued by different agencies. Under democratic centralism principle, Vietnam’s
legal system is a hierarchy requiring legal documents issued by lower agencies to correspondto legal documents issued by higher system which requires the legal documents issued by
the lower competent agencies to conform with the legal documents issued by the higher stateorgans. For example, a Ministry’s circular must comply with a Government’s decree as
ministry is under the control of Central Government.14 In other words, the top down modelof administrative system creates the hierarchy of legal system.
In brief, Vietnam does not have an independent mechanism for judicial review orconstitutional review. The National Assembly, as the highest state organ, holds powers toenact Constitution and Laws as well as to review constitutionality of these documents. The
National Assembly holds the power to review the constitutionality and legality of legal
documents issued by the organs at central level including Standing Committee of the
National Assembly, Government, Supreme People’s Court, Supreme People’s Procuracy,
13

Tom Ginsburg & Mila Versteeg, “Why Do Countries Adopt Constitutional Review?” University of Chicago Law
School, 2013, 6,
https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=5621&context=journal_articles.
14

Bui, “Law of China and Vietnam in Comparative Law,” 160.

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National Election Council, State Audit Office, and other agencies established by the National
Assembly;15 The Standing Committee of National Assembly also holds power to supervise
the implementation and to suspend the implementation of the legal documents issued by thecompetent organs at the Central and Provincial level in case of contradict to the Constitution
and Laws enacted by National Assembly.16
When a law or legal document is determined to be unconstitutional, only the National
Assembly can annul such a law or legal document based on the proposal of the Standing
Committee of the National Assembly. In addition, the Standing Committee has authority tosuspend or annul the legal documents issued by the executive branch. Significantly, the court
only reviews constitutionality and legality of legal documents issued by executive organs
when dealing with administrative disputes. For example, during process of handling an
administrative case, if a court finds that the legal ground for making administrative decision
is illegal or unconstitutional, then the court only can recommend to the competent agency to
examine, amend or suspend those legal documents.17 For example, Article 6 of the Law on
Administrative Court Proceeding provides that: during the time of settlement of an
administrative case, the court may recommend competent agencies and individuals to
examine, amend, supplement or annul legal documents when detecting that such documents
are contrary to the Constitution, laws or legal documents of superior state agencies.18
The Supreme People’s Court does not exercise constitutional judicial review power as
seen in the America model. In 1996, Vietnam established the administrative tribunal under
the People’s Court system, which reviews the legality of the administrative decisions or
actions which are unlawful and violate the rights/legitimate interests of citizens.19 In thiscontext, judicial review is quite narrow concept in comparison with other countries such as
the US and Japan. The court only reviews the legality of decisions or actions of the executive
15

National Assembly, Constitution of Vietnam, dated 28, November 2013, Article 70 (2).

16

National Assembly, Constitution of Vietnam, dated 28 November 2013, Article 74 (3&4).

17 National Assembly, Law on Administrative Lawsuit, Article 6.
18

National Assembly, Law on Administrative Lawsuit, No.95/2015/QH13, Article 6.

19 Nguyen Van Quang, “Grounds for Judicial Review of Administrative Action: An Analysis of Vietnam Administrative

Law,” Discussion Paper, Cale Discussion Paper (Nagoya Universi ty Center for Asian Legal Exchange, 2010), 9.

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towards the Rule of Law State and Democratization in Vietnam

organs. Hence, individual citizens have no access to an institution where they can request
constitutional. The judicial branch only holds power to recommend amendment, or
annulment of legal documents in the course of settlement of the administrative cases. For
example, Chief justices of district-level courts can only recommend amendment,
supplementation or annulment of legal documents of state agencies at the district level orlower level or report to chief justices of provincial-level courts for proposing the Chief
Justice of the Supreme People’s Court to recommend amendment, supplementation or
annulment of legal documents of central state agencies.20
Notably, the Law on Administrative Lawsuits 2015 created a new jurisdiction of thePeople’s Court at all levels in reviewing legal documents; however, the People’s Court isonly authorized to recommend amendments or annulments of illegal or unconstitutional legal
documents to competent agencies. Hence, the jurisdiction of the court in constitutional
review remains limited because it does not hold power to judge the legal document’s
constitutionality and legality. For example, when Da Nang People’s Council issued
Resolution No.23/2011, which limited the rights of citizens in resident registration, thepeople living in Da Nang province could not declare the decision unconstitutional as it was
not under jurisdiction of the Provincial People’s Court of Da Nang City. Nevertheless, thisresolution was ultimately determined to be unconstitutional by Ministry of Justice.21
Vietnam’s Ministry of Justice is authorized to review legal documents including law,decree, circular and decisions issued by the competent agencies as prescribed by the Law on
Promulgation of legal documents (Law on laws, 2015). In reviewing process, Ministry ofJustice in cooperation with relevant Ministries such as Ministry of Finance, Ministry ofHome Affairs to check the necessity of legal document, its consistency with Constitution,
Laws and related documents before submitting to competent organs for enactment.22

20 National Assembly, Law on Administrative Procedure (on settlement of administrative lawsuit), No.93/2013/QH13,

dated 25 November 2015, Article 112.
21 NLD.COM.VN, “Đà Nẵng hạn chế nhập cư là trái luật,” https://nld.com.vn, March 1, 2012,https://nld.com.vn/20120229112858818p0c1002/da-nang-han-che-nhap-cu-la-trai-luat.htm. accessed 8 May 2019. (Strict
citizen’s registration of Danang is illegal).
22

National Assembly, Law on Promulgation of Legal Document, No.80/2015/QH13, dated 22, June 2015, Article 39.

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Nagoya University Asian Law Bulletin Vol.5 (March 2020)

Although Vietnam has not yet adopted the independent model of constitutional review,it has carried out constitutional review through its own distinct mechanism. 23 The
constitutional review is conducted during the drafting of legal documents and also after
promulgation by three organs including: Ministry of Justice (executive branch of the Central
Government); the Supreme People’s Court (judicial branch); and the Standing Committee of
the National Assembly (legislative branch). For example, in 2017, the legal documents
reviewed by the Ministry of Justice included 5639 illegal documents resulting from violationof jurisdictions, procedures, or general confliction with other laws;24 Still, this distinctive
mechanism is considered ineffective and inefficient.
It is undeniable that judicial review and constitutional review play important role inpromoting democratic values and controlling state powers. Although Vietnam aims to build
a rule of law state and a democratic society, it still lacks an independent mechanism for
implementing constitutional review. Rule of law is closely related to human rights anddemocracy, and the quality of rule of law depends on the economic and political conditionsof a country. Democratization is a process which requires a country to adopt rule of law
standards. However, the standards of rule of law are consistent with divergent of economic
systems.25 Vietnam is struggling to develop a comprehensive, consistent legal system. As aresult, the adoption of Constitutional Council for constitutional review has remained as acontroversial issue in process of amending Constitution since 1992.
III. Vietnam’s approach to the adoption of a Constitutional Council
Notably, it is essential to have a specialized institution for reviewing constitutionality
and legality of the legal documents. However, Vietnam has not yet focused on constitutional
review at the time of amendment of the 1980 Constitution. Adopting a Constitutional
23 “Cần Hay Không Hội Đồng Hiến Pháp?” accessed April 21, 2019,http://duthaoonline.quochoi.vn/DuThao/Lists/TT_TINLAPPHAP/View_Detail.aspx?ItemID=1009.
24 VCCorp.vn, “Hơn 5.600 văn bản trái pháp luật được ban hành trong 2017,” VnEconomy, August 9, 2018,

http://vneconomy.vn/news-20180809065123316.htm.
25 Randall P. Peerenboom, Asian Discourses of Rule of Law: Theories and Implementation of Rule of Law in Twelve

Asian Countries, France and the U.S. (Psychology Press, 2004).xviii.

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Adoption of the Constitutional Council
towards the Rule of Law State and Democratization in Vietnam

Council first appeared as a debate in the process of amending the 1992 constitution in 2001,
and again in 2013. The type of constitutional review model that is most suitable for Vietnam
remains at the center of the debate among politicians, legislators, and legal scholars. In his
discussion on possible establishment a Constitutional Court in Vietnam, Vu Van Cuong
argued that a law passed by the National Assembly must comply with Constitution and otherLaws, because there is no official institution with jurisdiction over the legislation’s legality.
However, there is a possibility of a law which is unconstitutional.26 He further argued that
Vietnam cannot establish a Constitutional Court, as it is simultaneously bound by two
principles that are not always interrelated: (1) the Constitution as the supreme body of law
and (2) the National Assembly as the highest organ of state. Therefore, adoption of
constitutional council is a possible solution for Vietnam.27
Constitutional review is a topic of both legal and political concern. In 2005, theResolution No.48-NQ/TW of the Politburo on the Strategy to Build and Perfect Vietnam’s
legal system by 2010 with orientation to 2020 raised the issue of renewing the constitutional
regime. A Constitutional Council was included in the draft amendment to the 1992
Constitution and has been actively discussed by lawmakers and legal professionals. The
majority of Vietnamese scholars agree that there is no possibility of adoption ofConstitutional Court or constitutional judicial review by the Supreme Court like othercountries which have the separation of powers and check and balances principles. However,Vietnam has also introduced the distribution of functions including legislative, executive,
and judicial functions. In principle, the National Assembly is the highest legislative organ,
and the government (executive branch), and Supreme Court (judicial branch) are under thecontrol of the National Assembly. No institution has the power to review laws enacted by
the National Assembly, as it is defined as the highest state organ. Hence, there is no
independent institution which can pass judgement on the National Assembly, making aConstitutional Council a suitable option for Vietnam. A Constitutional Council model should

26 “Cần Hay Không Hội Đồng Hiến Pháp?”27“Cần Hay Không Hội Đồng Hiến Pháp?”

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conform with the political conditions of Vietnam, as well as follow democratic-centralism
principle. Consequently, the Constitutional Council was adopted in the draft version of theamendment 1992 Constitution in 2013.28
During the process of collecting public comments on the amended draft, it became clearthat establishing a Constitutional Council was a highly contentious issue. In the draft for
public comments, Article 120 defines the Constitutional Council as an agency establishedby the National Assembly, consisting of the President, Vice President and Members. The
Constitutional Council shall have power to examines the constitutionality of legal documents
and to propose to the National Assembly to review constitutionality and legality of legal
documents.29
According to this article, the Constitutional Council would only hold the power toexamine the constitutionality of legal documents issued by competent agencies at the centrallevel. Therefore, Constitutional Council does not have jurisdiction to annul legislation
because it holds a lower position than the National Assembly. In other words, there remains
no institution with jurisdiction to annul laws promulgated by the National Assembly. Unlike
other countries’ models, such as France, the term of Constitutional Council members is notprescribed by the Constitution. Under the French Constitution, the members serve a term ofnine years with three members to be appointed by the President of Republic, three by the
President of the National Assembly, and three by the President of the Senate.30 The draft
includes only a general article on Constitutional Council, therefore there were comments
stating that the draft should include provisions on the terms of the members and subject torequest for constitutional review.31

28Bui Ngoc Son, “Tạp Chí Cộng Sản - Triển Vọng Của Hội Đồng Hiến Pháp ở Việt Nam,” accessed April 21, 2019,http://www.tapchicongsan.org.vn/Home/du-thao-sua-doi-nam-1992/2013/23845/Trien-vong-cua-Hoi-dong-Hien-phap-oViet-Nam.aspx.
29“Dự Thảo Hiến Pháp Sửa Đổi Năm 2013,” accessed April 21, 2019,http://chinhphu.vn/portal/page/portal/chinhphu/congdan/DuThaoVanBan?_piref135_27935_135_27927_27927.mode=det
ail&_piref135_27935_135_27927_27927.id=748.
30 Constitution of France, Article 56.
31

Bui Ngoc Son, “Tạp Chí Cộng Sản - Triển Vọng Của Hội Đồng Hiến Pháp ở Việt Nam.”

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Adoption of the Constitutional Council
towards the Rule of Law State and Democratization in Vietnam

Vietnam demonstrates the needs for adopting Constitutional Council as a new model for
implementing constitutional review. However, the amended 2013 Constitution draft did notinclude any provisions on the Constitution Council. In the course of legal reform, Vietnam
made effort to develop a comprehensive legal system for responding to the rule of law
principle and democratization.
The current constitutional review mechanism reveals many problems. First, the Ministryof Justice lacks the capacity to review all legal documents issued by the central government
and provincial level organs. Second, the People’s Supreme Court only reviews legal
documents within the settlement of an administrative case. Even so, the number of laws andlegal documents issued by state agencies has increased, especially those decisions issued by
the State President, Prime Minister, Minister and the head of the local governments. In
addition, thousands of regulations are issued by the local governments and this significantly
complicates the operation of Vietnam’s legal system. 32 Consequently, Vietnam’s legal
system is described as a “jungle of law”33 because there are many competent agencies that
hold the power to enact substantive laws (decrees and circulars) without any effective
mechanism for constitutional review or judicial review. In addition, there is a significant
need for providing guidelines for the implementation of laws enacted by legislative organs.
In other words, the laws cannot be implemented without guidelines issued by executive
organs such as government and ministries. In reality, administrative regulations provide
various conditions and administrative procedures which may limit the rights of citizens.34
However, there is no effective mechanism for reviewing these legal documents.
Consequently, legal reform has not yet met standards of rule of law state; therefore, theCentral Politburo issued the Conclusion No.01-KL/TW dated 04 April 2016 on theContinuous implementation of the Legal reform strategy for 2016-2020 period. Hence,

32 Bui, “Law of China and Vietnam in Comparative Law,” 162.
33

“Reforming How Laws Are Made in Vietnam,” accessed February 27, 2020,
https://www.cba.org/Sections/International-Initiatives/News/2014/Decembre/Reforming-how-laws-are-made-in-Vietnam.
34

Bui, “Law of China and Vietnam in Comparative Law,” 165.

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Nagoya University Asian Law Bulletin Vol.5 (March 2020)

Vietnam still needs to develop a model for reviewing the legality and constitutionality oflegal documents as one of condition of a rule of law state.
VI. Conclusion
Socialist Asian countries such as China, Laos, and Vietnam face challenges indemocratization. Supervising and guaranteeing effective implementation of constitution is
crucial factors in building a rule of law state and a democratic society. “As more countries
have democratized since the 1980s, more constitutional courts have been established aroundthe world.” 35 Adoption of a constitutional review model is a key factor in ensuring theconstitutionality and legality of modern state’s legislation. Constitutional Court or
Constitutional Council contributes to legal reform and democratic development.
Significantly, reviewing legislation’s constitutionality and legality is crucial important in
Vietnam, as the legal system remains inconsistent. Particularly, the executive branch has
played important role in providing guidelines for implementation legislation. In addition, theenormous number of decisions issued by the local government are the main challenges toimplement constitutional review in Vietnam. The current mechanism for implementing
constitutional review through Ministry of Justice, Supreme People’s Court, and the Standing
Committee of the National Assembly is ineffective because there remains a need of
specialized institutions for this purpose such as Constitutional Council or Constitutional
Court in other countries. The study of constitutional council remains important and relevantto the progress of legal reform in many countries which have not yet adopted a constitutional
review model. Hence, Vietnam still needs to learn from experiences of other countries indeveloping an effective mechanism for constitutional review.

35

Chen, Chen, and Harding, Constitutional Courts in Asia, 30.

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towards the Rule of Law State and Democratization in Vietnam

References
Bui, Ngoc Son. “Law of China and Vietnam in Comparative Law.” Forham International
Law Journal 41, no. 1. Accessed May 6, 2019.
https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2688&context=ilj.
“Cần Hay Không Hội Đồng Hiến Pháp?” Accessed April 21, 2019.
http://duthaoonline.quochoi.vn/DuThao/Lists/TT_TINLAPPHAP/View_Detail.aspx?It
emID=1009.
Chen, Albert H. Y., Hongyi Chen, and Andrew Harding. Constitutional Courts in Asia: A
Comparative Perspective. Cambridge University Press, 2018.
“Dự Thảo Hiến Pháp Sửa Đổi Năm 2013.” Accessed April 21, 2019.
http://chinhphu.vn/portal/page/portal/chinhphu/congdan/DuThaoVanBan?_piref135_2
7935_135_27927_27927.mode=detail&_piref135_27935_135_27927_27927.id=748.
Fay, Gail. Economies Around the World. Raintree, 2012.
Fu, Hualing, John Gillespie, Penelope Nicholson, and William Edmund Partlett. Socialist
Law in Socialist East Asia. Cambridge University Press, 2018.
Marr, David. G, Carlyle A Thayer, Australian National University, and Department of
Political and Social Change. Vietnam and the Rule of Law: Proceedings of Vietnam
Update Conference, November 1992. Canberra: Australian National University, 1993.
http://catalog.hathitrust.org/api/volumes/oclc/29968358.html.
Nguyen Van Quang. “Grounds for Judicial Review of Administrative Action: An Analysis
of Vietnam Administrative Law.” Discussion Paper. Cale Discussion Paper. Nagoya
Universi ty Center for Asian Legal Exchange, 2010.
NLD.COM.VN. “Đà Nẵng hạn chế nhập cư là trái luật.” https://nld.com.vn, March 1, 2012.
https://nld.com.vn/20120229112858818p0c1002/da-nang-han-che-nhap-cu-la-trailuat.htm.
Randall P. Peerenboom. Asian Discourses of Rule of Law: Theories and Implementation ofRule of Law in Twelve Asian Countries, France and the U.S. Psychology Press, 2004.

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Nagoya University Asian Law Bulletin Vol.5 (March 2020)“ Reforming How Laws Are Made in Vietnam.” Accessed February 27, 2020.
https://www.cba.org/Sections/InternationalInitiatives/News/2014/Decembre/Reforming-how-laws-are-made-in-Vietnam.
“Tạp Chí Cộng Sản - Triển Vọng Của Hội Đồng Hiến Pháp ở Việt Nam.” Accessed April
21, 2019. http://www.tapchicongsan.org.vn/Home/du-thao-sua-doi-nam1992/2013/23845/Trien-vong-cua-Hoi-dong-Hien-phap-o-Viet-Nam.aspx.
Theunis Roux. The Politico-Legal Dynamics of Judicia Review: A Comparative Analysis.
Cambridge University Press, 2018.
Tom Ginsburg & Mila Versteeg. “Why Do Countries Adopt Constitutional Review?”
University of Chicago Law School, 2013.
https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=5621&context=journal_articles.
VCCorp.vn. “Hơn 5.600 văn bản trái pháp luật được ban hành trong 2017.” VnEconomy,
August 9, 2018. http://vneconomy.vn/news-20180809065123316.htm.

68Evaluation of the Attitudes Between the Constitutional Tribunal
and the Parliament in Myanmar【Special Features：The Role of Constitutional Review Bodies in the Asian Post- Authoritarian
Democratization Process. A Comparative Perspective】

Evaluation of the Attitudes Between the Constitutional Tribunal
and the Parliament in Myanmar
MAKINO Emi

Abstract
This paper examines the role of the Constitutional Tribunal of the Union, Republic of theUnion of Myanmar (hereafter, the Tribunal), primarily focusing on parliamentaryinteractions and independence in political deliberations. The Tribunal was established in2011, and it was the first independent organization for constitutional review in Myanmar.
After half a century of the military authoritarian regime and in the circumstances ofcomplicated transition, the newly established Tribunal has been expected to adjust the power
among three branches of power; executive, legislative and judicial. A closer look at the
Tribunal’s recent activities and progress in adjudicating political issues and acting as anindependent referee between relevant political actors reveals this body’s inability to perform
adequately the role it has been assigned.
In 2012, the parliament widely opposed the Tribunal’s decision and initiated theimpeachment of all nine members. In 2013, the parliament also amended the Constitutional
Tribunal Law which limited the effectiveness to apply the decisions of Tribunal only to allcases transferred from ordinary courts. The amendments increasingly weakened the scope of
the Tribunal and eventually, questioned whether it might play any positive role in the
democratization of Myanmar as stipulated by the 2008 Constitution.
After the impeachment of all members, the Tribunal has been facing the lack of judicial
independence and cannot function as a referee among the political actors. The Tribunal
could deal with only a limited number of cases since its establishment in 2011, and isapparent that it is highly reluctant to reject initiatives of the current regime. Indeed, there aresome incidents when the Tribunal issued unconstitutional judgments, which could prove
positive in terms of the regional legislation powers and protection of minority rights.
However, the trends of distrust against the Tribunal is widely recognized after the NLD(National League for Democracy) regime came into power. In such circumstances, when the
Tribunal acts as a support agent for one political actor against others, the role of the Tribunal
in future democratization becomes highly controversial.

Assistant Professor, Center for Asian Legal Exchange, Nagoya University.
The auther would like to extend her gratitude to Dr. Ma Ma Thant and Ms. Ja Pu of Nagoya University Myanmar Japan Legal
Research Center for their support with preparation of cases’ summary of the Tribunal. Any errors of fact or analysis are the sole
responsibility of the autor.

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Nagoya University Asian Law Bulletin Vol.5 (March 2020)

Contents
I.

History of Constitutional Review

II. Functions and Duties of the Tribunal
III. Judicial Independence Crisis on the ‘Union Level Organization’ case
IV. Losing the Tribunals Competence through the Amendment of Constitutional
Tribunal Law
V. The Tribunal’s Reaction to Union-Regional Disputes and Minority Rights
VI. Analyzing the Tribunal’s PerformanceVII. Conclusion

I. History of Constitutional Review
Myanmar established the Tribunal in 2011 under the Constitution of the Republicof the Union of Myanmar (hereafter, the 2008 Constitution) under the slogan of a statecontrolled democracy and peaceful transition from a military to civilian rule. It was thefirst time in the constitutional history of the state when policymakers vested the powerof constitutional review to an independent institution.
Until 1948 Myanmar remained as a British colony. After gaining independence inJanuary 1948, it adopted the parliamentary democratic system stipulated by theConstitution of the Union of Burma (hereafter, the 1947 Constitution). The 1947
Constitution authorized the Supreme Court to exercise the highest judicial power1, andthe Supreme Court could declare opinions on constitutional questions by the requestsof the President2. From 1948 to 1964, 41 cases have been dealt with at the Supreme
Court regarding constitutionality3.
After the Coup d’etat by the General Ne Win in 1962, Myanmar set up thegovernment with a strong military component at the top of its political system.
1 Section 136(1) of the 1947 Constitution.
2 Section 151(1) of the 1947 Constitution.
3 This information is based on the author’s interview with the Tribunal officials in April 2019 (Nay Pyi Taw,

Myanmar).

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and the Parliament in Myanmar

Furthermore, this government adhered closely to the socialist ideology. The
Constitution of the Socialist Republic of the Union of Burma (hereafter, the 1974
Constitution) was adopted in 1974. According to the 1974 Constitution, people
represented the sovereign powers of the State, and the People’s Assembly, a single
chamber legislative organ represented by people, exercised such sovereign power and,additionally, delegated organs of state power4. Analogically to other socialist states, thePeople’s Assembly could exercise constitutional interpretation and determine thevalidity of the acts of executive authorities 5 . The newly adopted 1974 constitution
stipulated relevant provisions on constitutional control.
The military government established a dictatorial rule in 1988 amid forced
oppression of public movement for the country’s democratization. The 1974
Constitution was suspended in 1988, and the military seized all the power. The multiparty general election was held in 1990 and the National League for Democracy(NLD) led by Aung San Suu Kyi, a pro-democracy activist, got about 80 percent ofvotes, while the military-backed party won only 10 seats out of 485. However, themilitary junta refused to transfer the power to the NLD and insisted that the country’s
prioritized political task was to prepare the constitution. The military government set
up the National Convention to draft the new constitution in 1993. It worked over thedraft about 15 years with a long interval between 1996 and 2004 caused by the NLD
boycott. Despite the undemocratic drafting process, the government announced that the2008 Constitution was adopted with 92.48% of people’s consent by the nationalreferendum in May 2008. Eventually the new constitution came into force in January
2011.
In March 2011, almost after the half-century of the military regime, President
Thein Sein formed a civilian government. This initiative came as a pseudodemocratization, as Thein Sein had a long military career. Furthermore, the Union
Solidarity and Development Party (USDP), the military-backed party, occupied theParliament seats. In addition to the USDP parliament members, the 2008 Constitution
allocates 25 percent of seats for the military members. The recent Myanmar’s political

4 Section 12 of the 1974 Constitution.
5 Section 200 of the 1974 Constitution.

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landmark is the 2015 general election, a first openly competitive election since 1988 inwhich the NLD won a supermajority of seats at the parliament. The non-militarypresident Htin Kyaw was elected, and the NLD regime started in March 2016.
The 2008 Constitution states that the country aims genuine, disciplined multi-party
democratic system 6 , and the legislative, the executive and the judicial branch areseparated and exert reciprocal control, checks, and balances among themselves7. Hence,
after half a century of the authoritarian military regime and in the circumstances ofcomplicated transition, the newly established Tribunal has been expected to adjust thepower among three branches.
II. Functions and Duties of the Tribunal
The Tribunal related provisions appear within the 2008 Constitution’s Chapter on
Judiciary. This chapter also includes the provisions for ordinary courts and CourtsMartial. The Constitutional Tribunal of the Union Law (hereafter, the Tribunal Law)
was promulgated in 2010 based on the 2008 Constitution, and it came into force on the
day when the 2008 Constitution came into effect. According to the Section 322 of the2008 Constitution, the primary functions and duties of the Tribunal are; to interpret theprovisions of the Constitution, to scrutinize the constitutionality of laws promulgatedby the union and regional level parliaments, and the actions of the executive authoritiesof the union and regional governments8. The Tribunal is also entitled to decide on
constitutional disputes and disputes related to the rights between the Union andregional authorities, and among regional authorities. The Tribunal only deals withenacted laws and does not examine bills before enactment, and subordinate laws, suchas rules, regulations, and notifications. The Tribunal has the power to conduct bothabstract and concrete constitutional review.

6 Section 7 of the 2008 Constitution.
7 Section 11 of the 2008 Constitution.
8 The Union constitutes seven regions, seven states, and union territories. The Regions are the areas predominantly

resided by the ethnic Burmese, and the States are the areas dominated by ethnic minorities with their ethnic names,such as Kachin, Kayah, Kayin, Chin, Mon, Rakhine, and Shan (Section 49 of the 2008 Constitution). Myanmar
introduced the quasi-federal system, and the Regions/ States are conferred the autonomy to some extent under the2008 Constitution.

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Evaluation of the Attitudes Between the Constitutional Tribunal
and the Parliament in Myanmar

Generally, constitutional review systems are considered as the continental law
product. Since the British colonial rule in the 19th century, the legal system ofMyanmar has been influenced by the British Common Law system. As a result of thesocialist and military authoritarian regimes impact, Myanmar obtained hybrid aspects
from both the continental and common law systems.
Only a limited number of public actors can submit petitions for constitutional
review to the Tribunal directly, namely, the President, the Speaker of the Union
Parliament (Pyidaungsu Hluttaw), the Speaker of the House of Representatives (Pyithu
Hluttaw), the Speaker of the House of Nationalities (Amyotha Hluttaw), the Chief
Justice, and the Chairperson of the Union Election Commission 9 . Additionally, theChief Ministers of regional executive bodies, the Speakers of regional legislature, theChairperson of the Self-Administered Area, and more than ten percent of the Unionlevel parliament representatives can access to the Tribunal indirectly10. Constitutional
Tribunal does not stipulate actio populais. Therefore, individuals cannot directly lodge
their petitions to the Tribunal and thus, cannot quash public actions and statutes. It isonly the Supreme Court which has authority to forward cases to the Tribunal11.
III. Judicial Independence Crisis on the ‘Union Level Organization’ case
The first three cases submitted in 2011 and 2012 touched upon theunconstitutionality in the area of the executive authority. In the Submission No. 1/
2011, the critical issue was the constitutionality of the judicial power conferred to the
sub-township administrative officers to adjudicate minor criminal cases by the
Ministry of Home Affairs, which was exercised in the previous military regime. The
Tribunal agreed to the Supreme Court’s claim that the judicial power is only vested in
the judiciary. In the Submission No. 2/ 2011, the Tribunal decided that unequal status
for Ministers of the National Affairs at regional level entitled to the emoluments,
allowances, and insignia was unconstitutional and they should be treated equally toother ministers in the Regions and States. The President requested to review this
9 Section 325 of the 2008 Constitution.
10 Section 326 of the 2008 Constitution.
11 Section 17 of the Tribunal Law.

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decision; however, the Tribunal rejected it since the resolution was final andconclusive which found itself in the Submission No. 2/ 2012. The Tribunal opposed
the executive power to play an essential role as check and balance at the early stage.
The incident threatening judicial independence occurred in 2012, so-called the‘Union Level Organization’ case. According to the 2011 set of laws on Union
Parliament, the House of Representatives and the House of Nationalities (hereinafter,
the Union level legislature),12 each house of the Union level legistature is eligible toestablish the committees, commissions and bodies to actively carry out legislative
activities under own authority. The Union level legislature claimed their status as the‘Union Level Organization’ which have greater authorities such as the right to submit
the bills to the Union level legislature13, and to attend and take part in discussions atparliamentary sessions with the permission of the Speakers14 . President Thein Sein
submitted the petition to the Tribunal to clarify whether or not such Committees havethe ‘Union Level’ status. The 2008 Constitution mentions about the ‘Union Level
Organization’ several times; however, it does not provide any clear definition. The
Tribunal decided that the ‘Union Level Organization’ should be appointed by the
President with the approval of the Union Parliament. Simultaneously, the Tribunal
ruled that those actors who were not appointed by the President, but merely establishedunder the parliament by its own will, could not be considered as the ‘Union Level
Organization’. Subsequently, the legislature widely opposed the Tribunal’s decision,and initiated impeachment of all nine members. This step came out following thelegislature’s opinion that the Tribunal intended to restrict its power. President Thein
Sein and the military representatives in the parliament opposed to the impeachment,
and the Tribunal members finally resigned voluntarily in September 2012.
This incident has arisen from a political conflict between the President and thelegislature. The result could be a victory of the legislature, however, it caused a severe
infringement of judicial independence. The parliament uses the means of impeachment

12 The Union Parliament consists of the House of Representatives (a lower house with 440 seats) and the House of

Nationalities (an upper house with 224 seats).
13 Section 100(a) of the 2008 Constitution.
14 Section 77(c), Section 112(c) and Section 144 of the 2008 Constitution.

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Evaluation of the Attitudes Between the Constitutional Tribunal
and the Parliament in Myanmar

against the Tribunal members’ unsatisfied decision. It implicates risks that the Tribunal
members cannot decide cases independently.
IV. Losing

theTribunals

Competence

throughtheAmendmentofConstitutional Tribunal Law
The Tribunal consists of nine members. Three of the members chosen by the
President, three by the Speaker of the House of Representatives, and three by the
Speaker of the House of Nationalities, with the subsequent approval of the Union
Parliament15. Term of the members of the Tribunal is five years, which makes it thesame as the term of the Union Parliament16 and the President17. Such term is relatively
short compared to other countries. In particular, the risk of such short term is related tothe politically motivated appointments of members and highly possible influence onthem by the ruling party.
The candidate members must have legal practice experiences such as judge,
prosecutors or advocates for certain period prescribed in the 2008 Constitution.
However, if the President considers the candidate as a suitable jurist, he or she can be
nominated as a member18.
The President should nominate the Chairperson of the Tribunal among the ninecandidates19; however, the first amendment of the Tribunal Law in 2013, requires suchnegotiation with the Speakers of the House of Representatives and the House of
Nationalities to take place beforehand. In the hearing process, the attendance of the
Chairperson is mandatory20, and the decisions of the Tribunal would be passed by the
majority vote, including the Chairperson21. The Chairperson has great authority andinfluence upon the decisions. The 2013 amendment is the outcome of the ‘Union Level

15 Section 321 of the 2008 Constitution.
16 Section 335 of the 2008 Constitution.
17 The President shall be elected right after the parliaments have been formed.
18 Section 333(d)(iv) of the 2008 Constitution.
19 Section 327 of the 2008 Constitution.
20 Section 20 of the Tribunal Law.
21 Section 22(d) of the Tribunal Law. To pass the interpretation and opinion of the Tribunal, it dose not require the

Chairperson’s consent as long as it is approved with majority vote (Section 22(c) of the Tribunal Law).

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Organization’ case, as a result of which the Union Parliament gained more influenceon the nomination of the Chairperson of the Tribunal. The Tribunal initiated reamendment of the Tribunal Law in 2014, to nominate the Chairperson solely by the
President without the consultation with the legislature; however, such attempt failed22.
The 2014 amendment only included some clarification on procedure, and technical andterminological modifications.
The 2013 amended law also stipulates that the Tribunal members should report theperformance of their functions and duties to the President, Speakers of the House ofRepresentatives and the House of Nationalities who have been elected members. The
Tribunal members should not be controlled by anybody, otherwise this amendment canbe considered as an infringement of judicial independence. Hence, this amendment has
limited certain Presidential competency regarding the Tribunal.
The decisions of the Tribunal are final and conclusive 23 . When the Tribunal
declares law as unconstitutional, the relevant law becomes invalid upon the prescribed
procedure and immediately expected to be amended. However, not all laws areamended after they are declared as unconstitutional because the legislative branchmight not be satisfied with the decisions. Additionally, the first amendment of the
Tribunal Law in 2013, Section 25 which stated that “the decisions of the Tribunal shallhave an effect on the relevant Government departments, organizations, and persons or
the respective region” was deleted in favor of the provision stating that “only thosecases sent from the ordinary courts shall be applicable to all cases” 24. This amendment
resulted in the degradation of the competency of the Tribunal’s judgments.
V. The Tribunal’s Reaction to Union-Regional Disputes and Minority Rights
It does not mean that the Tribunal is totally useless in terms of theConstitutionalism in Myanmar. Myanmar is a multi-ethnic state which introduced aquasi-federal system to protect minorities’ rights based on the 2008 Constitution.
22 Khin Khin Oo, “Judicial Power and the Constitutional Tribunal: Some Suggestions for Better Legislation Relating

to the Tribunal and its Role”, in Andrew Harding & Khin Khin Oo (ed.), Constitutionalism and Legal Change in
Myanmar, Hart Publishing, 2017, p. 201.
23 Section 324 of the 2008 Constitution and Section 24 of the Tribunal Law.
24 Section 23 of the Tribunal Law.

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and the Parliament in Myanmar

Indeed, the Tribunal has an experience of dealing with some cases relevant to theunion and regional disputes, and ethnic minority issues.
As mentioned above, the unequal treatment to the National Races Affairs Ministersof the Region or State was declared as unconstitutional (Submission No. 2/ 2011), andthe related law was amended to adjust inequality. In the Submission No. 1/ 2014, it
was examined whether or not the appointments of National Races Affairs Ministers for
Lisu and Rawan races in Kachin and Shan State were in conformity with theConstitution. The national races which constitute more than 0.1 percent of the
population in the Union and have not obtained the State or Self-Administered Area,
can elect one representative at the regional parliament and such appointee can serve as
the National Races Affairs Minister 25 . The Tribunal supported the decision of theUnion Election Committee which allowed one elected representative for Lisu andRawan races, and they decided that the appointments were in conformity with theConstitution.
Submission No. 3/ 2012 is known for scrutinizing the legislative jurisdiction of theUnion and regional legislature. The Mon Development Committees Law promulgatedby the Mon State Parliament contradicted to the Union leveled 1993 Development
Committees Law which, in turn, was enacted before the 2008 Constitution came into
force. The 1974 Constitution adopted the centralized state structure under thephilosophy of socialism; however, in the 2008 Constitution Myanmar introduced theunion system, which enables the regional authorities to practice certain executive andlegislative functions. The 2008 Constitution provided the legislative power of theUnion and regional legislature in Schedule I and II respectively. The Tribunal declaredthat the Mon Development Committees Law, which is related to the development
affairs, was under the jurisdiction of regional legislature according to the 2008
Constitution. The 1993 Development Committees Law is still valid because thetransitional provisions in the 2008 Constitution stipulated that existing laws remain in
operation until repealed or amended by the Union Parliament if it is not contrary to theConstitution 26 . The Tribunal advised the Union Parliament to invalid the 1993

25 Section 161(c) of the 2008 Constitution.
26 Section 446 of the 2008 Constitution.

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Development Committees Law and ruled the Mon Development Committees Law was
not in conformity with the Constitution. The Tribunal’s decision, which supported theregional parliaments’ legislation against the Union laws may be considered as anovelty considering the actual situation with constitutional review in Myanmar.
The constitutional petition usually guarantees to the parliamentary minorities astanding to bring cases to the constitutional court to protect their rights. However, theopposite case happened in Myanmar. In the Submission No. 1/ 2015, the Tribunal
stated that the National Referendum Law which targeted whether to amend theconstitution or not was indeed found as unconstitutional. In particular, this law granted
a right to vote at the referendum to the holders of the temporary registration cards
known as the white cards27. They had participated in all military-orchestrated elections
held in Myanmar from 1936 to 2010, and voted for their representatives to theparliaments and state assemblies. They also had the right to vote in the 2008referendum for the adoption of the 2008 Constitution28. White cards holders are mainly
Rohingya Muslim people, who reside in a border area with Bangladesh. The 1982
Citizenship Law provides that the full citizen is an individual who had settled in
Myanmar territories before 1823 when the British rule started. The ethnic problem has
been derived from the British ‘divide and conquers policy’ towards Burmese and nonBurmese people. Authorities in Myanmar do not consider Rohingya people as citizensof Myanmar and, therefore, issues them white cards which automatically makes themstateless, and thus highly vulnerable. The Tribunal decided that the white card holders
are not citizens of Myanmar, and therefore, must not have voting rights.
The Constitutional Courts are often designed as the mechanism for protecting therights of the minority. This case clearly shows that the Tribunal in Myanmar does not
function as such. Indeed, the 2008 Constitution grants the rights to vote only to thecitizens. However, similarly to the case of Mon State Development Committees Law,
the Tribunal could consider the case in line with the past customs which would haveeventually allowed Rohingya minorities to participate in the political affairs and evenrecommend the legislature to correct the 1982 Citizenship Law.
27 Their holders are those who reside in Myanmar but do not have full citizenship rights.
28 Nural Islam, Rohingya and Nationality Status in Myanmar, in Ashley South Marie Lall, Citizenship in Myanmar:

Ways of Being in and from Burma, Chiang Mai University Press, Thailand, 2018 p. 267.

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and the Parliament in Myanmar

Notably, the 2008 Constitution integrates three basic principles; the nondisintegration of the Union; the non-disintegration of national solidarity; and theperpetuation of sovereignty. Hence, one may observe that national integration is themost prioritized mandate in Myanmar, whereas the protection of minority rights is anignored principle under the Myanmar-styled Constitutionalism.
VI. Analyzing the Tribunal’s Performance
Since the establishment of the Tribunal in 2011, the Tribunal produced a small
number of cases. In particular, the Tribunal initiated only 15 cases within the last nine
years. It is a very limited number, especially taking into consideration the fact the NLD
considers itself as the first ‘democratic’ government after half a century of military rule.
It is believed that the role of Tribunal increases if the democratization progresses;
however, up to date Myanmar demonstrates a totally opposite effect. The NLD
considers that a separate body like the Tribunal poses a threat to democracy, whereas
the Supreme Court can be better trusted to exercise judicial review29.
Because of the NLD’s distrust, the Tribunal produced only four cases under the
NLD government. The first case was related to the appointment of the Tribunal
members (Submission No. 1/ 2016). The President can appoint a person who is, in his
opinion, ‘an eminent jurist’. After two of the members recommended by the Speakers
of House of Representatives and House of Nationalities did not meet the criteria forbeing nominated as Tribunal members, the Speakers decided to nominate them under
the title of ‘an eminent jurist’. Notably, the Tribunal Law stipulates that only the
President can select ‘an eminent jurist’ even if the candidates do not meet thequalification. In this regard, the NLD government insisted that the President could
eventually apply ‘an eminent jurist’ to all nine judges after obtaining the list of
nominees. The Tribunal dismissed the case by pointing that it was a result of conflict
between the Constitution and the Tribunal Law.
There were two cases in 2019, and both of them touched upon the constitutional
amending process. The Joint Committee on Amending the 2008 Constitution (hereafter,
29 National League for Democracy, Analysis and Recommendations for the 2008 Constitution (June 2014), as cited

in Dominic Jerry Nardi “How the Constitutional Tribunal’s Jurisprudence Sparked a Crisis” in Andrew Harding &Khin Khin Oo (ed.), Constitutionalism and Legal Change in Myanmar, Hart Publishing, 2017, p. 187.

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the Joint Committee) was established in February 2019 under the Notification No. 15/
2019, and was comprised of 45 members. The main task of the Joint Committee was toreview the 2008 Constitution, submit the report with their findings to the Union
Parliament, and prepare amendment bills after the Union Parliament approve theirreport30. Another committee named the Joint Committee to Scrutinize the Second Bill
Amending the Constitution (hereafter, the Scrutinizing Committee) was established on
the same day under the Notification No. 14/ 2019 to review and scrutinize the Second
Amendment Bill submitted by the 143 parliament members including USDP
representatives. In the first case (Submission No. 1/ 2019), it was submitted whether or
not the Second Amendment bill should be discussed with the Joint Committee’s
upcoming bills. In the second case (Submission No.2/ 2019), the Tribunal examinedthe constitutionality of establishment of the Joint Committee. The critical issues ofboth cases refer to the interpretation of Section 435 of the 2008 Constitution, which
provides that bills submitted by more than 25 percent of the total number of the Union
Parliament should be considered at the Union Parliament. The Tribunal dismissed bothof the cases, and supported the NLD’s opinion to continue the Joint Committee’s
duties.
In general, constitutional courts are established to limit or balance the activities ofthe executive and the legislative branches, and expected to work as neutral arbitrators
among the two branches. Under the Thein Sein era, the Tribunal was primarily a forum
for dialogue between the president, the legislature and members of parliament fromethnic political parties31. Under the Thein Sein government, there was tension between
the President and the legislature and conflicts were often brought to the Tribunal. Mostof parliament members viewed constitutional review as a threat to the Union
Parliament’s law-making authority32.
Constitutional designers are interested in governing models after the adoption of a
new constitution, and they seek to design institutions that maximize their ability to
30 The Joint Committee submitted two bills to the Union Parliament on January 23, 2020, and it was revoked on

January 28, 2020, as it completed its duties.
31 Melissa Crouch, Dictators, democrats, and constitutional dialogue: Myanmar’s constitutional tribunal,

International Journal of Constitutional Law, Vol. 16, No. 2, p.423.
32 Dominic Jerry Nardi, “How the Constitutional Tribunal’s Jurisprudence Sparked a Crisis”, in Andrew Harding &Khin Khin Oo (ed.), Constitutionalism and Legal Change in Myanmar, Hart Publishing, 2017, p. 188.

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and the Parliament in Myanmar

govern under the new constitutional order. Constitutional court can act as an insurance
for electoral losers, and Ginsburg calls it as ‘the insurance model of judicial review’33.
In Myanmar, this theory is not applicable. The term of the Tribunal member is thesame as the President and the Union Parliament. Between 2011 and 2016, some cases
were filed as unconstitutional; however, the Tribunal never opposed the NLD
government. Especially after the constitutional crisis caused by the ‘Union Level
Organization’ case, it is difficult for the Tribunal to act as a checks and balances
institution, particularly when it comes to the interactions with the legislative branch of
power. If the Tribunal issues the judgments to which the parliament disagrees, theparliament can take an impeachment action against the Tribunal’s members. The
Tribunal cannot decide cases independently, and the trends of ignoring the Tribunal
spreads among the opposition parties at parliaments, especially after the NLD
government took power in 2016.
The NLD has introduced a position of a state councilor for its leader Aung San
Suu Kyi, which de facto gave her supreme political power. It eventually raises many
justified concerns and critics among parliament members regarding the contradictions
with constitutional provisions and inability of the Tribunal to adequately react to thematter. In such circumstances, when the Tribunal acts as a support agent for one
political actor against others, the role of the Tribunal in future democratization is very
unclear.
VII. Conclusion
Since 1962 when the military junta took power, the constitutional review
mechanism has been absent, and no mechanism was in place to perform the functionsof the checks and balances towards the executive and legislative power. For a longtime under the authoritarian regime, the separation of powers was denied, and the
judicial body could not control the actions conducted by the executive and legislative
bodies. The 2008 Constitution introduced the Tribunal as an independent body for the
first time in the constitutional history.
33 Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asia, Cambridge University Press,

2003, pp. 24-25.

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One of the critical factors of constitutionalism is to limit the executive andlegislative authorities, according to the constitution. At the early stage, the Tribunal
opposed the executive authorities; however, the 2012 crisis between the President andthe legislature yielded the judicial independence infringement. Their independence has
been weakened, and they could not be considered as ‘the insurance model’ to hold thepolitical power after the political changes.
Furthermore, the vital role of the Constitutional Courts is the protection of
citizens’ rights. The cases brought to the Tribunal are mainly disputes among thepolitical elites. The drafters of the 2008 Constitution viewed the Tribunal
predominantly as a forum to resolve intra-elite disputes, but not to protect fundamental
rights or to constrain government power34. The Tribunal deals with the constitutional
disputes among the political elites, and elites are not concerned about the citizens’
rights. It is difficult to assert that the Tribunal can act effectively to protect the rights ofminorities.
It can be concluded that the Tribunal acts as the supporter of the current politicalactors, and cannot perform functions of a mechanism which would contribute to thedevelopment of the democracy and protection of fundamental rights in Myanmar.
References
Alec Stone Sweet, “Constitutional Courts”, in Michkel Rosenfeld & Andras Sajo, The
Oxford Handbook of Comparative Constitutional Law, Oxford University Press,
2012.
Dominic Jerry Nardi “How the Constitutional Tribunal’s Jurisprudence Sparked a
Crisis” in Andrew Harding & Khin Khin Oo (ed.), Constitutionalism and Legal
Change in Myanmar, Hart Publishing, 2017.
Gabriela Marti, “The Role of the Constitutional Tribunal in Myanmar’s Reform
Process”, Asian Journal of Comparative Law, vo. 10, 2015.
Khin Khin Oo, “Judicial Power and the Constitutional Tribunal: Some Suggestions for
Better Legislation Relating to the Tribunal and its Role”, in Andrew Harding &34 Dominic Jerry Nardi, “How the Constitutional Tribunal’s Jurisprudence Sparked a Crisis”, in Andrew Harding &Khin Khin Oo (ed.), Constitutionalism and Legal Change in Myanmar, Hart Publishing, 2017, p. 184.

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Evaluation of the Attitudes Between the Constitutional Tribunal
and the Parliament in Myanmar

Khin Khin Oo (ed.), Constitutionalism and Legal Change in Myanmar, Hart
Publishing, 2017.
Melissa Crouch, The Constitution of Myanmar: A Contextual Analysis, Hart
Publishing, 2019.
Melissa Crouch, “Dictators, democrats, and constitutional dialogue: Myanmar’s
constitutional tribunal”, International Journal of Constitutional Law, Vol. 16, No.
2, 2018.
Nural Islam, “Rohingya and Nationality Status in Myanmar”, Ashley South Marie Lall(ed.), Citizenship in Myanmar: Ways of Being in and from Burma, Chiang Mai
University Press, 2018.
Rosalind Dixon and Tom Ginsburg (ed.), Comparative Constitutional Law in Asia,
Edward Elgar Publishing limited, 2014.
Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asia,
Cambridge University Press, 2003.

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84

個別論題

Thematic Papers

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86

Interface of Patent and Trade Secret Protection for Artificial Intelligence in Personalised Medicine【Article】

Interface of Patent and Trade Secret Protection
for Artificial Intelligence in Personalized Medicine
LEE Nari

Contents
I.

Introduction

II. Regulatory Challenges in the Use of AI in Personalized Medicine
III. Trade-offs in the Use of AI in Personalized Medicine – Patents or Trade Secrets
1. AI as a Subject Matter of Patent or Trade secret
2. Patent Infringement vs Trade Secret Misappropriation(1) Objective Patent Infringement and Subjective Trade Secret Misappropriation(2) Reverse Engineering of AI Inference Models in Patent and Trade Secrets(3) Product by Process in Patent and Trade Secrets
IV. Conclusion

I. Introduction
Personalized medicine is a developing field that carries a great potential for future
healthcare applications, for prediction, diagnostic and treatment. Personalized medicine
allows targeted treatment of different subgroups of patients, making it possible to tailor thetreatment to the best-responding patients, while avoiding non-responders who are likely toProfessor of Intellectual Property Law, Hanken School of Economics, Helsinki, Finland. This paper is based on thechapter submitted for publication in, Jens Schovsbo, Timo Minssen and Thomas Riis (eds), ‘The harmonization andprotection of trade secrets in the EU – an appraisal of the EU Directive’ (forthcoming, Edward Elgar).

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suffer adverse effects. Data that allows identification of the applicable patient group andcorrelating them to underlying conditions is crucial in the research for personalised medicine.
As commercial opportunities expand and develop without heed to legal categories, every newtechnological disruption such as personalized medicine and artificial intelligence (AI) may
raise claims of inadequacy of intellectual property (IP). Over and under protection andfragmentation or overlaps in exclusivity may harm efficient use of resources. While the needto share personal and private genetic information to advance research and industrial
development is acknowledged, there are fundamental moral and ethical discomfort against
exclusive control of an individual right holder over genetic data.
Trade secret protection seems to provide a perfect solution to this problem.1 Tradesecret protection could include most subject matters of intellectual property as well as otherineligible subject matters, such as raw data, information and knowledge. In the newtechnologies, trade secrets protection may indeed become a substitute for other types of IP,
especially when greater restrictions are imposed on traditional subject matters. Arguably,
when the US Supreme Court imposed stricter subject matter requirements for patents insoftware and biogenetic technology,2 businesses have migrated to protect data or algorithm
directly using trade secret law.3 Moreover, as expressive works or methods may also beprotected by trade secrets, works such as computer program codes produced by Artificial
Intelligence (AI), as well as algorithms for AIs may be protected as trade secrets even though
their protectability under copyright may be more uncertain. As regulations on public
disclosure for public access to information treat trade secrets differently from other types of
information, 4 trade secret protection may be considered a versatile tool to avoid public

1

Jerome H. Reichman, Legal Hybrids Between the Patent and Copyright Paradigms, 94 Columbia Law Review 2432-2558(1994)
2

Alice Corp. v. CLS Bank International, 134 S. Ct. 2347 (2014); AMP v Myriad Genetics, 133 S.Ct. 2107 (2013).

3

See for example, Dan L. Burk, Patents as Data Aggregators in Personalized Medicine, 21 Boston University Journal of
Science and Technology Law 233 (2015) at 242-245; Jacob S. Sherkow & Christopher Thomas Scott, The Pick-AndShovel Play: Bioethics For Gene-Editing Vector Patents, 97 North Carolina Law Review (forthcoming 2019)
4 For example, the US Freedom of Information Act exempts trade secrets categorically from its scope. 5 USC § 552(b)(4).
See for a comparative study, Sharon K. Sandeen and Ulla-Maija Mylly, Trade Secrets and the Right to Information: A

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Interface of Patent and Trade Secret Protection for Artificial Intelligence in Personalised Medicine

scrutiny over sensitive information.
Restricting patenting of algorithms for fear of depriving the public of the basic researchtools, simultaneously creates incentive to protect them with other means such as trade secret,which then would be used as a way to deprive the public of the access to the information.
Indeed scholars have already started to notice the switch and warned of the impact on
incentives and competition. 5 Burk, for example noted that while patents in personalized
medicine may fail to provide necessary incentives for innovation and yet could be used as toaggregate and re-capture valuable sub-patentable data which the companies may protect withtrade secret protection. 6 Likewise, Sherkow and Scott documented a problematic trend
among the vector developers for gene editing technology - what they call a ‘pick and shovel’
play, using secrecy as a way to sell gene editing equipment.7
This paper explores the interface of patent and trade secret protection of AI algorithmand data in Europe.8 The paper first examines current status of using AIs in personalised
medicine and explores if patent or trade secret protection would be better suited to deal withthe problems faced by use of AI on personalised medicine. From the policy perspective,
patents that allow disclosure may be a better choice. Although concurrent use may be allowed,
this chapter argues that trade secrets misappropriation may limit such uses, and concludes
Comparative Analysis of EU and US Approaches to Freedom of Expression and Whistleblowing (August 26, 2019).
North Carolina Journal of Law and Technology, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3442744
5 William Nicholson II Price, Expired Patents, Trade Secrets, and Stymied Competition (December 22, 2016). 92 Notre
Dame L. Rev. 1611 (2017)
6 Dan L. Burk, Patents as Data Aggregators in Personalized Medicine (April 22, 2015). 21 Boston University Journal of

Science and Technology Law 2:233-255 (2015) at 244-245.
7

Jacob S. Sherkow and Christopher Thomas Scott, The Pick-and-Shovel Play: Bioethics for Gene-Editing Vector Patents(June 27, 2019). North Carolina Law Review, 2019, vol. 97, pp. 1497–1552.
8

Directive (EU) 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed
know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure (Text with EEA
relevance) OJ L 157, 15.6.2016, p. 1–18 [hereinafter Trade Secrets Directive], Regulation (EU) 2016/679 of the European
Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of
personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection
Regulation)OJ L 119, 4.5.2016, p. 1–88 [hereinafter GDPR] Directive 98/44/EC of the European Parliament and of theCouncil of 6 July 1998 on the legal protection of biotechnological inventions OJ L 213, 30.7.1998, p. 13–2; Agreement on
a Unified Patent Court, Document no. 16351/12. (11 Jan. 2013) [hereinafter, ‘UPCA’]. Convention on the Grant ofEuropean Patents of 5 Oct. 1973, as revised [hereinafter ‘EPC’].

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that it may have become necessary to introduce additional regulatory measures to require
disclosure of AIs algorithm for public interest. However, such measure needs to take bothtechnical solutions to make AI more understandable if not transparent into consideration andregulatory solution to preserve the secrecy of AI information.
II. Regulatory Challenges in the Use of AI in Personalised Medicine
AI is a combination of theories, techniques and applications that make machines behaving‘in ways that would be called intelligent if a human were so behaving.’9 AI thus may include
various different technologies using different methods of making machines behave‘intelligently’ - sense, read and understand things around them, collect text and image datathat they so gathered and analyse, and make decisions. The essence of AI’s ‘intelligence’ iswhen such decision-making seems autonomous of human agents’ instructions orinterferences, and machines may appear to be sentient and learning autonomously - so called‘Machine Learning’ (ML). The idea of sentient machine has been around for some time. But,
the investments and interests in AIs have increased dramatically with the reports of successful
AI and ML, resulting from better and more computing power and digital computing tools(code libraries), developments in communication and network technology, emergence of newlearning algorithms (deep neural networks) and availability of training data (big data).
Using AI in personalized medicine marries two uncertain and yet exciting disruptive
technologies - digital computing and bio-genetic medicine. In both fields, technologies seem
to promise much possibilities and opportunities to increase efficiency in health care and yet,at the same time, present complex uncertainties, which may invite regulators’ scrutiny.
Personalized medicine and smart digital technology have brought on both promises andconcerns for society that to the degree that one author declared the end(s) of law.10 Despite
foreboding predictions and fanatic enthusiasms brought on by private and public sector
9J.McCarthy, M.L.Minsky, N. Rochester, & C.E. Shannon. A Proposal for the Dartmouth Summer Research Project on
Artificial Intelligence, August 31, 1955. AI Magazine, 27(4), 12. (2006) https://doi.org/10.1609/aimag.v27i4.1904

10

Mireille Hildebrandt, Smart Technologies and the End(s) of Law, Cheltenham: Edward Elgar (2015)90

Interface of Patent and Trade Secret Protection for Artificial Intelligence in Personalised Medicine

financing, personalized medicine or precision medicine have yet to deliver a panacea inhealth care.11 Benefits from personalized medicine, which promise to deliver targeted andtailored healthcare have yet to be fully materialized and at the same time, problems that anextreme personalised medicine have already been noted.12 Gene editing using CRISPR-Cas
system,13 which promises ultimate personalization14 has raised several difficult question ofrights fragmentations15 as well as question on genuine inventorship.16 Experimentation onhuman genome using the technology,17 resulted in scientists’ call for moratorium on the useof the technologies on heritable genome editing.18
Similarly, use of AI in medicine created unique problems and challenges. For regulators,
using AI in decision-making raises questions of transparency and accountability that are
11 See for example, Liz Szabo Are We Being Misled About Precision Medicine? New York Times, 11 September 2018https://www.nytimes.com/2018/09/11/opinion/cancer-genetic-testing-precision-medicine.html,
12See for example, Shubha Ghosh, Decentering the consuming self: personalized medicine, science, and the market forlemons, Wake Forest JL & Pol'y 5 (2015): 299.
13

Martin Jinek et al. A- programmable dual-RNA–guided DNA endonuclease in adaptive bacterial immunity, Science Vol
337 Issue 6096 (2012): 816-821.

14

Anjana Ahuja, Beyond ‘superbabies’: how CRISPR is revolutionising medicine, Financial Times Jan 14. 2019,https://on.ft.com/2Rpf1iu

15

Jorge L Contreras and Jacob S. Sherkow, CRISPR, Surrogate Licensing, and Scientific Discovery. Science, Vol. 355,
Issue 6326 (2017) 698-7000
16
See EPO CRISPR opposition decision of 17.1.2018 revoking EP 2771468 (2018)https://register.epo.org/application?documentId=E1N2PXYP4751DSU&number=EP13818570&lng=en&npl=false USPTAB Decision (2017)- CAFC appeal actually is pending (30.4.2018 oral hearing) 13818570. See for a good review of
the conflicts among the patenting priorities, Timo Minssen, and Esther van Zimmeren, and Jakob Wested, Clearing a Way
Through the CRISPR Patent Jungle (May 8, 2018). Life Sciences Intellectual Property Review (LSIPR), No. 8/5 2018,(2018). Available at SSRN: https://ssrn.com/abstract=3359717
17

See David Cyranosk, CRISPR baby scandal. The CRISPR-baby scandal: what’s next for human gene-editing, Nature
566, 440-442 (2019) doi: 10.1038/d41586-019-00673-1. Technology was not mature enough and as a result, it is expectedthat babies’ mortality is high. See Xinzhu Wei & Rasmus Nielsen, CCR5-∆32 is deleterious in the homozygous state inhumans, Nature Medicine, volume 25: 909–910 (2019).

18 See Adopt a moratorium on heritable genome editing

Eric S. Lander, Françoise Baylis, Feng Zhang, Emmanuelle
Charpentier, Paul Berg, Catherine Bourgain, Bärbel Friedrich, J. Keith Joung, Jinsong Li, David Liu, Luigi Naldini, JingBao Nie, Renzong Qiu, Bettina Schoene-Seifert, Feng Shao,Sharon Terry, Wensheng Wei & Ernst-Ludwig Winnacke,
Nature 567, 165-168 (2019) doi: 10.1038/d41586-019-00726-5, See arguments that these are not novel problems: John J.
Mulvihill, Benjamin Capps, Yann Joly, Tamra Lysaght, Hub A. E. Zwart, Ruth Chadwick, The International Human
Genome Organisation (HUGO) Committee of Ethics, Law, and Society (CELS), Ethical issues of CRISPR technology
and gene editing through the lens of solidarity, British Medical Bulletin, Volume 122, Issue 1, (June 2017), Pages 17–29,
https://doi.org/10.1093/bmb/ldx002. W. Nicholson Price II Black-box medicine. 28 Harv. JL & Tech 419 (2014).

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embedded in the practice of medicine and pharmacology.19 In medical practice, there areestablished process of peer review on the safety and efficacy of the process as well asverification of the validity of data that the medical professionals rely on to come to various
health care related decisions. AIs, notability uses black box like decision-making process,and may not be able to provide explanation for its decision.
III. Trade-offs in the Use of AI in Personalized Medicine – Patents or Trade
Secrets
Trade-off between patents and trade secrets in personalized medicine illustrates theinterconnectedness of the policy agendas – the incentives through exclusive rights need to becoordinated to the transparent and accountable use and developments of the technology. For
the regulatory goals of accountability, and transparency, disclosure and communication andexplanation would play a big part. Other exclusive rights such as copyright over the codes
for AIs, over training data are also important incentives for creation and investments and yet,publication and disclosure of codes or data will not affect their copyrights. In contrast, patentand trade secrets occupy opposite ends on the impact of disclosure as patent requires
disclosure for protection and disclosure destroys trade secret protection. Moreover, there isunderlying question concerning the status of personal data – health (including genetic) datathat AI uses, if they may be made subject matters of exclusive rights at all.
1. AI as a Subject Matter of Patent or Trade Secret
AI includes various elements – algorithm and training process, training data, parameters
including parameter weights, application, computer or other hardware devices. Applicationand implementation themselves could be computer programs and codes. As AIs are based on
various techniques,20 to state that all AIs can be categorised as (1) algorithms and models at
19Frank Pasquale, The Black Box Society. Harvard University Press (2015). See also Hildebrandt, supra n 10.

20 For example, EPO Examination guidelines states that AI includes, computational models and algorithms forclassification, clustering, regression and dimensionality reduction, such as neural networks, genetic algorithms, support

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varying degree of abstraction (abstract algorithms, software, inference models, training
process), (2) data (training data as well as intermediate data and data sets such as weights),and (3) hardware (computer, robots, cars, sensors, storage medium, other devices) would bea gross simplification. However, these three forms are useful in conceptualizing protectionof AI through intellectual property because they are the basis of existing categories ofpatentable subject matters. Patent laws protect inventions of technology and yet excludes
certain subject matters and distinguishes tangible hardware from software, and abstract
algorithms from concrete computer implemented software, and abstract data from concretedata.21 As copyright attaches to original works of expression and although flexible threshold,it does not protect underlying idea or functionality, facts nor raw data without originality. To
conceive a copyright protection, whether these categorical elements of AIs (algorithm, dataand hardware) can be expressed as original work (coded expression, original data or shapes)
or not (algorithms, raw data, functionality) is an important exercise.
Such exercise would be unnecessary for trade secret protection. As the definition of trade
secrets in the TRIPs Agreement and the article 2(1) of the Trade Secrets Directive provide,22
a trade secret is information that is secret, has commercial value due to secrecy and has been
subject to reasonable steps of keeping it secret. These elements of secrecy, value andreasonable steps – are commonly found in national laws.23 Arguably, the reasonable steps of
keeping the information secret and value are two strong requirements for the protection andfactually difficult to prove.24 However, as the definition of trade secret is information, allvector machines, k-means, kernel regression and discriminant analysis. (EPO Guideline G-II.6 at 3.3.1)<http://documents.epo.org/projects/babylon/eponet.nsf/0/2A358516CE34385CC125833700498332/$File/guidelines_for_examination_2018_hyperlinked_showing_modifications_en.pdf>
21 EPC Art 52. Alice Corp. v. CLS Bank International, 573 U.S. 208 (2014)
22

TRIPS Agreement Article 39.2. Also Art 2(1) of Trade Secrets Directive.

23

EU member state practice survey before the adoption of the EU Directive. Study on Trade Secrets and Confidential
Business Information in the Internal Market, (2013). European Commission. Last visited 5 March 2018,
http://ec.europa.eu/growth/content/study-trade-secrets-and-confidential-business-information-internal-market-0_en See
also for example, US’s DTSA in 18 USC§ 1839 (3). Japanese Unfair Competition Prevention Act (UCPA) Art 2(6)requires secrecy (not known), kept secret and commercial utility.
24 For example, M. Risch, Why Do We Have Trade Secrets, 11 Marq. Intell. Prop. L. Rev.1 (2007). See also Bone RobertG, Trade secrecy, innovation and the requirement of reasonable secrecy precautions, IN Rochelle C. Dreyfuss and93

Nagoya University Asian Law Bulletin Vol.5 (March 2020)

aspects of AI – inference models, algorithms, all types of data (training data, intermediately
produced data, nods, weights, finally produced data and the like), computer program codes
as well as specific hardware for particular aspects of AI are inherently eligible for protection,
if they are not known (secret), valuable and can subject to secrecy measures.
The qualitative difference for eligibility makes a strong case for why trade secret could bea flexible choice when formal IP right based protection is uncertain. As personalized
medicine using AI marries two such contested subject matters, they may seem to be a perfectcandidate for trade secret protection. Not only trade secret would allow protection ofcontested subject matters or sub-patentable elements, it may be useful in dynamicallyprotecting the inputs as well as the intermediate or final outcomes of AIs. AIs classifies, inferand make decisions, which means generation of more algorithms, codes, weights and data
sets and information while using them. These elements may not be fixed or stable enough togenerate claims to a registrable right such as patents, but may be protected as trade secrets
under secrecy measures against misappropriation, as long as their value lasts, without extra
formalities of application and registration.
2. Patent Infringement vs Trade Secret Misappropriation
Patents has erga omnes effect and it is a right that may be enforced against anyone whoare making, using or selling patented invention. Patents have obvious strengths in theenforcement over trade secrets. The objective construction of direct patent infringement
liability makes patent based protection more attractive. In addition, there are particular
aspects of patent protection that are often highlighted - potential protection against reverse
engineering and product by process claim afforded to process invention to protect direct
results of using a process. These are examined vis-à-vis protection afforded for trade secrets
in the Trade Secret Directive.

Katherine J. Strandburg (eds) The Law and Theory Of Trade Secrecy: A Handbook Of Contemporary Research, Edward
Elgar Publishing (2011): 46-76.

94

Interface of Patent and Trade Secret Protection for Artificial Intelligence in Personalised Medicine(1) Objective Patent Infringement and Subjective Trade Secret Misappropriation
Primary liability in patent is often explained as strict liability, which ‘requires noknowledge or intention on the part of the alleged infringer, whose state of mind is whollyirrelevant’ to infringement. 25 Knowledge and intent are often considered subjective
requirements often associated with secondary or third party liability. As patents are publishedand disclosed, ignorance of patent - good faith infringement- may not be a defense.
Secondary liability for indirect patent infringement extends it to a broader range of subject
matters (parts) by a broader class of actors, who have active with knowledge or intent of theirwrongdoing.
In contrast, trade secret protection seems to be a form of compensation for broken
promises. Often trade secret protection is provided in unfair competition law, which targets
commercially dishonest conduct of unfair competition. Before harmonization, some EU
jurisdictions provided civil law remedies whereas others protected trade secrets by criminal
law. 26 Trade Secret Directive extends primary liability to unlawful acquisition i.e.
‘unauthorised access to, appropriation of, or copying of any documents, objects, materials,
substances or electronic files, lawfully under the control of the trade secret holder, containing
the trade secret or from which the trade secret can be deduced’ or other forms ofcommercially dishonest acquisition27 and use and disclosure of trade secrets, without theconsent of the trade secrets holder by a person who either unlawfully acquired or against aduty of confidence or other duties limiting its use.28 As such, trade secrets seem to be a
defensive right against specific wrongdoers, who are given explicit or implicit notice of aduty of confidence or non-disclosure.

25 Citation is to UK’s Supreme Court, Lord Neuberger, Vestergaard Frandsen A/S and others v Bestnet Europe Limited

and others [2013] UKSC 31 at para 37. This type of statement is found in majority of patent textbook.
26 See for EU member state practice survey before the adoption of the EU Directive. Study on Trade Secrets andConfidential Business Information in the Internal Market, (2013). European Commission. Last visited 5 March 2018,
http://ec.europa.eu/growth/content/study-trade-secrets-and-confidential-business-information-internal-market-0_en
27

Trade Secrets Directive, Art 4.(2)28

Trade Secrets Directive, Art. 4.3

95

Nagoya University Asian Law Bulletin Vol.5 (March 2020)(2) Reverse engineering of AI inference models in patent and trade secrets
As independent invention is not a defense to patent infringement, concurrent use of an
invention by an independent inventor is still considered infringing working of the claimed
invention29. Reverse engineering - a conduct of figuring out the underlying invention from
openly available sources of information may well be covered by a patent protection, unless
it could be excused from limitation and exceptions in patent law.
Although exceptions to patent right is not harmonized in Europe, UPCA provides a list oflimitations and exceptions that are applicable to patents with unitary effect, if and when
UPCA would go into effect.30 While independent invention is still not a defense to patent
infringement, Art 27 of the UPCA provides general exceptions for unitary and European
patents to acts done privately and for non-commercial purposes; and acts done forexperimental purposes relating to the subject matter of the patented invention.31 Private use
and experimental use exceptions are both widely present in national patent laws, although
the scope on experimental use exception varies. By explicitly limiting the scope ofexperimental use exception to the ‘purposes relating to the subject matter’, the particularversion of exception included in the UPCA makes its scope narrower than some of thenational practices. Moreover, a new exception is inserted in consideration of right to reverse
engineer 32 provided under Software Copyright Directive. 33 The text of the exception
29

TRIPS Agreement Article 28

30

UPCA is not yet in force and its taking effect in the near future is in serious doubt. Following Britain’s withdrawal fromthe EU on 31 January 2020, UK has informed that despite their ratification in 2018, UK will not apply UPCA to Britain.
Moreover Germany has still not ratified at the time of this writing, which is one of the required member states to ratify, as
the seat of central division which include UK, Germany and France. On 13 February, 2020 German Federal Constitutional
Court (Bundesverfassungsgericht) ruled that German Act on Unitary Patent was unconstitutionally legislated, based onprocedural ground in the decision 2 BvR 739/17 (13.2.2020). Even if German parliament rectifies the situation bylegislate the act and remedy the procedural errors, without UK, UPCA and the entire unitary patent package would require
immediate revision.
31

UPCA Art 27(a) and (b)32 UPCA Art 27(k) the acts and the use of the obtained information as allowed under Arts 5 and 6 of Directive

2009/24/EC, in particular, by its provisions on decompilation and interoperability.
33 Directive 2009/24/EC of The European Parliament and of The Council of 23 Apr. 2009 on the legal protection ofcomputer programs. OJ L 111, 5 May 2009 (hereinafter SW Directive).

96Interface of Patent and Trade Secret Protection for Artificial Intelligence in Personalised Medicine

however makes sure the right to reverse engineer is limited to particular types of reverse
engineering (decompilation and interoperability). Thus it seems to be a narrower type of
exception that could have been provided under the application of, for example, experimental
use exception. In other words, reverse engineering to acquire the underlying knowledge ofthe claimed invention may be allowed under either the new exception or under theexperimental use exception. However, application of the knowledge – for example, using it
to create a competing product, that partially using the elements claimed in the patentinvention would likely to fall outside the scope of the exception.
In contrast, as trade secret allows concurrent use of the same information, even in cases
where the same information is used to create identical goods, if there is no unlawfulness inthe acquiring, disclosing or using of the information. For example, in Art. 3(1)(a) and (b) of
the Directive, it is provided that the independent discovery or creation and reverse
engineering may be used lawfully to acquire trade secrets information. 34 Trade Secrets
Directive provides in the article 3 as lawful the acquisition by ‘independent discovery or
creation and observation, study, disassembly or testing of a product or object that has been
made available to the public or that is lawfully in the possession of the acquirer’.35 As theuse and disclosure of such lawfully acquired information is not explicitly provided as lawful,member states may seem to some latitude in legislation.36
However, a closer look reveals that such allowed reverse engineering seem to be limited,as they may still be considered misappropriation37 if they meet the definition of unlawful use
or disclosure provided under the article 4.3(b) or (c), which is a use or disclosure in breachof a confidentiality or non-disclosure, or contractual or other duty to limit the use.38 Thus, if
the trade secret holder restricts such use of lawfully acquired information, 39 use and

34 Trade Secrets Directive, Art. 3
35

Trade Secrets Directive Art 3.1 (a) and (b)36Trade Secrets Directive Art 3.2

37 Art 4 (2) provides two types of unlawful acquisition – acquisition without authorization or commercially dishonest

acquisition.
38 Article 4 (3)39Trade Secrets Directive, Art. 4.3(c).

97Nagoya University Asian Law Bulletin Vol.5 (March 2020)

disclosure of such information may also constitute basis for primary liability. While the dutyof confidence/non-disclosure or contractual limit may be clearly understood, it is unclear
when such ‘other duty of limitation’ may arise. Would it be sufficient when there is a
unilateral notice of trade secret assertion sufficient to impose such duty? As there can be no
ex ante notice of trade secret to the public, it would be crucial to narrowly interpret the cases
where the duty of limitation arises, particularly in connection to the third party liability, inparticular. As the Directive is a minimum directive,40 member states at least provide these
conducts as unlawful, and thus, in plain understanding of the text, if member states were tolegislate use and disclosure of reverse engineering to be lawful, it would be allowed only incases where there is no duty of confidence or limitation to the contrary.
Reverse engineering has been considered to be a weakness of trade secret protection for
AI algorithms for example. For example, when an AI algorithm is used in a personalized
medicine end user product - such as diagnostic kit, and patents cover only the product andalgorithm is kept secret, reverse engineering may reveal the underlying AI algorithm.
Arguably, if AI algorithms (such as inference models) are only protected with trade secrets
and not patent, then reverse engineering could be used to identify the inference model.
However, as we have seen in the above, it is entirely possible for a member state define acommercial use of reversely engineered trade secrets information unlawful.41
Moreover, the new liability that allows tracing of misappropriation via trading of
infringing goods seem to shift trade secrets toward in rem like right. The EU Trade Secrets
Directive provides secondary liability for third parties. In Article 4(4), the liability of third
parties extends not only to the acquisition, but also to use and disclosure of the trade secrets,
subject to actual or constructed knowledge requirement.42 More importantly, a new type of
liability is now imposed. Article 4(5) imposes liability on the knowing traders of ‘infringing
goods’, defined as ‘goods, the design, characteristics, functioning, production process or40

Article 1(1)41
See Art 6.2 SW Directive takes this position on the reversed engineered SW codes. The Directive however provides fora first sale exhaustion doctrine for distribution right, which may function as a general good faith purchaser’s exception.
42

Art 4(4) of Trade Secrets Directive.

98

Interface of Patent and Trade Secret Protection for Artificial Intelligence in Personalised Medicine

marketing of which significantly benefits from trade secrets unlawfully acquired, used ordisclosed.’43 As the significant benefit is not tied to technical benefits, there is a theoreticalpossibility that the scope of protection could go beyond what is provided under the secondary
liability for patent infringement (i.e. essential elements of the claimed invention).44 Whileindirect patent infringement liability similarly extends liability to partial knowing users, it islimited to third parties who provides means relating to essential elements for putting theprotected invention into effect.45 The test for determining when a product is infringing forpatents thus always require objective analysis, whilst the test for trade secretmisappropriation is mostly subjective.
In sum, the scope of the lawful reverse engineering Trade Secret Directive seems to bealigned with patent exceptions envisioned under the UPCA Art 27(k). Moreover, with the
new infringing goods liability imposed on the knowing trader, trade secret seems to be able
to provide similar level of protection, as patents at least in cases where there are tangible
goods used in personalized medicine. Such protection, as seen below, may be more efficientthan relying on patent protection through product by process claim, directed to AI algorithms
and processes.
(3) Product by Process in Patent and Trade Secrets
Theoretically, any automated data or information processing could result in a processeddata sets or information that could be considered to be directly obtained by the process. If AI
uses deep neural network (a form of machine learning algorithm), dynamic weights andnodes are formed where intermediary data are produced and processed. Whether patents
43

Art 2(4) of Trade Secrets Directive, emphasis added. See for a discussion of various versions of the Directive, Tanya F.
Aplin, A Critical Evaluation of the Proposed EU Trade Secrets Directive (July 18, 2014). King's College London Law
School Research Paper No. 2014-25. Available SSRN: https://ssrn.com/abstract=2467946
or http://dx.doi.org/10.2139/ssrn.2467946
44

UPCA Article 26(1).

45 See UPCA, which provides in Art. 26: ‘A patent shall confer on its proprietor the right to prevent any third party nothaving the proprietor's consent from supplying or offering to supply … with means, relating to an essential element of thatinvention, for putting it into effect therein, when the third party knows, or should have known, that those means are
suitable and intended for putting that invention into effect.’99

Nagoya University Asian Law Bulletin Vol.5 (March 2020)

could extend to these intermediate data sets have been disputed and generally they would nothave been considered a ‘product obtained by the process.’ As we have examined above, if
interim data structures, data sets, or information that are produced by AIs would make patent
protection of AI algorithm more efficient than trade secret. In EPC, the article 64.2 of EPC
and at least a theoretical possibility to extend that to information an intermediate datasets orother types of ‘products’ exists. Indeed, if such interpretation is possible, patent claims to AIs
would be able to be used to cover not only data and information produced by the AIs, butpaintings, or patentable inventions that may be made by AIs.46
Ultimately, this is a question of scope of granted patents and without UPCA in effect,
contracting states of EPC’s national law would interpret this in light of their national
equivalent clauses. Recent German interpretation is illustrative in this regard. In 2010, forexample, the district court of Düsseldorf seemed to view that a process claim to perform agenetic rest for a dog does not cover the test result is viewed a pure information.47 In contrast,
in a case which involved question of method of encoding and decoding of video according
to the MPEG-2 standard, where medium that contained the encoded data was shifted, whileleaving the data intact and the German Federal Supreme Court ruled that the data may be theproduct directly produced by a process when ‘it displays technical features and by its nature
can be suitable subject matter of a patent.’48 Applying these to medical diagnostic technology,
the Court in 2016 ruled that the representation of a test result obtained by means of a patented

46 In the example above, drug discovery done by EVE, on the new medical indication for tricslosan, may be covered by

the claims to core of EVE algorithm.
47

Landgericht Düsseldorf of 16 February 2010, Case 4b 0 247/09—Hunde-Gentest, available at:<https://www3.hhu.de/duesseldorfer-archiv/?p=813> (accessed 10 September 2016). Drexl argued that Court may beshowing a policy consideration for free flow of data as the test was done in outside the country of patent grant, while only
the result was communicated to the country of patent grant. See Josef Drexl, Designing Competitive Markets for
Industrial Data – Between Propertisation and Access, (2017) 8 JIPITEC 257 at 270.
48 MPEG-2-Videosignalcodierung” (“MPEG-2 video signal encoding”), Decision of the Federal Supreme Court(Bundesgerichtshof), Judgement of 21 August 2012, X ZR 33/10.

100Interface of Patent and Trade Secret Protection for Artificial Intelligence in Personalised Medicine

method is a presentation of information and thus is not covered by product by processprotection in German law.49
The case concerned a method of diagnosing leukemia by detecting presence of mutationin FLT3 gene. The claimed process in the disputed was not explicitly directed to the AI
method. However, there are already similar patents on genetic analysis using AI,50 such as
those offered by Sophia Genetics51 as well as Watson for Oncology, which are in the market.
The defendants practiced the each step of the invention dividedly- one processed the samples
first and forwarded them to another defendant located in Czech Republic who then tested
them and communicated the result of the analysis to the clients as well as other defendants.
The court ruled that the product by process claim protection is afforded to ‘a result is obtainedthat itself is in principle capable of being the subject matter of a patent…not falling within
the scope.. are...results of pure work methods from which no new thing is created but a thingis merely affected by not change, for instance when the thing is tested, measured ortransported.’52 In distinguishing this from the case of MPEG-2 video data, the Court noted
that…due to its data structure and thus due to its technical characteristics, the data weregenerally susceptible of patent protection…and not distinguished by a special technical typeof representation nor does it display any other technical characteristics that have been givenby the invention itself.’53
As seen in the above, the logic of the German court seem to be to denying the data or
information that are the outcome of the process used if they do not show technical characteror using the technical teaching of the invention. This may also mean that if the outcome uses
the core of the technical teaching or the result has a technical means of presenting theinformation (i.e. information displayed on a device) there may be still a possibility to readthe product by process claim differently.
49

Receptor Tyrosine Kinase II (2016) Decision of the Federal Supreme Court (Bundesgerichtshof), 27 September 2016.
Case No. X ZR 124/15 Reported in IIC (2018) 49:231-236.
50 EP1222602 (9.12.2015)51

https://www.sophiagenetics.com/home.html, last visited on 30.8.2019.

52 Receptor Tyrosine Kinase II (2016) Supra note 49, at para 17
53

Receptor Tyrosine Kinase II (2016) Supra note 49 Para 21 and 24 (bb)101

Nagoya University Asian Law Bulletin Vol.5 (March 2020)

If the method of data analysis was trade secret, outcome of the analysis may be subject
to a separate trade secret protection. However, as the outcome needs to be communicated tothe client, it may not be subject to secrecy measures and thus may not receive protection of
trade secret. However if the result is communicated using tangible goods, knowing tradingof such goods would fall under the Art. 4(5) of the Trade Secret Directive. The ‘infringing
goods’ is defined as ‘goods, the design, characteristics, functioning, production process ormarketing of which significantly benefits from trade secrets unlawfully acquired, used ordisclosed.’54 This definition of infringing goods makes it necessary to determine what sucha ’significant benefit’ would be in the case of directly or indirectly obtained trade secrets.
Moreover, as ‘marketing’ is included in the definition of the benefit, the notion seems to go
beyond technical features that are directly derived from the trade secret, and includes
business secrets. For example, a diagnostic kit could very well be a mixed good embodying
technical secrets only in some part. There may be cases where marketing efforts are madeusing business secrets only in part, or to market perfectly legal products. These cases of
mixed goods require a kind of proportionality analysis for technical or business significanceof trade secrets in comparison to other factors.55
Comparatively, in countries where similar wrongs exist, the wrongs are limited to strictly
technical secrets, and there are strong good faith defenses. Indeed, exceptions or defenses forthe good faith purchasers of tangible goods may in effect function as a trade secrets
exhaustion doctrine for both technical and business secrets. For example in Japan, third party
liability for the importers and exporters of products that result from trade secrets is limited
to technical information, and the legislative history shows that the liability originally meant
to cover object code of digital products produced by using secret source code.56 The Japanese

54 Art 2(4) of the EU Trade Secrets Directive, emphasis added. See for a discussion of various versions of the Directive,

Tanya F. Aplin, A Critical Evaluation of the Proposed EU Trade Secrets Directive (July 18, 2014). King's College London
Law School Research Paper No. 2014-25. Available SSRN: https://ssrn.com/abstract=2467946
or http://dx.doi.org/10.2139/ssrn.2467946
55 For a concerned comment on the infringing goods misappropriation, see Richard Arnold, Lionel A. F. Bently, Estelle

Derclaye, and Graeme B. Dinwoodie, The Legal Consequences of Brexit Through the Lens of IP Law, 101 Judicature 65(2017).
56

Japanese Unfair Competition Prevention Act, Art.2(1)10102

Interface of Patent and Trade Secret Protection for Artificial Intelligence in Personalised Medicine

statute also limits its scope by the expression ‘produced by’ which implies that liability islimited to direct results of the use of the trade secret, and good faith purchasers of the goods
are explicitly excused.
The combined reading of Art. 2(4) and Art. 4(5) suggests that the liability for the tradersof infringing goods could be quite broad. With the liability under Art. 4(5), trading of any
tangible good (genetic diagnostic kit connected to central AI databank, server with AI, forexample) that utilizes trade secret AI algorithm or data sets, or data structure that significantly
benefits the kit, would fall within the scope of misappropriation. Although the informationthat is produced by using the trade secret algorithm may not be protected as trade secret as it
has to be disclosed to the clients, who requested the analysis, trading of the kit or device thatmay present such information would fall under this liability. In other words, trade secretprotection would not only extend to the direct products produced by process i.e. tangible
goods embodying the technical secrets, but also those that may significantly benefit from theuse of the process i.e sale of kits, including tangible goods that may display the outcome of
the trade secret process.
IV. Conclusion
The above discussions have shown that AI holds great promises for advancing
personalized medicine. However, real world applications have not been always successful
due to technological immaturity, poor data quality and opaque decision making process thathinders validation of technology against the risks. In addition to these challenges, comparisonof protectable subject matter and doctrines for infringement and misappropriation in patentand trade secret law show that there could very well be cumulative protection.
The comparison reveals that patents and trade secrets may overlap over the same subject
matters of AI algorithm and data. Under the EPC, a tendency to shift from patents to trade
secrets may become real, in particular with regard to AI algorithms and data used in training
an intermediate or final outcome of AI algorithms, due to their uncertain status as patentable
invention. Moreover, their inclusion as elements of the claimed invention, as we have seenin the above may not receive the protection of product-by-process claims. In contrast, thanks

103

Nagoya University Asian Law Bulletin Vol.5 (March 2020)

to flexible definition of trade secrets, algorithms and data may very well be protected as trade
secrets. While patents and trade secrets both may allow acquisition of algorithm using reverse
engineering, patent protection would clearly protect against commercial use of acquiredalgorithms or inference models for AI. While the trade secret directive is silent on the use
and disclosure, as seen in the above, unlawful use and disclosure against a duty of limitation
would be considered to be a misappropriation of trade secrets. Thus there is a little latitude
for member states to allow commercial use and disclosure of reversely engineered trade
secrets against the expressed intent of the trade secret holder. Patent protection may not reachto the information or data that are produced by AI algorithm, if they are not patent eligible
as such. Yet, with additional liability for those who are trading infringing goods under the
Trade Secrets Directive, trade secrets over the AI algorithm may still be used effectively toprohibit the trading of products, such as sale of diagnostic kit, that may otherwise be outside
the scope of patent protection.
The confluence of developments such as restrictive patent protection, strong personal
data protection and expansive trade secret protection show thatthree main policy

perspectives – (1) incentivising technological maturity and (2) quality in data and (3) the goalof making AI’s decision making process more transparent - may be thwarted. In particular,
stronger trade secret protection which may be enforced against knowing traders of tangible
goods without connection to the trade secrets holder, seems to elevate the status of trade
secrets to near in rem rights. Patents not only incentivise investments in a particulartechnological prospects, but also stimulate follow on inventions based on disclosure.
Shifting protection to trade secrets may result in both under-use and over-protection of
AI algorithms and data, as disclosure is necessary to ensure data validation i.e. safety, effectand efficacy of the AI used in the personalised medicine. To ensure such disclosure, goaloriented and concentrated efforts, such as those seen in re-defining medical AI as medical
device subject to medical device regulation, should ensure that such disclosure would notamount to the loss of secrecy status.
Disclosure may be necessary to guarantee that automated AI driven decision-making arein compliance with data protection regulations, such as GDPR. When AIs routinely processes

104Interface of Patent and Trade Secret Protection for Artificial Intelligence in Personalised Medicine

private medical data, it is further imperative to make sure that such algorithm based decisionmaking is morally unbiased and ethically correct. Hence the disclosure of the algorithm may
be necessary, or at least the possibility to be interpreted or explained, to make sure that it
does not contain biases. In addition, technological solutions to make decision making lessopaque should be considered. Despites the claims how AI cannot be explained and may
obfuscate the biases hidden both in the data as well as in the machine learning algorithms
used, there are claims that at least by design it is possible to build explainability or humaninterpretability. Such technical efforts may still be agnostic and the inference models and themodels that it uses may still be irrelevant. However, it is important to continue with such
efforts, since it would allow human agents to interpret the decision made by the AIs. This
would increase the transparency of the algorithmic decision making without risking thedisclosure of trade secrets.

105

Nagoya University Asian Law Bulletin Vol.5 (March 2020)106

Translation: Internal Regulation of the Constitutional Council of Cambodia【資料】

翻訳：カンボジア・憲法院規則

Translation: Internal Regulation of the Constitutional Council of Cambodia
ミアン・ピッチダビナー＊
MEAN Pichdabina
傘 谷

祐 之＊＊

KASAYA Yushi

目次
Ｉ. はじめに
Ⅱ. 翻訳

＊
＊＊

憲法院規則

第1章

憲法院の第1回会議

第2章

憲法院構成員の品位

第3章

議事日程

第4章

会議の〔招集及び運営の〕方法

第5章

意見の表明

第6章

会議の欠席

第7章

懲戒

第8章

会議中の安全

第9章

憲法院規則の改正の提案

第10章

最終規定

名古屋大学大学院法学研究科博士後期課程
名古屋大学大学院法学研究科特任講師

107Nagoya University Asian Law Bulletin Vol.5 (March 2020)

Ⅰ．はじめに1993 年に制定されたカンボジア王国憲法は、憲法が最高法規であり、「法律及び国家機関の決定は全て、絶対に憲法に適合しなければならない」と規定する（第 152 条）。法律や決定の憲法適合性を審査するのは、同憲法下で新たに設置された憲法院である（第 136 条
ないし第 144 条）。
憲法院に関する主要な法律として、1998 年 4 月に公布された「憲法院の組織及び運営に関する法律」（以下、「憲法院法」という）がある1。憲法院法は、憲法院の構成員や事務総局などの組織について、および、憲法適合性審査や選挙争訟に関する手続きについて定める。しかし、一部の事項の詳細については、「憲法院は、その規則を定めなければならない」（第 12 条第 1 項）、「……懲戒は、憲法院規則で定めなければならない」（第 37 条後段）というように、憲法院の規則に委任している。
憲法院法の制定後、憲法院は、1998 年 6 月 26 日に「憲法院規則」を、7 月 8 日に「憲法院において適用される手続きに関する規則」（以下、「憲法院手続規則」という）を、それぞれ制定した。憲法院規則は、憲法院の会議の招集・運営方法や、憲法院構成員の懲戒の種類や手続きについて定めており、憲法院手続規則は、憲法院が憲法適合性審査を行うた
めの手続および国民議会（下院）議員選挙・元老院（上院）議員選挙に関する争訟を処理するための手続を定めている。本稿は、この 2 つの規則のうち、憲法院規則を翻訳したものである。
憲法院規則は、1998 年 6 月に制定された後、同年 7 月 28 日、2007 年 8 月 7 日、2017 年
8 月 30 日の 3 回にわたって改正されている。1998 年の第一次改正は、第 27 条の 2 を新設
し、憲法院構成員を罷免しようとする際の当該構成員による弁明手続を定めた他、第 5 条
および第 9 条の文言に若干の変更を加えた。2007 年の第二次改正は、元老院を新設したことに伴う文言の変更（第 6 条）、議事定足数の「7 名」から「過半数」への引き下げ（第 12条第 2 項）、書記団の構成員および憲法院の秘密会に関する規定の整理（第 13 条第 2 項・
第 3 項）、憲法院規則の改正に関する議決定足数の「3 分の 2」以上から「過半数」への引き下げ（第 18 条・第 29 条）とそれにより条文番号に変更があったことに伴う修正2を行った（第 26 条）。2017 年の第三次改正は、兼業禁止の範囲に労働組合の正副代表者を加えつ
つ、文言を整理し（第 4 条）、それにより条文番号に変更があったことに伴う修正を行った（第 7 条・第 8 条）。
翻訳にあたっては、憲法院のウェブサイトで公開されている、1998 年 6 月制定当時の憲
1
憲法院法については、その 2018 年改正後の翻訳として、ミアン・ピッチダビナー=傘谷祐之「翻訳：カンボジア・憲
法院の組織及び運営に関する法律」『Nagoya University Asian Law Bulletin』第 4 号（2018 年）43-56 頁、を参照のこと。
2
カンボジアでは、法令の改正によって条文が改められたときは、
当該条文番号の後ろに、
1 度目の改正ならば「新しい（ថ្មី）」、
2 度目の改正ならば「新しい（2）（ថ្មី (ពី)）
」等と記すことが多い。2007 年の第二次改正では、第 18 条の文言を改めるともに、その条文番号を「第 18 条」から「新しい第 18 条」に変更した。それに伴い、第 26 条の文言も「……この規則の第 18条および第 19 条に規定する……」から「……この規則の新しい第 18 条および第 19 条に規定する……」（下線は翻訳者による）に改めた。ただし、この翻訳では、原文で条文番号の後ろにある「新しい」「新しい（2）」は省略し、代わって丸括弧（）内にその条文が改められた年（条文が複数回にわたって改められている場合は直近の改正の年のみ）を記した。一方で、条文中に「新しい第○条」とある場合は、「改正第○条」とした。

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法院規則3、それを改正する同年 7 月 28 日の規則4、「憲法院規則の改正に関する憲法院決
定 2007 年第 24 号」5、そして「憲法院規則の第 4 条、第 7 条及び第 8 条を改正する憲法院決定 2017 年第 38 号」6をもとに傘谷が下訳した。その下訳をミアン・ピッチダビナー（ビナー）をはじめとするカンボジア人留学生有志で組織する勉強会で検討し、決定稿とした。
翻訳した条文中で、項番号①・②……の数字は訳者が付したものであり、亀甲括弧〔〕内は訳者が補足した部分である。また、「はじめに」はビナーが下書きし、傘谷が加筆修正し
た。

Ⅱ．翻訳

憲法院規則
第1章

憲法院の第 1 回会議

第 1 条7①②

憲法院構成員は、就任する前に、宣誓をしなければならない。

憲法院構成員は、〔その憲法院構成員を〕任命する勅令8〔の施行〕の日から 7 日以内に正当な理由なく宣誓をしなかったときは、憲法院の組織及び運営に関する法律第 10 条
第 1 項9に従い、これを懲戒に処しなければならない。

第2条

憲法院の第 1 回の〔会議の〕招集及び〔その〕会議体の指導は、憲法院院長を選出する目的で、〔第 1 項の〕宣誓をした者であって、且つ〔第 1 回の会議に〕出席する〔予定の憲法院構成員のうちで〕最年長の憲法院構成員が、これを行う。
第2章

憲法院構成員の品位

第3条

憲法院は、自己の権限を独立且つ中立に行使する機関である。憲法院構成員は、自身の職務の尊厳、独立又は中立を損なう行為をしてはならない。
第 4 条（2017 年改正）

現にその任にある憲法院構成員は、〔次の各号に掲げる事項を〕してはならない。
〔一〕

政党又は労働組合の代表者又は副代表者となること、及び前条の規定と合致しな

3

http://www.ccc.gov.kh/detail_info_kh.php?_txtID=373（最終アクセス：2019 年 1 月 7 日）。
http://www.ccc.gov.kh/detail_info_kh.php?_txtID=374 （最終アクセス：2019 年 1 月 7 日）。
5http://www.ccc.gov.kh/detail_info_kh.php?_txtID=377 （最終アクセス：2019 年 1 月 7 日）。
6http://www.ccc.gov.kh/detail_info_kh.php?_txtID=850 （最終アクセス：2019 年 1 月 7 日）。
7「条」は、原語では「原則（្របការ）」。カンボジアでは、「法律（ច*+ប់）」の場合の「条（មា្រតា）」にあたるものを「規則（បទប01*）
」では「្របការ」という。ただし、この翻訳では、「្របការ」も「条」と訳した。
8「勅令（្រពះរាជ្រកឹត*8）」は、カンボジアの立法の一形式であり、大臣会議の提案に基づき、国王またはその代理として国家元首代行（្របមុខរដ្ឋស្តីទី）が制定する（カンボジア王国憲法第 21 条、第 28 条）。
9「憲法院は、その構成員がこの法律の……第 7 条に違反したとき……は、当該構成員を罷免することができる」（憲法院法第 10 条第 1 項）、
「憲法院構成員は、就任する前に、宣誓をしなければならない」（同法第 7 条第 1 項）
。
4

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い活動を行うこと。
〔二〕

公刊されうる資料において、及び、公的又は私的な活動のすべてに付随して、憲法院構成員としての自己の役割について評価されるのを許すこと10。
第 5 条（1998 年改正） 憲法院構成員は、憲法院外での自身の活動における専門職を含む
職業11に生じうる変更12について、〔憲法院〕院長に知らせなければならない。
第 6 条（2007 年改正） 国民議会〔下院〕議員の候補者又は元老院〔上院〕議員の候補者として立候補することを希望する憲法院構成員は、選挙の公示日の 7 日前までに特別な休職許可を願い出なければならない。この願い出は、許可される13。
第 7 条（2017 年改正） 憲法院は、必要があるときは、一般的な義務のいずれかを果さなかった〔憲法院〕構成員、特に、この規則の第 3 条又は改正第 4 条に定める義務を果た
さなかった〔憲法院〕構成員を評価する14。
第 8 条（2017 年改正）

前条の場合においては、憲法院は、無記名投票15により〔憲法院の〕総構成員の過半数の意見（5 票以上）に基づいて決定しなければならない。
第 9 条（2007 年改正）

〔憲法院の〕事務総局の職員は、「立法機関職員の規律に関する法律」に従って事務に従事しなければならず、別に法律の定めがある場合を除き、国家の定める祝日に伴う休暇を取得しなければならない。
第3章

議事日程

第 10 条憲法院院長は、会議体の議事日程案を作成する。〔憲法院〕院長に〔議事日程案を作成〕することができない事情があるときは、〔会議に〕出席する〔予定の憲法院構成
員のうち〕最年長の〔憲法院〕構成員がこれを作成しなければならない。
第 11 条

議事日程は、次の順序とする。

一

憲法院が緊急であると決定したすべての問題

二

憲法院に申し立てられたすべての問題

この第 4 条第 2 号は、憲法院の事務総長を務めるタン・ロッタナー（តាំង រតនា、Taing Ratana）氏によれば、憲法院
構成員が論文をはじめ著作物を公表したり口頭で意見を発表したりする際に「憲法院構成員」という肩書きを使用してそうすることを禁止する趣旨である、という。プノンペンにおいて 2019 年 3 月 5 日に行ったロッタナー氏へのイン
タビューによる。
11「専門職を含む職業」と訳した「វDជា1*ជីវៈ ឬ មុខរបរ」のうち、前半部分の「វDជា1*ជីវៈ」も後半部分の「មុខរបរ」も、一般
的には、「職業」を意味する。ロッタナー氏によれば、ここでは、後者の「មុខរបរ」が職業一般を意味するのに対し、前者の「វDជា1*ជីវៈ」は法律職や医療職など高度な専門性を有する職業を意味する、という。前掲のロッタナー氏へのイン
タビューによる。
12
この文節「ការផាI*ស់ប្ដKរ ែដលអាចេកើតេឡើង វDជា1*ជីវៈ ឬ មុខរបរ...」は、直訳では「……職業を生じうる変更」あるいは「職業が生じうる変更」であるが、いずれにしても文意が通じない。ここでは、文脈を踏まえて意訳した。
13
この第 6 条後段は、ロッタナー氏によれば、憲法院はその構成員が選挙に立候補しようとするのを妨げることはできず、
憲法院構成員が特別な休職許可を願い出たときは必ず許可を与えなければならない、という意味である、という。前掲のロッタナー氏へのインタビューによる。
14「評価する（វាយតៃម្ល）」は、直訳では「価格を見積もる」「値をつける、（土地や家屋を）評価する」。ここでは「人事評価において低評価を与える」という意味か。
15「無記名投票」は、言語では「秘密投票（េបាះេឆាX*តសមាY*ត់）
」
。
10

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Translation: Internal Regulation of the Constitutional Council of Cambodia

第4章

会議16の〔招集及び運営の〕方法

第 12 条（2007 年改正）①

憲法院の会議は、憲法院院長が招集しなければならず、〔憲法院〕院長に〔招集〕することができない事情があるときは、〔会議に〕出席する〔予定の憲法院構成員のうち〕最年長の〔憲法院〕構成員が招集しなければならない。
②

憲法院の会議は、その〔総〕構成員の過半数が出席する場合にのみ、有効であるとみなすことができる。

③

憲法院構成員の席次は、勤続年数順としなければならない。勤続年数が等しいときは、
席次は、年齢順としなければならない。

第 13 条（2007 年改正）① 〔憲法院の会議の〕招集は、議事日程案を添付し、且つ、緊急の場合を除き、会議予定日の遅くとも 2 日前までに〔憲法院〕構成員に送付される招集通知で行わなければならない。
②〔憲法院の〕事務総長又は事務次長、及び 2 人又憲法院の会議の書記団17の構成員は、は必要に応じた人数の事務局員とする。

③

憲法院が秘密会を開くと決定したときは18、憲法院院長は、その会議を開く前に議場に部外者がいないことを書記団に確認させ、報告させなければならない。

第 14 条①

憲法院は、会議19が始まる前に、議事日程について、及び〔憲法院の〕事務総長又は事務次長とともに〔会議に〕出席する事務局員について、可決しなければならない。
②

会議は、憲法院が議事日程と異なる決定をしたときを除いて、議事日程に従って行わなければならない。

〔憲法院の〕事務局員の助けを得て、〔会③ 〔憲法院〕事務総長は、各々の会議20の際に、議を〕欠席した憲法院構成員の名を記録し、及び会議体の議事録を作成しなければならない。
16
憲法院規則では、「会議」を意味する語として「្របជុំ」「កិច្ច្របជុំ」「ការ្របជុំ」などを用いている。この翻訳では、全て「会議」と訳した。
17「書記団」の原語は、この第 13 条第 2 項では「គណៈេលខាធិការ」であるが、第 15 条第 2 項では「គណៈេលខា」という語を用いている。本稿では、両者は言い換えだと判断し、ともに「書記団」と訳した。
18「秘密会を開く」の原語は「្របជុ ំ ស មាY * ត ់ 」。憲法院法は、選挙争訟の一部について公開で審理しなければならないと定めている他（憲法院法第 26 条から第 26 条の 5 まで）、憲法院手続規則は、憲法院は「審理を公開することができる」と規定する（憲法院手続規則第 12 条）。
19
ここで「会議」と訳した「សម័យ្របជុំ」は、国民議会や元老院について述べるときは「会期」の意味でも用いられる。たとえば、カンボジアの現行憲法の第 83 条第 2 項は、国民議会の常会について「各々の会期（សម័យ្របជុំ）は、3 か月以上の期間とする」と規定する。しかし、この憲法院規則第 14 条の「សម័យ្របជុំ」は、ロッタナー氏によれば、「会期」という意味はなく、後述する「会議の時間（េពល្របជុំ）」と同じ意味である、という。前掲のロッタナー氏へのインタビューによる。したがって、「会議の時間が始まる前に」とも訳せるが、文脈上、「の時間」を省いた方が日本語として自然に思われるので、この翻訳では単に「会議が始まる前に」と訳した。
20
この「会議」の原語は「េពល្របជុំ」であり、直訳では「会議の時間」を意味する。したがって、直訳では、この第 14 条第3 項は「各々の会議の時間において」であり、同様に、第 15 条第 1 項は「会議の時間を延期することができる」、同条第 4 項
は「会議の時間において混乱があり」「会議の時間を延期することができる」であるが、脚注 19 で述べたものと同じ理由で、この翻訳では単に「会議」と訳した。

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第 15 条①〔憲法院〕院長は、〔会議を延期することが〕有益である又は必要であると考えたときは、会議を延期することができる。
②

全ての〔憲法院〕構成員は、予め〔憲法院〕院長の許可を得て、〔憲法院の会議の〕書
記団が記入する順序に従って、発言しなければならない。
〔憲法院〕構成員の一人ひとり
は、1 回の発言につき 15 分以内で発言することができる。

③

他人の発言を遮って発言すること、個人を攻撃する発言をすること、〔又は〕秩序を損
ねる種々の態度を示すことは、禁止する。

④

会議において混乱があり、且つ〔憲法院〕院長の禁止〔制止〕が聞き入れられないときは、〔憲法院〕院長は、議場から退出することにより、会議を延期することができる。

第5章

意見の表明

第 16 条

憲法院は、決定しなければならないすべての問題について、2 種類の方法すなわ

ち挙手又は無記名投票で採決する。
第 17 条 〔憲法院の会議の〕書記団は、これら 2 種類の採決に際しては、挙手した〔憲法院〕構成員数を数え、又は投票用紙を数える。
〔憲法院〕事務総長は、憲法院院長に〔採決の結果を〕報告しなければならず、〔憲法院〕院長は、〔報告された〕結果を会議体に宣言する。
第 18 条（2007 年改正） 憲法院による可決はすべて、〔その総構成員の〕3 分の 2〔以上〕の多数（6 票以上）で可決しなければならない憲法院構成員を罷免する決定を除いて、総構成員の過半数（5 票以上）で行わなければならない。
第 19 条〔憲法院の〕総構成員の過半数による可決に際して、可否同数となったときは、憲法院院長の票が優先しなければならない21。
第 20 条無記名投票の用紙は、次の 3 色である。

〔一〕

青票は、否を意味する。

〔二〕

白票は、可を意味する。

〔三〕

白及び青の縞柄の票は、棄権を意味する。

第6章

会議の欠席

第 21 条①

憲法院構成員は、〔憲法院〕院長の許可なく〔会議を〕欠席してはならない。

② 〔憲法院〕院長は、15 日以内の休暇を構成員に許可する権利を有する。15 日を超える
休暇は、憲法院の会議体の承認を願い出なければならない。

21
この点について、ビナー=傘谷・前掲論文 50 頁（脚注 26）、を参照のこと。ただし、同論文で翻訳した憲法院法の文言と、
この憲法院規則第 19 条の文言とは若干異なる。

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Translation: Internal Regulation of the Constitutional Council of Cambodia③〔憲法院〕構成員は、連続して 5 日間〔以上〕病気であるときは、その根拠として、診断書を有していなければならない。

第7章

懲戒

第 22 条①

憲法院構成員は、憲法院の組織及び運営に関する法律の規定を尊重しないときは、刑事罰の有無に関わらず、これを懲戒に処しなければならない。
②〔憲法院〕構成員は、憲法院規則を尊重しないときは、これを懲戒に処しなければならない。

③

憲法院に関する懲戒処分は、次に掲げるものとする。

一憲法院院長による注意

二〔憲法院〕院長による、記録22への記載を伴う第 2 回23の注意

三

書面による戒告
憲法院院長は、30 日以内に同一の過ち24を犯した〔憲法院〕構成員又はこの規則

第 23 条の第 15 条に違反して秩序を損ねた〔憲法院〕構成員に注意を与えなければならない。
第 24 条

いずれの〔憲法院〕構成員も、3 回にわたって注意を受け、にもかかわらず過ちをなしたときは、記録25に記載することにより注意を与えなければならない。この懲戒は、当該構成員の給与月額26の 4 分の 1 を減ずる。
第 25 条①〔一〕

次に掲げる〔憲法院〕構成員はいずれも、戒告に処しなければならない。

議場内若しくは議場外で混乱を生じさせ、又は憲法院での職務に出席しないように多数の〔憲法院〕構成員を誘導した〔憲法院〕構成員〔二〕 他の〔憲法院〕構成員を侮辱し27、他の〔憲法院〕構成員と諍いを起こし、他の〔憲法院〕構成員を脅し、又は別の〔憲法院〕構成員を唆して暴力を用いさせた〔憲法院〕
この第 22 条第 3 項第 3 号の「記録（កំណត់េហតុ）」は、ロッタナー氏によれば、憲法院院長が管理する帳面を指す、という。前掲のロッタナー氏へのインタビューによる。
23「第 2 回の」の原文は「េលើកទី២」であり、これを直訳すると「第 2 回の」だが、ここでは「第 2 段階の、第 2 級の」という意味か。そう考えると、第 22 条第 3 項に規定された 3 つの懲戒処分のうち、第 1 号の「注意（េ្រកើនរdឮក）」と第 23 条とが対応し、第 2 号の「第 2 段階」の注意と第 24 条とが対応し、第 3 号の「戒告（ស្ដីបេនាf*ស）」と第 25 条とが対応する、という理解が可能である。
24「過ち」の原語は「ខុស」。
25
この第 24 条の「記録（កំណត់េហតុ）」は、ロッタナー氏によれば、憲法院事務総局が管理する帳面を指す、という。前掲のロッタナー氏へのインタビューによる。そうすると、この第 24 条の「記録」と、脚注 22 で述べた第 22 条第 3 項第 3 号の「記録」とは別のものということになるので、第 22 条第 3 項第 3 号と第 24 条とは対応する関係にはなく、脚注 23 で述べた推測は成り立たなくなる。
26「給与月額」の原語は、この第 24 条後段では「្របាក់ែខ」であり、第 25 条第 2 項では「្របាក់បំណាច់្របចាំែខ」であって、若干異なる。しかし、ロッタナー氏によれば、両者の意味するところは同じである、というので、この翻訳ではともに「給与月額」と訳した。前掲のロッタナー氏へのインタビューによる。
27「侮辱し」の原語は、第 25 条第 1 項の第 2 号および第 4 号では「្របមាថេមើលងាយ」であり、第 3 号では「េមើលងាយ」である。ロッタナー氏によれば、本来は同じ文言を用いるべきところ誤って第 3 号のみ「្របមាថ」を欠いて「េមើលងាយ」のみを用いたものであり、いずれ憲法院規則を改正する機会があれば文言を統一したい、とのことであった。前掲のロッタナー氏へのインタビューによる。なお、フランスの起草支援により制定された 2009 年刑法では、フランス法の「侮辱（injure）」に相当する語として「្របមាថេមើលងាយ」を用いている（第 307 条）。以上を踏まえて、この翻訳では全て「侮辱」と訳した。
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構成員
〔三〕

憲法院又は憲法院院長を侮辱した〔憲法院〕構成員〔四〕

国王を侮辱した〔憲法院〕構成員②

戒告は、当該〔憲法院〕構成員の給与月額の 100 分の 50 を 2 か月間減ずる。

第 26 条（2007 年改正）

憲法院構成員は、この規則の第 23 条、第 24 条及び第 25 条に従って懲戒に処されるときは、その〔懲戒の〕事案に関する通知を受け取ってから 5 日
以内に弁明しなければならない。憲法院は、この〔本条前段に〕定め〔る弁明の期間〕を超過したときは、当事者が弁明したか否かにかかわらず、この規則の改正第 18 条及び第 19 条に規定するように過半数で、懲戒に処することを決定する〔ことができる〕。
第 27 条①

いずれの憲法院構成員を罷免することも、憲法院の組織及び運営に関する法律の第 10 条に従って行わなければならない28。憲法院構成員が辞職を願い出ることは、
当該〔憲法院〕構成員が憲法院に対して書面により通知し、〔憲法院構成員を〕任命又は選出する権限を有する機関が新しい構成員を任命又は選出した後に、はじめて可能となる。
②

憲法院は、本条〔第 1 項〕を適用するときは、その〔罷免される、又は辞職する憲法院構成員を任命又は選出した〕機関が新しい〔憲法院〕構成員を任命又は選出するために、任命又は選出する権限を有する当該機関に速やかに通知しなければならない。

第 27 条の 2①（1998 年新設） いずれの憲法院構成員の罷免も、次に掲げる手続に従って行わなければならない。
一

憲法院院長は、罷免される〔憲法院〕構成員に対し、〔当該憲法院構成員が〕弁明書を作成するため〔の期間として〕、通知書を受け取った日から 14 日間の期間があることを通知しなければならない。

二

この期間を超過したときは、本人〔すなわち罷免される憲法院構成員〕が憲法院に弁明書を送付しなかったとしても、憲法院は、この事案について決定する審理を開くこと
ができる。

②

本人〔すなわち罷免される憲法院構成員〕は、審理に際して、憲法院に出席して自らを防御することができ、又は自らを防御する代理人若しくは弁護士を指名することがで
きる。

第8章

会議の安全

28
「憲法院は、その構成員がこの法律の第 5 条若しくは第 7 条に違反したとき、予告なく連続して 3 回以上会議に出席しなかったとき、又は、知的若しくは身体的能力を永久に失ったために将来に亘って職務を果たすことができないときは、当該構成員を罷免することができる」（憲法院法第 10 条第 1 項）、
「憲法院構成員を罷免する決定は、憲法院の総構成員の 3 分の2〔以上〕の同意を必要とする」（同条第 2 項）、「憲法院構成員は、軽罪又は重罪のために裁判所により拘禁刑を科されたときは、自動的に罷免されなければならない」（同条第 3 項）。

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Translation: Internal Regulation of the Constitutional Council of Cambodia

第 28 条憲法院院長は、憲法院の内外に生じる危険を予防する職務を負う。憲法院院長

は、この職務を果たすために、警察力を行使し、又は軍事力を介入させることできる。
第9章

憲法院規則の改正の提案

第 29 条（2007 年改正）

この規則は、憲法院構成員の 3 人以上が提案し、且つその総構成員の過半数で承認したときにのみ、改正することができる。
第 10 章

最終規定

第 30 条

この規則は、官報に掲載しなければならない。

第 31 条

この規則に反する内容を有するいずれの規定も、廃止しなければならない。

第 32 条

この規則は、憲法院の総構成員の 3 分の 2〔以上〕（6 票以上）の同意によりこれを可決し、憲法院院長が署名した日から施行する29。

29「施行する（ដាក់ឱ*8អនុវត្ត）」は、直訳では「適用できるようにする」。法律を施行する際には、一般に、「効力あるものとして始まる（ចូលជាធរមាន）」という表現を「施行する」という意味で用いるが、ロッタナー氏によれば、この第 32 条の「適用できるようにする（ដាក់ឱ*8អនុវត្ត）」は「効力あるものとして始まる（ចូលជាធរមាន）」と同じ意味だというので、この翻訳では「施行する」と訳した。前掲のロッタナー氏へのインタビューによる。

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116

Translation: The Constitutional Tribunal of the Union Law in Myanmar【資料】

翻訳：ミャンマー・連邦憲法裁判所法Translation: The Constitutional Tribunal of the Union Law in Myanmar
牧 野

絵 美＊

MAKINO Emi

目次
Ｉ. はじめにⅡ. 翻訳
ミャンマー・連邦憲法裁判所法
第1章

名称、施行及び定義

第2章

憲法裁判所の構成、任命及び職務の配分

第3章

憲法裁判所の機能及び職務

第4章

憲法裁判所の解釈、決定及び意見を求めるための提訴

第5章

審査、審問、解釈、意見回答及び決定

第6章

憲法裁判所決定の効力

第7章

弾劾、任期、辞職、任務終了並びに空席の補充及び任命

第8章

雑則

Ⅰ．はじめに本稿は、ミャンマー連邦（公布当時）において、2010 年 10 月 28 日に公布された「連邦憲法裁判所法（The Constitutional Tribunal of the Union Law）」の翻訳である。
ミャンマーの現行憲法であるミャンマー連邦共和国憲法（以下、「2008 年憲法」という）は、2008 年 5 月に行われた国民投票により承認され、2011 年 1 月 31 日に施行された。2011
年 3 月 30 日、テイン・セイン大統領が誕生し、軍事政権に終止符が打たれるとともに、国名もミャンマー連邦共和国に変更された。
これまで、ミャンマーにおいて憲法問題を専門に扱う特別裁判所は存在せず、2008 年憲法により初めて連邦憲法裁判所（以下、「憲法裁判所」という）が設置された。2008 年憲法＊名古屋大学法政国際教育協力研究センター講師

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Nagoya University Asian Law Bulletin Vol.5 (March 2020)は、第 6 章に司法に関する規定を定めており、第 293 条によれば、通常裁判所は、連邦最高裁判所（Supreme Court of the Union）、地域・州高等裁判所（High Courts of the Region/ State）、
自治管区裁判所（Courts of the Self-Administered Division）、自治区域裁判所（Courts of the
Self-Administered Zone）、県裁判所（District Courts）、郡裁判所（Township Courts）及びその他の裁判所により構成される。また、特別裁判所として、軍法会議（Courts-Martial）及び憲法裁判所が存在する。憲法裁判所に関しては、その機能及び職務、決定の効力並びに裁判官の資格要件、任命、任期及び弾劾などが、2008 年憲法法第 320 条から第 336 条に規定してある。
憲法裁判所の職務及び権限並びに提訴方法などの詳細を規定するために、2010 年 10 月、憲法裁判所法が制定された。2011 年 1 月 31 日の 2008 年憲法の施行とともに同法も施行され、2011 年 3 月、憲法裁判所が設置された。
2012 年 9 月、憲法裁判所の違憲判断を不服とした連邦議会が、憲法裁判所裁判官 9 名全員に対する弾劾決議を行い、その後裁判官らが自ら辞職するという事件が発生した。2013
年 1 月、連邦議会は、憲法裁判所法を改正し、大統領が 9 名の裁判官候補者から長官を選出する際に、人民院及び民族院議長と協議することが加えられたり（憲法裁判所法第 6 条）、
裁判官は自らを選出した大統領、人民院議長又は民族院議長に遂行した職務の報告をすることが義務づけられたりした（同法第 12 条）。さらに同法 25 条を削除し、通常裁判所から移送された事件の決定のみすべての事例に適用されるとし、憲法裁判所の決定の適用範囲を限定した。弾劾事件は、大統領と連邦議会との軋轢により生じたが、連邦議会は憲法裁判所への介入を強め、司法の独立という観点からその存在が危惧されている。
2014 年 11 月、再び憲法裁判所法が改正されたが、本改正は、文言修正、手続の明確化
及び不備の修正が中心であり、技術的な修正が加えられたのみである。
本翻訳は、ミャンマー法務長官府が作成した公定英語訳からの翻訳であり、憲法裁判所
及び名古屋大学ミャンマー・日本法律研究センターの協力を得て翻訳した。なお、亀甲括
弧〔〕内は訳者が補足した部分である。

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Translation: The Constitutional Tribunal of the Union Law in Myanmar

Ⅱ．翻訳

連邦憲法裁判所法（国家平和発展評議会12010 年法律第 21 号、2010 年 10 月 28 日制定、2013 年 1 月 21 日第一次改正、2014 年 11 月 5 日第二次改正）
前文
ミャンマー連邦共和国憲法第 443 条は、国家平和発展評議会は憲法を施行するために必要とされる準備作業を実施すると規定しており、連邦の立法、行政及び司法が円滑に機能し、様々な議会が設置されたときに実施されるべき職務が遂行され、法律にもとづき準備作業が実施されるよう、必要な法律を制定しなければならない。
国家平和発展評議会は、ミャンマー連邦共和国憲法にもとづき憲法裁判所を組織し、憲法裁判所の職務及び権限並びに憲法裁判所への提訴方法を決定するために、ここにミャン
マー連邦共和国憲法第 443 条にもとづき、本法を制定する。
第1章

名称、施行及び定義

第1条(a) 本法は、連邦憲法裁判所法という。
(b) 本法は、憲法が施行された日に効力を生ずる。
第2条

本法に含まれる用語は、以下の意味を有する。

(a) 憲法（Constitution）とは、ミャンマー連邦共和国憲法を意味する。
(b) 議員（Hluttaw Representative）とは、人民院議員（Pyithu Hluttaw representative）、民族院議員（Amyotha Hluttaw representative）並びに地域又は州議会議員（Region or State Hluttaw
representative）を意味する。
(c) 〔憲法〕裁判所（Tribunal）とは、憲法のもとに設置される連邦憲法裁判所（Constitutional
Tribunal of the Union）を意味する。
(d) 長官（Chairperson）とは、連邦憲法裁判所長官を意味する。
(e) 裁判官（Member）とは、連邦憲法裁判所裁判官を意味する。
(f) 裁判所（Court）とは、連邦最高裁判所（Supreme Court of the Union）、地域・州高等裁
判所（Hight Courts of the Region or State）、自治管区裁判所（Self-Administered Division
Courts）、自治区域裁判所（Self-Administered Zone Courts）、県裁判所（District Courts）、郡1

1988 年の民主化運動の激化にともない、治安回復を名目に国軍が政権を奪取し、国家法秩序回復評議会（State Law and Order Restoration Council : SLORC）が全権を掌握した。1997 年、SLORC は解散し、国家平和発展評議会（State Peace and Development Council：SPDC）がその職務を引き継いだが、現行憲法
が 2011 年 1 月に施行されるまで、SPDC は軍事政権の最高決定機関として機能した。

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裁判所（Township courts）及び法律により設置されたその他裁判所を意味する。
(g) 自治地域（Self-Administerd Area）とは、自治管区（Self-Administered Division）及び自治区域（Self-Administered Zone）を意味する。
第2章

憲法裁判所の構成、任命及び職務の配分

連邦憲法裁判所の構成
第3条〔憲法〕裁判所は、長官を含む 9 名の裁判官により構成される。

第4条(a) 大統領、人民院議長及び民族院議長は、議員または議員でない者の中から、以下の資格要件を満たす者をそれぞれ 3 名選出する。
(i) 50 歳に達した者。
(ii) 年齢要件を除き、憲法第 120 条に規定される人民院議員の資格要件を満たす者。
(iii) 人民院議員の被選挙権を失格とする憲法第 121 条の規定に違反しない者。
(iv) (aa) 地域・州高等裁判所裁判官として 5 年以上従事した者。
(bb) 地域・州レベル以上で、司法官（Judicial Officer）又は法務官（Law Officer）
として 10 年以上従事した者。
又は(cc) 法廷弁護士（Advocate）として 20 年以上の経験を有する者。
(v) 政治、行政、経済及び安全保障の見識を有する者。
(vi) 連邦及び市民に対して忠誠を誓う者。
(b) 大統領により選出された者のうち、本条(a)項(iv)に該当しない場合であっても、卓越した法律家であるとみなされる者。
(c) 憲法第 333 条(e)項に規定される通り裁判官は政党員であってはならず、(f)項に規定される通り議員であってはならないため、憲法第 330 条にもとづき選出された者が政党員であった場合、当該者は政党の活動に参加してはならず、議員であった場合、議員を辞職したものとみなす。さらに、公務員であった場合、公務員を辞職したものとみなす。
第5条

人民院議長及び民族院議長は、本法第 4 条にもとづき、それぞれが選出した裁判官の名簿を大統領に送付する。
任命及び職務の配分
第6条

大統領は、自らにより選出された 3 名、人民院議長により選出された 3 名及び民族院議長により選出された 3 名の全 9 名、並びに人民院議長及び民族院議長との協議により 9 名の中から長官として任命する者 1 名の候補者名簿を連邦議会に提出し、承認を120

Translation: The Constitutional Tribunal of the Union Law in Myanmar得る。（2013 年 1 月改正）2
第7条

連邦議会は、大統領が憲法裁判所の長官又は裁判官に任命し、職務を配分した者を、その者が憲法裁判所裁判官の資格要件を満たさないことを明白に証明できない限り、これを拒否する権限を有しない。
第8条

連邦議会は、候補者が本法第 4 条に規定される資格要件を満たさないと明確に証明することにより、本法第 6 条にもとづき大統領に指名された者を拒否する場合、大統領は拒否された者に代わる新しい候補者の名簿を再び提出する権限を有する。
第9条

本法第 8 条にもとづき新しい候補者の名簿を提出する際、連邦議会により拒否された候補者が大統領による選出の場合は大統領が、人民院議長による選出の場合は人民院議長が、民族院議長による選出の場合は民族院議長が、本法第 4 条、第 5 条及び第 6条にもとづき、新しい候補者の名簿を再び提出する権限を有する。
第 10 条

大統領は、連邦議会で長官及び裁判官として承認を得た長官及び裁判官を任命

し、職務を配分する。
第 11 条

長官又は裁判官のいずれかが政党員であり、〔長官又は裁判官として〕選出された個人又は特別に任命され職務を配分された市民が次期総選挙に立候補する場合、憲法第 120 条及び 121 条の規定に反しない限り、憲法第 38 条(a)項で付与された市民の被選挙権を喪失させないために、当該者は、連邦選挙委員会が選挙の実施を公表した日から、政党及び〔当該〕地方の機関の選挙活動に従事する権限を有する。
第3章

憲法裁判所の機能及び職務

第 12 条

憲法裁判所の機能及び職務は、以下の通りである。

(a) 憲法規定の解釈。
(b) 連邦議会、地域議会、州議会又は自治管区・自治区域指導組織が公布した法律が、憲法に適合するか否かの審査。
(c) 連邦、地域、州及び自治地域の行政機関による措置が、憲法に適合するか否かの審査。
(d) 連邦及び地域間、連邦及び州間、地域及び州間、地域間、州間、地域・州及び自治地
域並びに自治地域間の憲法上の紛争の決定。
(e) 地域、州又は自治地域が連邦法を執行するにあたり、連邦及び地域・州・自治地域の権利及び義務に関して生じた紛争の決定。
(f) 連邦領に関して大統領により通知された事項の審査及び決定。
(g) 裁判所で審理中の事件に関して、憲法第 323 条及び本法第 17 条にもとづき提訴され2

改正により、長官の任命に際して、大統領は人民院議長及び民族院議長と協議することが加えられた。

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た紛争の決定。
(h) 連邦議会により制定された法律により付与された機能及び職務の遂行。
(i) 選出した大統領、人民院議長又は民族院議長に、自らの機能及び職務の遂行に関する報告。（2013 年 1 月追加）
第4章

憲法裁判所の解釈、決定及び意見を求めるための提訴

第 13 条以下の者は、憲法裁判所に対して、解釈、決定及び意見を求めるために直接提訴する権限を有する。
(a) 大統領。
(b) 連邦議会議長。
(c) 人民院議長。
(d) 民族院議長。
(e) 連邦最高裁判所長官。
(f) 連邦選挙委員会委員長。
第 14 条以下の者及び機関は、憲法裁判所に対して、解釈、決定及び意見を求めるために、本法第 15 条に記載される方法にもとづき、提訴する権限を有する。
(a) 地域又は州首相。
(b) 地域又は州議会議長。
(c) 自治管区指導組織又は自治区域指導組織議長。
(d) 人民院又は民族院議員総数の 10 パーセント以上の議員。
第 15 条

憲法裁判所の解釈、決定及び意見を求めることに関して、(a) 地域又は州首相であれば、申立（2014 年 11 月文言修正）は、大統領を通じて憲法裁判所に提出される。
(b) 地域又は州議会議長であれば、申立（2014 年 11 月文言修正）は、連邦議会議長を通じて憲法裁判所に提出される。
(c) 自治管区指導組織又は自治区域指導組織議長であれば、申立（2014 年 11 月文言修正）
は、当該地域又は州首相若しくは大統領を通じて憲法裁判所に提出される。
(d) 人民院又は民族院議員総数の 10 パーセント以上の議員であれば、申立（2014 年 11月文言修正）は、当該議院議長を通じて憲法裁判所に提出される。
第 16 条(a) 本法第 13 条又は 14 条に掲げる者が、憲法裁判所の解釈、決定及び意見を求めて提訴する際には、定められた方法にもとづき、有効な文書及び書面が明確かつ完全に付さ122Translation: The Constitutional Tribunal of the Union Law in Myanmar

れなければならない。
(b) (a)項にもとづき提出された申立には、解釈、決定又は意見のいずれを求めるためのものであるか、明確に記載されなければならない。（2014 年 11 月追加）
第 17 条 〔憲法〕裁判所により審理され、憲法に違反する又は適合する規定を含むか否かの〔判断が必要な〕紛争が生じ、かつ当該紛争に関して憲法裁判所が決定を下したことがない場合、当該裁判所は、審理を一時停止し、連邦最高裁判所長官に対して意見を付して速やかに移送する。連邦最高裁判所長官は、自らの意見を付して、憲法裁判所に提出する。
(a)(i) 第 13 条及び第 14 条に規定される者及び機関は、連邦議会、地域議会、州議会、自治管区指導組織又は自治区域指導組織により制定された規定が憲法に適合するか否かを審査し、意見を求めることが必要であると判断した場合、その事実に言及し、憲法裁判所に提訴することができる。（2014 年 11 月追加）(ii) 申立に参照される文書及び書面は、完全に付されなければならない。
（2014 年
11 月追加）(iii) 憲法裁判所は、(i)にもとづき提訴された事項を審査する際、当該法案の審議に関する関係議会及び法案委員会の議事録を、連邦議会議長及び関係議会議長を通じて請求することができる。（2014 年 11 月追加）(b)(i) 第 13 条及び第 14 条に規定される者及び機関は、連邦、地域、州及び自治地域の行政機関による措置が憲法に適合するか否かを審査し、意見を求めることが必要であると判断した場合、その事実に言及し、憲法裁判所に提訴することができる。
（2014 年 11 月追加）(ii) 憲法裁判所は、(i)にもとづき申立を受理する際、関係機関に対して、書面で各々の措置に関して説明する権限を付与する。（2014 年 11 月追加）

第5章

審査、審問、解釈、意見回答及び決定（2014 年 11 月改正）

審査
第 18 条長官は、本法第 16 条、第 17 条、第 17 条(a)項及び第 17 条(b)項にもとづき提出された申立を審査するために、大統領により選出された裁判官 1 名、人民院議長により選出された裁判官 1 名及び民族院議長により選出された裁判官 1 名により構成される申立審査機関を設置。（2014 年 11 月改正）
第 19 条

各々の申立において、申立審査機関は、(a) 〔申立の〕事実が本法第 12 条に含まれる機能及び職務のいずれにあたるか審査し、

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関係する事実並びに有効な文書及び書面が、明確かつ完全に付されているか否かを審査する。審査の際に、不備があると判断された場合、所定の期間内に必要な〔文書及び書面〕を提出させる。所定の期間内に〔必要な文書及び書面〕が明確かつ完全に提出されない場合、申立を却下する。（2014 年 11 月改正）(b) 再説明すべき又は当該申立が適用されるべき（2014 年 11 月追加）者、省庁又は組織が存在する場合、申立（2014 年 11 月文言修正）の写しにより通知し、関係する事実並びに有効な文書及び書面を、所定の期間内に提出する権限を付与する。
(c) すべての要件を満たした場合、憲法裁判所に審問のために〔申立を〕提出する。
審問
第 20 条

長官を含むすべての裁判官は、申立（2014 年 11 月文言修正）に関する審問及び決定を行う。その際、すべての裁判官が職務又はその他の理由により出席できない場合、本申立（2014 年 11 月文言修正）は、長官を含む少なくとも 6 名の裁判官により審問される。
第 21 条

憲法裁判所における審問の際、(a) 審問の期日は、事前に通知される。
(b) 長官又は長官に指名された裁判官は、簡潔に審問の事項を読み上げる。
(c) 申立（2014 年 11 月文言修正）に関して関係者の意見を聴取することができる。
(d) 連邦の国家機密又は連邦の治安を害する可能性がある事項を除き、公開で審問を行う。
(e) 専門家を招請し、意見及び助言を得ることができる。
(f) （2014 年 11 月削除、第 37 条(a)項に関連条項追加）(g) 可及的速やかに申立（2014 年 11 月文言修正）に関する審問を終了する。
(h) 申立（2014 年 11 月文言修正）に関する憲法裁判所の日常業務を記録し、長官又はその他の裁判官により署名し、保管する。
解釈、意見回答及び決定（2014 年 11 月改正）
第 22 条

憲法裁判所は、(a) 審問後可及的速やかに解釈、意見（2014 年 11 月追加）及び決定を確定する。
(b) 解釈、意見（2014 年 11 月追加）及び決定を確定する期日を、事前に通知する。
(c) 過半数の裁判官の賛成により、憲法裁判所の解釈及び意見を確定する。（2014 年 11月改正）(d) 長官を含む裁判官の過半数の賛成により、憲法裁判所の決定を確定する。
（2014 年 11
月改正）

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Translation: The Constitutional Tribunal of the Union Law in Myanmar(e) 本法第 12 条(a)項にもとづく申立に対する解釈、第 17 条(a)項及び(b)項にもとづく申立に対する意見並びに第 12 条(d)項、(e)項、(f)項及び(g)項による申立にもとづく決定に際して、憲法裁判所を代表して長官により署名し、長官又は長官に指名された裁判官により公開で読み上げる。（2014 年 11 月改正）

第6章

憲法裁判所決定の効力

第 23 条

本法第 12 条(g)項にもとづき、裁判所から提訴された事項に関する憲法裁判所の決定は、すべての事例に適用される。（2013 年 1 月改正）
第 24 条

憲法裁判所により確定された決定は、終局的かつ確定的である。（2014 年 11 月

改正）
第 25 条（2013 年 1 月削除）3

第7章

弾劾、任期、辞職、任務終了並びに空席の補充及び任命

第 26 条長官及び裁判官の弾劾は、憲法第 334 条にしたがう。

第 27 条

憲法裁判所の任期は、連邦議会と同じく 5 年とする。ただし、その任期満了後も、既存の憲法裁判所は、大統領が新たな憲法裁判所を設置するまで、その職務を継続する。
第 28 条(a) 長官は、任期満了前に、何らかの理由により自らの意思で辞職を希望する場合、長官
は、大統領に書面による辞表を提出し、辞職することができる。
(b) (a)項に規定される通り、裁判官が辞職を希望する場合、裁判官は、長官を通じて大統領に書面による辞表を提出し、辞職することができる。
第 29 条

憲法第 334 条に規定される事由により長官又は裁判官が弾劾される場合、憲法第 302 条(b)項及び(c)項にもとづき審理され、連邦議会が当該者は長官又は裁判官として継続することが不適切であると決議した場合、大統領は、当該長官又は裁判官を解任する。
第 30 条何らかの理由により長官又は裁判官が空席となった場合、大統領は、憲法及び本法の規定にもとづき、本法第 4 条に規定される資格要件を満たす新しい長官又は裁判官を任命することができる。

3

第 25 条「憲法裁判所の決定は、関係する政府省庁、組織、者又は各地方に効力が及ぶ。」が削除された。

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第8章

雑則

第 31 条

本法が施行される前に本法施行のために行われた国家平和発展評議会による準備作業は、憲法にもとづいて行われたものとする。
第 32 条

憲法裁判所は、ネピドーに設置する。必要に応じて、長官は、その他の適切な場所に設置することができる。
第 33 条

長官又は裁判官が職務上誠実に行った行為に対して、いかなる民事又は刑事処分はなされない。
第 34 条

憲法裁判所は、必要に応じて、連邦法務長官を法廷助言者として招請することができる。連邦法務長官が出席できない場合、連邦法務長官府部長以上の適切な者を代理として出廷させることができる。
第 35 条

憲法裁判所の決定、解釈及び意見（2014 年 11 月追加）は、官報に掲載され、引用可能なよう、編纂され、公開される。
第 36 条

長官は、連邦政府の承認を得て、事務業務を担当する事務局を設置する。

第 37 条

本法は、ミャンマー連邦共和国憲法にもとづき設置された連邦議会により、改正、追加及び廃止される。
(a)

憲法裁判所は、本法に規定される機能及び職務を遂行するために、民事訴訟法典、刑事訴訟法典及び証拠法の関係する規定を適用することができる。
（2014 年 11 月追加）
第 38 条

本法を施行するために、憲法裁判所は、必要な規則（rules）、通知（nortification）,

命令（orders）、指示（directive）及び手続（procedures）を公布することができる。

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Nagoya University Asian Law Bulletin 規程2015 年 7 月 1 日
2016 年 6 月 1 日改訂
編集委員会

1.

目的
本誌は、アジア諸国の法律・政治、法整備支援、および社会科学領域における日本語教育に関する学術研究に寄与することを目的とし、これらの分野における研究発表および情報提供の機会を提供する。
2.

投稿資格
以下に掲げる者は、本誌に投稿することができる。
①法学研究科および法政国際教育協力研究センターの専任教員、特任教員、研究員②CALE 外国人研究員、CALE 院生・ポスドク研究協力員③法学研究科の大学院生（指導教員による掲載の承認を要する。）④その他編集委員会が認めた者

3.

掲載の種類
本誌には、第 1 項の分野に関する「論説」、「研究ノート」、「判例評釈」、「書評」、「資料」および「紹介」等の研究成果を掲載する。
その他、名古屋大学「法整備支援の研究」全体会議等の記録を掲載する。
4.

5.

使用言語
本文の使用言語は、日本語または英語とする。
字数
和文原稿の場合、「論説」は 2 万字程度、「研究ノート」等その他の場合は 1 万字程度とする。英文原稿の場合、「論説」は 8 千語程度、「研究ノート」等その他の場合は 4 千語程度とする。（図表、注、参考文献を含む。）(2) 「研究ノート」等その他の場合であっても、貴重な資料を紹介する等の理由により、内容の性質上必要であると編集委員会が認める場合は、和文原稿は 2 万字程度まで、英文原稿は 8 千字程度まで掲載できるものとする。
(3) 研究報告等の記録については、字数制限を設けない。

(1)

6.

英文要旨
「論説」および「研究ノート」には、本文の使用言語に関わらず、300 語程度の英文要旨を添付する。

7.

執筆要領
原稿の執筆に関わる事項については、執筆要領を別途定める。

8.

投稿(1) 投稿希望者は、発行 3 ヶ月前までに、編集委員会にメールで原稿を送付する。
（送付先：cale-publication@law.nagoya-u.ac.jp）(2) 投稿の 2 週間前までに、原稿のタイトル、掲載の種類（論説・研究ノート等）および字数について、編集委員会に連絡をしなければならない。
(3) 投稿原稿は、完成原稿であること、未発表であることを要する。

9.
審査(1) 原稿は、編集委員会における一定の審査をおこなったうえで掲載する。
(2) 投稿原稿については、内容・テーマ等を考慮し、編集委員会が 1 名または 2 名の査読者を選任することができる。
(3) 編集委員会は、査読者の意見をふまえて、掲載の可否を決定する。掲載の可否は、メールで投稿者に通知する。
10. 校正初校のみを著者校正とし、その時点での大幅な加筆・修正は原則として認められない。
11. 発行(1) 本誌は、原則として年 2 回発行する。創刊号は 2016 年 6 月 1 日発行とする。
(2) 本誌は、PDF 版を法政国際教育協力研究センター（CALE）ホームページに掲載する。
以上

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Nagoya University Asian Law Bulletin 執筆要領
2015 年 7 月 1 日
編集委員会

1.

本文の使用言語は、日本語または英語とする。それ以外の言語、特殊な文字・記号を使用する場合は、編集委員会に相談のこと。

2.

本誌は原則として、掲載時にはすべて横組みとする。

3.

文字数は、
「論説」の場合は、和文 20,000 字程度、英文 8,000 語程度とする。その他の場合（「研究ノート」、「書評」
等）は、和文 10,000 字程度、英文 4,000 語程度とする。いずれの場合も図表、脚注、文献表示を含む。半角英数字
は 0.5 字と換算する。

4.

第 1 ページには、表題、氏名、所属を記載する。本文は第 2 ページから始める。

5.

見出し番号は、以下に統一する。
章 I、II、III、……
節 1、2、3、……
項 (1)、(2)、(3)、……
目 (a)、(b)、(c)、……

6.

原稿は、原則として、Microsoft Word で作成する。それ以外のソフトを使用する場合は、事前に編集委員会に問い合わせること。

7.

フォーマットは、以下の通りとする。
(1) 用紙サイズ：A4(2) 余白：上 35mm、下 30mm、左 30mm、右 30mm(3) 1 ページの文字数：横 40 字、縦 35 行（日本語）、縦 32 行（英語）(4) 文字の大きさ：10.5 ポイント（日本語）、12 ポイント（英語）(5) 文字の種類：MS 明朝（日本語）、Times New Roman（英数字）8.

注は、以下の通りとする。
(1) 脚注はページの末尾に挿入する。（文末脚注ではない。）(2) 文字の大きさ：8 ポイント（日本語）、9 ポイント（英語）とする。
(3) 文字の種類：本文と同様

9.

参考文献の表記方法については、著者の使い慣れたスタイルで良い。ただし、編集の過程で、編集委員会が調整を行う場合がある。

10.

図および表を挿入するときは、別紙に記載して提出する。図および表の見出しには通し番号を付し、挿入場所を指
定する。

11.

「論説」および「研究ノート」の場合は、別紙にて 300 語程度の英文要旨（Abstract）を提出する。

以上

129

Nagoya University Asian Law Bulletin – Rules for Paper Submissions
July 1, 2015
Revision, June 1, 2016
Editorial Board
1.

Objectives of the Bulletin
The Bulletin aims to contribute to the development of academic research on topics related to law and politics of countries in Asia,
legal and rule of law development assistance, and Japanese language for social sciences, creating opportunities for publishingresearch and sharing information in the relevant fields.

2.
-

Eligible Submitters
Eligible submitters are confined to the following:
Faculty members and researchers of the Nagoya University Graduate School of Law and Center for Asian Legal Exchange
CALE visiting scholars, CALE post-doctoral researchers, and CALE graduate affiliates
Graduate students affiliated to the Graduate School of Law (publication approval by the academic advisor is required)
Others as qualified by the editorial board

3.

Categories of Articles
The Bulletin publishes research findings related to the fields listed in section 1 above, in the forms of research articles, research
notes, case analyses, book reviews, documentation and book introductions.
In addition, proceedings of annual conference on “Legal Assistance Studies” will also be published in designated columns.

4.

Language
Articles may be published either in Japanese or English.

5. Length(1) For submission in Japanese, a research article shall be of about 20,000 characters. A research note or other types of articles shallbe of about 10,000 characters. For submission in English, a research article shall be of about 8,000 words. A research note orother types of articles shall be of about 4,000 words. (These lengths are inclusive of graphics, footnotes and bibliography)(2) For reasons deemed by the editorial board to be substantively relevant to the revelation of valuable data or documents, a researchnote etc. may be published up to the length of 20,000 characters in Japanese or 8,000 words in English.
(3) There is no length limits for records or proceedings related to a research report.
6.

Abstract in English
Notwithstanding the language of the submission, a research article or a research note must be accompanied by a 300 words abstract
in English.

7.

Instructions to Authors
Instructions to authors regarding the preparation of the manuscript are detailed in a separate notice.

8. Submission Process(1) Authors are requested to submit the full paper to the editorial board (email address cale-publication@law.nagoya-u.ac.jp) threemonths before the publication date;(2) Authors must notify the editorial board of the title and category of article (i.e., research article or research note, etc.) and theapproximate number of characters/words two weeks before submission of the full paper;(3) The full paper is required to be complete and not-yet published elsewhere.
9. Peer-Review Process(1) The full paper will be published only after having gone through deliberations by the editorial board.
(2) The editorial board may decide to appoint either one or two referees to review the submitted paper, taking into consideration its
contents and theme(s) etc.
(3) The editorial board will decide on acceptance or rejection of the submission based on any comments made by the referee(s). The
final decision will be notified to the author by email.
10. Revisions
The author is allowed to revise only the first draft of the full paper. However, as a matter of principle, any major revisions oradditions even to the first draft are not acceptable.
11. Publication(1) The Bulletin is published twice every year (end of September and end of March). The first volume will be published on
September 30, 2015.
(2) The Bulletin is published in PDF form on the website of the Center for Asian Legal Exchange.

130

Nagoya University Asian Law Bulletin – Instructions to Authors
July 1, 2015
Editorial Board

1.

The articles must be written either in Japanese or English. In case other languages, characters or phonetic symbols need to be
used, the author is advised to consult with the editorial board in advance.

2.

In principle, the scripts to be published are written in horizontal alignment.

3.

A research article must be of about 20,000 characters in Japanese or about 8,000 words in English, whereas other types ofarticles (such as a research note or book review, etc.) shall be of about 10,000 characters in Japanese or about 4,000 words in
English. These lengths are inclusive of graphics, footnotes and bibliography. Numbers written in half-width alphanumeric form
will be counted as 0.5 character or word.

4.

The title of the paper, the full name and affiliation of the author should be written on the first page of the submission. The text
should start from the second page.

5.

Heading and subheadings are expected to adopt the following orders:
Chapter – I, II, III, …
Section – 1, 2, 3, …
Paragraph – (1), (2), (3), …
Clause – (a), (b), (c), …

6.

The paper should be in principle written in Microsoft Word. In case of different software being used, the author must consult
with the editorial board in advance.

7.

The page layout of the article must conform with the following details:(1) Paper size: A4(2) Margins: 35mm (top) and 30mm (bottom, left and right)(3) Number of characters and lines: (For Japanese) horizontally 40 characters on each line and vertically 35 lines; (For English) 32
lines.
(4) Word size: 10.5 pt (Japanese); 12 pt (English).
(5) Word font: MS Mincho (Japanese); Times New Roman (English).

8.

Notes should be set as follows:(1) Footnotes at the end of the relevant pages, not endnotes.
(2) Word size: 8 pt (Japanese); 9 pt (English).
(3) Word font: Consistent with the main text.

9.

Authors should feel free to prepare the bibliography following the style which they are familiar with. However, the editorial
board reserves the right to do adjustments as may be necessary in editing.

10.

Graphics, pictures or tables should be submitted in a separate file. Captions for these graphics, pictures or tables should beproperly numbered with specific indication of the place to which they are expected to belong in the final published version.

11.

Authors are required to submit a 300-word abstract in English, in case the submission is a research article or a research note.

131

～ 編集後記 ～この度、第 5 号が完成いたしました。第 4 号に引き続き、今回もかなり期間を空けての発刊となってしま
い、深くお詫び申し上げます。
今号は、法政国際教育協力研究センター（CALE）も加盟しているシンガポール国立大学アジア法研究所（ASLI）ネットワークの年次総会（2019 年 6 月開催）において、CALE が企画したパネル「アジアのポスト権威主義国の民主化プロセスにおける違憲審査機関の役割の比較研究」での報告がベースとなった論文を特集として掲載しました。名古屋大学は、1990 年代後半からアジアの体制移行国より留学生を受け入れ、法整備支援事業に貢献してきました。パネル報告者の多くは、本学で学位を取得され、現在母国や日本の大学で研究者として活躍されています。かつての CALE の活動は、「支援」という側面が大きかったですが、20 年余りの活動を経て、名古屋大学を巣立った優秀な人材もメンバーに加わった「共同研究」の段階に入っております。今号の特集はこうした CALE の活動の新しい段階たる「共同研究」を象徴する成果でもあると考えております。
私は、2019 年 4 月に CALE のセンター長に就任しましたが、就任後、カンボジア、ベトナム、ウズベキス
タンなどを訪問する機会がありました。母国へ帰国した留学生が、政府機関、大学、企業など様々な分
野で活躍しているのを目の当たりにして、非常にうれしく思うとともに、CALE が継続して果たすべき役割の大きさを改めて実感いたしました。
CALE と CJL（日本法教育研究センター）の諸活動で培ったアジア法に関する研究成果の蓄積やそれにより構築された法律専門家の人的なネットワークが、私たちの大きな財産です。名古屋大学の修了生を中心とするアジア各国の専門家には、日本法に通じた学識ある法律専門家として、これまで以上にCALE の研究プロジェクトに参加していただくことに努めています。本誌は、これらの若い皆さんの研究の発信の場としても活用できればと願っております。引き続き、皆様からのご指導を賜りますよう、よろしくお願い申し上げます。

ALB 編集委員長
藤本亮（名古屋大学法政国際教育協力研究センター長）

132

Nagoya University Asian Law Bulletin
編集委員会

第5号

藤本 亮（委員長）／松尾 陽／佐藤 史人／イスマトフ アジズ／牧野 絵美

編集補助

魏 吉源

表紙デザイン 傘谷 祐之
発行

名古屋大学法政国際教育協力研究センター（CALE）〒464-8601 名古屋市千種区不老町
電話：+81(0)52-789-2325

Fax：+81(0)52-789-4902

Email：cale-publication@law.nagoya-u.ac.jp
URL : http://cale.law.nagoya-u.ac.jp
発行日2020 年 3 月 31 日

ISSN

2188 – 1952

本誌はオンラインジャーナルです。http://cale.law.nagoya-u.ac.jp/publication/alb.html にてダウンロード可能です。

名古屋大学法政国際教育協力研究セ

Nagoya University

Asian Law Bulletin

Center for Asian Legal Exchange